The following table sets forth certain information regarding equity-based awards of the Company held as of December 31, 2008 by the Named Executive Officers (other than Mr. Grelle, who does not currently hold, and as of December 31, 2006.2008 did not hold, any equity-based awards of the Company).
Plan. While the BankAtlantic Retirement Plan is frozen, there will be no future benefit accruals. None of the other Named Executive Officers is a participant in the BankAtlantic Retirement Plan. The BankAtlantic Retirement Plan was designed to provide retirement income based on an employee’s salary and years of active service, determined as of December 31, 1998. The cost of the BankAtlantic Retirement Plan is paid by BankAtlantic and all contributions are actuarially determined.
In general, the BankAtlantic Retirement Plan provides for monthly payments to or on behalf of each covered employee upon such employee’s retirement (with provisions for early or postponed retirement), death or disability. As a result of the freezing of future benefit accruals, the amount of the monthly payments is based generally upon two factors: (1) the employee’s average regular monthly compensation for the five consecutive years out of the last ten years ended December 31, 1998, or prior retirement, death or disability, that produces the highest average monthly rate of regular compensationcompensation; and (2) upon the employee’s years of service with BankAtlantic at December 31, 1998. Benefits are payable for the retiree’s life, with ten years’ worth of payments guaranteed. The benefits are not subject to any reduction for Social Security or any other external benefits.
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In 1996, BankAtlantic amended the BankAtlantic Retirement Plan and adopted a supplemental benefit for certain of its executives, as permitted by the Employee Retirement Income Security Act of 1974 and the Code. This was done because of a change in the Code that operated to restrict the amount of the executive’s compensation that may be taken into account for planBankAtlantic Retirement Plan purposes, regardless of the executive’s actual compensation. The intent of the supplemental benefit, when added to the regular planBankAtlantic Retirement Plan benefit, was to provide to certain executives the same retirement benefits that they would have received had the Code limits not been enacted, subject to other requirements of the Code. The approximate targeted percentage of pre-retirement compensation for which Mr. Levan will be eligible under the BankAtlantic Retirement Plan as a result of the supplemental benefit at age 65 is 33%. None of the other Named Executive OfficersMr. Abdo is not entitled to the supplemental benefit. The supplemental benefit also was frozen as of December 31, 1998. Because the percentage of pre-retirement compensation payable from the BankAtlantic Retirement Plan to Mr. Levan, including the plan’sBankAtlantic Retirement Plan’s supplemental benefit, fell short of the benefit that Mr. Levan would have received under the planBankAtlantic Retirement Plan absent the Code limits, BankAtlantic adopted the BankAtlantic Split-Dollar Plan an employee benefit plan described below.
The following table illustrates annual pension benefits at age 65 for various levels of compensation and years of service at December 31, 1998, the date on which the BankAtlantic Retirement Plan benefits were frozen.
| | | | | | | | | | | | | | | | | | | | | |
| | | Estimated Annual Benefits
| |
Average Five Year Compensation
| | Years of Credited Service at December 31, 1998 | |
at December 31, 1998 | | 5 Years | | | 10 Years | | | 20 Years | | | 30 Years | | | 40 Years | |
| |
| $120,000 | | $ | 10,380 | | | $ | 20,760 | | | $ | 41,520 | | | $ | 62,280 | | | $ | 83,160 | |
| $150,000 | | | 13,005 | | | | 26,010 | | | | 52,020 | | | | 78,030 | | | | 104,160 | |
| $160,000 and above | | | 13,880 | | | | 27,760 | | | | 55,520 | | | | 83,280 | | | | 111,160 | |
BankAtlantic Split-Dollar Plan
BankAtlantic adopted the BankAtlantic Split-Dollar Plan in 1996 to provide additional retirement benefits to Mr. Levan, whose monthly benefits under the BankAtlantic Retirement Plan were limited by changes to the Code. Under the BankAtlantic Split-Dollar Plan and its accompanying agreement with Mr. Levan, BankAtlantic arranged for the purchase of an insurance policy insuring the life of Mr. Levan. Pursuant to its agreement with Mr. Levan, BankAtlantic has made and will continue to make premium payments for thisthe policy. The policy is anticipated to accumulate significant cash value over time, which cash value is expected to supplement Mr. Levan’s retirement benefit payable from the BankAtlantic Retirement Plan. Mr. Levan owns the insurance policy but BankAtlantic will be reimbursed for the amount of premiums that BankAtlantic pays for suchthe policy upon the earlier of his retirement or death. The portion of the amount paid in prior years attributable to the 20062008 premium for the insurance policy that is considered compensation to Mr. Levan is included under “All Other Compensation” in the row entitled “BBX” in the “Summary Compensation Table-2006”Table” above. The BankAtlantic Split-Dollar Plan was not included in the freezing of the BankAtlantic Retirement Plan, and BankAtlantic has continued to make premium payments for the insurance policy since 1998.
POTENTIAL PAYMENTS UPON TERMINATION ORCHANGE-IN-CONTROL
In September 2005, the Company entered into an agreement with Mr. Gilbert pursuant to which the Company agreed to pay Mr. Gilbert a monthly retirement benefit of $5,672 beginning January 1, 2010, regardless of his actual retirement date. The monthly payments will continue through Mr. Gilbert’s life, or if he dies before receiving 120 monthly payments, until such time as at least 120 monthly payments have been made to Mr. Gilbert and his beneficiaries. However, as permitted by the agreement, Mr. Gilbert may elect to choose an available actuarially equivalent form of payment. The Company’s obligation under the agreement is unfunded. Based on an aggregate retirement benefit payment of $980,296, in September 2005, the Company recorded the present value of the retirement benefit payment in the amount of $482,444. Assumptions used in the calculation of these amounts are included in footnote 22 to the Company’s audited financial statements for the fiscal year ended December 31, 2006 included in Amendment No. 2 to the Company’s Annual Report onForm 10-K/A filed with the Securities and Exchange Commission on July 5, 2007. The Company will recognize monthly the amortization of interest on the retirement benefit as compensation expense. Effective March 29, 2007, Mr. Gilbert retired from his executive positions with the Company. He continues to serve the Company in a non-executive position.
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Compensation of Directors
The Compensation Committee recommends director compensation to the Board based on factors it considers appropriate and based on the recommendations of management. In 2006,2008, each non-employee directorsdirector of the Company each received $100,000 for service on the Board of Directors, payable in cash, restricted stock or non-qualified stock options, in such combinations as the directors may elect,director elected, provided that no more than $50,000 may bewas payable in cash. The restricted stock and stock options are granted in Class A Stock under the Company’s 2005 Stock Incentive Plan. Restricted stock vests monthly over thea12-month service period and stock options are fully vested on the date of grant, have a ten-year term and have an exercise price equal to the closing market price of a share of the Class A Stock on the date of grant. The number of stock options and restricted stock granted is determined by the Company based on assumptions and formulas typically used to value these types of securities. For 2006,In addition to compensation for their service on the Board of Directors, the Company paid an aggregate of $200,000 in cash and granted 30,028 shares of restricted Class A Stockpays compensation to its non-employee directors pursuant tofor their service on the Board’s committees. During 2008, this plan. The Company did not grant any stock options to its non-employee directors in 2006 pursuant to this plan. No director receives additional compensation for attendance at Board of Directors’ meetings or meetings of committees on which he serves except as follows. In 2006, memberswas comprised of the Audit Committee, other than its Chairman, received an annual cash amount of $10,000.following. The Chairman of the Audit Committee received an annual cash amountretainer of $15,000 during 2006.$15,000. All other members of the Audit Committee received annual cash retainers of $10,000. The Chairman of the Compensation Committee and the Chairman of the Nominating/Corporate Governance Committee andeach received an annual cash retainer of $3,500. Other than the ChairmanChairmen, members of the Compensation Committee each received $3,500 during 2006.and the Nominating/Corporate Governance Committee were not separately compensated for their service on such committees. For 2008, in the aggregate, the Company paid $200,000 in cash, granted 120,480 shares of restricted Class A Stock and granted non-qualified stock options to purchase 252,150 shares of Class A Stock to its non-employee directors. Directors who are also officers of the Company or its subsidiaries do not receive additional compensation for their service as directors or for attendance at Board of Directors’ or committee meetings.directors.
