SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT
(UNDER SECTION 14(D)(1) OR 13(E)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934)
BANKATLANTIC BANCORP, INC.
(NAME OF SUBJECT COMPANY)
BANKATLANTIC BANCORP, INC., (ISSUER)
(NAME OF FILING PERSONS)
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
(TITLE OF CLASS OF SECURITIES)
065908AC9
(CUSIP NUMBER OF CLASS OF SECURITIES)
ALAN B. LEVAN
CHIEF EXECUTIVE OFFICER
BANKATLANTIC BANCORP, INC.
1750 EAST SUNRISE BOULEVARD
FORT LAUDERDALE, FLORIDA 33304
(954) 760-5000
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES AND
COMMUNICATIONS ON BEHALF OF FILING PERSONS)
PLEASE SEND COPIES OF ALL COMMUNICATIONS TO:
ALISON W. MILLER, ESQ.
STEARNS WEAVER MILLER WEISSLER
ALHADEFF & SITTERSON, P.A.
150 WEST FLAGLER STREET, SUITE 2400
MIAMI, FLORIDA 33130
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CALCULATION OF FILING FEE
TRANSACTION VALUATION(1) AMOUNT OF FILING FEE(2)
------------------------ -----------------------
$18,750,000 $3,750
- ----------------
(1) For purposes of calculating the filing fee pursuant to Rule 0-11of the
Securites Exchange Act of 1934, the market value of the 5.625% Convertible
Subordinated Debentures due 2007 proposed to be acquired is based on the
amount of cash to be paid for such securities.
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[ ] Check box if any part of the fee is offset as provided in Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration number, or the Form or
Schedule and the date of its filing.
Amount Previously Paid: Filing Party:
Form or Registration No.: Date Filed:
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ] third-party tender offer subject to Rule 14d-1.
[X] issuer tender offer subject to Rule 13e-4.
[ ] going-private transaction subject to Rule 13e-3.
[ ] amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
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INTRODUCTORY STATEMENT
This Issuer Tender Offer Statement on Schedule TO (the "Statement") is
being filed with the Securities and Exchange Commission by BankAtlantic
Bancorp, Inc., a Florida corporation (the "Company"), in connection with a
tender offer (the "Tender Offer") by the Company for up to $25 million
aggregate principal amount of its 5.625% Convertible Subordinated Debentures
due 2007 (the "Debentures"). Copies of the Offer to Purchase and Letter of
Transmittal are attached hereto as Exhibits (a)(1) and (a)(2), respectively.
Pursuant to General Instruction F to Schedule TO, information contained in the
Offer to Purchase is hereby incorporated by reference in the answers to items
of this Statement.
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ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Offer to Purchase under the caption "Summary Term
Sheet" is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION
(a) The name of the Company is BankAtlantic Bancorp, Inc., which is the issuer of the
Debentures subject to the Tender Offer. The Company's principal executive offices are
located at 1750 East Sunrise Boulevard, Fort Lauderdale, Florida 33304. The telephone
number for the Company is (954) 760-5000. Reference is made to the information set
forth in the Offer to Purchase under the caption "The Company," which information is
incorporated herein by reference.
(b) The securites which are the subject of the Tender Offer are the 5.625% Convertible
Subordinated Debentures of the Company. The Company is offering to purchase up to
$25 million of the $100 million aggregate principal amount of Debentures currently
outstanding for a cash purchase price of $750 per $1,000 principal amount, plus accrued
and unpaid interest from December 1, 1999 up to, but not including, the date of
payment. Reference is made to the information set forth on the cover page of the Offer
to Purchase and in the Offer to Purchase under the caption "The Debentures," which
information is incorporated herein by reference.
(c) The Debentures are currently listed for quotation on the Nasdaq Small Cap Market
("NASDAQ") under the symbol "BANCH." Reference is made to the information set
forth in the Offer to Purchase under the captions "The Debentures" and "Market and
Trading Information," which information is incorporated herein by reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(d) The Company is the only filing person. The information set forth in response to Item
2(a) of this Statement is incorporated herein by reference.
ITEM 4. TERMS OF THE TRANSACTION.
(a)(1)(i)-(ii) The information set forth in the Offer to Purchase on the cover and under the caption
"The Tender Offer--Principal Terms of the Tender Offer" is incorporated herein by
reference.
(iii) The information set forth in the Offer to Purchase on the cover and under the caption
"The Tender Offer--Expiration Date; Extension; Termination; Amendments" is
incorporated herein by reference.
(iv) Not applicable.
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(v) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Expiration Date; Extension; Termination; Amendments" is incorporated herein
by reference.
(vi) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Withdrawal Rights" is incorporated herein by reference.
(vii) The information set forth in the Offer to Purchase under the captions "The Tender
Offer--Procedures for Tendering Debentures" and "The Tender Offer--Withdrawal
Rights" are incorporated herein by reference.
(viii) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Acceptance of Debentures for Purchase; Payment for Debentures; Maximum
Tender Amount and Pro Rata Acceptance" is incorporated herein by reference.
(ix) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Acceptance of Debentures for Purchase; Payment for Debentures; Maximum
Tender Amount and Pro Rata Acceptance" is incorporated herein by reference.
(x) The information set forth in the Offer to Purchase under the caption "Certain Federal
Income Tax Consequences" is incorporated herein by reference.
(xi) Not applicable.
(a)(2) Not applicable.
(b) To the best knowledge of the Company, no Debentures are to be purchased from any
officer, director or affiliate of the Company.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS
(e) Not applicable.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Background and Purpose of the Tender Offer" is incorporated herein by
reference.
(b) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Background and Purpose of the Tender Offer" is incorporated herein by
reference.
(c)(1) The information set forth in the Offer to Purchase under the caption "Recently
Announced Transaction" is incorporated herein by reference.
(2) Not applicable.
(3) The information set forth in the Offer to Purchase under the captions "Risk Factors--
Substantial Leverage," "Source and Amount of Funds" and "Recently Announced
Transaction" is incorporated herein by reference.
(4) Not applicable.
(5) Not applicable.
(6) The information set forth in the Offer to Purchase under the caption "Recently
Announced Transaction" is incorporated herein by reference.
(7) Not applicable.
(8) Not applicable.
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(9) Not applicable.
(10) The information set forth in the Offer to Purchase under the caption "Recently
Announced Transaction" is incorporated herein by reference.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) The information set forth in the Offer to Purchase under the caption "Source and
Amount of Funds" is incorporated herein by reference.
(b) The information set forth in the Offer to Purchase under the caption "Source and
Amount of Funds" is incorporated herein by reference.
(d)(1)-(2) The information set forth in the Offer to Purchase under the caption "The Tender
Offer--Source and Amount of Funds" is incorporated herein by reference.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
(a) Not applicable.
(b) Not applicable.
ITEM 9. PERSONS/ASSETS RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) The information set forth in the Offer to Purchase under the captions "Co-Dealer
Managers" and "Information Agent" is incorporated herein by reference.
ITEM 10. FINANCIAL STATEMENTS.
The information set forth in the Offer to Purchase under the captions "Selected
Consolidated Historical and Pro Forma Financial Data of the Company and
Subsidiaries" is incorporated herein by reference. Further, the financial statements
contained in the Company's Annual Report on Form 10-K for the year ended
December 31, 1998, filed with the SEC on March 26, 1999, and the Company's
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999
and September 30, 1999, filed with the SEC on May 12, 1999, August 12, 1999 and
November 15, 1999, respectively, which are enumerated under the caption
"Incorporation of Information by Reference" are incorporated herein by reference.
ITEM 11. ADDITIONAL INFORMATION.
(a)(1) The information set forth in the Offer to Purchase under the caption "Co-Dealer
Managers" is incorporated herein by reference.
(2) Not applicable.
(3) Not applicable.
(4) Not applicable.
(5) Not applicable.
(b) The information set forth in the Offer to Purchase and the Letter of Transmittal, copies
of which are attached hereto as Exhibits (a)(1) and (a)(2), respectively, is incorporated
herein by reference.
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ITEM 12. EXHIBITS.
(a)(1) Offer to Purchase dated January 28, 2000.
(2) Form of Letter of Transmittal.
(3) Notice of Guaranteed Delivery.
(4) Form of Letter to Holders of Debentures.
(5) Form of Letter to Broker, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(6) Form of Letter to Clients.
(7) Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9.
(8) Press Release, dated January 28, 2000.
(b) Indenture with respect to the Company's Subordinated Investment Notes (incorporated
by reference to Exhibit 4 to the Company's Registration Statement on Form S-3, filed
with the Securities and Exchange Commission on December 20, 1999).
(d) Not applicable.
(g) Not applicable.
(h) Not applicable.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3
Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this Statement is true, complete and correct.
BANKATLANTIC BANKCORP, INC.
/s/ ALAN B. LEVAN
----------------------------------------
Name: Alan B. Levan
Title: Chief Executive Officer
Dated: January 28, 2000
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INDEX TO EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
- ------------- ---------------------------------------------------------------------------------------
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(a)(1) Offer to Purchase dated January 28, 2000.
(2) Form of Letter of Transmittal.
(3) Notice of Guaranteed Delivery.
(4) Form of Letter to Holders of Debentures.
(5) Form of Letter to Broker, Dealers, Commercial Banks, Trust Companies and Other
Nominees.
(6) Form of Letter to Clients.
(7) Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9.
(8) Press Release, dated January 28, 2000.
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OFFER TO PURCHASE FOR CASH
UP TO $25,000,000
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
AT
$750 PER $1,000 PRINCIPAL AMOUNT
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
TENDER OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY 29,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF DEBENTURES (EACH, A
"HOLDER" AND COLLECTIVELY, THE "HOLDERS") MUST TENDER THEIR DEBENTURES ON OR
PRIOR TO THE EXPIRATION DATE IN ORDER TO RECEIVE THE TENDER OFFER
CONSIDERATION (AS DEFINED BELOW). TENDERED DEBENTURES MAY BE WITHDRAWN AT ANY
TIME ON OR PRIOR TO THE EXPIRATION DATE.
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"), upon
the terms and subject to the conditions set forth in this Offer to Purchase
(the "Offer to Purchase") and in the accompanying Letter of Transmittal (the
"Letter of Transmittal") hereby offers to purchase (the "Tender Offer") up to
$25 million aggregate principal amount of its 5.625% Convertible Subordinated
Debentures due 2007 (each, a "Debenture" and collectively, the "Debentures")
for a cash purchase price of $750 per $1,000 principal amount of Debentures,
plus accrued and unpaid interest from December 1, 1999 up to, but not
including, the date of payment (the "Tender Offer Consideration").
The Debentures are listed on the Nasdaq Small Cap Market ("NASDAQ") under
the symbol "BANCH." The last reported sale price of the Debentures on NASDAQ on
January 27, 2000 was $650 per $1,000 principal amount. The Debentures are
convertible into shares of Class A Common Stock of the Company (the "Class A
Common Stock") at a conversion price of $11.25 per share which represents a
conversion rate of 88.89 shares of Class A Common Stock per $1,000 principal
amount. The Class A Common Stock is traded on the New York Stock Exchange
("NYSE") under the symbol "BBX." The closing price of the Class A Common Stock
on the NYSE on January 27, 2000 was $5.0625 per share.
---------------
SEE "RISK FACTORS" AND "CERTAIN FEDERAL INCOME TAX CONSEQUENCES" FOR
DISCUSSIONS OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY INVESTORS IN
EVALUATING THE TENDER OFFER.
---------------
Unless the Tender Offer is terminated or amended, the Company's obligation
to accept for purchase and to pay for Debentures validly tendered pursuant to
the Tender Offer is conditioned upon (i) the availability of sufficient funds
to the Company to purchase Debentures validly tendered and (ii) satisfaction
of the General Conditions (as hereinafter defined). Unless the Tender Offer is
terminated, if all of the conditions of the Tender Offer are satisfied or
waived, Holders of Debentures who validly tender their Debentures prior to 5:00
p.m., New York City time, on February 29, 2000, unless extended, will receive
the Tender Offer Consideration. The Tender Offer is not conditioned upon there
being a minimum principal amount of Debentures tendered.
The Company will accept for purchase up to $25 million aggregate principal
amount of the Debentures. If Debentures having an aggregate principal amount in
excess of $25 million are tendered and not withdrawn, the Company will purchase
$25 million aggregate principal amount, pro rata in an amount per Holder equal
to (i) a fraction the numerator of which is such Holder's total principal
amount of all Debentures tendered and the denominator of which is the total
principal amount of Debentures tendered, multiplied by (ii) $25 million ("Pro
Rata Acceptance").
---------------
Any questions or requests for assistance may be directed to Ryan, Beck &
Co., Inc. or Friedman, Billings, Ramsey & Co., Inc., which are acting as
co-dealer managers for the Tender Offer (each a "Co-Dealer Manager' and
together, the "Co-Dealer Managers") at the addresses and telephone numbers set
forth on the back cover of this Offer to Purchase. Requests for copies of the
Tender Offer materials should be directed to Georgeson Shareholder
Communications Inc., which is acting as information agent for the Tender Offer
(the "Information Agent"), at the address and telephone number set forth on the
back cover of this Offer to Purchase or to a Holder's broker, dealer,
commercial bank or trust company. None of the Company, the Co-Dealer Managers,
the Information Agent, the Trustee (as defined) or the Depositary (as defined)
makes any recommendation as to whether or not Holders should tender their
Debentures. Holders must make their own decision as to whether to tender
Debentures pursuant to the Tender Offer and, if so, the principal amount of
Debentures to tender.
---------------
THE CO-DEALER MANAGERS FOR THE TENDER OFFER ARE:
RYAN, BECK & CO. FRIEDMAN, BILLINGS, RAMSEY
JANUARY 28, 2000
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SUMMARY TERM SHEET
The following is a brief summary of the material terms of the Tender
Offer. You should review all of the information in this Offer to Purchase
before deciding whether to participate in the Tender Offer.
Securities Tendered For:... 5.625% Convertible Subordinated Debentures due
2007. We are offering to purchase up to $25
million aggregate principal amount of outstanding
Debentures.
Expiration Date:........... The Tender Offer will expire at 5:00 p.m., New
York City time, on February 29, 2000 unless we
extend this date. See "The Tender
Offer--Expiration Date; Extension; Termination;
Amendment."
Tender Offer
Consideration:............. We are offering to purchase Debentures at a price
of $750 per $1,000 principal amount, plus accrued
and unpaid interest from December 1, 1999. See
"The Tender Offer--Principal Terms of the Tender
Offer."
How to Tender:............. In order to validly tender Debentures in the
Tender Offer, you must tender the Debentures
before the Expiration Date. The procedure you must
follow will depend on whether you are the record
holder or a beneficial owner.
/bullet/ If you are the record holder, deliver a
Letter of Transmittal or an Agent's Message
with your Debentures to the Depositary and any
other documents required by the instructions in
the Letter of Transmittal.
/bullet/ If you are a beneficial owner of
Debentures held of record by someone else, you
must instruct the record holder to tender your
Debentures on your behalf.
See "The Tender Offer--Procedures for Tendering
Debentures."
Payment For Debentures;
Pro Rata Acceptance:...... The Company will pay for validly tendered
Debentures promptly after the Expiration Date. If
more than $25 million of Debentures are tendered,
the Company will purchase from you an amount of
Debentures based on the proportion of the
Debentures you tendered to all Debentures
tendered. See "The Tender Offer--Acceptance of
Debentures for Purchase; Payment for Debentures;
Maximum Tender Amount and Pro Rata Acceptance."
Withdrawal of Tenders:..... You may withdraw your tender of Debentures on or
prior to the Expiration Date:
/bullet/ by following the procedures described
under "The Tender Offer--Withdrawal of Tenders"
are satisfied, or
/bullet/ if the Tender Offer is terminated
without any Debentures being purchased.
See "The Tender Offer--Withdrawal of Tenders."
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Conditions:................ The Tender Offer is conditioned upon:
/bullet/ the availability of sufficient funds to
enable us to purchase Debentures validly
tendered, and
/bullet/ the satisfaction of other general
conditions described in the section "The Tender
Offer--Conditions of the Tender Offer."
Termination and
Amendment: We have the right to:
/bullet/ terminate the Tender Offer,
/bullet/ waive any unsatisfied conditions,
/bullet/ extend the Expiration Date, or
/bullet/ amend any terms of the Tender Offer.
See "The Tender Offer--Expiration Date;
Extension; Termination; Amendment."
Guaranteed Delivery:....... If you:
/bullet/ desire to tender your Debentures but
cannot comply with the required procedures on a
timely basis, or
/bullet/ your Debentures are not immediately
available,
you may tender Debentures by following the
guaranteed delivery procedures described in the
section "The Tender Offer--Procedures for
Tendering Debentures--Guaranteed Delivery" and in
the Letter of Transmittal.
Risk Factors:.............. You should consider the discussion under "Risk
Factors" in deciding whether to tender your
Debentures.
Brokerage Commission:...... You will not be required to pay any commission
in tendering your Debentures.
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TABLE OF CONTENTS
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SECTION PAGE
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IMPORTANT INFORMATION .................................... 1
AVAILABLE INFORMATION .................................... 2
INCORPORATION OF INFORMATION BY REFERENCE ................ 3
FORWARD-LOOKING STATEMENTS ............................... 4
SUMMARY .................................................. 5
The Company ............................................ 5
Background and Purpose of the Tender Offer ............. 5
The Tender Offer ....................................... 6
RISK FACTORS ............................................. 9
THE COMPANY .............................................. 10
SOURCE AND AMOUNT OF FUNDS ............................... 11
RECENTLY ANNOUNCED TRANSACTION ........................... 11
RECENT DEVELOPMENTS ...................................... 12
THE DEBENTURES ........................................... 14
MARKET AND TRADING INFORMATION ........................... 15
SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA
FINANCIAL DATA OF THE COMPANY AND SUBSIDIARIES .......... 17
BACKGROUND AND PURPOSE OF THE TENDER OFFER ............... 21
THE TENDER OFFER ......................................... 21
CERTAIN FEDERAL INCOME TAX CONSEQUENCES .................. 29
CO-DEALER MANAGERS ....................................... 30
DEPOSITARY ............................................... 30
INFORMATION AGENT ........................................ 30
FEES AND EXPENSES ........................................ 31
INDEMNIFICATION .......................................... 31
MISCELLANEOUS ............................................ 31
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Subject to applicable securities laws and the terms set forth in this
Offer to Purchase, the Company reserves the right to (i) terminate the Tender
Offer, (ii) waive any and all unsatisfied conditions to the Tender Offer, (iii)
extend the Expiration Date of the Tender Offer, or (iv) otherwise amend the
Tender Offer in any respect. Any such waiver, extension or amendment may be
made by press release or such other means of announcement as the Company deems
appropriate subject to compliance with applicable laws.
IMPORTANT INFORMATION
THIS OFFER TO PURCHASE AND THE ACCOMPANYING LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION WHICH SHOULD BE READ BEFORE ANY DECISION IS MADE WITH
RESPECT TO THE TENDER OFFER.
In order to validly tender Debentures in the Tender Offer, a Holder must,
on or prior to the Expiration Date, deliver to U.S. Bank Trust National
Association (the "Depositary") at the address set forth on the back cover of
this Offer to Purchase a properly completed and duly executed Letter of
Transmittal (or manually signed facsimile thereof) or an Agent's Message (as
hereinafter defined), and any other documents required by the instructions to
such Letter of Transmittal, together with the Debentures (or such Debentures
must be transferred pursuant to the procedures for book-entry transfer
described therein and a confirmation of such book-entry transfer, including an
Agent's Message, must be received by the Depositary, in either case prior to
the Expiration Date). IF A HOLDER DOES NOT DELIVER SUCH DOCUMENTS ON OR PRIOR
TO THE EXPIRATION DATE, THE HOLDER WILL NOT BE ELIGIBLE TO RECEIVE THE TENDER
OFFER CONSIDERATION.
Only (i) those persons in whose name Debentures are registered in the
registry maintained by the Trustee under the Indenture pursuant to which the
Debentures were issued or (ii) persons, such as brokers, dealers, commercial
banks, trust companies and other nominees, who are participants in the
Depository Trust Company (the "DTC" and, each participant, a "DTC Participant")
(or a substitute book-entry transfer facility) and whose names appear on a
security listing as owners of the Debentures, will be eligible to tender
Debentures. Any beneficial owner whose Debentures are registered in the name of
a broker, dealer, commercial bank, trust company or other nominee and who
wishes to tender Debentures should contact promptly such registered Holder. See
"The Tender Offer--Procedures for Tendering Debentures--Proper Tender of
Debentures" and the accompanying Letter of Transmittal.
The Depositary and DTC have confirmed that the Tender Offer is eligible
for the DTC Automated Tender Offer Program ("ATOP"). Accordingly, DTC
Participants may electronically transmit their acceptance of the Tender Offer
by causing DTC to transfer Debentures to the Depositary in accordance with
DTC's ATOP procedures for transfer. DTC will then send an Agent's Message to
the Depositary for its acceptance. The Depositary will establish an account
with respect to the Debentures at DTC for purposes of the Tender Offer, and any
financial institution that is a participant in DTC's system may make book-entry
delivery of the Debentures by causing DTC to transfer such Debentures into the
Depositary's account at DTC in accordance with DTC's procedure for such
transfer. Although tenders of Debentures may be effected through book-entry
transfer at DTC, a properly completed and duly executed Letter of Transmittal
(or a manually signed facsimile thereof) with any required signature guarantees
or an Agent's Message in connection with a book-entry transfer, must, in any
case, be transmitted to and received by the Depositary at the address set forth
on the back cover of this Offer to Purchase on or prior to the Expiration Date
or the Holder must comply with the guaranteed delivery procedures described
herein. See "The Tender Offer--Procedures for Tendering Debentures--Debentures
Held Through DTC."
The method of delivery of Debentures and Letters of Transmittal, any
required signature guarantees and all other required documents, including
delivery through DTC and any acceptance of an Agent's Message transmitted
through ATOP, is at the election and risk of the person tendering
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Debentures and delivering the Letter of Transmittal and, except as otherwise
provided in the Letter of Transmittal, delivery will be deemed made only when
actually received by the Depositary. If delivery is by mail, it is suggested
that the Holder use properly insured, registered mail with return receipt
requested, and that the mailing be made sufficiently in advance of the
Expiration Date to permit delivery to the Depositary on or prior to such date.
Tendering Holders will not be obligated to pay any fees to the Co-Dealer
Managers, the Information Agent or the Depositary.
This Offer to Purchase does not constitute an offer to any person in any
jurisdiction in which such offer would be unlawful, and the Tender Offer is not
made to, and tenders will not be accepted from, Holders of Debentures in states
in which the Tender Offer or acceptance thereof would constitute a violation of
the securities or Blue Sky Laws of such jurisdiction. In accordance with
various state securities laws applicable to the Tender Offer which require the
Tender Offer to be made to the public by a licensed broker or dealer, the
Tender Offer is hereby made to the Holders of Debentures residing in each such
state by the Co-Dealer Managers on behalf of the Company. No person has been
authorized to make any recommendation on behalf of the Company as to whether
the Holder should tender Debentures pursuant to the Tender Offer. No person has
been authorized to give any information or to make any representation in
connection therewith, other than those contained herein or in the accompanying
Letter of Transmittal. If made or given, such recommendation or any such
information or representation must not be relied upon as having been authorized
by the Company.
Although it has no obligation to do so, the Company reserves the right in
the future to seek to acquire Debentures not tendered in the Tender Offer by
means of open market purchases, privately negotiated acquisitions, subsequent
exchange or tender offers, redemptions or otherwise, at prices or on terms
which may be higher or lower or more or less favorable than those in the Tender
Offer.
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 documents and information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other documents and information may be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the regional offices of the Commission located at 7 World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, Suite 1400, 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be
obtained from the Public Reference Section of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission
also maintains a Web Site located at http://www.sec.gov that contains reports,
proxy and the aforementioned statements and other information regarding
registrants that have filed electronically with the Commission, including the
Company. The Company's Class A Common Stock is listed and traded on the NYSE
and such reports, proxy statements and other documents and information
concerning the Company are also available for inspection at the offices of the
NYSE, 20 Broad Street, New York, New York 10005. Copies of the Indenture (as
defined) pursuant to which the Debentures were issued are also available from
the Company upon request. Requests for such copies should be directed to:
Corporate Communications
BankAtlantic Bancorp
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
(954) 760-5402
This Offer to Purchase constitutes a part of a Tender Offer Statement on
Schedule TO (the "Schedule TO") filed with the Commission by the Company
pursuant to Section 13(e) of the Exchange Act and the rules and regulations
promulgated thereunder.
2
<PAGE>
INCORPORATION OF INFORMATION BY REFERENCE
The following documents of the Company have been filed with the Commission
and are incorporated herein by reference:
(i) Schedule TO and all accompanying exhibits,
(ii) the Company's Annual Report on Form 10-K for the year ended December
31, 1998, filed with the SEC on March 26, 1999, including the Company's
consolidated financial statements contained under Item 8 thereto,
(iii) the Company's Amendment to Annual Report on Form 10-K/A for the year
ended December 31, 1998, filed with the SEC on April 30, 1999,
(iv) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999, filed with the SEC on
May 12, 1999, August 12, 1999 and November 15, 1999, respectively,
including the Company's unaudited consolidated financial statements
contained therein, and
(v) the Company's Current Report on Form 8-K dated January 13, 2000, filed
with the SEC on January 25, 2000.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date hereof and prior to the Expiration
Date shall be deemed to be incorporated by reference into this Offer to
Purchase and to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Offer to Purchase to the extent that a statement contained herein or in
any subsequently filed document which also is or is deemed to be 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 this Offer to Purchase. The Company will
provide without charge to each person, including any beneficial owner to whom
this Offer to Purchase has been delivered, upon written or oral request of such
person, a copy of any and all of the documents referred to above that have been
or may be incorporated by reference herein other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference
herein). Requests for such copies should be directed to:
Corporate Communications
BankAtlantic Bancorp
1750 East Sunrise Boulevard
Fort Lauderdale, Florida 33304
(954) 760-5402
Attn: Corporate Secretary
3
<PAGE>
FORWARD-LOOKING STATEMENTS
The Company cautions readers that certain matters discussed in this Offer
to Purchase and in the documents incorporated include forward-looking
statements. Although not an exhaustive list, some of the forward-looking
statements can be identified by the use of words such as "anticipate",
"believe", "estimate", "plan", "intend", "expect", "will", "should", "seeks"
and similar expressions. Forward-looking statements are based largely on our
expectations and involve inherent risks and uncertainties. A number of
important factors could cause actual results to differ materially from those in
the forward-looking statements including, but not limited to:
<TABLE>
<S> <C>
(i) the potential adverse impact on the Company's operations and profitability of changes in
interest rates and increased leverage,
(ii) limitations on BankAtlantic's ability to pay dividends to the Company,
(iii) economic conditions, both generally and particularly in areas where we or our subsidiaries,
including BankAtlantic, operate or hold assets,
(iv) interest rate and credit risk associated with BankAtlantic's loan portfolio,
(v) BankAtlantic's recent rapid growth and increased operating expenses,
(vi) uncertainty relating to the realization of benefits from our restructuring initiatives and our
proposed corporate transaction which would result in the redemption of approximately 5.4
million shares of publicly held Class B Common Stock at a price of $6.00 per share,
(vii) our ability to manage new banking and non-banking initiatives and investments,
(viii) the highly competitive nature of our businesses, and
(ix) the availability of financing to fund the Tender Offer.
</TABLE>
Many of these factors are beyond our control and beyond the control of
BankAtlantic. The foregoing review of important factors should not be construed
as exhaustive and should be read in conjunction with other cautionary
statements that are included elsewhere in this Offer to Purchase. For a
discussion of additional factors that could cause actual results to differ,
please see the discussion under "Risk Factors" contained in this Offer to
Purchase and in other information contained in our publicly available SEC
filings.
4
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the more detailed
information appearing elsewhere or incorporated by reference in this Offer to
Purchase.
THE COMPANY
The Company is a Florida-based savings bank holding company which owns
BankAtlantic, a federally-chartered, federally-insured savings bank.
BankAtlantic, organized in 1952, provides traditional retail banking services
and a full range of commercial banking products and related financial services
through 68 branch offices located primarily in Miami-Dade, Broward,
Hillsborough and Palm Beach Counties in South Florida. BankAtlantic is
regulated and examined by the Office of Thrift Supervision and the FDIC.
While the Company's primary banking activities relate to the activities of
BankAtlantic, the Company's other activities include (i) providing investment
banking services, capital raising and advisory services to the financial
services industry through the Company's subsidiary, Ryan Beck & Co., Inc., one
of the Co-Dealer Managers of the Tender Offer, and (ii) engaging in real estate
development and investment activities through the Company's subsidiary,
BankAtlantic Development Corporation.
BACKGROUND AND PURPOSE OF THE TENDER OFFER
The Company is making this Tender Offer for the purpose of acquiring
Debentures at what the Board of Directors believes to be an attractive price to
the Company. Under the terms of the Tender Offer, if successful, the Company
will reacquire, and thereby extinguish, a portion of its indebtedness at a
discount to its principal amount and in an amount less than that which would be
payable upon redemption or at maturity.
The Tender Offer will also enable Holders who currently face limitations
in the trading market for their Debentures, an opportunity to liquidate their
investment. Due to a thinly-traded market for the Debentures, Holders do not
have the benefit of an active public market. The Tender Offer will provide
Holders an opportunity to sell all or a portion of their Debentures for cash
without the usual transaction costs associated with open market sales.
The total amount of funds required by the Company to pay the offered price
and any related fees and expenses will be approximately $19.25 million
(assuming that Debentures with an aggregate principal amount of at least $25
million are tendered and not withdrawn on the Expiration Date). The Company
expects to use a portion of the net proceeds of its current offering of its
Subordinated Investment Notes to purchase the Debentures in the Tender Offer.
See "Source and Amount of Funds" and "The Tender Offer--Conditions of the
Tender Offer."
5
<PAGE>
THE TENDER OFFER
Securities Tendered For.... 5.625% Convertible Subordinated Debentures due
2007.
Cusip No................... 065908AC9
Aggregate Principal
Amount Outstanding........ $100,000,000
Expiration Date............ The Tender Offer will expire at 5:00 p.m., New
York City time, on February 29, 2000 (unless
extended by the Company in its sole discretion or
earlier terminated). See "Tender Offer--Expiration
Date; Extension; Termination; Amendments."
Tender Offer
Consideration.............. The Company is offering, upon the terms and
subject to the conditions set forth in this Offer
to Purchase and the accompanying Letter of
Transmittal, to purchase up to $25 million
aggregate principal amount of outstanding
Debentures (the "Maximum Tender Amount") for a
cash purchase price of $750 per $1,000 principal
amount, plus accrued and unpaid interest from
December 1, 1999 up to, but not including, the
date of payment.
Payment For Debentures;
Pro Rata Acceptance....... Promptly after the Expiration Date, the Company
will, subject to the satisfaction or waiver of all
relevant conditions, accept for purchase, and pay
for, Debentures validly tendered and not withdrawn
under the Tender Offer on or prior to the
Expiration Date; provided, however, that if more
than the Maximum Tender Amount of Debentures has
been tendered, and the Company chooses not to
purchase all such Debentures, the Company will
purchase the Maximum Tender Amount on a Pro Rata
Acceptance Basis. See "Tender Offer--Acceptance of
Debentures for Purchase; Payment for Debentures;
Maximum Tender Amount and Pro Rata Acceptance."
Withdrawal of Tenders...... Tenders of Debentures may be withdrawn on or
prior to the Expiration Date. In order to be
effective, withdrawals of Debentures must comply
with the procedures described under "The Tender
Offer--Withdrawal of Tenders." Tenders of any
Debentures may also be withdrawn if the Tender
Offer is terminated without any such Debentures
being purchased or as otherwise provided in this
Offer to Purchase. In the event of any termination
of the Tender Offer, the Debentures tendered
pursuant to the Tender Offer will be returned
promptly to the tendering Holder. See "Tender
Offer--Withdrawal of Tenders."
Absence of
Appraisal Rights........... There are no appraisal or other similar statutory
rights available to Holders in connection with the
Tender Offer. See "Tender Offer--Absence of
Appraisal Rights."
6
<PAGE>
Conditions................. The Company's obligation to accept for purchase,
and to pay for, Debentures validly tendered and
not withdrawn pursuant to the Tender Offer is
conditioned upon (i) the availability of
sufficient funds to the Company to purchase
Debentures validly tendered and (ii) satisfaction
of the General Conditions. See "Tender
Offer--Conditions of the Tender Offer."
Amendment; Waiver.......... The Company reserves the right (i) to terminate
the Offer, (ii) to waive any and all unsatisfied
conditions, (iii) to extend the Expiration Date or
(iv) to otherwise alter the Offer in any respect.
If the Company makes a material change in the
terms of the Tender Offer or in the information
concerning the Tender Offer or if the Company
waives a material condition of the Tender Offer,
the Company will disseminate additional
information concerning such change or waiver and
will extend the Tender Offer, in each case to the
extent required by law. Any amendment applicable
to the Tender Offer will apply to all Debentures
tendered pursuant to the Tender Offer. See "Tender
Offer--Expiration Date; Extension; Termination;
Amendments."
How to Tender.............. In order to validly tender Debentures in the
Tender Offer, a Holder must, on or prior to the
Expiration Date, deliver to the Depositary at the
address set forth on the back cover of this Offer
to Purchase a properly completed and duly executed
Letter of Transmittal (or manually signed
facsimile thereof) or an Agent's Message, and any
other documents required by the instructions in
the Letter of Transmittal, together with such
Debentures or such Debentures must be transferred
pursuant to the procedures for book-entry transfer
described therein and a confirmation of such
book-entry transfer, including an Agent's Message,
must be received by the Depositary, in either case
on or prior to the Expiration Date. See "Tender
Offer--Procedures for Tendering Debentures."
Guaranteed Delivery........ A Holder who desires to tender Debentures and
who cannot comply with the procedures set forth
herein on a timely basis or whose Debentures are
not immediately available may tender such
Debentures by following the procedures for
guaranteed delivery set forth herein. See "The
Tender Offer--Procedures for Tendering
Debentures--Guaranteed Delivery" and the Letter of
Transmittal.
Special Procedures For
Beneficial Owners......... Any beneficial owner whose Debentures are
registered in the name of a broker, dealer,
commercial bank, trust company or other nominee
and who wishes to tender Debentures should contact
promptly such registered Holder. See "The Tender
Offer--Procedures for Tendering Debentures--Proper
Tender of Debentures" and the Letter of
Transmittal.
7
<PAGE>
Risk Factors............... Holders should consider the discussion under
"Risk Factors" in deciding whether to tender their
Debentures.
Brokerage Commissions...... No commissions are payable by Holders to the
Co-Dealer Managers, the Trustee, the Information
Agent, the Company or the Depositary.
Co-Dealer Managers......... The Company has retained Ryan, Beck & Co., Inc.
and Friedman, Billings, Ramsey & Co., Inc. to act
as the Co-Dealer Managers in connection with the
Tender Offer. In their capacity as the Co-Dealer
Managers, Ryan, Beck & Co. and Friedman, Billings,
Ramsey & Co. may contact Holders regarding the
Tender Offer and may request brokers, dealers and
other nominees to forward this Offer to Purchase
and related materials to beneficial owners of
Debentures. A Holder who desires to tender
Debentures and who cannot comply with the
procedures set forth herein on a timely basis or
whose Debentures are not immediately available may
tender such Debentures by following the procedures
for guaranteed delivery set forth herein. See
"Co-Dealer Managers."
Depositary................. The Depositary for the Tender Offer is U.S. Bank
Trust National Association. See "Depositary."
Information Agent.......... The Information Agent for the Tender Offer is
Georgeson Shareholder Communications Inc. Requests
for copies of the Tender Offer materials may be
made by calling the Information Agent at (800)
223-2064. See "Information Agent."
8
<PAGE>
RISK FACTORS
In deciding whether to participate in the Tender Offer, each Holder should
consider carefully, in addition to the other information contained or
incorporated by reference herein, the following:
MARKET AND TRADING INFORMATION
While the Debentures are currently listed for quotation on NASDAQ, the
trading market for the Debentures has been limited. Although the Company
expects the Debentures to continue to be listed for quotation on NASDAQ
following the completion of the Tender Offer, to the extent that Debentures are
tendered and accepted for payment in the Tender Offer, the trading market for
Debentures that remain outstanding may be more limited than the market that
currently exists. This might have an adverse affect on the liquidity of the
Debentures. An issue of securities with a smaller float may command a lower
price than would a comparable issue of securities with a greater float.
Accordingly, the market price for Debentures that are not tendered or not
purchased in the Tender Offer may be adversely affected to the extent that the
amount of the Debentures purchased pursuant to the Tender Offer reduces the
float. The reduced float also will tend to make the trading prices of the
Debentures that are not tendered or purchased more volatile. Accordingly, there
can be no assurance that the trading market for the Debentures after
consummation of the Tender Offer will not be even more limited than the trading
market before the Tender Offer.
PRO RATA ACCEPTANCE
The Company is seeking to purchase up to $25 million in aggregate
principal amount of Debentures. To the extent that the aggregate principal
amount of the Debentures tendered exceeds that amount, the Company will
purchase the tendered Debentures on a Pro Rata Acceptance basis. There can be
no assurance, therefore, that all of a tendering Holder's tendered Debentures
will be purchased by the Company pursuant to the Tender Offer.
CERTAIN BANKRUPTCY CONSIDERATIONS
Any payments made to Holders in consideration for their Debentures may
also be subject to challenge as a preference if such payments: (a) are made
within ninety (90) days of a bankruptcy filing by the Company (or within one
(1) year in the case of Holders who are determined to be insiders of the
Company); (b) are made when the Company is insolvent and (c) permit the Holders
to receive more than they otherwise might receive in a liquidation under
applicable bankruptcy laws. If such payments were deemed to be a preference,
the full amount of such payments could be recovered by the Company as a debtor
in possession or by the Company's trustee in bankruptcy, and the Holder would
be entitled to assert claims in respect of the Debentures against the Company
in its reorganization or bankruptcy case. The Company does not believe that it
is currently insolvent, will be insolvent after giving effect to the Tender
Offer or will be insolvent within one (1) year, although for purposes of the
preference laws described above, the Company would be presumed insolvent for
the ninety (90) days preceding a bankruptcy or reorganization case.
VOLATILITY OF CLASS A COMMON STOCK
The market price of the Class A Common Stock has fallen over the past
year. See "Market and Trading Information." In the future, the market price of
the Class A Common Stock into which the Debentures are convertible may be
affected by factors such as: (i) actual or anticipated fluctuations in the
Company's operating results, (ii) changes in interest rates, (iii) the
performance of BankAtlantic's loan portfolio, (iv) the success of new banking
and non-banking initiatives and investments, (v) conditions in the market for
financial institutions, and (vi) general market conditions. There can be no
assurance that the market price of the Class A Common Stock issuable upon
conversion of the Debentures will not significantly change in the future from
the price prevailing at the time of the Tender Offer.
9
<PAGE>
HOLDING COMPANY STRUCTURE
The Company is a holding company with no direct operations. The Company
conducts business through its subsidiaries and has no significant assets other
than the stock of its subsidiaries. The Company is significantly dependant on
dividends and distributions from its subsidiaries, especially BankAtlantic, to
meet its debt obligations. The Company's subsidiaries are separate and distinct
legal entities and have no obligation, contingent or otherwise, to make funds
available to the Company, whether in the form of loans, dividends or otherwise.
Further, BankAtlantic is, and the Company's other subsidiaries may from time to
time be, subject to regulatory or contractual constraints that restrict their
ability to pay dividends or otherwise make distributions to the Company.
SUBSTANTIAL LEVERAGE
At December 31, 1999, the Company had approximately $246.9 million of
indebtedness outstanding and approximately $235.9 million of stockholders'
equity. The Company has filed a Registration Statement with the Securities and
Exchange Commission relating to an offering of up to $150 million of Investment
Notes which are currently being offered for sale to the public. The Company
intends to finance the Tender Offer through the issuance of the Investment
Notes. While the terms of the Investment Notes will be determined from time to
time, it is anticipated that they will be short-term instruments and will bear
interest at significantly higher rates than the Debentures. The Investment
Notes will rank pari passu in right of payment with the Debentures. Further,
the Company has announced that it intends to effect a corporate transaction
which would result in the redemption of its publicly-held Class B Common Stock
at a price of $6.00 per share. The effect of these contemplated transactions
would be to increase leverage and reduce the Company's equity to asset ratios.
See "Selected Historical and Pro Forma Financial Data of the Company and
Subsidiaries" for pro forma financial data relating to the effects on the
Company of the Tender Offer, the proposed corporate transaction and the sale of
the Investment Notes.
THE COMPANY
The Company is a Florida-based savings bank holding company which owns
BankAtlantic, a federally-chartered, federally-insured savings bank.
BankAtlantic, organized in 1952, provides traditional retail banking services
and a full range of commercial banking products and related financial services
through 68 branch offices located primarily in Miami-Dade, Broward,
Hillsborough and Palm Beach Counties in South Florida. BankAtlantic's
activities include: (i) attracting checking and savings deposits from the
public and general business customers, (ii) originating commercial real estate
and business loans, residential real estate loans and consumer loans, (iii)
purchasing wholesale residential loans from third parties and (iv) making other
permitted investments such as investments in mortgage-backed securities, tax
certificates and other investment securities. BankAtlantic is regulated and
examined by the Office of Thrift Supervision and the FDIC.