DIRECTOR COMPENSATION TABLE — 20062008
The following table sets forth certain information regarding the compensation paid to the Company’s non-employee directors for their service during the fiscal year ended December 31, 2006.2008.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | Change in
| | | | | | | | | | | | | | | Change in
| | | | | |
| | | | | | | | | | | Pension Value and
| | | | | | | | | | | | | | | Pension Value
| | | | | |
| | | Fees
| | | | | | | | Nonqualified
| | | | | | | Fees
| | | | | | | | and Nonqualified
| | | | | |
| | | Earned
| | | | | | Non-Equity
| | Deferred
| | | | | | | Earned
| | Stock
| | | | Non-Equity
| | Deferred
| | | | | |
| | | or Paid
| | Stock
| | Option
| | Incentive Plan
| | Compensation
| | All Other
| | | | | or Paid
| | Awards
| | Option
| | Incentive Plan
| | Compensation
| | All Other
| | | |
Name | | in Cash($) | | Awards($)(1)(2) | | Awards($) | | Compensation($) | | Earnings($) | | Compensation($) | | Total($) | | | in Cash($) | | (1)(3)($) | | Awards (2)(3)($) | | Compensation($) | | Earnings($) | | Compensation($) | | Total($) | |
| |
| D. Keith Cobb | | | 60,000 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 110,000 | | | | 60,000 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 110,000 | |
| Oscar Holzmann | | | 65,000 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 115,000 | | | | 65,000 | | | | — | | | | 50,000 | | | | — | | | | — | | | | — | | | | 115,000 | |
| Neil Sterling | | | | 63,500 | | | | — | | | | 50,000 | | | | — | | | | — | | | | — | | | | 113,500 | |
| Earl Pertnoy | | | 63,500 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 113,500 | | | | 63,500 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 113,500 | |
| Neil Sterling | | | 63,500 | | | | 50,000 | | | | — | | | | — | | | | — | | | | — | | | | 113,500 | | |
| | |
| (1) | | All restricted stock awards are in shares of Class A Stock. The dollar amount represents the amountcompensation recognized for financial statement reporting purposes for the fiscal year ended December 31, 2006,2008, in accordance with FAS 123(R), including amounts from awards granted prior to 2006.2008. Assumptions used in the calculation of these amounts are included in footnote 23 to the Company’s audited financial statements for the fiscal year ended December 31, 2008 included in the Company’s Annual Report onForm 10-K filed with the Securities and Exchange Commission on March 31, 2009. There were no forfeitures during 2006.2008. The grant date fair value of the restricted stock awards computed in accordance with FAS 123(R) is $49,997 forof the restricted stock awards granted to each of Messrs. Cobb Holzmann,and Pertnoy and Sterling.during 2008 was $50,000. |
| |
| (2) | | All options are to purchase shares of Class A Stock and vested fully as of the date of grant. The dollar amount represents the compensation recognized for financial statement reporting purposes for the fiscal year ended December 31, 2008, in accordance with FAS 123(R), without taking into account an estimate of forfeitures related to service-based vesting of stock option grants, including amounts from awards granted prior to 2008. Assumptions used in the calculation of these amounts are included in footnote 23 to the Company’s audited financial statements for the fiscal year ended December 31, 2008 included in the Company’s Annual Report onForm 10-K filed with the Securities and Exchange Commission on March 31, 2009. There were no forfeitures during 2008. The grant date fair value computed in accordance with FAS 123 (R) of the stock option awards granted to each of Messrs. Holzmann and Sterling during 2008 was $50,000. |
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| | |
| (3) | | The table below sets forth the aggregate number of stock options and the aggregate number of shares of restricted stock held as of December 31, 2008 by each non-employee director of the Company as ofduring the year ended December 31, 2006:2008: |
| | | | | | | | | | | | | | | | | |
Name | | Stock Options(1) | | Restricted Stock(2) | | | Restricted Stock(a) | | Stock Options(b) | |
| |
| D. Keith Cobb | | | 6,250 | | | | 3,754 | | | | 25,100 | | | | 6,250 | |
| Oscar Holzmann | | | 20,290 | | | | 3,754 | | | | — | | | | 171,513 | |
| Neil Sterling | | | | — | | | | 171,513 | |
| Earl Pertnoy | | | 181,735 | (3) | | | 3,754 | | | | 25,100 | | | | 34,330 | (c) |
| Neil Sterling | | | 20,290 | | | | 3,754 | | |
| | |
(1) | | All options are to purchase shares of Class B Stock. |
|
(2)(a) | | All restricted stock awards are in shares of Class A Stock. |
| |
(3)(b) | | Mr. Pertnoy’s stock options are held by Pertnoy Limited Partnership. Mr. Pertnoy is the president of Pertnoy Parent, Inc., the general partner of Pertnoy Limited Partnership. |
23
AUDIT COMMITTEE REPORT
The following Report of the Audit Committee does not constitute soliciting material and should not be deemed filed or incorporated by reference into any other Company filing under the Securities Act or the Exchange Act, except to the extent the Company specifically incorporates this Report by reference therein.
The charter of the Audit Committee sets forth the Audit Committee responsibilities, which include oversight of the Company’s financial reporting on behalf of the Board of Directors and shareholders. The Audit Committee held seven meetings during 2006. These meetings were designed, among other things, to facilitate and encourage communication among the Audit Committee and the Company’s management, internal auditors and independent auditors for 2006, PricewaterhouseCoopers LLP (“PwC”). The Audit Committee discussed with the Company’s internal and independent auditors the overall scope and plans for their respective audits and met with the internal and independent auditors, with and without management present, to discuss the results of their examinations and their evaluations of the Company’s internal controls and compliance matters. At its meeting on March 12, 2007, the Audit Committee approved the continued engagement of PwC as the Company’s independent auditor.
The Audit Committee reviewed and discussed the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2006 with management and PwC.
Management has primary responsibility for the Company’s financial statements and the overall reporting process, including the Company’s system of internal controls. The independent auditors audit the annual financial statements prepared by management, express an opinion as to whether those financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of the Company in conformity with accounting principles generally accepted in the United States of America, and discuss with the Audit Committee their independence and any other matters that they are required to discuss with the Audit Committee or that they believe should be raised with it. The Audit Committee oversees these processes, although it must rely on information provided to it and on the representations made by management and the independent auditors.
The Audit Committee also discussed with the independent auditors matters required to be discussed with audit committees under generally accepted auditing standards, including, among other things, matters related to the conduct of the audit of the Company’s consolidated financial statements and the matters required to be discussed byStatement on Auditing Standards No. 61 (Communication with Audit Committees), as amended byStatement on Auditing Standards No. 90 (Audit Committee Communications).
The Company’s independent auditors also provided to the Audit Committee the written disclosures and the letter required byIndependence Standards Board Standard No. 1 (Independence Discussions with Audit Committees), and the Audit Committee discussed with PwC its independence from the Company. When considering PwC’s independence, the Audit Committee considered whether their provision of services to the Company beyond those rendered in connection with their audit and review of the Company’s consolidated financial statements was compatible with maintaining their independence. The Audit Committee also reviewed, among other things, the amount of fees paid to PwC for audit and non-audit services.
Based on these reviews and meetings, discussions and reports, the Audit Committee recommended to the Board of Directors that the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2006 be included in the Company’s Annual Report onForm 10-K for the year ended December 31, 2006 and in Amendment No. 2 to the Company’s Annual Report onForm 10-K/A for the year ended December 31, 2006.
Submitted by the Members of the Audit Committee:
Oscar Holzmann, Chairman
D. Keith Cobb
Earl Pertnoy
Neil Sterling
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FEES TO INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM
FOR FISCAL 2006 AND 2005
PwC served as the independent registered certified accounting firm for the Company, BankAtlantic Bancorp and Levitt for 2006 and 2005. The following table presents for each of these companies fees for professional services rendered by PwC for the audit of each company’s annual financial statements for fiscal 2006 and 2005 and fees billed for audit-related services, tax services and all other services rendered by PwC for fiscal 2006 and 2005.
| | | | | | | | | |
| | | Fiscal 2006 | | | Fiscal 2005 | |
| | | (In thousands) | |
| |
BFC Financial Corporation | | | | | | | | |
| Audit fees(1) | | $ | 248 | | | | 369 | (2) |
| Audit — related fees | | | — | | | | — | |
| Tax fees | | | — | | | | — | |
| All other fees | | | — | | | | — | |
BankAtlantic Bancorp | | | | | | | | |
| Audit fees(1) | | $ | 1,783 | | | | 1,739 | |
| Audit — related fees(3) | | | 425 | (4) | | | 25 | |
| Tax fees | | | — | | | | — | |
| All other fees | | | 3 | | | | — | |
Levitt | | | | | | | | |
| Audit fees(1) | | $ | 1,060 | | | | 1,073 | (5) |
| Audit — related fees | | | — | | | | — | |
| Tax fees | | | — | | | | — | |
| All other fees | | | — | | | | — | |
| | |
(1) | | Includes primarily fees for services related to each company’s respective annual financial statement audits, the 2006 and 2005 audit of effectiveness of internal control over financial reporting and review of quarterly financial statements filed in each company’s Quarterly Reports onForm 10-Q. |
|
(2) | | Includes additional billing of $79,000, which was incurred during 2006 as final settlement of fees for the Company’s 2005 audit. |
|
(3) | | Principally audits of employee benefit plans and consultations regarding generally accepted accounting principles. |
|
(4) | | Includes fees for services related to the previously proposed initial public offering of Ryan Beck & Co, Inc. |
|
(5) | | Includes additional billing of $300,000 which was incurred during 2006 as final settlement of fees for Levitt’s 2005 audit. |
All audit related services, tax services and other services were pre-approved by the Audit Committee of the respective company, which concluded that the provision of such services by PwC was compatible with the maintenance of that firm’s independence in the conduct of its auditing functions. Under the Company’s charter, the Audit Committee must review and pre-approve both audit and permitted non-audit services provided by the independent auditors and shall not engage the independent auditors to perform any non-audit services prohibited by law or regulation. Each year, the independent auditor’s retention to audit the Company’s financial statements, including the associated fee, is approved by the Audit Committee before the filing of the preceding year’s Annual Report onForm 10-K. Under its current practices, the Audit Committee does not regularly evaluate potential engagements of the independent auditor and approve or reject such potential engagements. At each Audit Committee meeting, the Audit Committee receives updates on the services actually provided by the independent auditor, and management may present additional services for pre-approval. The Audit Committee has delegated to the Chairman of the Audit Committee the authority to evaluate and approve engagements involving projected fees of $10,000 or less on behalf of the Audit Committee in the event that a need arises for pre-approval between regular Audit Committee meetings. If the Chairman so approves any such engagements, he will report that approval to the
25
full Audit Committee at the next Audit Committee meeting. Engagements involving projected fees of more than $10,000 may only be pre-approved by the full Audit Committee at a regular or special meeting of the Audit Committee.