Although the Company's primary activities relate to the banking activities
of BankAtlantic, the Company's other activities include (i) providing
investment banking services, capital raising and advisory services to the
financial services industry through the Company's subsidiary, Ryan Beck & Co.,
and (ii) engaging in real estate development and investment activities through
the Company's subsidiary, BankAtlantic Development Corporation. Ryan Beck, an
investment bank whose activities include underwriting, distributing and trading
tax-exempt and financial institution securities, was acquired by the Company in
1998. BankAtlantic Development Corporation currently owns St. Lucie West
Holding Corp., a developer of a master planned residential, commercial and
industrial community in St. Lucie County, Florida. BankAtlantic Development
Corporation has several other investments in real estate development projects
in South Florida and, in December 1999, acquired Levitt Corporation, a
developer of single-family home communities, condominiums and rental apartment
complexes.
10
<PAGE>
SOURCE AND AMOUNT OF FUNDS
If the Maximum Tender Amount were tendered and purchased, the funds
required to pay the Tender Offer Consideration and related expenses would be
approximately $19.25 million.
The funds required to purchase validly tendered Debentures and to pay fees
and expenses are to be provided from the proceeds of the Company's offering of
Subordinated Investment Notes (the "Investment Notes"). The Company has filed a
Registration Statement with the Securities and Exchange Commission relating to
the offering of up to $150 million of Investment Notes which are currently
being offered for sale to the public. The Investment Notes will be offered from
time to time and the interest rate and maturity date will be determined at the
time of issuance. The Company expects that the interest rate on the Investment
Notes will be significantly higher than the interest rate on the Debentures.
The Company will pay simple interest on the Investment Notes, either monthly,
quarterly, semi-annually, annually or at maturity, at the election of the
Holder. The maturity is expected to be from one to five years. The term of the
Investment Notes will be automatically extended for a period equal to the
original term unless (i) we notify the holder at least seven days prior to the
maturity date that an extension will not be provided, (ii) the holder elects no
earlier than ninety and no later than sixty days prior to the maturity date to
have his or her Investment Notes repaid at maturity, or (iii) the Company has
elected to extend the maturity date for an additional year. In addition, the
Company may, at its discretion and on one occasion, elect to extend the
maturity date for an additional year.
The Investment Notes are unsecured obligations of the Company and are
subordinated and junior in right of payment to the existing and future senior
indebtedness of the Company. The Investment Notes will rank pari passu in right
of payment with the Debentures. The Company will not be required to contribute
funds to a separate fund to provide funds to repay the Investment Notes upon
maturity. The Company currently has no plans or arrangements to finance or
repay the Investment Notes nor are there any alternative finance arrangements
in the event the Investment Note offering is not successful.
RECENTLY ANNOUNCED TRANSACTION
The Company announced on January 13, 2000 that its Board of Directors has
approved a corporate transaction which would result in the redemption and
retirement of the approximately 5.4 million shares of Class B Common Stock held
by the public at a price of $6.00 per share (the "Transaction"). The Class A
Common Stock would continue to trade on the New York Stock Exchange after the
Transaction as the Company's sole publicly traded common stock.
The Company currently has two publicly traded classes of common stock. In
addition to the approximately 32.4 million shares of outstanding Class A Common
Stock, approximately 10.3 million shares of Class B Common Stock are traded on
the Nasdaq National Market. The Class B Common Stock represents 100% of the
voting rights of the Company. As a result of the transaction, BFC Financial
Corporation, which currently with its affiliates beneficially owns in excess of
50% of the Class B Common Stock, would be the sole holder of the Class B Common
Stock.
The Transaction is subject to the approval of the holders of the Company's
Class A Common Stock and Class B Common Stock, receipt of all required
regulatory approvals and obtaining financing for the Transaction on terms
satisfactory to the Company. It is currently anticipated that all outstanding
options to acquire Class B Common Stock will be terminated at an expected
pre-tax cost to the Company of approximately $4.6 million.
The Company also announced that upon consummation of the Transaction it
intends to explore alternatives for granting voting rights to holders of its
Class A Common Stock. BFC Financial Corporation has indicated to the Company
that it is amenable to the adoption of such a capital structure provided that
BFC's control position is not adversely affected. No assurance can be given
that such a transaction will be proposed or adopted and if so, in what form.
11
<PAGE>
RECENT DEVELOPMENTS
The Company recently announced net income for the year ended December 31,
1999 of $30.9 million, or diluted net earnings per share of $0.62 for its Class
A Common Stock and $0.60 for its Class B Common Stock, compared to a net loss
of ($8.0 million), or diluted net loss per share of ($0.20) for the Class A
Common Stock and ($0.18) for the Class B Common Stock, for the same period in
1998. For the quarter ended December 31, 1999, net income was $4.0 million, or
diluted net earnings per share of $0.09 for the Class A Common Stock and the
Class B Common Stock, compared to a net loss of ($10.1 million), or diluted net
loss per share of ($0.25) for the Class A Common Stock and ($0.22) for the
Class B Common Stock, for the 1998 fourth quarter.
The Company's income from continuing operations for the year ended
December 31, 1999 was $28.8 million, or diluted net earnings per share of $0.59
for the Class A Common Stock and $0.57 for the Class B Common Stock, compared
to net earnings of $10.2 million, or diluted net earnings per share of $0.25
for the Class A Common Stock and $0.23 for the Class B Common Stock, for the
same period in 1998. For the quarter ended December 31, 1999, income from
continuing operations was $3.1 million, or diluted net earnings per share of
$0.08 for the Class A Common Stock and $0.07 for the Class B Common Stock,
compared to a net loss of ($4.3 million), or diluted net loss per share of
($0.11) for the Class A Common Stock and ($0.09) for the Class B Common Stock,
for the same period in 1998.
Net interest income increased by $4.6 million to $29.3 million and by
$15.0 million to $117.3 million for the three and twelve months ended December
31, 1999, respectively. Non-interest income increased by $8.0 million to $25.4
million and by $43.1 million to $100.0 million for the three and twelve months
ended December 31, 1999, respectively.
Non-interest expenses were $38.6 million for the quarter ended December
31, 1999, compared to $37.4 million for the same period in 1998, and were
$139.7 million for the year ended December 31, 1999, compared to $120.7 million
for the year ended December 31, 1998. The provision for loan losses was $11.6
million and $30.7 million for the three months and year ended December 31,
1999, respectively, compared to $12.0 million and $21.8 million for the
corresponding periods in 1998, and the allowance for loan losses was increased
by $3.5 million and by $6.5 million for the three months and year ended
December 31, 1999, respectively, compared to September 30, 1999 and December
31, 1998.
Total assets at December 31, 1999 increased to $4.2 billion, an increase
of 10 percent compared to assets of $3.8 billion at December 31, 1998.
Stockholders' equity decreased to $235.9 million at December 31, 1999, compared
to $240.4 million at December 31, 1998.
12
<PAGE>
The Company also provided the following unaudited financial data:
<TABLE>
<CAPTION>
AT OR FOR THE AT OR FOR THE
THREE MONTHS ENDED YEARS ENDED
DECEMBER 31, DECEMBER 31,
------------------------------ -----------------------------
1999 1998 1999 1998
------------- -------------- ------------- -------------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C> <C> <C>
BALANCE SHEET DATA:
Total assets ..................................... $4,159,901 $ 3,788,975 $4,159,901 $3,788,975
Total stockholders' equity ....................... $ 235,886 $ 240,440 $ 235,886 $ 240,440
INCOME STATEMENT DATA:
Net interest income .............................. $ 29,306 $ 24,680 $ 117,266 $ 102,285
Provision for loan losses ........................ 11,602 11,977 30,658 21,788
Total non-interest income ........................ 25,467 17,527 100,008 56,880
Total non-interest expense ....................... 38,585 37,415 139,718 120,665
---------- ----------- ---------- -----------
Income (loss) from continuing operations ......... 3,102 (4,323) 28,792 10,186
Income (loss) from discontinued operations
net of taxes .................................... 903 (5,814) 2,077 (18,220)
---------- ----------- ---------- -----------
Net income (loss) ................................ $ 4,005 $ (10,137) $ 30,869 $ (8,034)
========== =========== ========== ===========
PER SHARE DATA:
CLASS A COMMON SHARES
Diluted earnings (loss) per share from
continuing operations ........................... $ 0.08 $ (0.11) $ 0.59 $ 0.25
Diluted earnings (loss) per share from
discontinued operations ......................... 0.01 (0.14) 0.03 (0.45)
---------- ----------- ---------- -----------
Diluted earnings (loss) per share ................ $ 0.09 $ (0.25) $ 0.62 $ (0.20)
========== =========== ========== ===========
Diluted weighted average number of
common and common equivalent shares
outstanding ..................................... 49,303,186 31,484,307 48,856,323 30,083,955
CLASS B COMMON SHARES
Diluted earnings (loss) per share from
continuing operations ........................... $ 0.07 $ (0.09) $ 0.57 $ 0.23
Diluted earnings (loss) per share from
discontinued operations ......................... 0.02 (0.13) 0.03 (0.41)
---------- ----------- ---------- -----------
Diluted earnings (loss) per share ................ $ 0.09 $ (0.22) $ 0.60 $ (0.18)
========== =========== ========== ===========
Diluted weighted average number of
common and common equivalent shares
outstanding ..................................... 10,785,746 10,360,757 10,995,037 11,517,960
Book value per common share ...................... $ 5.53 $ 5.63 $ 5.53 $ 5.63
========== =========== ========== ===========
</TABLE>
13
<PAGE>
THE DEBENTURES
The following summary of certain terms of the Debentures does not purport
to be complete and is qualified in its entirety by reference to the Indenture.
All capitalized terms used in this summary and not defined shall have the
meaning ascribed to them in the Indenture.
Debentures Outstanding..... $100 million aggregate principal amount at
December 31, 1999.
Conversion Rights.......... The Debentures are convertible, at the option of
the Holder, into shares of the Company's Class A
Common Stock at a conversion price of $11.25 per
share (representing a conversion rate of 88.89
shares per $1,000 in principal amount of
Debentures) (subject to adjustment under
anti-dilution provisions) at any time prior to
maturity, unless previously redeemed or otherwise
purchased by the Company. Upon conversion, no
payment of accrued interest will be paid (unless
converted debentures have been called for
redemption) and no fractional shares will be
issued. On January 27, 2000, the day prior to the
date of this Offer to Purchase, the closing price
of the Class A Common Stock was $5.0625 per share.
Subordination.............. The Debentures are subordinated and junior in
right of payment to all Senior Indebtedness (as
defined in the Indenture) of the Company. The
Debentures rank on a par with all subordinated
debt of the Company.
Unsecured Obligations...... The Debentures are not guaranteed or secured by
any lien on the Company's assets. The Debentures
do not have the benefit of a separate fund, such
as a sinking fund, for repayment of the Debentures
at maturity.
Redemption................. The Debentures are redeemable at the option of
the Company, in whole or in part, at any time on
or after December 1, 2000. The redemption price
payable for a redemption during the one-year
period commencing December 1, 2000 is 104% of the
principal amount, declining to 103% of the
principal amount for the one-year period
commencing December 1, 2001, declining to 102% of
the principal amount for the one-year period
commencing December 1, 2002, declining to 101% of
the principal amount for the one-year period
commencing December 1, 2003, and declining to
100% of the principal amount for any period after
December 1, 2004.
Book-Entry Delivery
and Form................... The Debentures were issued in the form of a
fully-registered Global Certificate (as defined in
the Indenture) to DTC, which is the depository for
the Global Certificate. The Global Certificate may
be transferred, in whole or in part, only to
another nominee of DTC or to a successor of DTC or
its nominee.
Events of Default.......... An event of default under the Indenture occurs
if the Company (i) fails to pay principal of or
premium on the Debentures at maturity or upon
redemption, (ii) fails to pay interest on any
Debentures on the specified interest payment date
and such
14
<PAGE>
failures continue for 30 days or more, (iii) fails
to comply with the provisions, covenants or other
agreements in the Indenture and (iv) becomes
bankrupt or insolvent or reorganizes.
Listing.................... The Debentures are listed on NASDAQ under the
Symbol "BANCH." The Class A Common Stock into
which the Debentures are convertible is listed and
traded on the NYSE under the symbol "BBX."
Indenture.................. The Indenture under which the Debentures were
issued is between the Company and U.S. Bank Trust
National Association (successor to First Trust
National Association), as Trustee, and was entered
into on November 26, 1997 (the "Indenture").
MARKET AND TRADING INFORMATION
THE DEBENTURES
The Debentures are currently listed on NASDAQ. The following table sets
forth, for the fiscal quarters indicated, the low and high closing prices for
the Debentures. Although the Company expects the Debentures to continue to be
listed on NASDAQ, to the extent that the Debentures are traded, prices of such
Debentures may fluctuate greatly depending on the trading volume and the
balance between buy and sell orders. In addition, quotations for securities
that are not widely traded, such as the Debentures, may differ from actual
trading prices and should be viewed as approximations. The Company believes
that the trading market for the Debentures remaining outstanding after the
Tender Offer will be more limited. The last reported sale price of the
Debentures on January 27, 2000 was $650 per $1,000 principal amount. See "Risk
Factors--Market and Trading Information."
<TABLE>
<CAPTION>
PRICE
--------------------
LOW HIGH
--------- --------
<S> <C> <C>
For the Year Ended December 31, 1997
Fourth Quarter (from November 20, 1997) .......... 1002 1/2 1080
For the Year Ended December 31, 1998
First Quarter .................................... 1072 1/2 1221 7/8
Second Quarter ................................... 1077 1/2 1212 1/2
Third Quarter .................................... 915 1090
Fourth Quarter ................................... 715 895
For the Year Ended December 31, 1999
First Quarter .................................... 770 870
Second Quarter ................................... 770 860
Third Quarter .................................... 770 856 1/4
Fourth Quarter ................................... 585 765
For the Year Ended December 31, 2000
First Quarter (through January 27, 2000) ......... 602 1/2 665
</TABLE>
15
<PAGE>
CLASS A COMMON STOCK
The Class A Common Stock into which the Debentures are convertible is
listed on the NYSE under the symbol "BBX." The following table sets forth the
high and low closing prices per share of Class A Common Stock as reported on
the NYSE for the fiscal quarters indicated. The last reported sale price of the
Class A Common Stock on January 27, 2000 was $5.0625 per share. See "Recently
Announced Transaction."
<TABLE>
<CAPTION>
PRICE
--------------------
LOW HIGH
--------- --------
<S> <C> <C>
For the Year Ended December 31, 1997
First Quarter .................................... 5 11/16 7 5/16
Second Quarter ................................... 6 3/8 7 13/16
Third Quarter .................................... 7 7/8 11 1/8
Fourth Quarter ................................... 9 1/8 11 3/8
For the Year Ended December 31, 1998
First Quarter .................................... 10 1/16 12 13/16
Second Quarter ................................... 9 3/4 12 1/2
Third Quarter .................................... 6 1/16 10 1/2
Fourth Quarter ................................... 4 5/16 6 31/32
For the Year Ended December 31, 1999
First Quarter .................................... 5 35/64 7 53/64
Second Quarter ................................... 5 63/64 7 29/64
Third Quarter .................................... 5 1/2 7 1/16
Fourth Quarter ................................... 3 3/4 6 1/16
For the Year Ended December 31, 2000
First Quarter (through January 27, 2000) ......... 3 15/16 5 1/16
</TABLE>
16
<PAGE>
SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA
FINANCIAL DATA OF THE COMPANY AND SUBSIDIARIES
The table below sets forth selected historical consolidated financial data
of the Company and consolidated financial data of the Company adjusted on a pro
forma basis for the effects of the Tender Offer, the Transaction (as defined
under "Recently Announced Transaction") and the use of proceeds from the sale
of the Investment Notes.
The consolidated historical financial information for the fiscal years
ended December 31, 1997 and December 31, 1998 is derived from the audited
consolidated financial statements of the Company for such periods or at such
dates. Such data at or for the nine months ended September 30, 1998 and
September 30, 1999 is derived from unaudited consolidated financial statements.
In management's opinion, the Company's unaudited consolidated financial
statements at or for the nine months ended September 30, 1998 and September 30,
1999 include all adjustments (consisting only of normal recurring adjustments
except that the September 30, 1998 valuation of mortgage servicing rights
included in discontinued operations resulted in a $15.0 million charge to
earnings whereas no valuation allowance was needed in prior periods) necessary
for a fair presentation of the results of operations and financial position for
the respective periods. The results of operations for the nine months ended
September 30, 1998 and September 30, 1999 are not necessarily indicative of the
results that may be expected for the entire year or any other interim period.
The following unaudited pro forma information for the fiscal year ended
December 31, 1998 and for the nine months ended September 30, 1999 have been
prepared to indicate what potential financial results would have occurred (i)
if the Company had completed the sale of $75 million of Investment Notes and
applied the net proceeds for the Tender Offer and (ii) if the Company had
completed the sale of Investment Notes, applied the net proceeds for the Tender
Offer and consummated the Transaction. It should be noted that the pro forma
information regarding the Tender Offer assumes that $25 million aggregate
principal amount of Debentures were purchased by the Company for a cash
purchase price of $750 per $1,000 principal amount of Debentures with an
assumed offering cost of $500,000.
The following pro forma information for the year ended December 31, 1998
and for the nine months ended September 30, 1999 is as if the Tender Offer and
the Transaction were consummated on January 1, 1998 and 1999, respectively. The
pro forma information is based upon available information and upon certain
assumptions that the Company believes are reasonable. The Company cannot
predict whether the consummation of the Transaction or the Tender Offer will
conform to the assumptions used in the preparation of the unaudited pro forma
information. The unaudited pro forma information is provided for informational
purposes only and does not purport to be indicative of the results that would
have been reported had such events actually occurred.
17
<PAGE>
SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA FINANCIAL DATA
OF BANKATLANTIC BANCORP, INC. AND SUBSIDIARIES
<TABLE>
<CAPTION>
AT OR FOR THE NINE MONTHS ENDED SEPTEMBER 30,
------------------------------------------------------------------
PRO FORMA
PRO FORMA TENDER OFFER
HISTORICAL TENDER OFFER AND TRANSACTION
------------------------------ -------------- ----------------
1998 1999 1999 1999
-------------- ------------- -------------- ----------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net interest income ........................ $ 78,274 $ 87,960 $ 85,060 $ 83,659
Provision for loan losses .................. 9,811 19,056 19,056 19,056
Non-interest income ........................ 38,684 74,542 74,542 74,542
Non-interest expenses ...................... 83,250 101,133 101,133 101,133
Income before income taxes and
discontinued operations ................... 23,897 42,313 39,413 38,012
Provision for income taxes ................. 9,388 16,622 15,503 14,963
Income from continuing operations .......... 14,509 25,691 23,910 23,049
Discontinued operations .................... (12,406) 1,174 1,174 1,174
----------- ---------- ----------- -----------
Net income ................................. 2,103 26,865 25,084 24,223
=========== ========== =========== ===========
PER SHARE DATA:
CLASS A COMMON SHARES:
Diluted earnings per share from
continuing operations ..................... $ 0.36 $ 0.51 $ 0.51 $ 0.55
Diluted earnings (loss) per share from
discontinued operations ................... (0.31) 0.02 0.02 0.02
----------- ---------- ----------- -----------
Diluted earnings per share ................. 0.05 0.53 0.53 0.57
=========== ========== =========== ===========
Diluted weighted average number of
common and common equivalent shares
outstanding Class A common shares ......... 31,525,317 48,764,910 44,321,324 44,321,324
CLASS B COMMON SHARES:
Diluted earnings per share from
continuing operations ..................... $ 0.33 $ 0.49 $ 0.48 $ 2,532.75
Diluted earnings (loss) per share from
discontinued operations ................... (0.28) 0.02 0.02 106.74
----------- ---------- ----------- -----------
Diluted earnings per share ................. 0.05 0.51 0.50 2,639.49
=========== ========== =========== ===========
Diluted weighted average number of
common and common equivalent
shares outstanding ........................ 10,235,317 11,047,765 11,047,765 1
BALANCE SHEET DATA:
Total assets ............................... $ 3,682,624 $3,970,629 $ 3,970,629 $ 3,970,629
Cost over fair value of net assets acquired
and other intangibles ..................... 56,368 54,729 54,729 54,729
Subordinated debentures and guaranteed
preferred beneficial interest in Company's
Junior Subordinated Debentures ............ 252,875 246,902 296,902 296,902
Total stockholders' equity ................. 247,321 236,967 238,242 200,829
FINANCIAL RATIOS:
Ratio of earnings to fixed charges including
interest on deposits ...................... 1.21 1.33 1.30 1.29
Ratio of earnings to fixed charges excluding
interest on deposits ...................... 1.37 1.61 1.55 1.47
Book value per common share ................ 5.80 5.67 5.70 5.52
</TABLE>
18
<PAGE>
SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA FINANCIAL DATA
OF BANKATLANTIC BANCORP, INC. AND SUBSIDIARIES
(CONTINUED)
<TABLE>
<CAPTION>
AT OR FOR THE YEARS ENDED DECEMBER 31,
------------------------------------------------------------------
PRO FORMA
PRO FORMA TENDER OFFER
HISTORICAL TENDER OFFER AND TRANSACTION
------------------------------ -------------- ----------------
1997 1998 1998 1998
------------- -------------- -------------- ----------------
(DOLLARS IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net interest income ........................ $ 94,530 $ 102,285 $ 98,565 $ 96,542
Provision for loan losses .................. 11,268 21,788 21,788 21,788
Non-interest income ........................ 33,366 56,880 56,880 56,880
Non-interest expenses ...................... 77,722 120,665 120,665 120,665
Income before income taxes and
discontinued operations ................... 38,906 16,712 12,992 10,969
Provision for income taxes ................. 15,248 6,526 5,091 4,310
Income from continuing operations .......... 23,658 10,186 7,901 6,659
Discontinued operations .................... 4,111 (18,220) (18,220) (18,220)
---------- ----------- ----------- -----------
Net income (loss) .......................... 27,769 (8,034) (10,319) (11,561)
========== =========== =========== ===========
PER SHARE DATA:
CLASS A COMMON SHARES:
Diluted earnings per share from
continuing operations ..................... $ 0.58 $ 0.25 $ 0.19 $ 0.19
Diluted earnings (loss) per share from
discontinued operations ................... 0.09 (0.45) (0.45) (0.53)
---------- ----------- ----------- -----------
Diluted earnings (loss) per share .......... 0.67 (0.20) (0.26) (0.34)
========== =========== =========== ===========
Diluted weighted average number of
common and common equivalent shares
outstanding Class A common shares ......... 33,674,934 30,083,955 30,083,955 30,083,955
CLASS B COMMON SHARES:
Diluted earnings per share from
continuing operations ..................... $ 0.59 $ 0.23 $ 0.18 $ 864.30
Diluted earnings (loss) per share from
discontinued operations ................... 0.09 (0.41) (0.41) (2,339.91)
---------- ----------- ----------- -----------
Diluted earnings (loss) per share .......... 0.68 (0.18) (0.23) (1,475.61)
========== =========== =========== ===========
Diluted weighted average number of
common and common equivalent shares
outstanding Class B common shares ......... 11,932,823 11,517,960 11,517,960 1
BALANCE SHEET DATA:
Total assets ............................... $3,064,480 $ 3,788,975 $ 3,788,975 $ 3,788,975
Cost over fair value of net assets acquired
and other intangibles ..................... 26,327 55,493 55,493 55,493
Subordinated debentures and guaranteed
preferred beneficial interest in Company's
Junior Subordinated Debentures ............ 252,875 246,932 296,932 296,932
Total stockholders' equity ................. 207,171 240,440 241,157 202,656
FINANCIAL RATIOS:
Ratio of earnings to fixed charges including
interest on deposits ...................... 1.33 1.11 1.08 1.07
Ratio of earnings to fixed charges excluding
interest on deposits ...................... 1.80 1.19 1.14 1.12
Book value per common share ................ 5.59 5.63 5.64 5.44
</TABLE>
19
<PAGE>
FOOTNOTES TO PRO FORMA INFORMATION:
NOTE 1--PRO FORMA TENDER OFFER
The pro forma assumes that $75.0 million of investment notes were issued
at a 10% coupon rate. The offering costs were estimated at $1.0 million. The
offering costs were amortized on a straight line basis over 2 years. The
assumed net proceeds of $74.0 million from the investment note offering were
assumed to have been utilized to retire the $25.0 million of aggregate
principal amount of 55/8% Subordinated Convertible Debentures for a cash
payment of $18.75 million and to reduce short term borrowings. The short term
borrowings assumed retired had an interest rate of 4.82% and 5.09%, for the
nine months ended September 30, 1999 and the year ended December 31, 1998,
respectively.