The Audit Committee has determined that the provision of the services, other than audit services, as described above are compatible with maintaining the principal independent auditor’s independence.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of October 1, 2007, certain information as to Class A Stock and Class B Stock beneficially owned by persons owning in excess of 5% of the outstanding shares of such stock. In addition, this table includes the outstanding securities beneficially owned by (i) the Named Executive Officers, (ii) the Company’s directors as of October 1, 2007 and (iii) the Company’s directors and executive officers as of October 1, 2007 as a group. Management knows of no person, except as listed below, who beneficially owned more than 5% of the outstanding shares of Class A Stock or Class B Stock as of October 1, 2007. Except as otherwise indicated, the information provided in the following table was obtained from filings with the SEC and with the Company pursuant to the Exchange Act. For purposes of the table below, in accordance withRule 13d-3 under the Exchange Act, a person is deemed to be the beneficial owner of any shares (1) which he or she has or shares, directly or indirectly, voting or investment power, or (2) which he or she has the right to acquire beneficial ownership of at any time within 60 days after October 1, 2007. As used herein, “voting power” is the power to vote, or direct the voting of, shares, and “investment power” includes the power to dispose of, or direct the disposition of, such shares. Unless otherwise noted, each beneficial owner has sole voting and sole investment power over the shares beneficially owned.
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | Class A
| | | Class B
| | | Percent of
| | | Percent of
| |
| | | | | | Stock
| | | Stock
| | | Class A
| | | Class B
| |
Name of Beneficial Owner | | Notes | | | Ownership | | | Ownership | | | Stock | | | Stock | |
| |
| I.R.E. Realty Advisory Group, Inc. | | | (2,3,5 | ) | | | 4,764,285 | | | | 500,000 | | | | 11.8 | % | | | 7.0 | % |
| Florida Partners Corporation | | | (3,5 | ) | | | 1,270,302 | | | | 133,314 | | | | 3.1 | % | | | 1.9 | % |
| I.R.E. Properties, Inc. | | | (3,5 | ) | | | 2,928,727 | | | | 379,017 | | | | 7.3 | % | | | 5.3 | % |
| Levan Enterprises, Ltd. | | | (3,5 | ) | | | 431,649 | | | | 55,865 | | | | 1.1 | % | | | 0.8 | % |
| Alan B. Levan | | | (3,5,6,9 | ) | | | 11,437 | | | | 2,101,906 | | | | | * | | | 29.6 | % |
| John E. Abdo | | | (3,5,6,9 | ) | | | 3,356,771 | | | | 2,969,468 | | | | 8.3 | % | | | 41.8 | % |
| Glen R. Gilbert | | | (1,5 | ) | | | — | | | | 229,103 | | | | 0.0 | % | | | 3.2 | % |
| Phil Bakes | | | (5 | ) | | | — | | | | — | | | | 0.0 | % | | | 0.0 | % |
| Earl Pertnoy | | | (1,5,7 | ) | | | 223,361 | | | | 83,347 | | | | | * | | | 1.2 | % |
| Oscar Holzmann | | | (1,5 | ) | | | 38,286 | | | | 20,290 | | | | | * | | | | * |
| D. Keith Cobb | | | (1,5 | ) | | | 27,416 | | | | 6,250 | | | | | * | | | | * |
| Neil Sterling | | | (1,5 | ) | | | 38,286 | | | | 20,290 | | | | | * | | | | * |
| GoldenTree Asset Management LP | | | (10 | ) | | | 4,940,000 | | | | — | | | | 12.2 | % | | | 0.0 | % |
| Dr. Herbert A. Wertheim | | | (4 | ) | | | 3,968,157 | | | | 416,448 | | | | 9.8 | % | | | 5.9 | % |
| All directors and executive officers of the Company as of October 1, 2007 as a group (9 persons) | | | (1,3,8 | ) | | | 13,090,520 | | | | 6,290,807 | | | | 32.4 | % | | | 86.8 | % |
26
| | |
* | | Less than one percent of class. |
|
(1) | | Amount and nature of beneficial ownership and percent of class include shares that may be acquired within 60 days pursuant to the exercise of stockRepresents options to purchase the Company’sshares of Class A Stock or Class B Stock as follows: Glen R. GilbertD. Keith Cobb — 90,421 shares of Class B Stock; Earl Pertnoy — 76,4476,250 shares of Class B Stock; Oscar Holzmann — 25,148151,223 shares of Class A Stock and 20,290 shares of Class B Stock; D. Keith Cobb — 6,250 shares of Class B Stock; Neil Sterling — 25,148151,223 shares of Class A Stock and 20,290 shares of Class B Stock; and Maria SchekerEarl Pertnoy — 21,06034,330 shares of Class B Stock. |
| |
(2)(c) | | The Company owns 45.5% of I.R.E. RAG. |
|
(3) | | The Company may be deemed to be controlledRepresents options held by Alan B. Levan and John E. Abdo who collectively may be deemed to have an aggregate beneficial ownership of shares of common stock representing 74.4% of the total voting power of the Company. I.R.E. Properties is 100% owned by Levan Enterprises, and Levan Enterprises may be deemed to be the controlling shareholder of I.R.E. RAG and Florida Partners Corporation. Levan Enterprises is a limited partnership whose sole general partner is Levan General Corp., a corporation 100% owned by Mr. Levan. Therefore, Mr. Levan may be deemed to be the beneficial owner of the shares of the Company’s common stock owned by each of such entities. In addition to his personal holdings of the Company’s common stock, Mr. Levan may be deemed to be the beneficial owner of 11,437 shares of Class A Stock and 1,200 shares of Class B Stock held of record by Mr. Levan’s wife, for an aggregate beneficial ownership of 9,406,400 shares (23.3%) of Class A Stock and 3,170,102 shares (44.6%) of Class B Stock. |
|
(4) | | Dr. Wertheim’s ownership was reported in a Rebuttal of Control Agreement filed on December 20, 1996 with the Office of Thrift Supervision (as adjusted for stock splits since the date of filing). The Rebuttal of Control Agreement indicates that Dr. Wertheim has no intention to manage or control, directly or indirectly, the Company. Dr. Wertheim’s mailing address is 191 Leucadendra Drive, Coral Gables, Florida 33156. |
|
(5) | | Mailing address is 2100 West Cypress Creek Road, Fort Lauderdale, Florida 33309. |
|
(6) | | Messrs. Levan and Abdo have entered into a Shareholders Agreement and Irrevocable Proxy with respect to the shares of Class B Stock controlled by them. Under the agreement, they have agreed to vote their shares of Class B Stock in favor of the election of each other to the Board of Directors for so long as they are willing and able to serve as directors of the Company. Additionally, Mr. Abdo has granted an irrevocable proxy to an entity controlled by Mr. Levan and will obtain the consent of Mr. Levan prior to the sale or conversion of certain of his shares of Class B Stock. |
|
(7) | | Mr. Pertnoy has direct ownership of 24,399 shares of Class A Stock. Pertnoy Parent Limited Partnership, a family limited partnership controlled byPartnership. Mr. Pertnoy owns 198,962 shareswas the President of Class A Stock, 6,900 sharesPertnoy Parent, Inc., the General Partner of Class B Stock and may be deemed to be the beneficial owner of 76,447 shares of Class B Stock that may be acquired pursuant to the exercise of stock options to purchase such shares. |
|
(8) | | Does not include shares beneficially owned by Mr. Gilbert, who retired from his executive positions with the Company on March 29, 2007. |
|
(9) | | Includes beneficial ownership of shares subject to plans adopted underRule 10b5-1 of the Exchange Act as follows: Mr. Levan — 71,250 shares of Class B Stock; and Mr. Abdo — 75,000 shares of Class A Stock. |
|
(10) | | GoldenTree Asset Management LP, GoldenTree Asset Management LLC and Steven A. Tananbaum have shared voting power of 4,800,000 of such shares, and Mr. Steven A Tananbaum has sole voting power and sole dispositive power over the remaining 140,000 of such shares. The mailing address of each of GoldenTree Asset Management LP, GoldenTree Asset Management LLC and Mr. Tananbaum is 300 Park Avenue, 21st Floor, New York, New York 10022.Pertnoy Parent Limited Partnership. |
2) PROPOSAL TO AMEND THE COMPANY’S AMENDED AND RESTATED ARTICLES OF INCORPORATION
Description of the Amendment
The proposed amendment (referred to within this section as the “Amendment”), if approved, would amend Articles IV and V of the Company’s Amended and Restated Articles of Incorporation to increase the number of authorized shares of Class A Stock from 70,000,000 shares to 100,000,000 shares. The Amendment has no impact on the relative rights, powers and limitations of the Class A Stock and Class B Stock or on the number of authorized shares of Class B Stock. Neither holders of Class A Stock or Class B Stock have preemptive rights to acquire or subscribe for any of the additional shares of Class A Stock authorized by the Amendment. The form of the Amendment is attached to this Proxy Statement as Appendix A.
Reasons for the Amendment
The Company’s Amended and Restated Articles of Incorporation presently authorize the issuance of a total of 70,000,000 shares of Class A Stock and 20,000,000 shares of Class B Stock. As of April 2, 2009, the Company had issued and outstanding 38,254,389 shares of Class A Stock. In addition, as of April 2, 2009, the Company had issued and outstanding 6,875,104 shares of Class B Stock, each of which is convertible at any time on a share-for-share basis into Class A Stock, subject to certain limited exceptions with respect to the shares of Class B Stock held by Mr. Abdo, and an aggregate of 1,797,960 shares of Class A Stock were reserved for issuance upon the exercise of outstanding stock options.
The Board of Directors approved the Amendment in order to give the Company the flexibility to consider potential future actions which involve the issuance of shares of Class A Stock, including public or private stock offerings, acquisitions, stock-based compensation, stock dividends or distributions or other corporate purposes which may be identified in the future by the Board of Directors.
Although the Company has and will continue to evaluate the advisability of stock offerings and other future actions involving the issuance of the Company’s securities in the future, the Company currently has no agreements with respect to the issuance of any shares of Class A Stock or Class B Stock. Subject to certain limited exceptions, shareholder approval will not be required prior to the issuance of shares of Class A Stock and, unless shareholder approval is required by applicable law, rule or regulation, the Company does not anticipate seeking the approval of its shareholders in connection with any such future issuances.
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Possible Anti-Takeover Effects of the Amendment
The increase in the number of authorized shares of Class A Stock contemplated by the Amendment is not intended to have an anti-takeover effect. However, the issuance of shares of Class A Stock, which, as described above, has relatively less voting power than the Company’s Class B Stock, whether in connection with a public offering, an acquisition or a stock dividend, could have the effect of enabling existing management and shareholders, including Messrs. Levan and Abdo and entities controlled by them, to retain substantially their current relative voting power without the dilution which would be experienced if additional shares of Class B Stock were issued. Future issuances of Class A Stock would have the effect of diluting the voting rights of existing holders of such stock and could have the effect of diluting earnings per share and book value per share of all existing shareholders. Further, in the event that a stock dividend payable in shares of Class A Stock was declared on the Company’s Class B Stock, the recipient could dispose of shares of Class A Stock without significantly affecting its voting power. The Amendment will allow the existing holders of Class B Stock, including Messrs. Levan and Abdo and entities controlled by them, to continue to exercise voting control over the Company even if the Company were to raise additional capital through the issuance of shares of Class A Stock and, as described above, the Amendment will result in the authorization of additional shares of Class A Stock which may be issued without shareholder approval. As a consequence, the Amendment may further limit the circumstances in which a sale or transfer of control of the Company could be consummated which was not acceptable to management, including Messrs. Levan or Abdo. However, it should be noted that a sale, contested merger, assumption of control by an outside principal shareholder or the removal of incumbent directors would at the present time be impossible without the concurrence of Messrs. Levan and Abdo, given their collective ownership position in the Company.
The Company’s Amended and Restated Articles of Incorporation and Amended and Restated Bylaws also presently contain other provisions which could have anti-takeover effects. These provisions include, without limitation: (i) the higher relative voting power of the Class B Stock as compared to the Class A Stock; (ii) the division of the Board of Directors into three classes of directors with three-year staggered terms; (iii) the authority of the Board of Directors to issue additional shares of preferred stock, and to fix the relative rights and preferences of the preferred stock, without additional shareholder approval; and (iv) certain notice procedures to be complied with by shareholders in order to make shareholder proposals or nominate directors.
The Company is also subject to the Florida Business Corporation Act, including provisions related to “control share acquisitions” and “affiliated transactions.” The control share acquisition statute generally provides that shares acquired within specified voting ranges (shares representing in excess of 20%, 33% and 50% of the Company’s outstanding voting power) will not possess voting rights unless the acquisition of the shares is approved by the Company’s Board of Directors before acquisition of the shares or the voting rights associated with the shares are approved by a majority vote of the Company’s disinterested shareholders following the acquisition of the shares. Subject to exceptions for certain transactions based on pricing or approval by a majority of disinterested directors, the affiliated transaction statute generally requires the approval of the holders of shares representing 662/3% of the Company’s outstanding voting power, other than the shares owned by an interested shareholder, to effectuate certain transactions involving the Company and an interested shareholder or an affiliate of an interested shareholder, including, among others, a merger, sale of assets or issuance of shares.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE AMENDMENT TO THE COMPANY’S AMENDED AND RESTATED ARTICLES OF INCORPORATION.
3) PROPOSAL TO AMEND THE COMPANY’S 2005 STOCK INCENTIVE PLAN
Background
In 2005, the Company’s Board of Directors and the Company’s shareholders approved the Company’s 2005 Stock Incentive Plan (referred to within this section as the “Plan”), which provides for the issuance of awards of restricted Class A Stock and for the grant of options to purchase shares of Class A Stock. The purpose of the Plan is to attract and retain the best available personnel for positions of substantial responsibility at the Company, to provide additional long term incentives to employees of the Company and its subsidiaries as well as to other individuals who perform services for the Company and its subsidiaries, and to promote the success and profitability
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of the Company’s business. The Plan currently limits the total number of shares of Class A Stock available for grant under the Plan to 3,000,000 shares. The Plan also currently limits the number of shares of restricted stock and the number of shares underlying stock options which may be granted during any calendar year to “covered employees” (as defined in Section 162(m) of the Code) of the Company to 300,000 shares and 1,500,000 shares, respectively, and provides that no person shall be granted options under the Plan in any calendar year covering, in the aggregate, more than 100,000 shares. As of April 2, 2009, 2,015,804 shares of Class A Stock remained available for grant under the Plan.
Description of Proposed Amendment
In light of, among other factors, the current economic environment and the trading price of the Company’s Class A Stock, the Board of Directors has determined that the current number of shares available for grant under the Plan, both in the aggregate and to eligible individuals during any calendar year, does not afford the flexibility needed to provide competitive equity-based incentive compensation opportunities to employees of the Company. The Board of Directors believes that the ability to grant equity-based incentive compensation awards promotes the retention and recruiting of key employees and enhances the relationship between employee performance and the creation of shareholder value. Therefore, and based upon the recommendation of the Compensation Committee, the Board of Directors has approved an amendment to the Plan (referred to within this section as the “Plan Amendment”) which would increase the aggregate number of shares available for grant under the Plan to 6,000,000 shares as well as increase the number of shares of restricted stock and the number of shares underlying stock options which may be granted during any calendar year to covered employees of the Company and the number of shares underlying options which may be granted to any person under the Plan during any calendar year to the full amount of shares available for grant under the Plan. As a result of the Plan Amendment, the committee responsible for administering the Plan will also have the discretion to substitute new awards for previously granted awards which have less favorable terms, including the discretion to re-price stock options, or substitute new stock options for previously granted stock options which have higher exercise prices.
The Plan also sets forth a list of performance goals which must be attained as a condition of an award recipient’s retention of shares underlying performance-based restricted stock awards and provides that no performance-based restricted stock awards may be granted after March 7, 2010 unless such performance goals are re-approved by the Company’s shareholders. Shareholder approval of the Plan Amendment will constitute shareholder re-approval of the performance goals under the Plan such that, for the remaining term of the Plan, performance-based restricted stock awards may be granted without any further shareholder approval. See “Performance-Based Restricted Stock Awards” below as well as Section 8.3 of the Plan attached to this Proxy Statement as Appendix B for a discussion of the performance goals under the Plan.
Description of the Plan
Other than as described above, the terms and conditions of the Plan, which were approved by the Company’s shareholders at the Company’s 2005 annual meeting of shareholders, will remain unchanged and are summarized below.
Types of Awards. The Plan allows the Company to grant stock options (both incentive stock options and non-qualified stock options) and restricted stock.
Administration. The Plan is administered by an administrative committee which may consist of not less than two members of the Board of Directors. The administrative committee has broad discretionary powers. The Board of Directors may exercise any power or discretion conferred on the administrative committee. The Compensation Committee currently serves as the administrative committee for the Plan.
Stock Subject to the Stock Incentive Plan. The Company will at all times reserve and keep available such number of shares as may be required to meet the needs of the Plan. Any shares subject to stock awards or option grants under the Plan which expire or are terminated, forfeited or canceled without having been exercised or vested in full are available for further grant under the Plan.
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Eligibility. The administrative committee selects the people who will receive stock option grants and restricted stock awards under the Plan. Any employee or director of the Company or of any of the Company’s subsidiaries, and any independent contractor or agent of the Company, may be selected to receive restricted stock awards and stock option grants. As of April 2, 2009, five directors and approximately 36 employees of the Company were eligible to be selected to receive stock options and restricted stock awards under the Plan.
Restricted Stock Awards. The administrative committee may, in its discretion, grant awards of restricted stock to eligible individuals under the Plan. The administrative committee determines at the time of the grant whether the award is a performance-based restricted stock award, the number of shares of Class A Stock subject to the award, the vesting schedule applicable to the award and may, in its discretion, establish other terms and conditions applicable to the award.
Unless the administrative committee determines otherwise with respect to any restricted stock award, before the shares subject to a restricted stock award are vested and transferred to the award recipient, the administrative committee exercises all voting and tender rights relating to such shares in its discretion and holds and accumulates any dividends or distributions on such shares for distribution at the same time and terms as the shares. However, the administrative committee may authorize the immediate distribution of the restricted shares to the award recipient in the form of a stock certificate bearing a legend containing the applicable vesting restrictions or the immediate distribution of dividends paid on the underlying shares.
Vesting. All restricted stock awards are subject to a vesting schedule specified by the administrative committee at the time the award is made. If the administrative committee does not specify a vesting schedule, the award vests on the first anniversary of the grant date. In the event of death or termination due to disability before the vesting date, unvested awards that would have vested within six months after death or termination for disability are deemed vested. All other awards that are unvested at termination of employment are forfeited, with the award recipient receiving a refund equal to the lesser of the fair market value of the unvested shares at termination of employment or the amount (if any) paid when the award was made.