The retirement of the Debentures at less than their carrying cost will
result in an extraordinary gain of approximately $3.1 million after income
taxes, estimated tender offer costs of $500,000 and deferred offering costs
related to the original issuance of the Debentures, which will be reflected in
the Company's actual Statement of Operations if the Tender Offer is consummated.
The extraordinary gain was not reflected in the Income Statement Data in the
above pro forma; however, the extraordinary gain was reflected in pro forma
total stockholders equity and book value per common share.
NOTE 2--PRO FORMA TENDER OFFER AND TRANSACTION
The pro forma assumes that proceeds from the investment note offering were
utilized as outlined above and to retire 5,359,093 and 5,480,307 shares of
Class B common stock at January 1, 1999 and 1998, respectively, for $6.00 per
share. The costs associated with the corporate transaction were estimated at
$2.0 million.
All options to acquire Class B common stock outstanding were assumed to
have been redeemed. If the outstanding options were redeemed for cash, the
Company will realize a nonrecurring compensation charge of approximately $4.6
million ($2.8 million net of income taxes) which will be reflected in the
Company's actual Statement of Operations. The compensation charge was not
reflected in the Income Statement Data in the above pro forma; however, the
compensation charge was reflected in pro forma total stockholders equity and
book value per common share.
Upon consummation of the Transaction, only one share of Class B common
stock will remain outstanding.
20
<PAGE>
BACKGROUND AND PURPOSE OF THE TENDER OFFER
The Company is making this Tender Offer for the purpose of acquiring
Debentures at what the Board of Directors believes to be an attractive price to
the Company. Under the terms of the Tender Offer, if successful, the Company
will reacquire, and thereby extinguish, a portion of its indebtedness at a
discount to its principal amount and in an amount less than that which would be
payable upon redemption or at maturity. The Company intends to retire all
Debentures purchased pursuant to the Tender Offer.
The Tender Offer will also enable Holders who currently face limitations
in the trading market for their Debentures, an opportunity to liquidate their
investment. Due to a thinly-traded market for the Debentures, Holders do not
have the benefit of an active public market. The Tender Offer will provide
Holders an opportunity to sell all or a portion of their Debentures for cash
without the usual transaction costs associated with open market sales.
The total amount of funds required by the Company to pay the offered price
and any related fees and expenses will be approximately $19.25 million
(assuming that Debentures with an aggregate principal amount of at least $25
million are tendered and not withdrawn on the Expiration Date). The Company
expects to use a portion of the net proceeds of its current offering of
Investment Notes to purchase the Debentures in the Tender Offer. See "Source
and Amount of Funds."
THE TENDER OFFER
PRINCIPAL TERMS OF THE TENDER OFFER
Upon the terms and subject to the conditions set forth in this Offer to
Purchase and in the accompanying Letter of Transmittal, the Company is offering
to purchase up to $25 million aggregate principal amount of the Debentures for
a cash purchase price of $750 per $1,000 principal amount plus accrued and
unpaid interest from December 1, 1999 up to, but not including, the date of
payment. The Company may, at its option, increase the aggregate principal
amount of Debentures it will accept for purchase. To the best knowledge of the
Company, no Debentures are to be purchased from any officer, director or
affiliate of the Company.
CONDITIONS OF THE TENDER OFFER
Notwithstanding any other provision of the Tender Offer, the Company shall
not be required to accept for purchase, or to pay for, the Debentures tendered
pursuant to the Tender Offer, and may terminate, extend or amend the Tender
Offer or delay or refrain (subject to Rule 14e-1(c) under the Exchange Act)
acceptance for purchase or payment of Debentures so tendered, if, as of the
Expiration Date, (i) the Company does not have available sufficient funds to
purchase Debentures validly tendered or (ii) any of the General Conditions have
not been satisfied. The General Conditions shall be deemed to have been
satisfied unless any of the following conditions shall occur on or prior to the
acceptance for payment of the Debentures tendered pursuant to the Tender Offer
(each of (1) through (7), a "General Condition" and collectively, the "General
Conditions"):
(1) there shall have been threatened, instituted or pending any action or
proceeding by or before any court or governmental regulatory or administrative
authority or tribunal, domestic or foreign, which challenges the making of the
Tender Offer, the acquisition of Debentures pursuant to the Tender Offer or
otherwise relates in any manner to the Tender Offer;
(2) a statute, rule, regulation, judgment, order, stay, decree or
injunction shall have been threatened, proposed, sought, promulgated, enacted,
entered, enforced or deemed to be applicable by any court or governmental
regulatory or administrative agency, authority or tribunal, domestic or
21
<PAGE>
foreign, which, in the sole judgment of the Company, would or might prohibit,
prevent, restrict or delay consummation of the Tender Offer or that will, or is
reasonably likely to, materially impair the contemplated benefits of the Tender
Offer to the Company or otherwise results in the Tender Offer not being or
reasonably likely not being in the best interests of the Company;
(3) there shall have occurred or be likely to occur any event affecting
the business or financial affairs of the Company that would or might prohibit,
prevent, restrict or delay consummation of the Tender Offer or that will, or is
reasonably likely to, materially impair the contemplated benefits of the Tender
Offer to the Company or otherwise results in the Tender Offer not being or
reasonably likely not being in the best interests of the Company;
(4)(i) any general suspension or limitation of trading in, or limitation
on prices for, securities in the financial markets of the United States; (ii)
any suspension of trading of any securities of the Company on any United States
securities exchange or interdealer quotation system; (iii) the declaration of a
banking moratorium, or any suspension of payments in respect of banks, by
Federal, Florida or New York authorities; or (iv) any outbreak or escalation of
major hostilities in which the United States is involved, any declaration of
war by the United States or any other substantial state, national, or
international calamity or emergency if the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable in the Company's view for the Company to proceed with the Tender
Offer;
(5) any change in the general political, market, economic or financial
conditions in the United States or abroad that, in the Company's sole judgment,
has or may have a material adverse effect with respect to the Company's
business, operations or prospects or the trading in the securities of the
Company, or any decline in either the Dow Jones Industrial Average or the
Standard and Poor's Index of 500 Industrial Companies by an amount in excess of
ten percent (10%), as measured from the close of business on January 28, 2000;
(6) the Company shall not have obtained all consents, approvals, waivers
or amendments from third parties, including any required regulatory approvals,
necessary to permit the consummation of the Tender Offer; or
(7) any change shall have occurred (or any development shall have occurred
involving any prospective change) in the business, assets, liabilities,
condition (financial or otherwise), operations, results of operations, or
prospects of the Company that, in the sole judgment of the Company, has or may
have a material adverse effect on the Company or that would or might prohibit,
prevent, restrict or delay consummation of the Tender Offer.
The foregoing conditions are for the sole benefit of the Company and may
be asserted by the Company, in its sole discretion, regardless of the
circumstances giving rise to any such condition or may be waived by the
Company, in whole or in part, at any time and from time to time in the
Company's sole discretion. The failure by the Company at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right which may be asserted at any
time.
EXPIRATION DATE; EXTENSION; TERMINATION; AMENDMENTS
The Tender Offer will expire on the Expiration Date. The Company expressly
reserves the right to extend the Tender Offer on a daily basis or for such
period or periods as it may determine in its sole discretion from time to time
by giving written or oral notice to the Depositary and by making a public
disclosure prior to 9:00 a.m., New York City time, on the next business day
following the previously scheduled Expiration Date. During any extension of the
Tender Offer, all Debentures previously tendered and not accepted for purchase
will remain subject to the Tender Offer and may, subject to the terms and
conditions of the Tender Offer, be accepted for purchase by the Company or may
be withdrawn by the applicable Holder.
22
<PAGE>
The Company expressly reserves the absolute right, in its sole discretion,
to (i) waive any condition to the Tender Offer, (ii) amend any terms of the
Tender Offer and (iii) modify the Tender Offer. Any waiver or amendment
applicable to the Tender Offer will apply to all Debentures tendered regardless
of when or in what order such Debentures were tendered. If the Company makes a
material change in the terms of the Tender Offer or in the information
concerning the Tender Offer or if it waives a material condition of the Tender
Offer, the Company will disseminate additional information concerning such
change or waiver and will extend the Tender Offer, in each case, to the extent
required by law. See "--Withdrawal of Tenders."
The Company expressly reserves the right, in its sole discretion, to
terminate the Tender Offer for any reason, including if any of the applicable
conditions set forth under "--Conditions to the Tender Offer" shall exist and
shall not have been waived by the Company. Any such termination will be
followed as promptly as practicable by a public announcement. In the event the
Company shall terminate the Tender Offer, it shall give immediate notice
thereof to the Depositary, and all Debentures tendered pursuant to the Tender
Offer shall be returned promptly to the tendering Holders. See "--Withdrawal of
Tenders" and "--Conditions of the Tender Offer."
Any extension, waiver of a condition, delay, termination or amendment of
the Tender Offer will be followed as promptly as practicable by a press release
or other public announcement, such announcement in the case of an extension to
be issued no later than 9:00 a.m., New York City time, on the next business day
after the previously scheduled Expiration Date. Without limiting the manner by
which the Company may choose to make such announcement, the Company will not,
unless otherwise required by law, have any obligation to publish, advertise or
otherwise communicate any such announcement.
ACCEPTANCE OF DEBENTURES FOR PURCHASE; PAYMENT FOR DEBENTURES; MAXIMUM TENDER
AMOUNT AND PRO RATA ACCEPTANCE
Upon the terms and subject to the conditions of the Tender Offer, unless
previously terminated, promptly after the Expiration Date, the Company will,
subject to the satisfaction or waiver of all relevant conditions, accept for
purchase, and pay for, Debentures validly tendered and not withdrawn under the
Tender Offer on or prior to the Expiration Date; provided, however, that if
more than the Maximum Tender Amount of Debentures has been tendered, the
Company will purchase the Maximum Tender Amount on a Pro Rata Acceptance basis.
The Company expressly reserves the right, in its sole discretion, to delay
acceptance for purchase of Debentures tendered under the Tender Offer or the
payment for Debentures accepted for purchase (subject to Rule 14e-1(c) under
the Exchange Act, which requires that the Company pay the consideration offered
or return the Debentures deposited by or on behalf of the Holders promptly
after the termination or withdrawal of the Tender Offer), or to terminate the
Tender Offer and not accept for purchase any Debentures not theretofore
accepted for purchase, if any of the conditions set forth under "--Conditions
of the Tender Offer" shall not have been satisfied or waived by the Company or
in order to comply in whole or in part with any applicable law. In all cases,
payment for Debentures purchased pursuant to the Tender Offer will be made only
after timely receipt by the Depositary of (i) such Debentures, or timely
confirmation of a book-entry transfer (a "Book-Entry Confirmation") of such
Debentures into the Depositary's account at DTC pursuant to the procedures set
forth below in "Procedures for Tendering Debentures," (ii) a properly completed
and duly executed Letter of Transmittal (or an Agent's Message in lieu thereof)
and (iii) all necessary signature guarantees and any other documents required
by the Letter of Transmittal. See "--Procedures for Tendering Debentures" for a
description of the procedures for tendering Debentures pursuant to the Tender
Offer.
For purposes of the Tender Offer, the Company will be deemed to have
accepted for payment (and therefore purchased) Debentures when and if it gives
oral, to be followed by written, notice to the Depositary of its acceptance of
such Debentures for payment pursuant to the Tender Offer. Payment for
Debentures purchased pursuant to the Tender Offer will be made by the Company
on the Payment
23
<PAGE>
Date by depositing the Tender Offer Consideration with the Depositary, which
will act as agent for tendering Holders for the purpose of receiving Tender
Offer Consideration from the Company and transmitting Tender Offer
Consideration to the tendering Holders.
Tenders with respect to the Debentures pursuant to the Tender Offer will
be accepted only in principal amounts equal to $1,000 or integral multiples
thereof.
If, for any reason whatsoever, acceptance for purchase of or payment for
validly tendered Debentures pursuant to the Tender Offer is delayed or the
Company is unable to accept for purchase or to pay for validly tendered
Debentures pursuant to the Tender Offer, then the Depositary may, nevertheless,
on behalf of the Company, retain tendered Debentures, without prejudice to the
rights of the Company described under "--Expiration Date; Extension;
Termination; Amendments," "--Conditions of the Tender Offer" and "--Withdrawal
of Tenders" (subject further to Rule 14e-1(c) under the Exchange Act, which
requires that the Company pay the consideration offered or return the
Debentures deposited by or on behalf of the Holders promptly after the
termination or withdrawal of the Tender Offer).
The Company does not expect to increase the consideration offered in the
Tender Offer, but if the consideration offered in the Tender Offer is
increased, all tendering Holders whose Debentures are accepted for payment
pursuant to the Tender Offer will be given the increased consideration
regardless of when or in what order such Debentures were tendered.
Under no circumstances will any interest be payable because of any delay
in the transmission of funds to the Holders of purchased Debentures or
otherwise. If any tendered Debentures are not accepted for payment for any
reason pursuant to the terms and conditions of the Tender Offer or if
certificates are submitted evidencing more Debentures than are tendered,
certificates evidencing unpurchased Debentures will be returned, without
expense, to the tendering Holder (or, in the case of Debentures tendered by
book-entry transfer into the Depositary's account at DTC, the account
maintained at DTC designated by the participant therein who so delivered such
Debentures), unless otherwise requested by such Holder under "Special Delivery
Instructions" in the Letter of Transmittal, promptly following the Expiration
Date or the termination of the Tender Offer.
Tendering Holders whose Debentures are purchased in the Tender Offer will
not be obligated to pay brokerage commissions or fees or to pay transfer taxes
with respect to the purchase of their Debentures unless the box entitled
"Special Payment and Issuance Instructions" or the box entitled "Special
Delivery Instructions" in the respective Letter of Transmittal has been
completed, as described in the instructions thereto. The Company will pay all
other charges and expenses in connection with the Tender Offer.
The Debentures purchased pursuant to the Tender Offer will cease to be
outstanding and will be delivered to the Trustee for cancellation as promptly
as practicable after such purchase. Any Debentures which remain outstanding
after consummation of the Tender Offer will continue to be obligations of the
Company in accordance with the provisions of the Indenture.
After the Expiration Date, the Company may purchase additional Debentures
in the open market, in privately negotiated transactions, through subsequent
tender or exchange offers or otherwise, subject to compliance with the
Indenture and applicable law. Any future purchases may be on the same terms or
on terms that may be more or less favorable to Holders than the terms of the
Tender Offer. Any future purchases will depend on various factors at that time.
If more than $25 million aggregate principal amount of the Debentures are
validly tendered and not withdrawn in the Tender Offer, the Company may, but is
not obligated to, increase the outstanding principal amount of Debentures being
sought and, in the event that the amount sought exceeds $25.5 million aggregate
principal amount, extend the Expiration Date of the Tender Offer.
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PROCEDURES FOR TENDERING DEBENTURES
TENDERING DEBENTURES. The tender of Debentures pursuant to any of the
procedures set forth in this Offer to Purchase and in the Letter of Transmittal
will constitute a binding agreement between the tendering Holder and the
Company upon the terms and subject to the conditions of the Tender Offer. The
tender of Debentures will constitute an agreement to deliver good and
marketable title to all tendered Debentures on the Expiration Date free and
clear of all liens, charges, claims, encumbrances, interests and restrictions
of any kind.
Except as provided in "--Guaranteed Delivery Procedures," unless the
Debentures being tendered are deposited by the Holder with the Depositary on or
before the Expiration Date (accompanied by a properly completed and duly
executed letter of Transmittal), the Company may, at its option, reject such
tender. Payment for Debentures will be made only against deposit of validly
tendered Debentures and delivery of all other required documents.
Any beneficial owner whose Debentures are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender Debentures should contact promptly such registered Holder.
Only record Holders are authorized to tender their Debentures pursuant to
the Tender Offer. Accordingly, to properly tender Debentures or cause
Debentures to be tendered, the following procedures must be followed.
DEBENTURES HELD THROUGH DTC. Each beneficial owner of Debentures held
through a DTC Participant (i.e., a custodian bank, depositary, broker, trust
company or other nominee) must instruct such DTC Participant to cause its
Debentures to be tendered in accordance with the procedures set forth in this
Offer to Purchase.
To effectively tender Debentures that are held through DTC, DTC
Participants should transmit their acceptance through ATOP, for which the
transaction will be eligible, and DTC will then edit and verify the acceptance
and send an Agent's Message to the Depositary for its acceptance. Delivery of
tendered Debentures must be made to the Depositary pursuant to the book-entry
delivery procedures set forth below or the tendering DTC Participant must
comply with the guaranteed delivery procedures set forth below. No Letters of
Transmittal will be required to tender Debentures through ATOP.
The Depositary will establish an account with respect to the Debentures at
DTC for purposes of the Tender Offer within two business days after the date of
this Offer to Purchase, and any financial institution that is a participant in
DTC may make book-entry delivery of the Debentures by causing DTC to transfer
such Debentures into the Depositary's account in accordance with DTC's
procedures for such transfer. However, although delivery of Debentures may be
effected through book-entry transfer into the Depositary's account at DTC, the
Letter of Transmittal (or facsimile thereof), with any required signature
guarantees or an Agent's Message in connection with a book-entry transfer, and
any other required documents, must, in any case, be transmitted to and received
by the Depositary at its address set forth on the last page of this Offer to
Purchase on or before the Expiration Date, or the tendering Holder must comply
with the guaranteed delivery procedures described below. Delivery of documents
to DTC does not constitute delivery to the Depositary.