Performance-Based Restricted Stock Awards. At the time of grant, the administrative committee may designate a restricted stock award as a performance-based restricted stock award. If it does so, the administrative committee establishes, in addition to or in lieu of service-based vesting requirements, one or more performance goals, which must be attained as a condition of retention of the shares. The performance goal(s) are based on one or more of the following:
| | |
| • | earnings per share; |
|
| • | net income; |
|
| • | EBITDA; |
|
| • | return on equity; |
|
| • | return on assets; |
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| • | core earnings; |
|
| • | stock price; |
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| • | strategic business objectives, consisting of one or more objectives based on meeting specified cost targets, business expansion goals, goals relating to acquisitions or divestitures, revenue targets or business development goals; and |
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| • | except in the case of a “covered employee” under Section 162(m) of the Code, any other performance criteria established by the administrative committee. |
Performance goals may be established on the basis of reported earnings or cash earnings, and consolidated results or results of individual business units and may, in the discretion of the administrative committee, include or exclude extraordinary itemsand/or the results of discontinued operations. Each performance goal may be expressed on an absoluteand/or relative basis, may be based on or otherwise employ comparisons based on internal targets, the past performance of the Company (or individual business units)and/or the past or current performance of other
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companies. Attainment of the performance goals will be measured over a performance measurement period specified by the administrative committee when the award is made.
The administrative committee determines in its discretion whether the award recipient has attained the performance goals. If the administrative committee determines that the award recipient attained the performance goals, the administrative committee certifies that fact in writing. If the performance goals are not satisfied during the performance measurement period, the relevant awards are forfeited. If the performance goals and any service-based vesting schedule are satisfied, the award is distributed (or any vesting-related legend removed from any stock certificates previously delivered to the award recipient).
Terms and Conditions of Stock Option Grants. The administrative committee sets the terms and conditions of the stock options that it grants. The administrative committee may not grant a stock option with a term of greater than 10 years or with a purchase price that is less than the fair market value of a share of Class A Stock on the date it grants the stock option.
The administrative committee may grant incentive stock options that qualify for special federal income tax treatment or non-qualified stock options that do not qualify for special federal income tax treatment. Incentive stock options are subject to certain additional restrictions under the Code and the Plan. Unless otherwise designated by the administrative committee, options granted are exercisable for a period of ten years after the date of grant (or for a shorter period ending three months after the option holder’s termination of employment due to disability, one year after termination of employment due to death, or immediately upon termination for any other reason). The exercise period may be further extended for limited periods in the administrative committee’s discretion.
Upon the exercise of an option, the exercise price of the option must be paid in full. Payment may be made in cash, Class A Stock already owned by the option holder, or in such other consideration as the administrative committee authorizes. Options may be transferred prior to exercise only to certain family members, trusts or other entities owned by the option holderand/or such family members, to charitable organizations or upon death of the option holder.
Mergers and Reorganizations. The number of shares available under the Plan, the maximum limits on option grants and restricted stock awards to persons or groups of persons individually and in the aggregate, any outstanding awards and the number of shares subject to outstanding options may be adjusted to reflect any merger, consolidation or business reorganization in which the Company is the surviving entity, and to reflect any stock split, stock dividend, spin-off or other event where the administrative committee determines an adjustment is appropriate in order to prevent the enlargement or dilution of an award recipient’s rights. If a merger, consolidation or other business reorganization occurs and the Company is not the surviving entity, any outstanding options, at the discretion of the administrative committee or the Board of Directors, may be canceled and payment made to the option holder in an amount equal to the value of the canceled options or modified to provide for alternative, nearly equivalent securities. Any outstanding restricted stock award shall be adjusted by allocating to the award recipient any money, stock, securities or other property received by the other shareholders of record, and such money, stock, securities or other property shall be subject to the same terms and conditions of the restricted stock award that applied to the shares for which it has been exchanged.
Termination or Amendment. The Board of Directors has the authority to suspend or terminate the Plan in whole or in part at any time by giving written notice to the administrative committee. The Board of Directors also has the authority to amend or revise the plan in whole or part at any time, subject to shareholder approval of such revision or amendment if shareholder approval is required by applicable law, rule or regulation. No amendment or termination may affect any option or restricted stock award granted prior to the amendment or termination without the recipient’s consent, unless the administrative committee finds that such amendment or termination is in the best interests of the award recipient or the Company’s shareholders.
Term of Plan. Unless terminated sooner, the Plan will expire on March 7, 2015.
Federal Income Tax Consequences
The following discussion is intended to be a summary and is not a comprehensive description of the federal tax laws, regulations and policies affecting the Company and recipients of restricted stock awards or stock options that
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may be granted under the Plan. Any descriptions of the provisions of any law, regulation or policy are qualified in their entirety by reference to the particular law, regulation or policy. Any change in applicable law or regulation or in the policies of various taxing authorities may have a significant effect on this summary. The Plan is not a qualified plan under Section 401(a) of the Code.
Restricted Stock Awards. Stock awards granted under the Plan do not result in federal income tax consequences to either the Company or the award recipient. Once the award is vested and the shares subject to the award are distributed, the award recipient is generally required to include in ordinary income, for the taxable year in which the vesting date occurs, an amount equal to the fair market value of the shares on the vesting date. The Company is generally allowed to claim a deduction, for compensation expense, in a like amount. If dividends are paid on unvested shares held under the Plan, such dividend amounts are also included in the ordinary income of the recipient. The Company is generally allowed to claim a deduction for compensation expense for this amount as well.
In certain cases, a recipient of a restricted stock award that is not a performance-based restricted stock award may elect to include the value of the shares subject to a restricted stock award in income for federal income tax purposes when the award is made instead of when it vests.
Stock Options. Incentive stock options do not create federal income tax consequences when they are granted. If incentive stock options are exercised during employment or within three months after termination of employment (one year for termination due to death or disability), the exercise does not create federal income tax consequences. When the shares acquired on exercise of an incentive stock option are sold, the seller must pay federal income taxes on the amount by which the sales price exceeds the purchase price. This amount will be taxed at capital gains rates if the sale occurs at least two years after the option was granted and at least one year after the option was exercised. Otherwise, it is taxed as ordinary income.
Incentive stock options that are exercised more than one year after termination of employment due to death or disability, or three months after termination of employment for other reasons, are treated as non-qualified stock options. Non-qualified stock options do not create federal income tax consequences when they are granted. When non-qualified stock options are exercised, federal income taxes at ordinary income tax rates must be paid on the amount by which the fair market value of the shares acquired by exercising the option exceeds the exercise price. When an option holder sells shares acquired by exercising a non-qualified stock option, he or she must pay federal income taxes on the amount by which the sales price exceeds the purchase price plus the amount included in ordinary income at option exercise. This amount will be taxed at capital gains rates, which will vary depending upon the time that has elapsed since the exercise of the option.
When a non-qualified stock option is exercised, the Company may be allowed a federal income tax deduction for the same amount that the option holder includes in his or her ordinary income. When an incentive stock option is exercised, the Company is not allowed to claim a deduction unless the shares acquired are resold sooner than two years after the option was granted or one year after the option was exercised.
Deduction Limits. The Code places an annual limit of $1 million each on the tax deduction that the Company may claim in any fiscal year for the compensation of its chief executive officer and any other executive officers named in the summary compensation table for that fiscal year included in the Company’s annual proxy statement. There is an exception to this limit for “qualified performance-based compensation.” The Company designed the Plan with the intention that stock options and performance-based restricted stock awards granted under the Plan constitute qualified performance-based compensation. As a result, the Company does not believe that the $1 million limit will impair its ability to claim federal income tax deductions for compensation attributable to future performance-based restricted stock awards and stock options granted under the Plan. The $1 million limit would apply to future restricted stock awards, if any, made to covered employees that are not designated as performance-based restricted stock awards.
The preceding statements are intended to summarize the general principles of current federal income tax law applicable to awards that may be granted under the Plan. State and local tax consequences may also be significant.
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Future Plan Benefits
Restricted stock awards and option grants under the Plan are discretionary, and the administrative committee has not yet determined to whom and in what amount future awards will be made. As a result, no information is provided concerning future benefits to be delivered under the Plan to any individual or group of individuals.
The foregoing descriptions of the Plan Amendment and the Plan are qualified in their entirety by reference to the full text of the Plan, as proposed to be amended by the Plan Amendment, which is attached to this Proxy Statement as Appendix B and is incorporated herein by reference.
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT SHAREHOLDERS VOTE “FOR” THE APPROVAL OF THE AMENDMENT TO THE COMPANY’S 2005 STOCK INCENTIVE PLAN.
EQUITY COMPENSATION PLAN INFORMATION
Set forth below is certain information, as of December 31, 2006, concerningThe following table lists all securities authorized for issuance and outstanding under the Company’s equity compensation plans at December 31, 2008:
| | | | | | | | | | | | | |
| | | | | | | | | Number of Securities
| |
| | | | | | | | | Remaining Available
| |
| | | Number of Securities
| | | Weighted-Average
| | | for Future Issuance
| |
| | | to be Issued Upon
| | | Exercise Price of
| | | Under Equity
| |
| | | Exercise of
| | | Outstanding
| | | Compensation Plans
| |
| | | Outstanding Options
| | | Options
| | | (Excluding Outstanding
| |
Plan Category | | Warrants or Rights | | | Warrants or Rights | | | Options) | |
| |
| Equity compensation plans approved by security holders | | | 1,797,960 | | | $ | 4.57 | | | | 2,015,804 | |
| Equity compensation plans not approved by security holders | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | |
Total | | | 1,797,960 | | | $ | 4.57 | | | | 2,015,804 | |
| | | | | | | | | | | | | |
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AUDIT COMMITTEE REPORT
The following Report of the Audit Committee does not constitute soliciting material and should not be deemed filed or incorporated by reference into any other Company filing under the Securities Act of 1933 or the Exchange Act, except to the extent the Company specifically incorporates this Report by reference therein.