The term "Agent's Message" means a message transmitted by DTC to, and
received by, the Depositary and forming a part of the Book-Entry Confirmation,
which states (i) that DTC has received an express acknowledgment from the DTC
Participant described in such Agent's Message, (ii) that the principal amount
of Debentures which have been tendered by such DTC Participant pursuant to the
Offer, (iii) that such DTC Participant has received this Offer to Purchase and
the Letter of Transmittal and agrees to be bound by the terms of this Offer to
Purchase and the Letter of Transmittal and (iv) that the Company may enforce
such agreement against such DTC Participant.
DEBENTURES HELD BY RECORD HOLDERS. Each record Holder must complete and
sign a Letter of Transmittal, and mail or deliver such Letter of Transmittal,
and any other documents required by the
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Letter of Transmittal, together with certificate(s) representing all tendered
Debentures, to the Depositary at its address set forth on the last page of this
Offer to Purchase, or the Holder must comply with the guaranteed delivery
procedures set forth in this Offer to Purchase. See "--Guaranteed Delivery
Procedures."
All signatures on a Letter of Transmittal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
NYSE Medallion Signature Program or the Stock Exchange Medallion Program;
provided, however, that signatures on a Letter of Transmittal need not be
guaranteed if such Debentures are tendered for the account of an Eligible
Institution (as hereinafter defined). If a Letter of Transmittal or any
Debenture is signed by a trustee, executor, administrator, guardian,
attorney-in-fact, agent, officer of a corporation or other person acting in a
fiduciary or representative capacity, such person must so indicate when
signing, and proper evidence satisfactory to the Company of the authority of
such person so to act must be submitted.
No alternative, conditional, irregular or contingent tenders will be
accepted (unless waived). By executing a Letter of Transmittal or transmitting
an acceptance through ATOP, each tendering Holder waives any right to receive
any notice of the acceptance for purchase of its Debentures.
BACKUP FEDERAL INCOME TAX WITHHOLDING. Under the "backup withholding"
provisions of federal income tax law, unless a tendering Holder, or his or her
assignee (in either case, the "Payee"), satisfies the conditions described in
Instruction 5 of the Letter of Transmittal or is otherwise exempt, the
aggregate purchase price may be subject to backup withholding tax at a rate of
31%. To prevent backup withholding, each Payee should complete and sing the
Substitute Form W-9 provided in the Letter of Transmittal or otherwise certify
such Holder's exemption from backup withholding. See Instruction 5 of the
Letter of Transmittal.
EFFECT OF LETTER OF TRANSMITTAL. Subject to and effective upon the
acceptance for purchase of and payment for Debentures validly tendered thereby,
by executing and delivering a Letter of Transmittal a tendering Holder (i)
irrevocably tenders, sells, assigns and transfers to the Company all right,
title and interest in and to all of the Debentures tendered thereby, (ii)
waives any and all rights with respect to the Debentures (including, without
limitation, any existing or past defaults and their consequences in respect of
the Debentures and the Indenture), (iii) releases and discharges the Company
from any and all claims such Holder may have now, or may have in the future,
arising out of, or related to, the Debentures including, without limitation,
any claims that such Holder is entitled to receive additional principal or
interest payments with respect to the Debentures or to participate in any
redemption or defeasance of the Debentures and (iv) irrevocably constitutes and
appoints the Depositary the true and lawful agent and attorney-in-fact of such
Holder with respect to any such tendered Debenture, with full power of
substitution and resubstitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to (a) deliver certificates
representing such Debentures, or transfer ownership of such Debentures, on the
account books maintained by DTC, together, in any such case, with all
accompanying evidences of transfer and authenticity, to the Company, (b)
present such Debentures for transfer on the relevant security register and (c)
receive all benefits or otherwise exercise all rights of beneficial ownership
of such Debentures (except that the Depositary will have no rights to, or
control over, funds from the Company, except as agent for the Company, for the
Tender Offer Consideration for any tendered Debentures that are purchased by
the Company), all in accordance with the terms of the Tender Offer.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of tendered Debentures will be resolved by the Company,
in its sole discretion and whose determination will be final and binding. The
Company reserves the absolute right to reject any or all tenders, in its sole
discretion, that are not in proper form or the acceptance of which may be
unlawful. The Company also reserves the absolute right to waive any condition
to the Tender Offer and any irregularities or conditions of tender as to
particular Debentures. The Company's interpretation of the terms and conditions
of the Tender Offer (including the instructions in the Letter of Transmittal)
will be final and binding. Unless waived, any irregularities in connection with
tenders must be cured within such time as
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the Company shall determine in its sole discretion. None of the Company, the
Trustee, the Depositary, the Co-Dealer Managers, the Information Agent or any
other person shall be under any duty to give notification of defects in such
tenders or incur liabilities for failure to give such notification. Tenders of
Debentures will not be deemed to have been made until such irregularities have
been cured or waived. Any Debentures received by the Depositary that are not
properly tendered and as to which the irregularities have not been cured or
waived will be returned by the Depositary to the tendering Holder, unless
otherwise provided in the Letter of Transmittal, as soon as practicable
following the Expiration Date.
Letters of Transmittal and Debentures must be sent only to the Depositary.
Do not send Letters of Transmittal or Debentures to the Company, the Trustee,
either Co-Dealer Manager or the Information Agent.
The method of delivery of Debentures and Letters of Transmittal, any
required signature guarantees and all other required documents, including
delivery through DTC and any acceptance through ATOP, is at the election and
risk of the persons tendering and delivering acceptances or Letters of
Transmittal and, except as otherwise provided in the Letter of Transmittal,
delivery will be deemed made only when actually received by the Depositary. If
delivery is by mail, it is suggested that the Holder use properly insured,
registered mail with return receipt requested, and that the mailing be made
sufficiently in advance of the Expiration Date to permit delivery to the
Depositary on or before such date.
GUARANTEED DELIVERY PROCEDURES
DTC PARTICIPANTS. A DTC Participant who wishes to cause its Debentures to
be tendered, but who cannot transmit its acceptance through ATOP on or before
the Expiration Date, may cause a tender to be effected if:
(a) guaranteed delivery is made by or through a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act (an "Eligible
Institution"), including (as such terms are defined therein): (i) a
bank; (ii) a broker, dealer, municipal securities dealer, municipal
securities broker, government securities dealer or government securities
broker; (iii) a credit union; (iv) a national securities exchange,
registered securities association or clearing agency; or (v) a savings
institution that is a participant in a Securities Transfer Association
recognized program; and
(b) on or before the Expiration Date, the Depositary receives from such
Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided herewith; and
(c) Book-Entry Confirmation of the transfer into the Depositary's account
at DTC, and all other documents required by the Letter of Transmittal,
are received by the Depositary within three NYSE trading days after the
date of receipt by the Depositary of such Notice of Guaranteed Delivery.
RECORD HOLDERS. A record Holder who wishes to tender its Debentures but
(i) whose Debentures are not lost, but are not immediately available and will
not be available for tendering on or before the Expiration Date or (ii) who
cannot deliver its Debentures, the Letter of Transmittal, or any other required
documents to the Depositary before the Expiration Date, may effect a tender if:
(a) the tender is made by or through an Eligible Institution; and
(b) on or before the Expiration Date, the Depositary receives from such
Eligible Institution a properly completed and duly executed Notice of
Guaranteed Delivery (by mail, hand delivery, facsimile transmission or
overnight courier) substantially in the form provided herewith; and
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(c) a properly completed and executed Letter of Transmittal, as well as the
certificate(s) representing all tendered Debentures in proper form for
transfer, and all other documents required by the Letter of Transmittal,
are received by the Depositary within three NYSE trading days after the
date of receipt by the Depositary of such Notice of Guaranteed Delivery.
Under no circumstances will interest be paid by the Company by reason of
any delay in making payment to any person using the guaranteed delivery
procedures described above or otherwise.
WITHDRAWAL RIGHTS
Tenders of Debentures (or any portion of such Debentures in integral
multiples of $1,000 principal amount) may be withdrawn at any time before the
Expiration Date in accordance with the procedures set forth below and in the
Letter of Transmittal.
DEBENTURES HELD THROUGH DTC. A DTC Participant who has transmitted its
acceptance through ATOP in respect of Debentures held through DTC may, before
the Expiration Date, withdraw the instruction given thereby by (i) withdrawing
its acceptance through ATOP or (ii) delivering to the Depositary by mail, hand
delivery or facsimile transmission a notice of withdrawal of such instruction.
Such notice of withdrawal must contain the name and number of the DTC
Participant, the principal amount of Debentures to which such withdrawal
relates and the signature of the DTC Participant. Withdrawal of such an
instruction will be effective upon receipt of such notice of withdrawal by the
Depositary.
DEBENTURES HELD BY RECORD HOLDERS. A holder may withdraw its tender of
Debentures, before the Expiration Date, by delivering to the Depositary by
mail, hand delivery or facsimile transmission a notice of withdrawal. Any such
notice of withdrawal must (i) specify the name of the person who tendered the
Debentures to be withdrawn, (ii) contain a description of the Debentures to be
withdrawn and identify the Debenture certificate number or numbers shown on the
particular certificates evidencing such Debentures and (iii) be signed by the
Holder in the same manner as the original signature on the Letter of
Transmittal by which such Debentures were tendered (including any required
signature guarantees), or be accompanied by (x) documents of transfer in a form
acceptable to the Company, in its sole discretion, and (y) a properly completed
irrevocable proxy that authorized such person to effect such revocation on
behalf of such Holder. If the Debentures to be withdrawn have been delivered or
otherwise identified to the Depositary, a signed notice of withdrawal is
effective immediately upon receipt by the Depositary even if physical release
is not yet effected. Any Debentures properly withdrawn will be deemed to be not
validly tendered for purposes of the Tender Offer.
All signatures on a notice of withdrawal must be guaranteed by a
recognized participant in the Securities Transfer Agents Medallion Program, the
NYSE Medallion Signature Program or the Stock Exchange Medallion Program;
provided, however, that signatures on the notice of withdrawal need not be
guaranteed if the Debentures being withdrawn are held for the account of an
Eligible Institution.
A withdrawal of an instruction or a withdrawal of a tender must be
executed by a DTC Participant or a Holder, as the case may be, in the same
manner as the person's name appears on its transmission through ATOP or Letter
of Transmittal, as the case may be, to which such withdrawal relates. If a
notice of withdrawal is signed by a trustee, partner, executor, administrator,
guardian, attorney-in-fact, agent, officer of a corporation or other person
acting in a fiduciary or representative capacity, such person must so indicate
when signing and must submit with the revocation appropriate evidence of
authority to execute the notice of withdrawal. A Holder or DTC Participant may
withdraw a tender only if such withdrawal complies with the provisions of this
Offer to Purchase and the Letter of Transmittal.
A withdrawal of an instruction previously given pursuant to the
transmission of an acceptance through ATOP or a withdrawal of a tender by a
Holder may be rescinded only by (i) a new transmission of acceptance through
ATOP or (ii) execution and delivery of a new Letter of Transmittal, as the case
may be, in accordance with the procedures described herein and in the Letter of
Transmittal.
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All questions as to the form and validity (including time of receipt) of
any notice of withdrawal will be determined by the Company, in its sole
discretion, which determination shall be final and binding. None of the
Company, the Trustee, the Depositary, either Co-Dealer Manager, the Information
Agent or any other person shall be under any duty to give notification of any
defects or irregularities in any notice of withdrawal or incur any liabilities
for failure to give any such notification.
ABSENCE OF APPRAISAL RIGHTS
There are no appraisal or similar statutory rights available to the
Holders in connection with the Tender Offer.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
The following summary is a general description of certain United States
federal income tax consequences applicable under current law to the sale of
Debentures pursuant to this Offer to Purchase. This summary describes the tax
consequences to a Holder of Debentures that is a "U.S. Holder" (which, for the
purpose of this discussion, means a beneficial owner ("Owner") of a Debenture
that is for United States federal income tax purposes (a) a citizen or resident
of the United States, (b) a corporation, partnership or other entity created or
organized in or under the laws of the United States or of any political
subdivision thereof or (c) an estate or trust described in Section 7701(a)(30)
of the Internal Revenue Code of 1986, as amended (the "Code")). This discussion
does not deal with special classes of Owners, such as dealers in securities or
currencies, banks, financial institutions, insurance companies, tax-exempt
organizations, persons subject to the alternative minimum tax, Owners that are
not U.S. Holders, Owners holding Debentures as part of a hedge, straddle or in
connection with a synthetic security transaction. In addition, this discussion
does not describe any tax consequences arising out of the laws of any state,
local or foreign jurisdiction. This discussion assumes that the Debentures are
held as "capital assets" within the meaning of Code Section 1221. ALL HOLDERS
ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE PARTICULAR TAX
CONSEQUENCES OF TENDERING THE DEBENTURES, INCLUDING THE APPLICABILITY AND
EFFECT OF ANY STATE, LOCAL OR FOREIGN TAX LAWS.
SALES OF DEBENTURES PURSUANT TO THE TENDER OFFER
Subject to the market discount and bond premium rules discussed below, a
Holder who receives cash for Debentures pursuant to the Tender Offer will
recognize capital gain or loss equal to the difference between the amount of
cash received (excluding any amount attributable to accrued interest) and the
Holder's adjusted tax basis in the Debentures sold. Generally, a Holder's
adjusted tax basis in a Debenture will be the cost of the Debenture to such
Holder. If applicable, a Holder's adjusted tax basis in a Debenture will be
increased by any market discount previously included in income by such Holder
pursuant to an election to include market discount in gross income as it
accrues, and generally will be reduced by the accrual of amortizable bond
premium which the Holder has previously elected to offset against interest
payments on the Debenture. The excess of net long-term capital gains over net
short-term capital losses is taxed at a lower rate than ordinary income for
certain noncorporate taxpayers. Noncorporate taxpayers are generally subject to
a maximum rate of 20% on capital gain realized on the disposition of an asset
held for more than one year. The distinction between capital gain or loss and
ordinary income or loss is also relevant for purposes of, among other things,
limitations on the deductibility of capital losses. To the extent that the
amount paid for the Debentures represents accrued interest, it will constitute
ordinary income to the Holder unless previously included in income.
A Holder who acquired a Debenture after its original issuance at a market
discount (subject to a statutorily-defined de minimis exception) will generally
be required to treat any gain on a sale thereof pursuant to the Tender Offer as
ordinary income rather than capital gain to the extent of accrued market
discount, unless an election was made to include market discount in income as
it accrued. Market discount generally equals the excess of the stated
redemption price at maturity of a debt instrument over a holder's initial tax
basis in the debt instrument.
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If a Debenture purchased at a premium after the Debenture's original
issuance is sold pursuant to the Tender Offer, a Holder who has elected to
deduct bond premium may be able to claim as an ordinary deduction in the
taxable year of disposition an amount equal to any remaining unamortized bond
premium.
BACKUP WITHHOLDING
A Holder whose Debentures are tendered and accepted for payment may be
subject to backup withholding at the rate of thirty-one percent (31%) with
respect to the gross proceeds from the sale of such Debentures unless such
Holder (i) is a corporation or other exempt recipient and, when required,
establishes this exemption or (ii) accurately completes the Substitute Form W-9
included in the Letter of Transmittal. Holders that do not provide their
correct taxpayer identification number may be subject to penalties imposed by
the Internal Revenue Service (the "IRS"). Any amount withheld under these rules
will be creditable against the Holder's federal income tax liability and any
excess or overpayment of federal income taxes pursuant to the imposition of
backup withholding should be returned to the affected Holder, provided certain
required information is reported to the IRS. See "Important Tax Information" in
the Letter of Transmittal.
INFORMATION REPORTING
The Company will provide information statements to tendering Holders and
to the IRS reporting the cash payments, as required by law.
THE FOREGOING DISCUSSION OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES DOES NOT
CONSIDER THE PARTICULAR FACTS AND CIRCUMSTANCES OF ANY HOLDER'S SITUATION OR
STATUS. THIS SUMMARY IS BASED ON THE PROVISIONS OF THE CODE, REGULATIONS,
PROPOSED REGULATIONS, RULINGS AND JUDICIAL DECISIONS NOW IN EFFECT, ALL OF
WHICH ARE SUBJECT TO CHANGE, POSSIBLY ON A RETROACTIVE BASIS.
CO-DEALER MANAGERS
Ryan, Beck & Co., Inc. and Friedman, Billings, Ramsey & Co., Inc. are
acting as Co-Dealer Managers for the Company in connection with the Tender
Offer. Any questions or requests for assistance may be directed to either
Co-Dealer Manager at the respective addresses and telephone numbers set forth
on the back cover of this Offer to Purchase. Ryan, Beck & Co. was acquired by
the Company in June 1998 and is currently a wholly-owned subsidiary of the
Company. Ryan, Beck & Co. has in the past provided, and may in the future
provide, the Company with investment banking services for a fee. In addition,
Ryan, Beck & Co. was one of the lead underwriters in the public offering of the
Debentures in November 1997 and is currently a market maker for the Debentures.
DEPOSITARY
The Depositary for the Tender Offer is U.S. Bank Trust National
Association. All deliveries, correspondence and questions sent or presented to
the Depositary relating to the Tender Offer should be directed to one of the
addresses or telephone numbers set forth on the back cover of this Offer to
Purchase. U.S. Bank Trust National Association serves as the trustee for the
Debentures pursuant to the Indenture under which the Debentures are issued.
INFORMATION AGENT
Georgeson Shareholder Communications Inc. is acting as the Information
Agent for the Company in connection with the Tender Offer. Requests for copies
of the Tender Offer materials should be directed to the Information Agent at
the address or telephone number set forth on the back cover of this Offer to
Purchase.
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FEES AND EXPENSES
The Company will pay the Co-Dealer Managers reasonable and customary
compensation for its services plus reimbursement for out-of-pocket expenses.
Ryan, Beck & Co., one of the Co-Dealer Managers, has provided investment
banking services to the Company and expects to provide investment banking
services to the Company in the future. Ryan, Beck & Co. has been and expects to
be paid usual and customary fees for such services.
The Company will pay the Depositary and the Information Agent reasonable
and customary compensation for their services in connection with the Tender
Offer, plus reimbursement for out-of-pocket expenses.
Brokers, dealers (including the Co-Dealer Managers), commercial banks and
trust companies will be reimbursed by the Company for customary mailing and
handling expenses incurred by them in forwarding material to their customers.
The Company will not pay any fees or commissions to any broker, dealer or other
person (other than the Co-Dealer Managers, the Depositary and the Information
Agent) in connection with the solicitation of tenders of Debentures pursuant to
the Tender Offer.
INDEMNIFICATION
The Company has agreed to indemnify the Depositary, the Information Agent
and each Co-Dealer Manager against certain liabilities, including, in certain
cases, under the securities laws.
MISCELLANEOUS
Directors, officers and regular employees of the Company (who will not be
specifically compensated for such services), and the Co-Dealer Managers may
contact Holders by mail, telephone, telex, telegram messages, mailgram
messages, datagram messages and personal interviews regarding the Tender Offer
and may request brokers, dealers and other nominees to forward this Offer to
Purchase and related materials to beneficial owners of Debentures.
The Company is not aware of any jurisdiction where the making of the
Tender Offer is not in compliance with the laws of such jurisdiction. If the
Company becomes aware of any jurisdiction where the making of the Tender Offer
would not be in compliance with such laws, the Company will make a good faith
effort to comply with any such laws or seek to have such laws declared
inapplicable to the Tender Offer. If, after such good faith effort, the Company
cannot comply with any such applicable laws, the Tender Offer will not be made
to (nor will tenders be accepted from or on behalf of) the Holders residing in
such jurisdiction.
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Manually signed facsimile copies of the Letter of Transmittal will be
accepted. Letters of Transmittal, certificates for Debentures and any other
required documents should be sent by each Holder or such Holder's broker,
dealer, commercial bank, trust company or other nominee to the Depositary at
one of the address set forth below:
THE DEPOSITARY FOR THIS TENDER OFFER IS:
U.S. BANK TRUST NATIONAL ASSOCIATION
180 East Fifth Street
St. Paul, MN 55101
Attn: Specialized Finance Department
Any requests for additional copies of this Offer to Purchase, the Letter
of Transmittal and Notice of Guaranteed Delivery should be directed to the
Information Agent at the address and telephone number set forth below.
THE INFORMATION AGENT FOR THE TENDER OFFER IS:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street, 10th Floor
New York, NY 10004
Bankers and Brokers Call Collect: (212) 440-9800
All Others: Call Toll-Free: (800) 223-2064
Any questions or requests for assistance may be directed to either
Co-Dealer Manager at the respective addresses and telephone numbers set forth
below. You may also contact your broker, dealer, commercial bank or trust
company or any other nominee for assistance concerning the Tender Offer.
RYAN, BECK & CO., INC. FRIEDMAN, BILLINGS & RAMSEY
220 South Orange Avenue Potomac Tower
Livingston, NJ 07039 1001 19th Street North, 18th Floor
973-597-6020 Arlington, VA 22209
703-469-1005
32
LETTER OF TRANSMITTAL
TO TENDER UP TO $25 MILLION AGGREGATE PRINCIPAL AMOUNT OF
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
PURSUANT TO THE OFFER TO PURCHASE DATED JANUARY 28, 2000
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
TENDER OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY 29,
2000 UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF DEBENTURES (EACH, A
"HOLDER" AND COLLECTIVELY, THE "HOLDERS") MUST TENDER THEIR DEBENTURES ON OR
PRIOR TO THE EXPIRATION DATE IN ORDER TO RECEIVE THE TENDER OFFER
CONSIDERATION. TENDERED DEBENTURES MAY BE WITHDRAWN AT ANY TIME ON OR PRIOR
TO THE EXPIRATION DATE.
THE DEPOSITARY FOR THE TENDER OFFER IS:
U.S. BANK TRUST NATIONAL ASSOCIATION
BY MAIL, HAND DELIVERY FACSIMILE TRANSMISSION:
OR OVERNIGHT COURIER: (For Eligible Institutions Only)
U.S. Bank Trust National Association (651) 244-1537
180 East Fifth Street
St. Paul, MN 55101 FOR CONFIRMATION BY TELEPHONE:
Attn: Specialized Finance Department (800) 934-6802
DELIVERY OF THIS LETTER OF TRANSMITTAL (THE "LETTER OF TRANSMITTAL") TO AN
ADDRESS, OR TRANSMISSION VIA FACSIMILE, OTHER THAN AS SET FORTH ABOVE, WILL NOT
CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED IN THIS LETTER OF TRANSMITTAL AND IN THE OFFER
TO PURCHASE (AS DEFINED BELOW) SHOULD BE READ CAREFULLY BEFORE THIS LETTER OF
TRANSMITTAL IS COMPLETED.
By execution hereof, the undersigned acknowledges receipt of the Offer to
Purchase, dated January 28, 2000 (the "Offer to Purchase"), of BankAtlantic
Bancorp, Inc. (the "Company") and this Letter of Transmittal with the
accompanying instructions (the "Letter of Transmittal"), which together
constitute the Company's offer to purchase (the "Tender Offer") up to $25
million aggregate principal amount of its 5.625% Convertible Subordinated
Debentures due 2007 (the "Debentures"), upon the terms and subject to the
conditions set forth in the Offer to Purchase.
All capitalized terms used herein and not defined shall have the meaning
ascribed to them in the Offer to Purchase.
This Letter of Transmittal is to be used by Holders if certificates
representing Debentures are to be physically delivered to the Depositary
herewith by Holders. This Letter of Transmittal is also being supplied for
informational purposes only to persons who hold Debentures in book-entry form
through the facilities of The Depository Trust Company ("DTC"). Tender of
Debentures held through DTC must be made pursuant to the procedures described
under "The Tender Offer--Procedures for
<PAGE>
Tendering Debentures--Debentures Held Through DTC" in the Offer to Purchase.
Delivery of documents to DTC does not constitute delivery to the Depositary.
In order to properly complete this Letter of Transmittal, a Holder must
(i) complete the box entitled "Description of Debentures;" (ii) if appropriate,
check and complete the boxes relating to guaranteed delivery, Special Issuance
or Payment Instructions and Special Delivery Instructions; (iii) sign the
Letter of Transmittal; and (iv) complete Substitute Form W-9 (a foreign holder
should obtain Form W-8 from the Depositary and complete such form). Each Holder
should carefully read the detailed Instructions contained herein before
completing this Letter of Transmittal.
The undersigned has completed, executed and delivered this Letter of
Transmittal to indicate the action the undersigned desires to take with respect
to the Tender Offer.
Your bank or broker can assist you in completing this form. The
instructions included with this Letter of Transmittal must be followed.
Questions and requests for assistance may be directed to Ryan, Beck & Co., Inc.
or Friedman, Billings, Ramsey & Co., Inc., which are the Co-Dealer Managers,
whose respective addresses and telephone numbers appear on the back cover of
this Letter of Transmittal. Requests for additional copies of the Offer to
Purchase and this Letter of Transmittal should be directed to Georgeson
Shareholder Communications, Inc., which is acting as information agent for the
Tender Offer, whose address and telephone number appear on the back cover of
this Letter of Transmittal. See Instruction 10 below.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE THE TENDER OFFER CONSIDERATION
PURSUANT TO THE TENDER OFFER MUST VALIDLY TENDER (AND NOT WITHDRAW) THEIR
DEBENTURES TO THE DEPOSITARY ON OR PRIOR TO THE EXPIRATION DATE.
If Holders desire to tender Debentures pursuant to the Tender Offer and
(i) certificates representing such Holder's Debentures are not lost but are not
immediately available or time will not permit this Letter of Transmittal,
certificates representing such Debentures or other required documents to reach
the Depositary before the Expiration Date or (ii) the procedures for book-entry
transfer cannot be completed before the Expiration Date, such Holders may
effect a tender of such Debentures in accordance with the guaranteed delivery
procedures described under "The Tender Offer--Procedures for Tendering
Debentures--Guaranteed Delivery Procedures" in the Offer to Purchase. See
Instruction 1 below.
IN THE EVENT THAT THE TENDER OFFER IS WITHDRAWN OR OTHERWISE NOT
COMPLETED, THE TENDER OFFER CONSIDERATION WILL NOT BE PAID OR BECOME PAYABLE TO
HOLDERS OF THE DEBENTURES WHO HAVE VALIDLY TENDERED THEIR DEBENTURES IN
CONNECTION WITH THE TENDER OFFER, AND ANY TENDERED DEBENTURES WILL BE RETURNED.
THE TENDER OFFER IS MADE UPON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH
IN THE OFFER TO PURCHASE AND IN THIS LETTER OF TRANSMITTAL.
The Company is not aware of any jurisdiction where the making of the
Tender Offer is not in compliance with the laws of such jurisdiction. If the
Company becomes aware of any jurisdiction where the making of the Tender Offer
would not be in compliance with such laws, the Company will make a good faith
effort to comply with any such laws or seek to have such laws declared
inapplicable to the Tender Offer. If, after such good faith effort, the Company
cannot comply with any such applicable laws, the Tender Offer will not be made
to (nor will tenders be accepted from or on behalf of) the Holders residing in
such jurisdiction.
<PAGE>
[ ] CHECK HERE IF CERTIFICATES REPRESENTING TENDERED DEBENTURES ARE ENCLOSED.
[ ] CHECK HERE IF TENDERED DEBENTURES ARE BEING TENDERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC AND
COMPLETE THE FOLLOWING (ONLY PARTICIPANTS IN THE BOOK-ENTRY TRANSFER
FACILITY MAY DELIVER DEBENTURES BY BOOK-ENTRY TRANSFER):
Name(s) of Tendering Institution:_______________________________________________
DTC Account No.:________________________________________________________________
DTC Transaction Code No.:_______________________________________________________
[ ] CHECK HERE IF TENDERED DEBENTURES ARE BEING DELIVERED PURSUANT TO A NOTICE
OF GUARANTEED DELIVERY PREVIOUSLY DELIVERED TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Holder(s):________________________________________________
Window Ticket No. (if any):_____________________________________________________
Date of Execution of Notice of Guaranteed Delivery:_____________________________
Name of Eligible Institution that Guaranteed Delivery:__________________________
If Delivered by Book-Entry Transfer:____________________________________________
DTC Participant Number:_________________________________________________________
DTC Account Number:_____________________________________________________________
DTC Transaction Code Number:____________________________________________________
<PAGE>
List below the Debentures to which this Letter of Transmittal relates. If
the space provided is inadequate, list the certificate numbers and principal
amounts on a separately executed schedule and affix the schedule to this Letter
of Transmittal. Tenders of Debentures will be accepted only in principal
amounts equal to $1,000 or integral multiples thereof.
<TABLE>
<CAPTION>
DESCRIPTION OF DEBENTURES TENDERED
- ------------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) AGGREGATE PRINCIPAL AGGREGATE PRINCIPAL
OF REGISTERED HOLDER(S) AMOUNT REPRESENTED AMOUNT
(PLEASE FILL IN, IF BLANK) CERTIFICATE NUMBER(S)* BY CERTIFICATE(S)* TENDERED**
- ------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
------------------------- ----------------------- ------------------- -------------------
------------------------- ----------------------- ------------------- -------------------
------------------------- ----------------------- ------------------- -------------------
------------------------- ----------------------- ------------------- -------------------
------------------------- ----------------------- ------------------- -------------------
------------------------- ----------------------- ------------------- -------------------
- ------------------------------------------------------------------------------------------------------
TOTAL PRINCIPAL AMOUNT OF DEBENTURES $_____________________________________________________________
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by Holders tendering by book-entry transfer or in
accordance with DTC's ATOP procedure for transfer.
** Unless otherwise indicated, a Holder will be deemed to have tendered with
respect to the entire aggregate principal amount represented by the
Debentures indicated in the column labeled "Aggregate Principal Amount
Represented by Certificate(s)." See Instruction 2 below.
<PAGE>
SPECIAL ISSUANCE OR
PAYMENT INSTRUCTIONS
(SEE INSTRUCTION 4)
To be completed ONLY if certificates for Debentures representing
principal amount not tendered or not accepted for purchase and/or the
check for the Tender Offer Consideration are to be issued to the order of
someone other than the undersigned, or if Debentures delivered by
book-entry transfer that are not accepted for purchase are to be returned
by credit to an account other than indicated above.
Issue: [ ] Debentures
[ ] Check(s)
(Complete as applicable)
Name:_______________________________________________________________________
(PLEASE PRINT)
Address:____________________________________________________________________
____________________________________________________________________________
(ZIP CODE)
____________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 HEREIN)
[ ] Credit Debentures by book-entry transfer and not purchased to the
account set forth below
Name of Account Party:______________________________________________________
Acct. No.:_________________________________________________________________
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTION 4)
To be completed ONLY if certificates for Debentures representing
principal amount not tendered or not accepted for purchase and/or the
check for the Tender Offer Consideration are to be sent to an address
different from that shown in the box entitled "Description of Debentures"
within this Letter of Transmittal.
Deliver: [ ] Debentures
[ ] Check(s)
(Complete as applicable)
Name:_______________________________________________________________________
(PLEASE PRINT)
Address:____________________________________________________________________
____________________________________________________________________________
(ZIP CODE)
____________________________________________________________________________
(TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER)
(SEE SUBSTITUTE FORM W-9 HEREIN)
HOLDERS WHO WISH TO ACCEPT THE TENDER OFFER AND TENDER THEIR DEBENTURES MUST
COMPLETE THIS LETTER OF TRANSMITTAL IN ITS ENTIRETY.
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
<PAGE>
Ladies and Gentlemen:
Upon the terms and subject to the conditions of the Tender Offer, the
undersigned hereby tenders to the Company the principal amount of Debentures
indicated above.
Subject to and effective upon the acceptance for purchase of and payment
for Debentures validly tendered hereby, by executing and delivering a Letter of
Transmittal, a tendering Holder (i) irrevocably tenders, sells, assigns and
transfers to the Company, all right, title and interest in and to all of the
Debentures tendered hereby, (ii) waives any and all rights with respect to the
Debentures (including, without limitation, any existing or past defaults and
their consequences in respect of the Debentures and the Indenture under which
the Debentures were issued), (iii) releases and discharges the Company from any
and all claims such Holder may have now, or may have in the future, arising out
of, or related to, the Debentures including, without limitation, any claims
that such Holder is entitled to receive additional principal or interest
payments with respect to the Debentures or to participate in any redemption or
defeasance of the Debentures and (iv) irrevocably constitutes and appoints the
Depositary the true and lawful agent and attorney-in-fact of such Holder with
respect to any such tendered Debentures, with full power of substitution and
resubstitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest) to (a) deliver certificates representing such
Debentures, or transfer ownership of such Debentures, on the account books
maintained by DTC, together, in any such case, with all accompanying evidences
of transfer and authenticity, to the Company, (b) present such Debentures for
transfer on the relevant security register and (c) receive all benefits or
otherwise exercise all rights of beneficial ownership of such Debentures
(except that the Depositary will have no rights to or control over funds from
the Company, except as agent for the Company for the Tender Offer Consideration
for any tendered Debentures that are purchased by the Company), all in
accordance with the terms of the Tender Offer.
The undersigned understands that tenders of Debentures may be withdrawn by
written notice of withdrawal received by the Depositary at any time prior to
the Expiration Date. See Instruction 1 below.
The undersigned hereby represents and warrants that the undersigned (i)
owns the Debentures tendered and is entitled to tender such Debentures and (ii)
has full power and authority to tender, sell, assign and transfer the
Debentures tendered, and that when such Debentures are accepted for purchase
and payment by the Company, the Company will acquire good title, free and clear
of all liens, restrictions, charges and encumbrances and not subject to any
adverse claim or right. The undersigned will, upon request, execute and deliver
any additional documents deemed by the Depositary or by the Company to be
necessary or desirable to complete the sale, assignment and transfer of the
Debentures tendered.
For purposes of the Tender Offer, the undersigned understands that the
Company will be deemed to have accepted for purchase validly tendered
Debentures (or defectively tendered Debentures with respect to which the
Company has waived such defect) only if, as and when the Company gives oral
(confirmed in writing) or written notice thereof to the Depositary. Payment for
Debentures purchased pursuant to the Tender Offer will be made by deposit of
the Tender Offer Consideration for such Debentures with the Depositary, which
will act as agent for tendering Holders for the purpose of receiving payments
from the Company and transmitting such payments to such Holders.
The undersigned understands that the valid tender of Debentures pursuant
to any one of the procedures described under "The Tender Offer--Procedures for
Tendering Debentures" in the Offer to Purchase and in the instructions hereto
will constitute a binding agreement between the undersigned and the Company
upon the terms and subject to the conditions of the Tender Offer, including the
undersigned's waiver of any existing defaults and their consequences in respect
of the Debentures and the Indenture under which the Debentures were issued
(including, without limitation, a default in the payment of interest).
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death or incapacity of the undersigned and every
obligation of the undersigned under this Letter of
<PAGE>
Transmittal shall be binding upon the undersigned's heirs, personal
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy and other legal representatives.
The undersigned understands that the delivery and surrender of the
Debentures is not effective, and the risk of loss of the Debentures does not
pass to the Depositary, until receipt by the Depositary (whether through DTC's
ATOP procedures for transfer or otherwise) of this Letter of Transmittal, or a
manually signed facsimile hereof, properly completed and duly executed,
together with all accompanying evidences of authority and any other required
documents in form satisfactory to the Company. All questions as to the form of
all documents and the validity (including time of receipt) and acceptance of
tenders and withdrawals of Debentures will be determined by the Company, in its
sole discretion, which determination shall be final and binding on all parties.
Unless otherwise indicated herein under "Special Issuance or Payment
Instructions," the undersigned hereby requests that any Debentures representing
principal amounts not tendered be issued in the name(s) of the undersigned, and
checks constituting payments for Debentures purchased in connection with the
Tender Offer be issued to the order of the undersigned. Similarly, unless
otherwise indicated herein under "Special Delivery Instructions," the
undersigned hereby requests that any Debentures representing principal amounts
not tendered and checks constituting payments for Debentures to be purchased in
connection with the Tender Offer be delivered to the undersigned at the
address(es) shown herein. In the event that the "Special Issuance or Payment
Instructions" box or the "Special Delivery Instructions" box, or both, are
completed, the undersigned hereby requests that any Debentures representing
principal amounts not tendered be issued in the name(s) of, certificates for
such Debentures be delivered to, and checks constituting payments for
Debentures purchased in connection with the Tender Offer be issued in the
name(s) of, and be delivered to, the person(s) at the address(es) indicated, as
applicable. The undersigned recognizes that the Company has no obligation
pursuant to the "Special Issuance or Payment Instructions" box to transfer any
Debentures from the name of the registered Holder(s) thereof if the Company
does not accept for purchase any of the principal amount of such Debentures so
tendered.
<PAGE>
PEASE SIGN BELOW
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF DEBENTURES
REGARDLESS OF WHETHER DEBENTURES ARE BEING
PHYSICALLY DELIVERED HEREWITH)
This Letter of Transmittal must be signed by the registered Holder(s) of
Debentures exactly as their name(s) appear(s) on certificate(s) for
Debentures or by person(s) authorized to become registered Holder(s) by
endorsements on certificates for Debentures or by bond powers transmitted
with this Letter of Transmittal. Endorsements on Debentures and signatures
on bond powers by Holders not executing this Letter of Transmittal must be
guaranteed by an Eligible Institution. See Instruction 3 below. If signature
is by a trustee, executor, administrator, guardian, attorney-in-fact,
officer or other person acting in a fiduciary or representative capacity,
such person must set forth his or her full title below under "Capacity" and
submit evidence satisfactory to the Company of such person's authority to so
act. See Instruction 3 below.
If the signature appearing below is not of the registered Holder(s) of the
Debentures, then the registered Holder(s) must sign a valid power of
attorney.
Signature(s) of Holder(s) or
Authorized Signatory:_________________________________________________________
Dated:___________, 2000
Name(s)_______________________________________________________________________
(PLEASE PRINT)
Capacity:_____________________________________________________________________
Address:______________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(INCLUDE ZIP CODE)
Area Code and Telephone Number________________________________________________
Taxpayer Identification or Social Security Number_____________________________
(SEE SUBSTITUTE FORM W-9)
<PAGE>
SIGNATURE GUARANTEE
(SEE INSTRUCTION 3 HEREIN)
CERTAIN SIGNATURES MUST BE GUARANTEED BY AN ELIGIBLE INSTITUTION
________________________________________________________________________________
(NAME OF ELIGIBLE INSTITUTION GUARANTEEING SIGNATURES)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF ELIGIBLE INSTITUTION)
________________________________________________________________________________
(AUTHORIZED SIGNATURES)
________________________________________________________________________________
(PRINTED NAME)
________________________________________________________________________________
(TITLE)
Date:___________, 2000
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE TENDER OFFER
1. PROCEDURES FOR TENDERING DEBENTURES; GUARANTEED DELIVERY PROCEDURES;
WITHDRAWAL OF TENDERS; ABSENCE OF APPRAISAL RIGHTS. To tender the Debentures in
the Offer, certificates representing such Debentures, together with a properly
completed and duly executed copy (or facsimile) of this Letter of Transmittal,
and any other documents required by this Letter of Transmittal must be received
by the Depositary at one of its addresses set forth herein on or before the
Expiration Date. The method of delivery of this Letter of Transmittal,
certificates for Debentures and all other required documents to the Depositary
is at the election and risk of Holders. If such delivery is to be made by mail,
it is suggested that Holders use properly insured registered mail, return
receipt requested, and that the mailing be made sufficiently in advance of the
Expiration Date to permit delivery to the Depositary on or before such date.
Except as otherwise provided below, the delivery will be deemed made when
actually received or confirmed by the Depositary. THIS LETTER OF TRANSMITTAL
AND DEBENTURES SHOULD BE SENT ONLY TO THE DEPOSITARY, AND NOT TO THE COMPANY,
THE TRUSTEE, THE CO-DEALER MANAGERS OR THE INFORMATION AGENT. This Letter of
Transmittal is also being supplied for informational purposes only to persons
who hold Debentures in book-entry form through the facilities of DTC. Tender of
Debentures held through DTC must be made pursuant to the procedures described
under "The Tender Offer--Procedures for Tendering Debentures--Debentures Held
Through DTC" in the Offer to Purchase.
Except as provided herein for the book-entry or guaranteed delivery
procedures, unless the Debentures being tendered are deposited with the
Depositary on or before the Expiration Date (accompanied by the appropriate,
properly completed and duly executed Letter of Transmittal and any required
signature guarantees and other documents required by this Letter of
Transmittal), the Company may, in its sole discretion, reject such tender.
Payment for Debentures will be made only against deposit of tendered
Debentures.
By executing this Letter of Transmittal (or a facsimile thereof), a
tendering Holder waives any right to receive any notice of the acceptance for
payment of tendered Debentures. For a full description of the procedures for
tendering Debentures, see "The Tender Offer--Procedures for Tendering
Debentures--Tendering Debentures" in the Offer to Purchase. If a Holder desires
to tender Debentures pursuant to the Tender Offer and (i) certificates
representing such Holder's Debentures are not lost but are not immediately
available or time will not permit this Letter of Transmittal, certificates
representing Debentures or other required documents to reach the Depositary on
or before the Expiration Date or (ii) the procedures for book-entry transfer
cannot be completed on or before the Expiration Date, such Holder may effect a
tender of such Debentures in accordance with the guaranteed delivery procedures
described under "The Tender Offer--Procedures for Tendering
Debentures--Guaranteed Delivery Procedures" in the Offer to Purchase. Tenders
of Debentures may be withdrawn at any time before the Expiration Date pursuant
to the procedures described under "The Tender Offer--Procedures For Tendering
Debentures--Withdrawal Rights" in the Offer to Purchase.
There are no appraisal rights or other similar statutory rights available
to Holders in connection with the Tender Offer.