The charter of the Audit Committee sets forth the Audit Committee’s responsibilities, which include oversight of the Company’s financial reporting on behalf of the Board of Directors and shareholders. The Audit Committee held seven meetings during 2008. These meetings were designed, among other things, to facilitate and encourage communication among the Audit Committee and the Company’s management and internal auditors, as well as with the Company’s independent auditor for which it has previously obtained shareholder approval2008, PricewaterhouseCoopers LLP (“PwC”). The Audit Committee discussed with the Company’s internal auditors and those equity compensationPwC the overall scope and plans for which it has not previously obtained shareholder approval.their respective audits and met with the internal auditors and PwC, with and without management present, to discuss the results of their examinations and their evaluations of the Company’s internal controls and compliance matters. The Audit Committee reviewed and discussed the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 with management and PwC prior to the filing of the Company’s Annual Report onForm 10-K with the SEC on March 31, 2009. At its meeting on April , 2009, the Audit Committee approved the engagement of PwC as the Company’s independent auditor for 2009.
| | | | | | | | | | | | | |
| | | Number of Securities
| | | Weighted Average
| | | | |
| | | to be Issued Upon
| | | Exercise Price of
| | | | |
| | | Exercise of
| | | Outstanding
| | | Number of Securities
| |
| | | Outstanding Options,
| | | Options, Warrants
| | | Remaining Available
| |
Plan Category | | Warrants or Rights | | | and Rights | | | for Future Issuance | |
| |
| Equity compensation plans approved by security holders | | | 1,607,087 | | | $ | 4.88 | | | | 2,479,448 | |
| Equity compensation plans not approved by security holders | | | — | | | | — | | | | — | |
| | | | | | | | | | | | | |
Total | | | 1,607,087 | | | $ | 4.88 | | | | 2,479,448 | |
| | | | | | | | | | | | | |
Management has primary responsibility for the Company’s financial statements and the overall reporting process, including the Company’s system of internal controls. The independent auditor audits the annual financial statements prepared by management, expresses an opinion as to whether those financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of the Company in conformity with accounting principles generally accepted in the United States of America, and discusses with the Audit Committee its independence and any other matters that it is required to discuss with the Audit Committee or that it believes should be raised with it. The Audit Committee oversees these processes, although it must rely on information provided to it and on the representations made by management and the independent auditor.
The Audit Committee discussed with PwC the matters required to be discussed with audit committees under generally accepted auditing standards, including, among other things, matters related to the conduct of the audit of the Company’s consolidated financial statements and the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (AICPA, Professional Standards, Vol. 1, AU Section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T.
The Audit Committee also received from PwC the written disclosures and the letter required by applicable requirements of the Public Company Accounting Oversight Board regarding PwC’s communications with the Audit Committee concerning independence, and the Audit Committee discussed with PwC its independence from the Company. When considering PwC’s independence, the Audit Committee considered whether PwC’s provision of services to the Company beyond those rendered in connection with its audit and review of the Company’s consolidated financial statements was compatible with maintaining PwC’s independence. The Audit Committee also reviewed, among other things, the amount of fees paid to PwC for audit and non-audit services.
Based on these reviews, meetings, discussions and reports, the Audit Committee recommended to the Board of Directors that the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2008 be included in the Company’s Annual Report onForm 10-K for the fiscal year ended December 31, 2008.
Submitted by the Members of the Audit Committee:
Oscar Holzmann, Chairman
D. Keith Cobb
Neil Sterling
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FEES TO INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM
FOR FISCAL 2008 AND 2007
PwC served as the independent registered certified public accounting firm for the Company, BankAtlantic Bancorp and Woodbridge for 2008 and 2007. The following table presents, for each of these companies, fees for professional services rendered by PwC for the audit of each company’s annual financial statements for fiscal 2008 and 2007 and fees billed for audit-related services, tax services and all other services rendered by PwC for each of these companies for fiscal 2008 and 2007.
| | | | | | | | | |
| | | 2008 | | | 2007 | |
| | | (In thousands) | |
| |
BFC Financial Corporation | | | | | | | | |
| Audit fees | | | 407 | (1) | | | 500 | (1) |
| Audit — related fees | | | — | | | | — | |
| Tax fees | | | — | | | | — | |
| All other fees | | | — | | | | 216 | (2) |
BankAtlantic Bancorp | | | | | | | | |
| Audit fees | | | 1,675 | (1) | | | 1,659 | (1) |
| Audit — related fees | | | 77 | (3) | | | 42 | (3) |
| Tax fees | | | — | | | | — | |
| All other fees | | | — | | | | — | |
Woodbridge | | | | | | | | |
| Audit fees | | | 600 | (1) | | | 1,197 | (1) |
| Audit — related fees | | | — | | | | — | |
| Tax fees | | | — | | | | — | |
| All other fees | | | — | | | | — | |
| | |
| (1) | | Includes primarily fees for services related to each company’s respective annual financial statement audits, the 2008 and 2007 audits of effectiveness of internal control over financial reporting and the review of quarterly financial statements filed in each company’s Quarterly Reports onForm 10-Q. The Company’s fiscal 2007 amount also includes fees related to the merger of I.R.E RAG with and into the Company and the amendments to the Company’s Annual Report onForm 10-K/A for the year ended December 31, 2006 and Quarterly Report onForm 10-Q/A for the quarter ended March 31, 2007. Woodbridge’s fiscal 2007 amount also includes fees related to services performed by PwC with respect to Woodbridge’s 2007 rights offering, the amendments to Woodbridge’s Annual Report onForm 10-K/A for the year ended December 31, 2006 and Quarterly Report onForm 10-Q/A for the quarter ended March 31, 2007 and the November 9, 2007 bankruptcy filing of Levitt and Sons and substantially all of its subsidiaries. |
|
| (2) | | Principally related to the preparation and filing of the Registration Statement onForm S-3 and Amendment No. 1 thereto, in each case related to the Company’s 2007 underwritten public offering of 11,500,000 shares of Class A Stock. |
|
| (3) | | Represents fees related to audits of BankAtlantic Bancorp’s employee benefit plans and, for 2008, fees related to BankAtlantic Bancorp’s Shelf Registration Statement onForm S-3, filed with the SEC during April 2008, which registered up to $100 million of BankAtlantic Bancorp’s securities. |
All audit-related services and other services were pre-approved by the audit committee of the respective company, which concluded that the provision of such services by PwC was compatible with the maintenance of PwC’s independence in the conduct of its auditing functions. Under the charter of the Company’s Audit Committee, the Audit Committee must review and pre-approve both audit and permitted non-audit services provided by the independent auditor and shall not engage the independent auditor to perform any non-audit services prohibited by law or regulation. Each year, the independent auditor’s retention to audit the Company’s financial statements, including the associated fee, is approved by the Audit Committee. Under its current practices, the Audit Committee does not regularly evaluate potential engagements of the independent auditor and approve or reject such potential
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engagements. At each Audit Committee meeting, the Audit Committee receives updates on the services actually provided by the independent auditor, and management may present additional services for pre-approval. The Audit Committee has delegated to the Chairman of the Audit Committee the authority to evaluate and approve engagements involving projected fees of $10,000 or less on behalf of the Audit Committee in the event that a need arises for pre-approval between regular Audit Committee meetings. If the Chairman so approves any such engagements, he will report that approval to the full Audit Committee at the next Audit Committee meeting. Engagements involving projected fees of more than $10,000 may only be pre-approved by the full Audit Committee at a regular or special meeting of the Audit Committee.
The Audit Committee has determined that the provision of the services described above (including those services other than audit services) are compatible with maintaining the principal independent registered certified public accounting firm’s independence.
2) PROPOSAL FOR APPROVALSECURITY OWNERSHIP OF THE MERGERCERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The termsfollowing table sets forth, as of April 2, 2009, certain information as to the Company’s Class A Stock and conditionsClass B Stock beneficially owned by persons known by the Company to own in excess of 5% of the Merger are contained inoutstanding shares of such stock. In addition, this table includes the Merger Agreement, which is attached as Appendix A to this proxy statement and is incorporated by reference herein. Please carefully read the Merger Agreement, as it is the legal document that governs the Merger.
Overview of I.R.E. RAG and the Merger
I.R.E. RAG is a Florida corporation which is approximately 45.5%outstanding securities beneficially owned by (i) each Named Executive Officer, (ii) each of the Company. I.R.E. RAG does not have any operationsCompany’s directors as of April 2, 2009 and its sole assets are 4,764,285(iii) the Company’s directors and executive officers as of April 2, 2009 as a group. Management knows of no person, except as listed below, who beneficially owned more than 5% of the outstanding shares of the Company’s Class A Stock and 500,000 shares of the Company’s Class B Stock. The shareholders of I.R.E. RAG, other than the Company, are Levan Enterprises and I.R.E. Properties, each of which is an affiliate of Alan B. Levan, Chief Executive Officer, President and Chairman of the Board of Directors of the Company.
Pursuant to the terms and conditions of the Merger Agreement, at the effective time of the Merger, I.R.E. RAG will merge with and into the Company, and the Company will be the surviving corporation of the Merger. Upon consummation of the Merger, the shareholders of I.R.E. RAG, other than the Company, will receive an aggregate of approximately 2,601,300 shares of the Company’s Class A Stock and 273,000 shares of the Company’sor Class B Stock representing their respective pro rataas of April 2, 2009. Except as otherwise indicated, the information provided in the following table was obtained from filings with the SEC and with the Company pursuant to the Exchange Act. For purposes of the table below, in accordance withRule 13d-3 under the Exchange Act, a person is deemed to be the beneficial owner of any shares which he or she has or shares, directly or indirectly, voting or investment power, or which he or she has the right to acquire beneficial ownership interests in I.R.E. RAGof at any time within 60 days after April 2, 2009. As used herein, “voting power” is the power to vote, or direct the voting of, shares, and “investment power” includes the power to dispose of, or direct the disposition of, such shares. Unless otherwise noted, each beneficial owner has sole voting and sole investment power over the shares of the Company’s common stock owned by I.R.E. RAG, and the 4,764,285 shares of the Company’s Class A Stock and 500,000 shares of the Company’s Class B Stock currently held by I.R.E. RAG will be canceled.beneficially owned.