2. PARTIAL TENDERS. Tenders of Debentures pursuant to the Tender Offer will be
accepted only in principal amounts equal to $1,000 or integral multiples
thereof. If less than the entire principal amount of any Debentures evidenced
by a submitted certificate is tendered, the tendering Holder must fill in the
principal amount tendered in the last column of the box entitled "Description
of Debentures" herein. The entire principal amount represented by the
certificates for all Debentures delivered to the Depositary will be deemed to
have been tendered unless otherwise indicated. If the entire principal amount
of all Debentures is not tendered or not accepted for purchase, certificates
for the principal amount of Debentures not tendered or not accepted for
purchase will be sent to the Holder unless
<PAGE>
otherwise provided in the appropriate box on this Letter of Transmittal (see
Instruction 4), promptly after the Debentures are accepted for purchase.
3. SIGNATURES ON THIS LETTER OF TRANSMITTAL, BOND POWERS AND ENDORSEMENT:
GUARANTEE OF SIGNATURES. If this Letter of Transmittal is signed by the
registered Holder(s) of the Debentures tendered hereby, the signature(s) must
correspond with the name(s) as written on the face of the certificate(s)
without alteration, enlargement or any change whatsoever.
IF THIS LETTER OF TRANSMITTAL IS EXECUTED BY A HOLDER OF DEBENTURES WHO IS
NOT THE REGISTERED HOLDER, THEN THE REGISTERED HOLDER MUST SIGN A VALID POWER
OF ATTORNEY, WITH THE SIGNATURE OF SUCH REGISTERED HOLDER GUARANTEED BY AN
ELIGIBLE INSTITUTION.
If any of the Debentures tendered hereby are owned of record by two or
more joint owners, all such owners must sign this Letter of Transmittal. If any
tendered Debentures are registered in different names on several certificates,
it will be necessary to complete, sign and submit as many copies of this Letter
of Transmittal and any necessary accompanying documents as there are different
names in which certificates are held. If this Letter of Transmittal is signed
by the Holder, and the certificates for any principal amount of Debentures not
tendered or accepted for purchase are to be issued (or if any principal amount
of Debentures that is not tendered or accepted for purchase is to be reissued
or returned) to the Holder, and checks constituting payments for Debentures to
be purchased in connection with the Tender Offer are to be issued to the order
of the Holder, then the Holder need not endorse any certificates for tendered
Debentures nor provide a separate bond power. In any other case (including if
this Letter of Transmittal is not signed by the Holder), the Holder must either
properly endorse the certificates for Debentures tendered or transmit a
separate properly completed bond power with this Letter of Transmittal (in
either case, executed exactly as the name(s) of the registered Holder(s)
appear(s) on such Debentures), with the signature on the endorsement or bond
power guaranteed by an Eligible Institution, unless such certificates or bond
powers are executed by an Eligible Institution.
If this Letter of Transmittal or any certificates representing Debentures
or bond powers are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing, and
proper evidence satisfactory to the Company of their authority so to act must
be submitted with this Letter of Transmittal.
Endorsements on certificates for Debentures and signatures on bond powers
provided in accordance with this Instruction 3 by registered Holders not
executing this Letter of Transmittal must be guaranteed by an Eligible
Institution.
No signature guarantee is required if such Debentures are tendered for the
account of an Eligible Institution. In all other cases, all signatures on
Letters of Transmittal accompanying Debentures must be guaranteed by an
Eligible Institution.
4. SPECIAL ISSUANCE OR PAYMENT AND SPECIAL DELIVERY INSTRUCTIONS. Tendering
Holders should indicate in the applicable box or boxes the name and address to
which certificates representing Debentures for principal amounts not tendered
or not accepted for purchase or checks constituting payments for Debentures
purchased in connection with the Tender Offer are to be issued or sent, if
different from the name and address of the Holder signing this Letter of
Transmittal. In the case of issuance in a different name, the taxpayer
identification or social security number of the person named must also be
indicated. If no instructions are given, Debentures not tendered or not
accepted for purchase will be returned to the Holder.
5. TAXPAYER IDENTIFICATION NUMBER AND SUBSTITUTE FORM W-9. Each tendering U.S.
Holder is required to provide the Depositary with the U.S. Holder's correct
taxpayer identification number ("TIN"),
<PAGE>
generally the U.S. Holder's social security or federal employer identification
number, on Substitute Form W-9, which is provided under "Important Tax
Information" below, or alternatively, to establish another basis for exemption
from backup withholding. A U.S. Holder must cross out item (2) of Part 2 on
Substitute Form W-9 if such U.S. Holder is subject to backup withholding.
Failure to provide the information on the form may subject the tendering U.S.
Holder to a $50 penalty imposed by the Internal Revenue Service ("IRS") and to
31% federal income tax backup withholding on the payments made to the U.S.
Holder or other payee with respect to Debentures purchased pursuant to the
Tender Offer. The U.S. Holder should write "Applied For" in the space provided
for the TIN in Part 1, sign and date the Substitute Form W-9, and check the
appropriate box in Part 3, if the tendering U.S. Holder has not been issued a
TIN and has applied for a TIN or intends to apply for a TIN in the near future.
If "Applied For" is written in Part 1 and the Depositary is not provided with a
TIN within 60 days thereafter, the Depositary will withhold 31% from all such
payments with respect to the Debentures to be purchased until a TIN is provided
to the Depositary. Each Non-U.S. Holder must complete and submit Form W-8 in
order to be exempt from the 31% federal income tax backup withholding due on
payments with respect to the Debentures.
6. TRANSFER TAXES. The Company will pay all transfer taxes, if any, payable on
the purchase and transfer of Debentures purchased pursuant to the Tender Offer,
except in the case of deliveries of certificates for Debentures for principal
amounts not tendered or purchased that are to be registered or issued in the
name of any person other than the Holder of Debentures tendered hereby, in
which case the amount of any transfer taxes (whether imposed on the registered
Holder or such other person) payable on account of the transfer to such person
will be deducted from the Tender Offer Consideration unless satisfactory
evidence of the payment of such taxes or exemption therefrom is submitted.
Except as provided in this Instruction 6, it will not be necessary for
transfer stamps to be affixed to the certificates listed in this Letter of
Transmittal.
7. IRREGULARITIES. All questions as to the validity, form, eligibility
(including the time of receipt) and acceptance for payment of any tenders of
Debentures pursuant to the procedures described in the Offer to Purchase and
the form and validity (including the time of receipt of notices of withdrawal)
of all documents will be determined by the Company, in its sole discretion,
which determination shall be final and binding on all parties. The Company
reserves the absolute right to reject any or all tenders determined by it not
to be in proper form or the acceptance of or payment for which may be unlawful.
The Company also reserves the absolute right to waive any of the conditions of
the Tender Offer and any defect or irregularity on the tender of any particular
Debentures. The Company's interpretations of the terms and conditions of the
Tender Offer (including without limitation the instructions in this Letter of
Transmittal) shall be final and binding. No alternative, conditional or
contingent tenders will be accepted. Unless waived, any irregularities in
connection with tenders must be cured within such time as the Company shall
determine. None of the Company, the Depositary, the Trustee, the Co-Dealer
Managers, the Information Agent or any other person will be under any duty to
give notification of any defects or irregularities in such tenders or will
incur any liability to Holders for failure to give such notification. Tenders
of such Debentures shall not be deemed to have been made until such
irregularities have been cured or waived. Any Debentures received by the
Depositary that are not properly tendered and as to which the irregularities
have not been cured or waived will be returned by the Depositary to the
tendering Holders, unless such Holders have otherwise provided herein, as
promptly as practical following the Expiration Date.
8. WAIVER OF CONDITIONS. The Company expressly reserves the absolute right, in
its sole and absolute discretion, to amend or waive any of the conditions to
the Tender Offer in the case of any Debentures tendered, in whole or in part,
at any time and from time to time.
<PAGE>
9. MUTILATED, LOST, STOLEN OR DESTROYED CERTIFICATES FOR DEBENTURES. Any Holder
whose certificates for Debentures have been mutilated, lost, stolen or
destroyed should write to or telephone the Trustee at the address or telephone
number set forth in the Offer to Purchase.
10. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions relating to the
procedure for tendering Debentures and requests for assistance may be directed
to either Co-Dealer Manager at the respective addresses and telephone numbers
set forth on the last page of this Letter of Transmittal. A Holder may also
contact such Holder's broker, dealer, commercial bank, trust company or nominee
for assistance concerning the Tender Offer. Requests for additional copies of
this Letter of Transmittal or the Notice of Guaranteed Delivery should be
directed to the Information Agent whose address and telephone number is set
forth on the last page of this Letter of Transmittal.
IMPORTANT TAX INFORMATION
Under federal income tax laws, a Holder whose tendered Debentures are
accepted for payment is required to provide the Depositary (as payer) with such
Holder's correct TIN on Substitute Form W-9 below or otherwise establish a
basis for exemption from backup withholding. If such Holder is an individual,
the TIN is his or her social security number. If the Depositary is not provided
with the correct TIN, a $50 penalty may be imposed by the Internal Revenue
Service, and payments made to such Holder with respect to Debentures purchased
pursuant to the Tender Offer may be subject to backup withholding. Failure to
comply truthfully with the backup withholding requirements also may result in
the imposition of severe criminal and/or civil fines and penalties.
Certain Holders (including, among others, all corporations and certain
foreign persons) are not subject to these backup withholding and reporting
requirements. Exempt Holders should indicate their exempt status on Substitute
Form W-9. A Substitute Form W-9 can be obtained from the Depositary. See the
enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional instructions. A foreign person may qualify
as an exempt recipient by submitting to the Depositary, in lieu of a substitute
Form W-9, a properly completed Internal Revenue Service Form W-8, signed under
penalties of perjury, attesting to that Holder's exempt status.
If backup withholding applies, the Depositary is required to withhold 31%
of any payments made to the Holder or other payee. Backup withholding is not an
additional federal income tax. Rather, the federal income tax liability of
persons subject to backup withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on payments with respect to Debentures
purchased pursuant to the Tender Offer, the Holder is required to provide the
Depositary with either: (i) the Holder's correct TIN by completing the form
below, certifying that the TIN provided on Substitute Form W-9 is correct (or
that such Holder is awaiting a TIN) and that (A) the Holder is exempt from
backup withholding, (B) the Holder has not been notified by the Internal
Revenue Service that the Holder is subject to backup withholding as a result of
failure to report all interest or dividends, or (C) the Internal Revenue
Service has notified the Holder that the Holder is no longer subject to backup
withholding; or (ii) otherwise establish an adequate basis for exemption from
backup withholding.
WHAT NUMBER TO GIVE THE DEPOSITARY
The Holder is required to give the Depositary its TIN (e.g., social
security number or employer identification number). If the Debentures are held
in more than one name or are held not in the name of the actual owner, consult
the enclosed "Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9" for additional guidance on which number to report.
<PAGE>
PAYER'S NAME: U.S. BANK TRUST NATIONAL ASSOCIATION
<TABLE>
<S> <C> <C>
PART 1--PLEASE PROVIDE YOUR Social Security number(s) or
TIN IN THE BOX AT RIGHT AND Employer Identification Number(s)
CERTIFY BY SIGNING AND
SUBSTITUTE DATING BELOW. _________________________________
FORM W-9
PART 2--CERTIFICATION--Under penalties of
perjury, I certify that: (1) The number shown on
this form is my correct taxpayer identification
number (or I am waiting for a number to be
issued for me), and
DEPARTMENT OF THE TREASURY
INTERNAL REVENUE SERVICE
(2) I am not subject to backup withholding
because: (a) I am exempt from backup
withholding, or (b) I have not been notified by
the Internal Revenue Service ("IRS") that I am
subject to backup withholding as a result of a
failure to report all interest or dividends, or
(c) the IRS has notified me that I am no longer
subject to backup withholding.
PAYER'S REQUEST FOR
TAXPAYER IDENTIFICATION
NUMBER ("TIN")
CERTIFICATE INSTRUCTIONS--You must cross out
item (2) above if you have been notified by the
IRS that you are currently subject to backup
withholding because of under reporting interest
or dividends on your tax return.
Signature_______________________
PART 3--Awaiting TIN [ ]
Date____________________________
</TABLE>
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE TENDER OFFER.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX
IN PART 3 OF THE SUBSTITUTE FORM W-9.
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number
has not been issued to me, and either (1) I have mailed or delivered an
application to receive a taxpayer identification number to the appropriate
Internal Revenue Service Center or Social Security Administration Office or (2)
I intend to mail or deliver an application in the near future. I understand that
if I do not provide a taxpayer identification number by the time of payment, 31%
of all reportable cash payments made to me thereafter will be withheld until I
provide a taxpayer identification number.
____________________________________ _______________________________________
SIGNATURE DATE
<PAGE>
Any requests for additional copies of this Letter of Transmittal or the
Notice of Guaranteed Delivery should be directed to the Information Agent at
the address and telephone number set forth below.
THE INFORMATION AGENT FOR THE TENDER OFFER IS:
GEORGESON
SHAREHOLDER
COMMUNICATIONS INC.
17 State Street, 10th Floor
New York, NY 10004
Bankers and Brokers Call Collect: (212) 440-9800
All Others Call Toll Free: (800) 223-2064
THE CO-DEALER MANAGERS FOR THE TENDER OFFER ARE:
RYAN, BECK & CO.
220 South Orange Avenue
Livingston, NJ 07039
(973) 597-6020
FRIEDMAN, BILLINGS, RAMSEY
Potomac Tower
1001 19th Street North, 18th Floor
Arlington, VA 22209
(703) 469-1005
NOTICE OF GUARANTEED DELIVERY
TO TENDER IN RESPECT OF
UP TO $25 MILLION AGGREGATE PRINCIPAL AMOUNT OF
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
TENDER OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY 29,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF DEBENTURES (EACH A
"HOLDER" AND COLLECTIVELY, THE "HOLDERS") MUST TENDER THEIR DEBENTURES ON OR
PRIOR TO THE EXPIRATION DATE IN ORDER TO RECEIVE THE TENDER OFFER
CONSIDERATION. TENDERED DEBENTURES MAY BE WITHDRAWN AT ANY TIME ON OR PRIOR
TO THE EXPIRATION DATE.
As set forth under the caption "Procedures for Tendering
Debentures--Guaranteed Delivery" in the Offer to Purchase of BankAtlantic
Bancorp, Inc., a Florida corporation (the "Company") and in Instruction 1 of
the related Letter of Transmittal (the "Letter of Transmittal and, together
with the Offer to Purchase, the "Offer Documents"), this Notice of Guaranteed
Delivery, or one substantially in the form hereof, must be used to cause a
tender of 5.625% Convertible Subordinated Debentures due 2007 (the
"Debentures") of BankAtlantic Bancorp. Inc. (the "Company") by (i) a record
holder of Debentures if certificates for the Debentures are not immediately
available or time will not permit all required documents to reach the
Depositary for the Tender Offer on or before the Expiration Date or (ii) by a
DTC Participant (as defined in the Offer to Purchase) if the procedures for
book-entry transfer described in the Offer to Purchase cannot be completed on a
timely basis. This form must be delivered by an Eligible Institution (as
defined in the Offer to Purchase) by registered or certified mail or hand
delivery, or transmitted by facsimile transmission to the Depositary as set
forth above.
Capitalized terms used herein, but not defined herein shall have the
meanings given them in the Offer to Purchase, dated January 28, 2000 (the
"Offer to Purchase").
THE DEPOSITARY FOR THE TENDER OFFER IS:
U.S. BANK TRUST NATIONAL ASSOCIATION
BY MAIL, HAND DELIVERY FACSIMILE TRANSMISSION:
OR OVERNIGHT COURIER: (For Eligible Institutions Only)
U.S. Bank Trust National Association (651) 244-1537
180 East Fifth Street
St. Paul, MN 55101 FOR CONFIRMATION BY TELEPHONE:
Attn: Specialized Finance Department (800) 934-6802
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET
FORTH ABOVE, DOES NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on a
Letter of Transmittal is required to be guaranteed by an Eligible Institution
under the instructions thereto, such signature guarantee must appear in the
applicable space provided in the signature box on the Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Company, upon the terms and subject
to the conditions set forth in the Offer to Purchase and Letter of Transmittal
(receipt of which is hereby acknowledged), the principal amount of Debentures
specified below pursuant to the guaranteed delivery procedures set forth in the
Offer to Purchase under the caption "Procedures for Tendering
Debentures--Guaranteed Delivery Procedures."
The undersigned understand(s) that tenders of Debentures may be withdrawn
by written notice of withdrawal received by the Depositary at any time on or
prior to the Expiration Date. In the event of a termination of the Tender
Offer, the Debentures tendered pursuant to the Tender Offer will be returned to
the tendering Holders promptly (or, in the case of Debentures tendered by
book-entry transfer, such Debentures will be credited to the account maintained
at DTC from which such Debentures were delivered). Tendered Debentures cannot
be withdrawn subsequent to the Expiration Date unless the Company decreases
either (i) the Tender Consideration for such Debentures or (ii) the principal
amount of such Debentures subject to the Tender Offer, in which event
Debentures previously tendered may be validly withdrawn until the expiration of
ten business days after the date that notice of such reduction is first
published, given or sent to Holders of such Debentures by the Company.
The undersigned understand(s) that payment by the Depositary for
Debentures tendered and accepted for payment pursuant to the Tender Offer will
be made only after timely receipt by the Depositary of such Debentures (or
Book-Entry confirmation of the transfer of such Debentures into the
Depositary's account at DTC) and Letter of Transmittal (or a manually signed
facsimile copy thereof) with respect to such Debentures properly completed and
duly executed with any required signature guarantees and any other documents
required by the Letter of Transmittal or a properly transmitted Agent's
Message.
All authority conferred or agreed to be conferred by this Notice of
Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under the Letter of Transmittal shall
be binding upon the undersigned's heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives.
<PAGE>
PLEASE SIGN AND COMPLETE
This Notice of Guaranteed Delivery must be signed by the Holder(s) of
Debentures exactly as their name(s) appear(s) on certificate(s) for Debentures
or, if tendered by a participant in DTC, exactly as such participant's name
appears on a security position listing as the owner of Debentures, or by
person(s) authorized to become Holder(s) by endorsements and documents
transmitted with this Notice of Guaranteed Delivery. If signature is by a
trustee, executor, administrator, guardian, attorney-in-fact, officer or other
person acting in a fiduciary or representative capacity, such person must set
forth his or her name, address and full title as indicated below.
Name(s) of Holder(s):___________________________________________________________
(PLEASE PRINT OR TYPE)
________________________________________________________________________________
(SIGNATURE)
Address(es) of Holder(s):_______________________________________________________
Area Code and Tel. No.:_________________________________________________________
Name(s) of Authorized Signatory:________________________________________________
Aggregate Principal Amount of
Debentures Tendered:___________________________________________________________
Certificate No(s). (if available):______________________________________________
Full Title:_____________________________________________________________________
Address(es) of Authorized Signatory:____________________________________________
Area Code and Tel. No.:_________________________________________________________
Signature(s) of Registered Holder or
Authorized Signatory:__________________________________________________________
If tender is by Book-Entry Transfers:
DTC Participant's Number:_______________________________________________________
Account Number:_________________________________________________________________
Transaction Code Number:________________________________________________________
Date:__________, 2000
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member of a registered national securities exchange or
of the National Association of Securities Dealers, Inc., or a commercial bank
or trust company having an office or correspondent in the United States or
another "Eligible Guarantor Institution" as defined in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, hereby guarantees that, within
three New York Stock Exchange trading days from the date of receipt by the
Depositary of this Notice of Guaranteed Delivery, a properly completed and
validly executed Letter of Transmittal (or a facsimile thereof), together with
Debentures tendered hereby in proper form for transfer, (or confirmation of the
book-entry transfer of such Debentures into the Depositary's account at DTC,
pursuant to the procedures for book-entry transfer set forth under "Procedures
for Tendering Debentures" in the Offer to Purchase) and all other required
documents will be delivered by the undersigned to the Depositary.
The Eligible Institution that completes this form must communicate the
guarantee to the Depositary and must deliver the Letter of Transmittal and
certificates for the Debentures to the Depositary within the time period shown
herein. Failure to do so could result in financial loss to such Eligible
Institution.
Name of Firm:___________________________________________________________________
(AUTHORIZED SIGNATORY)
Title:__________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________________
(ZIP CODE)
Telephone No.:__________________________________________________________________
Authorized Signature:___________________________________________________________
Title:__________________________________________________________________________
Name:___________________________________________________________________________
(PLEASE TYPE OR PRINT)
NOTE: DO NOT SEND DEBENTURES WITH THIS NOTICE. DEBENTURES SHOULD BE SENT TO THE
DEPOSITARY TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF
TRANSMITTAL.
BANKATLANTIC BANCORP, INC.
1750 EAST SUNRISE BOULEVARD
FORT LAUDERDALE, FLORIDA 33304
January 28, 2000.
To the Holders of
5.625% Convertible Subordinated Debentures due 2007
of BankAtlantic Bancorp, Inc.:
BankAtlantic Bancorp, Inc., a Florida corporation (the "Company"), is
offering to purchase for cash (the "Tender Offer") up to $25 million aggregate
principal amount of its 5.625% Convertible Subordinated Debentures due 2007
(the "Debentures"), upon the terms and subject to the conditions set forth in
the enclosed Offer to Purchase dated January 28, 2000 (the "Offer to Purchase")
and the related Letter of Transmittal (the "Letter of Transmittal").
The consideration for each $1,000 principal amount of Debentures tendered
pursuant to the Tender Offer shall be $750, plus accrued and unpaid interest
from December 1, 1999 up to, but not including, the date of payment.
The Company's obligation to accept for purchase and to pay for Debentures
validly tendered pursuant to the Tender Offer is conditioned upon, (i) the
availability of sufficient funds to the Company to purchase Debentures validly
tendered, and (ii) the satisfaction of the General Conditions (as defined in
the Offer to Purchase).
Please read carefully the Offer to Purchase and the other enclosed
materials relating to the Tender Offer. If you require assistance, you should
consult your financial, tax or other professional advisors. Holders of record
who wish to participate in the Tender Offer are asked to respond promptly by
completing and returning the Letter of Transmittal (which is enclosed), and all
other required documentation, to U.S. Bank Trust National Association, the
Depositary for the Tender Offer, or to electronically transmit their acceptance
of the Tender Offer by causing The Depository Trust Company ("DTC") to transfer
Debentures to the Depositary in accordance with DTC's Automated Tender Offer
Procedures for transfer.
If you have any questions regarding how to tender your Debentures or how
to fill out the forms, please direct your questions to the Information Agent,
Georgeson Shareholder Communications Inc., Wall Street Plaza, New York, New
York 10005, (800) 223-2064. If you have questions regarding the Company or the
terms of the Tender Offer, please direct your questions to Ryan Beck & Co.,
Inc., 220 South Orange Avenue, Livingston, New Jersey 07039, (973) 597-6020 or
Friedman, Billings, Ramsey & Co., Inc., Potomac Tower, 1001 19th Street North,
18th Floor, Arlington, Virginia 22209, (703) 469-1005.
Thank you for your time and effort in reviewing this request.
Very truly yours,
BANKATLANTIC BANCORP, INC.
CUSIP 065908AC9
OFFER TO PURCHASE FOR CASH
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
TENDER OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY 29,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF DEBENTURES (EACH A
"HOLDER" AND COLLECTIVELY, THE "HOLDERS") MUST TENDER THEIR DEBENTURES ON OR
PRIOR TO THE EXPIRATION DATE IN ORDER TO RECEIVE THE TENDER OFFER
CONSIDERATION. TENDERED DEBENTURES MAY BE WITHDRAWN AT ANY TIME ON OR PRIOR
TO THE EXPIRATION DATE.
January 28, 2000
To: Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees:
Enclosed for your consideration is an Offer to Purchase (the "Offer to
Purchase") and a Letter of Transmittal (the "Letter of Transmittal" and,
together with the Offer to Purchase, the "Offer Documents"), relating to the
offer (the "Tender Offer") by BankAtlantic Bancorp, Inc., a Florida corporation
(the "Company"), to purchase for cash up to $25 million aggregate principal
amount of its 5.625% Convertible Subordinated Debentures due 2007 (the
"Debentures").
The consideration for each $1,000 principal amount of Debentures tendered
pursuant to the Tender Offer shall be $750, plus accrued and unpaid interest
from December 1, 1999 up to, but not including, the date of payment.
The Company's obligation to accept for purchase and to pay for Debentures
validly tendered pursuant to the Tender Offer is conditioned upon, (i) the
availability of sufficient funds to the Company to purchase Debentures validly
tendered, and (ii) the satisfaction of the general conditions (as defined in
the Offer to Purchase).
We are asking you to contact your clients for whom you hold Debentures
registered in your name or in the name of your nominee.
Enclosed is a copy, for your information and for forwarding to your
clients, of the following documents:
1. The Offer to Purchase;
2. A Letter of Transmittal for your use in connection with the tender of
Debentures by record holders and for the information of your clients;
3. A Notice of Guaranteed Delivery to be used to tender in the Tender
Offer if certificates for Debentures are not lost but not immediately
available, or if the procedure for book-entry transfer cannot be completed on
or before the Expiration Date;
4. A form of letter to the Holders of Debentures from the Company;
<PAGE>
5. A letter addressed "To Our Clients" which may be sent to your clients
for whose accounts you hold Debentures registered in your name or in the name
of your nominee, with an instruction form provided for obtaining such clients'
instructions with respect to the Tender Offer;
6. Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 providing information relating to backup federal income tax
withholding; and
7. A return envelope addressed to U.S. Bank Trust National Association,
the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
DEBENTURES TENDERED PURSUANT TO THE OFFER MAY BE VALIDLY WITHDRAWN, SUBJECT TO
THE PROCEDURES DESCRIBED IN THE OFFER DOCUMENTS, AT ANY TIME BEFORE THE
EXPIRATION DATE.
The Company will not pay any fees or commissions to any broker, dealer,
commercial bank, trust company or other person in connection with the
solicitation of tenders of Debentures pursuant to the Tender Offer. The
Company, upon request, will reimburse brokers, dealers, commercial banks, and
trust companies for reasonable and customary mailing and handling expenses
incurred by them in forwarding any of the enclosed materials to their clients.
The Company will pay all transfer taxes to purchase and transfer the Debentures
pursuant to the Tender Offer, except as otherwise provided in the Offer
Documents.
Please refer to "Procedures for Tendering Debentures" in the Offer to
Purchase for a description of the procedures which must be followed to tender
Debentures in the Tender Offer.
Any requests for additional copies of the Offer to Purchase, the Letter of
Transmittal and Notice of Guaranteed Delivery should be directed to Georgeson
Shareholder Communications, Inc. and any questions or requests for assistance
should be directed to the undersigned Co-Dealer Managers at their respective
addresses and telephone numbers set forth on the back cover of the Offer to
Purchase.
Very truly yours,
RYAN BECK & CO. FRIEDMAN, BILLINGS, RAMSEY
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL MAKE YOU, OR ANY OTHER
PERSON, THE AGENT OF THE COMPANY, THE CO-DEALER MANAGERS, THE INFORMATION
AGENT, THE DEPOSITARY, THE TRUSTEE, OR OF ANY AFFILIATE OF ANY OF THEM, OR
AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR TO MAKE ANY STATEMENT
ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE TENDER OFFER EXCEPT STATEMENTS
EXPRESSLY MADE IN THE OFFER TO PURCHASE OR THE LETTER OF TRANSMITTAL.
OFFER TO PURCHASE FOR CASH
UP TO $25 MILLION AGGREGATE PRINCIPAL AMOUNT OF
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THE OFFER TO PURCHASE, THE
TENDER OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON FEBRUARY 29,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). HOLDERS OF DEBENTURES (EACH A
"HOLDER" AND COLLECTIVELY, THE "HOLDERS") MUST TENDER THEIR DEBENTURES ON OR
PRIOR TO THE EXPIRATION DATE IN ORDER TO RECEIVE THE TENDER OFFER
CONSIDERATION. TENDERED DEBENTURES MAY BE WITHDRAWN AT ANY TIME ON OR PRIOR
TO THE EXPIRATION DATE.
January 28, 2000
To Our Clients:
Enclosed for your consideration is an Offer to Purchase (the "Offer to
Purchase") and a Letter of Transmittal (the "Letter of Transmittal" and,
together with the Offer to Purchase, the "Offer Documents") relating to the
offer (the "Tender Offer") by BankAtlantic Bancorp, Inc., a Florida corporation
(the "Company"), to purchase for cash up to $25 million aggregate principal
amount of its 5.625% Convertible Subordinated Debentures due 2007 (the
"Debentures") at a price of $750 per $1,000 principal amount of Debentures.
The materials are being forwarded to you as the beneficial owner of
Debentures held by us for your account or benefit but not registered in your
name. A TENDER OF SUCH DEBENTURES CAN BE MADE ONLY BY US AS THE HOLDER OF
RECORD AND PURSUANT TO YOUR INSTRUCTIONS. THE LETTER OF TRANSMITTAL IS
FURNISHED TO YOU FOR YOUR INFORMATIONAL PURPOSES ONLY AND CANNOT BE USED BY YOU
TO TENDER DEBENTURES HELD BY US FOR YOUR ACCOUNT OR BENEFIT.
Accordingly, we request instructions as to whether you wish to have us
tender Debentures on your behalf in respect of any or all of the Debentures
held by us for your account or benefit, upon the terms and subject to the
conditions set forth in the Offer Documents. We urge you to read carefully the
Offer Documents before instructing us to tender your Debentures.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to tender Debentures on your behalf in accordance with the
provisions of the Tender Offer. Debentures tendered by you pursuant to the
Tender Offer may be validly withdrawn, subject to the provisions described in
the Offer to Purchase, at any time prior to the Expiration Date.
Your attention is directed to the following:
1. The consideration for each $1,000 principal amount of Debentures
tendered pursuant to the Tender Offer shall be $750, plus accrued and unpaid
interest from December 1, 1999 up to, but not including, the date of payment.
2. The Company's obligation to accept for purchase and to pay for
Debentures validly tendered pursuant to the Tender Offer is conditioned upon
(i) the availability of sufficient funds to the Company to purchase Debentures
validly tendered and (ii) the satisfaction of the General Conditions (as
defined in the Offer to Purchase).
<PAGE>
3. The Tender Offer is being made for Debentures having an aggregate
principal amount of up to $25 million. If Debentures having an aggregate
principal amount in excess of $25 million are tendered and not withdrawn and
the Company does not increase the $25 million limit, the Company will purchase
Debentures having an aggregate principal amount of $25 million, pro rata in an
amount per Holder equal to (i) a fraction the numerator of which is such
Holder's total principal amount of Debentures tendered and the denominator of
which is the total principal amount of Debentures tendered, multiplied by (ii)
$25 million ("Pro Rata Acceptance").
4. The Tender Offer will expire on the Expiration Date, unless the Tender
Offer is extended. Tendered Debentures may be withdrawn at any time on or prior
to the Expiration Date.
If you wish to have us tender any or all of your Debentures held by us for
your account upon the terms set forth in the Offer to Purchase, please so
instruct us by completing, executing and returning to us the Instruction Form
contained in this letter. An envelope in which to return your instructions to
us is enclosed. If you authorize the tender of your Debentures, all such
Debentures will be tendered unless otherwise specified on the Instruction Form.
YOUR INSTRUCTIONS SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO
SUBMIT A TENDER ON YOUR BEHALF ON OR PRIOR TO THE EXPIRATION DATE.
The Tender Offer is not being made to (nor will tenders of Debentures be
accepted from or on behalf of) Holders of Debentures in any jurisdiction in
which the making or acceptance of the Tender Offer would not be in compliance
with the laws of such jurisdiction. However, the Company, in its sole
discretion, may take such action as it may deem necessary to make the Tender
Offer in any such jurisdiction, and may extend the Tender Offer to Holders of
Debentures in such jurisdiction.
<PAGE>
INSTRUCTION FORM WITH RESPECT TO THE
OFFER TO PURCHASE FOR CASH
UP TO $25 MILLION AGGREGATE PRINCIPAL AMOUNT OF
5.625% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2007
OF
BANKATLANTIC BANCORP, INC.
The undersigned acknowledge(s) receipt of your letter and the enclosed
Offer to Purchase and the related Letter of Transmittal, in connection with the
offer (the "Tender Offer") by BankAtlantic Bancorp, Inc., a Florida corporation
(the "Company"), to purchase for cash up to $25 million aggregate principal
amount of its 5.625% Convertible Subordinated Debentures due 2007 (the
"Debentures").
This will instruct you to tender to the Company the aggregate principal
amount of Debentures indicated below held by you for the account or benefit of
the undersigned (or, if no amount is indicated below, for all of the aggregate
principal amount of Debentures held by you for the account of the undersigned)
upon the terms and subject to the conditions set forth in the Offer to Purchase
and Letter of Transmittal.
THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE ELECTION AND RISK OF THE
UNDERSIGNED. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT TIME
SHOULD BE ALLOWED TO ASSURE DELIVERY.
Box 1 [ ] Please tender ALL my Debentures, held by you for my
account or benefit.*
Box 2 [ ] Please tender LESS than all my Debentures. I wish to
tender $__________ aggregate principal amount of
Debentures.
Box 3 [ ] Please do not tender any Debentures held by you for my
account or benefit.
Signature(s)
__________________________________________________________
__________________________________________________________
Please type or print name(s)
__________________________________________________________
Area Code and Telephone Number
__________________________________________________________
Taxpayer Identification or Social Security Number
Dated:_____________, 2000
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* Unless otherwise indicated, it will be assumed that we should tender all of
the aggregate principal amount of Debentures held by us for your account or
benefit.
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER.
Social Security numbers have nine digits separated by two hyphens (i.e.
000-00-0000). Employer identification numbers have nine digits separated by
only one hyphen (i.e. 00-0000000). The table below will help determine the
number to give the payer.
<TABLE>
<S> <C>
FOR THIS TYPE OF ACCOUNT: GIVE THE SOCIAL SECURITY NUMBER OF:
1. An individual's account The individual
2. Two or more individuals (joint account) The actual owner of the account or, if combined
funds, any one of the individuals (1)
3. Husband and wife (joint account) The actual owner of the account or, if joint funds,
either person (1)
4. Custodian account of a minor (Uniform Gift to The minor (2)
Minors Act)
5. Adult and minor (joint account) The adult or, if the minor is the only contributor, the
minor (1)
6. Account in the name of guardian or committee The ward, minor, or incompetent person (3)
for a designated ward, minor, or incompetent
person
7. a. The usual revocable savings trust account The grantor - trustee (1)
(grantor is also trustee)
b. So-called trust account that is not a legal or The actual owner (1)
valid trust under State law
8. Sole proprietorship account The owner (4)
GIVE THE EMPLOYER
FOR THIS TYPE OF ACCOUNT: IDENTIFICATION NUMBER OF:
9. A valid trust, estate, or pension trust The legal entity (do not furnish the identifying
number of the personal representative or trustee
unless the legal entity itself is not designated in the
account title)(5)
10. Corporate account The corporation
11. Religious, charitable, or educational organization The organization
12. Partnership account held in the name of the The partnership
business
13. Association, club, or other tax-exempt The organization
organization
14. A broker or registered nominee The broker or nominee
15. Account with the Department of Agriculture in The public entity
the name of a public entity (such as a state or
local government, school district, or prison) that
receives agricultural program payments.
</TABLE>
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(1) List first and circle the name of the person whose number you furnish.
(2) Circle the minor's name and furnish the minor's social security number.
(3) Circle the ward's, minor's or incompetent person's name and furnish such
person's social security number.
(4) Show the name of the owner.
(5) List first and circle the name of the legal trust, estate, or pension
trust.
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
OBTAINING A NUMBER. If you do not have a taxpayer identification number or you
do not know your number, obtain Form SS-5, Application for a Social Security
Number Card, or Form SS-4, Application for an Employer Identification Number,
at the local office of the Social Security Administration or the Internal
Revenue Service and apply for a number.
PAYEES EXEMPT FROM BACKUP WITHHOLDING. The following is a list of payees exempt
from backup withholding and for which no information reporting is required:
/bullet/ A corporation.
/bullet/ A financial institution.
/bullet/ An organization exempt from tax under Section 501(a), or an individual
retirement plan.
/bullet/ The United States or any agency or instrumentality thereof.
/bullet/ A State, the District of Columbia, a possession of the United States,
or any subdivision or instrumentality thereof.
/bullet/ A foreign government, a political subdivision of a foreign government,
or any agency or instrumentality thereof. /bullet/ An international
organization or any agency, or instrumentality thereof.
/bullet/ A registered dealer in securities or commodities registered in the
U.S. or a possession of the U.S.
/bullet/ A real estate investment trust.
/bullet/ A common trust fund operated by a bank under Section 584(a).
/bullet/ A trust exempt from tax under Section 664 or described in Section
4947.
/bullet/ A middleman known in the investment community as a nominee or listed
in the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
/bullet/ An entity registered at all times under the Investment Company Act of
1940.
/bullet/ A foreign central bank of issue.
Payments of dividends and patronage dividends not generally subject to backup
withholding include the following:
/bullet/ Payments to nonresident aliens subject to withholding under Section
1441.
/bullet/ Payments to partnerships not engaged in a trade or business in the
U.S. and which have at least one nonresident partner.
/bullet/ Payments of patronage dividends where the amount received is not paid
in money.
/bullet/ Payments made by certain foreign organizations.
/bullet/ Payments made to a nominee.
/bullet/ Section 401K distributions made by an ESOP.
Payments of interest not generally subject to backup withholding include the
following:
/bullet/ Payments of interest on obligations issued by individuals.
Note: You may be subject to backup withholding if this interest is $600 or
more and is paid in the course of the payer's trade or business and you have
not provided your correct taxpayer identification number to the payer.
/bullet/ Payments of tax-exempt interest (including exempt-interest dividends
under section 852).
/bullet/ Payments described in Section 6049(b)(5) to nonresident aliens.
/bullet/ Payments on tax-free covenant bonds under Section 1451.
/bullet/ Payments made by certain foreign organizations.
/bullet/ Payments made to a nominee.
/bullet/ Mortgage interest paid to you.
EXEMPT PAYEES DESCRIBED ABOVE SHOULD FILE FORM W-9 TO AVOID POSSIBLE ERRONEOUS
BACKUP WITHHOLDING. EXEMPT PAYEES SHOULD FILE THIS FORM WITH THE PAYER, FURNISH
THEIR TAXPAYER IDENTIFICATION NUMBER, WRITE "EXEMPT" ON THE FACE OF THE FORM,
AND RETURN IT TO THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR
PATRONAGE DIVIDENDS, SIGN AND DATE THE FORM.
<PAGE>
Certain payments other than interest dividends, and patronage dividends,
that are not subject to information reporting are also not subject to backup
withholding. For details, see the regulations under sections 6041, 6041A(a),
6045, and 6050A.
The Section references above are to the Internal Revenue Code.
PRIVACY ACT NOTICE. Section 6109 requires most recipients of dividend,
interest, or other payments to give correct taxpayer identification numbers to
payers who must file information returns with the IRS. The IRS uses the numbers
for identification purposes. Payers must be given the numbers whether or not
recipients are required to file tax returns. Payers must generally withhold 31%
of taxable interest, dividend, and certain other payments to a payee who does
not furnish a taxpayer identification number to a payer. Certain penalties may
also apply.
PENALTIES.
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER. If you fail
to furnish your taxpayer identification number to a payer, you are subject
to a penalty of $50 for each such failure unless your failure is due to
reasonable cause and not to willful neglect.
(2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS. If you fail to
include any portion of an includible payment for interest, dividends, or
patronage dividends in gross income, such failure will be treated as being
due to negligence and will be subject to a penalty of 5% on any portion of
an underpayment attributable to that failure unless there is clear and
convincing evidence to the contrary.
(3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING. If you
make a false statement with no reasonable basis which results in no
imposition of backup withholding, you are subject to a penalty of $500.
(4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION. Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR ADDITIONAL INFORMATION CONTACT YOUR
TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE.
PRESS RELEASE
JANUARY 28, 2000
BankAtlantic Bancorp, today announced its tender offer for up to $25 million in
principal amount of the Company's outstanding 5.625% Convertible Subordinated
Debentures due 2007 for a cash price of $750 per $1,000 principal amount of
Debentures. The closing price of the Debentures on January 27, 2000 was $650
per $1,000 principal amount. If more than $25 million of the outstanding
Debentures are tendered, and the Company chooses not to purchase all such
Debentures, the Company will purchase the Debentures on a pro rata basis.
Tenders of Debentures will be accepted only in integral multiples of $1,000
principal amount. The tender offer is subject to financing and other general
conditions and will expire on February 29, 2000. Ryan, Beck & Co., Inc., a
subsidiary of the Company, and Friedman, Billings, Ramsey & Co., Inc., are
acting as co-dealer managers for the tender offer.
HOLDERS OF DEBENTURES SHOULD READ THE OFFER TO PURCHASE BECAUSE IT CONTAINS
IMPORTANT INFORMATION. THE OFFER TO PURCHASE AND OTHER FILED DOCUMENTS ARE
AVAILABLE FOR FREE AT THE SECURITIES AND EXCHANGE COMMISSION'S WEBSITE LOCATED
AT HTTP://WWW.SEC.GOV AND FROM THE COMPANY UPON REQUEST.
Statements in this release may constitute forward-looking statements and are
made pursuant to the Safe Harbor Provision of the Private Securities and
Litigation Reform Act of 1995. Forward-looking statements are based largely on
expectations and are subject to a number of risks and uncertainties including,
but not limited to, the risks and uncertainties associated with the
availability and terms of the financing to be used to fund the tender offer and
the satisfaction of other conditions to the tender offer; the impact of
increased leverage on the Company's balance sheet and results of operations;
the profitability of ongoing banking and non-banking activities; and other
economic, competitive, regulatory and other factors detailed in the Company's
SEC filings.