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| | | | | | Class A
| | | Class B
| | | Percent of
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Name of Beneficial Owner | | Notes | | | Ownership | | | Ownership | | | Stock | | | Stock | |
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| Florida Partners Corporation | | | (1,2,4,5 | ) | | | 1,270,302 | | | | 133,314 | | | | 3.7 | % | | | 1.9 | % |
| I.R.E. Properties, Inc. | | | (1,2,4,5 | ) | | | 4,662,927 | | | | 561,017 | | | | 13.5 | % | | | 8.2 | % |
| Levan Enterprises, Ltd. | | | (1,2,4,5 | ) | | | 1,298,749 | | | | 146,865 | | | | 3.8 | % | | | 2.1 | % |
| Alan B. Levan | | | (1,2,3,4,5,6,7 | ) | | | 11,437 | | | | 2,312,485 | | | | 5.7 | % | | | 32.6 | % |
| John E. Abdo | | | (1,2,3,4,6,7 | ) | | | 3,356,771 | | | | 3,180,047 | | | | 15.8 | % | | | 44.9 | % |
| John K. Grelle | | | (2 | ) | | | — | | | | — | | | | 0.0 | % | | | 0.0 | % |
| D. Keith Cobb | | | (1,2,3 | ) | | | 97,656 | | | | 6,250 | | | | | * | | | | * |
| Oscar Holzmann | | | (1,2,3 | ) | | | 164,361 | | | | 20,290 | | | | | * | | | | * |
| Neil Sterling | | | (1,2,3 | ) | | | 164,361 | | | | 20,290 | | | | | * | | | | * |
| GoldenTree Asset Management LP | | | (8 | ) | | | 4,800,000 | | | | — | | | | 12.5 | % | | | 0.0 | % |
| Dr. Herbert A. Wertheim | | | (1,9 | ) | | | 3,968,157 | | | | 416,448 | | | | 10.4 | % | | | 6.1 | % |
| SC Fundamental Value Fund L.P. | | | (10 | ) | | | 3,720,461 | | | | — | | | | 9.7 | % | | | 0.0 | % |
| All directors and executive officers of the Company as of April 2, 2009 as a group (7 persons) | | | (1,3,4,5,6,7 | ) | | | 11,026,564 | | | | 6,387,580 | | | | 38.7 | % | | | 86.9 | % |
Purpose of the Merger
The Board of Directors determined that the Merger is in the best interests of the Company and its shareholders, has approved the Merger Agreement and the Merger, and recommends that the Company’s shareholders vote “FOR” the Merger because the Merger will simplify the Company’s corporate structure and reduce the number of issued and outstanding shares of the Company’s common stock.
Impact of the Merger on the Company
Because I.R.E. RAG has no operations and no assets other than its shares of the Company’s common stock that will be canceled in the Merger, the Merger will have no impact on the Company’s financial condition, business or results of operations. The Merger will not change the number of outstanding shares for purposes of calculating the Company’s earnings per share, and the number of issued and outstanding shares will actually decrease. Certain selected historical consolidated financial data for the Company is attached to this proxy statement as Appendix B and is incorporated by reference herein.
The Articles of Incorporation and Bylaws of the Company immediately prior to the Merger will continue in full force and effect without any amendments or modifications thereto after the Merger, and the officers and
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| * | | Less than one percent of class. |
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directors of the Company immediately prior to the Merger will continue as the officers and directors of the Company after the Merger for the full unexpired terms of their respective offices or directorships or until their respective successors have been duly appointed or elected.
Interests of Certain Persons in the Merger
In considering the recommendation of the Board of Directors to vote in favor of the Merger, shareholders should be aware that Alan B. Levan, the Company’s Chairman, Chief Executive Officer and President, may have interests in the Merger that are different from, or are in addition to, the interests of the Company’s shareholders, generally. The shareholders of I.R.E. RAG, other than the Company, are Levan Enterprises and I.R.E. Properties. Mr. Levan is the sole shareholder of Levan General Corp., the sole general partner of Levan Enterprises, and Levan Enterprises is the sole shareholder of I.R.E. Properties. The Board of Directors was aware of these interests during its deliberation on the merits of the Merger Agreement and the Merger and in determining to make its recommendation to the Company’s shareholders to vote in favor of the Merger.
Stock Exchange Listing
The Company’s Class A Stock is traded on the NYSE Arca under the symbol “BFF,” and application will be made for the shares of the Company’s Class A Stock to be issued in the Merger to be listed on the NYSE Arca. The Company’s Class B Stock is currently traded, and the shares of the Company’s Class B Stock to be issued in the Merger will be traded, on the OTC Bulletin Board under the symbol “BFCFB.OB.”
Appraisal Rights
Under the Florida Business Corporation Act, the Company’s shareholders will not be entitled to appraisal rights in connection with the Merger.
Federal Income Tax Consequences of the Merger
The Merger is intended to qualify as a tax-free reorganization under Section 368(a) of the Internal Revenue Code of 1986, as amended, and each party to the Merger Agreement agreed to report the Merger consistently therewith.
Regulatory Matters
The Company must comply with applicable federal and state securities laws and NYSE Arca rules and regulations in connection with the issuance of the shares of the Company’s common stock in the Merger and the filing of this proxy statement with the SEC.
Representations and Warranties Contained in the Merger Agreement and Conditions to the Merger
The Merger Agreement contains customary representations and warranties made by the Company to I.R.E. RAG, Levan Enterprises and I.R.E. Properties and by I.R.E. RAG, Levan Enterprises and I.R.E. Properties to the Company. The completion of the Merger is conditioned on the accuracy of such representations and warranties, as well as the approval of the Merger by the Company’s shareholders.
Termination of the Merger Agreement
The Merger Agreement may be terminated and the transactions contemplated thereby, including the Merger, may be abandoned at any time upon the mutual consent of the parties.
THE BOARD OF DIRECTORS RECOMMENDS THAT HOLDERS OF CLASS A STOCK AND HOLDERS OF CLASS B STOCK VOTE “FOR” THE APPROVAL OF THE MERGER.
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| (1) | | Class B Stock is convertible on a share-for-share basis at any time at the beneficial owner’s discretion. However, see footnote 6 below regarding restrictions on Mr. Abdo’s right to convert his shares of Class B Stock into shares of Class A Stock. The number of shares of Class B Stock held by each beneficial owner is not separately included in the “Class A Stock Ownership” column, but is included for the purpose of calculating the percent of Class A Stock held by each beneficial owner. |
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| (2) | | Mailing address is 2100 West Cypress Creek Road, Fort Lauderdale, Florida 33309. |
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| (3) | | Includes shares that may be acquired within 60 days after April 2, 2009 pursuant to the exercise of stock options to purchase Class A Stock or Class B Stock as follows: Alan B. Levan — 210,579 shares of Class B Stock; John E. Abdo — 210,579 shares of Class B Stock; D. Keith Cobb — 6,250 shares of Class B Stock; Oscar Holzmann — 164,361 shares of Class A Stock and 20,290 shares of Class B Stock; Neil Sterling — 164,361 shares of Class A Stock and 20,290 shares of Class B Stock; and Maria Scheker — 7,022 shares of Class B Stock. |
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| (4) | | The Company may be deemed to be controlled by Messrs. Levan and Abdo, who collectively may be deemed to have an aggregate beneficial ownership of shares of the Company’s Class A Stock and Class B Stock, including shares that may be acquired pursuant to the exercise of stock options (as set forth in footnote 3 above), representing 73.8% of the total voting power of the Company. |
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| (5) | | I.R.E. Properties, Inc. is 100% owned by Levan Enterprises, Ltd., and Levan Enterprises, Ltd. may be deemed to be the controlling shareholder of Florida Partners Corporation. Levan Enterprises, Ltd. is a limited partnership whose sole general partner is Levan General Corp., a corporation 100% owned by Mr. Levan. Therefore, Mr. Levan may be deemed to be the beneficial owner of the shares of the Company’s Class A Stock and Class B Stock owned by each of such entities. In addition to Mr. Levan’s personal holdings of the Company’s Class A Stock and Class B Stock, Mr. Levan may be deemed to be the beneficial owner of 11,437 shares of Class A Stock and 1,200 shares of Class B Stock held of record by his wife. Excluding shares of Class B Stock beneficially owned by Mr. Levan (which are convertible at any time in Mr. Levan’s discretion on a share-for-share basis into Class A Stock), Mr. Levan may be deemed to beneficially own, in the aggregate, 7,243,415 shares, or 18.9%, of the Company’s Class A Stock. Mr. Levan may also be deemed to beneficially own, in the aggregate, 3,153,681 shares, or 44.5%, of the Company’s Class B Stock. Collectively, these shares represent approximately 37.9% of the total voting power of the Company. |
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| (6) | | Messrs. Levan and Abdo have agreed to vote their shares of Class B Stock in favor of the election of the other to the Company’s Board of Directors for so long as they are willing and able to serve as directors of the Company. Additionally, Mr. Abdo has agreed, subject to certain exceptions, not to transfer certain of his shares of Class B Stock and to obtain the consent of Mr. Levan prior to the conversion of certain of his shares of Class B Stock into shares of Class A Stock. |
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| (7) | | Includes beneficial ownership of shares subject to plans adopted under Rule 10b5-1 of the Exchange Act as follows: Mr. Levan — 71,250 shares of Class B Stock; and Mr. Abdo — 75,000 shares of Class A Stock. |
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| (8) | | Based on the Schedule 13G/A filed with the SEC on February 6, 2009, a group consisting of GoldenTree Asset Management LP and certain of its affiliates have shared voting and dispositive power over all such shares. The mailing address of GoldenTree Asset Management LP and each of the other group members is 300 Park Avenue, 21st Floor, New York, New York 10022. |
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| (9) | | Dr. Wertheim’s ownership was reported in a Rebuttal of Control Agreement filed on December 20, 1996 with the Office of Thrift Supervision (as adjusted for stock splits since the date of filing). The Rebuttal of Control Agreement indicates that Dr. Wertheim has no intention to manage or control, directly or indirectly, the Company. Dr. Wertheim’s mailing address is 191 Leucadendra Drive, Coral Gables, Florida 33156. |
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| (10) | | Based on the Schedule 13G/A filed with the SEC on February 13, 2009, a group consisting of SC Fundamental Value Fund L.P. and certain of its affiliates have shared voting and dispositive power over all such shares. The mailing address of SC Fundamental Value Fund, L.P. and each of the other group members (other than SC Fundamental Value BVI, Ltd.) is 747 Third Avenue, 27th Floor, New York, New York 10017. The mailing address of SC Fundamental Value BVI, Ltd. isc/o MadisonGrey Fund Services (Cayman) Ltd., Ground Floor, Windward 1, Regatta Office Park, West Bay Road, Grand Cayman. |
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OTHER MATTERS
As of the date of this Proxy Statement, the Board of Directors is not aware of any matters, other than those referred to in the accompanying Notice of Meeting, thatwhich may be brought before the Annual Meeting.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF
PROXY MATERIALS FOR THE ANNUAL SHAREHOLDER MEETING
TO BE HELD ON MAY 19, 2009
This Proxy Statement (including the accompanying form of proxy card) and the Company’s Annual Report to Shareholders for the year ended December 31, 2008 are available at .
INDEPENDENT REGISTERED CERTIFIED PUBLIC ACCOUNTING FIRM
PricewaterhouseCoopers LLP served as the Company’s independent registered certified public accounting firm for each of the yearsyear ended December 31, 2006 and 2005.2008. A representative of PricewaterhouseCoopers LLP is expected to be present at the Annual Meeting, will have the opportunity to make a statement if he or she desires to do so, and will be available to respond to appropriate questions from shareholders.
ADDITIONAL INFORMATION
“Householding” of Proxy Material. The SEC has adopted rules that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements with respect to two or more shareholders sharing the same address by delivering a single proxy statement addressed to those shareholders. This process, which is commonly referred to as “householding,” potentially provides extra convenience for shareholders and cost savings for companies. The Company and some brokers household proxy materials, delivering a single proxy statement to multiple shareholders sharing an address unless contrary instructions have been received from the affected shareholders. Once you have received notice from your broker or ourthe Company’s transfer agent, American Stock Transfer & Trust Company (“AST”), that they or wethe Company will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke your consent. However, the Company will deliver promptly upon written or oral request a separate copy of this Proxy Statement to a shareholder at a shared address to which a single Proxy Statement was delivered. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate Proxy Statement,proxy statement, or if you are receiving multiple Proxy Statementsproxy statements and would like to request delivery of a single Proxy Statement,proxy statement, please notify your broker if your shares are held in a brokerage account or AST if you hold registeredor the record holder of your shares. You can notify AST by calling800-937-5449 or by sending a written request to American Stock Transfer & Trust Company, 59 Maiden Lane — Plaza Level, New York, NY 10038, Attn: Marianela Patterson.
Advance Notice Procedures. Under the Company’s Bylaws, no business may be brought before an annual meeting of shareholders unless it is specified in the notice of the annual meeting of shareholders or is otherwise brought before the annual meeting of shareholders by or at the direction of the Board of Directors or by a shareholder entitled to vote who has delivered written notice to the Company’s Secretary (containing certain information specified in the Company’s Bylaws about the shareholder and the proposed action) not less than 90 or more than 120 days prior to the first anniversary of the preceding year’s annual meeting of shareholders — that is, with respect to the annual meeting of shareholders to be held during 2010, between January 19 and February 18, 2010. In addition, any shareholder who wishes to submit a nomination to the Board of Directors must deliver written notice of the nomination within this time period and comply with the information requirements in the Company’s Bylaws relating to shareholder nominations. These requirements are separate from and in addition to the SEC’s
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requirements that a shareholder must meet in order to have a shareholder proposal included in the Company’s proxy statement relating to the 2010 annual meeting of shareholders.
Shareholder Proposals for the 20082010 Annual Meeting.Meeting of Shareholders. Shareholders interested in submitting a proposal for inclusion in the proxy materials for the 20082010 annual meeting of shareholders may do so by following the procedures prescribed in SEC Rulel4a-8.l4a-8 under the Exchange Act. To be eligible for inclusion, shareholder proposals must be received by the Company’s Secretary no later than June 26, 2008 (or by such other date as set forth in a Company filing under the Exchange Act) at the Company’s main offices, 2100 West Cypress Creek Road, Fort Lauderdale, Florida 33309. If such proposal or proposals are in compliance with applicable rules and regulations, they will be included in the Company’s proxy statement and form of proxy for that meeting.
33309, by December , 2009.
Proxy Solicitation Costs. The Company will bear the expense of soliciting proxies and of reimbursing brokers, banks and nominees for the out-of-pocket and clerical expenses of transmitting copies of the proxy materials to the beneficial owners of shares held of record by such persons. The Company does not currently intend to solicit proxies other than by use of the mail, but certain directors, officers and regular employees of the Company or its subsidiaries, BankAtlantic Bancorpand/or Levitt,Woodbridge, without additional compensation, may solicit proxies personally or by telephone, fax, special letter or otherwise.
BY ORDER OF THE BOARD OF DIRECTORS
Alan B. Levan
Chairman of the Board
October 24, 2007April , 2009
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Appendix A
AGREEMENTFORM OF ARTICLES OF AMENDMENT
TO THE AMENDED AND PLANRESTATED
ARTICLES OF MERGERINCORPORATION
OF
BFC FINANCIAL CORPORATION
This AgreementThe Amended and PlanRestated Articles of Merger (the “Agreement”) is entered intoIncorporation, as amended, of October 18, 2007 by and between BFC FINANCIAL CORPORATION, a Florida corporation (“BFC”(the “Corporation”), I.R.E. REALTY ADVISORY GROUP, INC., a Florida corporation (“RAG”), LEVAN ENTERPRISES, LTD., a Florida limited partnership (“Enterprises”) and I.R.E. PROPERTIES, INC., a Florida corporation (“Properties”) (each of Enterprises and Properties is an “Other RAG Holder”) and together, they are referred to as the “Other RAG Holders”).
RECITALS
WHEREAS, RAG is a corporation duly organized and existing under and by virtue of the laws of the State of Florida and as of the date hereof, has 1,100 shares of common stock issued and outstanding;
WHEREAS, BFC is a corporation duly organized and existing under and by virtue of the laws of the State of Florida and as of the date hereof, has 40,395,363 shares of Class A Common Stock issued and outstanding of which RAG holds 4,764,285 shares and 7,103,670 shares of Class B Common Stock issued and outstanding of which RAG holds 500,000 shares;
WHEREAS, BFC owns approximately 45.5% of the issued and outstanding shares of RAG common stock, Enterprises owns approximately 18.2% of the issued and outstanding shares of RAG common stock and Properties owns approximately 36.4% of the issued and outstanding shares of RAG common stock;
WHEREAS, the Board of Directors of BFC has (i) determined that the merger of RAG with and into BFC upon the terms and subjecthereby amended pursuant to the conditions and in a manner set forth in this Agreement and in accordance withprovisions of Section 607.1108607.1006 of the Florida Business Corporation Act, (the “Merger”), this Agreement and such amendments are set forth as follows:
1. The first sentence of the other transactions contemplated herein are fairsecond paragraph of Article IV is hereby deleted in its entirety and replaced with the following:
“Special Class A Common Stock: The Corporation is authorized to and in the best interestsissue 100,000,000 shares of BFC and the holders of BFCSpecial Class A Common Stock at a par value of $.01 per share.”
2. The first two paragraphs of Section 6 of Article V are hereby deleted in their entirety and replaced with the following:
“1. Designation and Amount. The shares of such series shall be designated “Class A Common Stock” (the “Class A Common Stock”) and the number of shares constituting such series shall be 100,000,000.”
Appendix B
BFC Class B CommonFINANCIAL CORPORATION
2005 STOCK INCENTIVE PLAN
1. PURPOSES. The purposes of this BFC Financial Corporation 2005 Stock Incentive Plan (the “BFC Shareholders”“Plan”), are to attract and has declared thatretain the Merger is advisable, (ii) approvedbest available personnel for positions of substantial responsibility, to provide additional incentive to the MergerEmployees of the Company or its Subsidiaries (as defined in Section 2 below) as well as other individuals who perform services for the Company and its Subsidiaries, and to promote the success and profitability of the Company’s business. Options granted hereunder may be either “incentive stock options,” as defined in Section 422 of the Internal Revenue Code of 1986, as amended, or “non-qualified stock options,” at the discretion of the Committee (as defined in Section 2 below) and as reflected in the terms of the Stock Option Agreement (as defined in Section 2 below).
2. DEFINITIONS. As used herein, the following definitions shall apply:
(a) “Award Notice” shall mean, with respect to a particular Restricted Stock Award, a written instrument signed by the Company and the recipient of the Restricted Stock Award evidencing the Restricted Stock Award and establishing the terms and conditions of this Agreement and (iii) recommended that the BFC Shareholders adopt and approve the Merger and this Agreement;thereof.
WHEREAS,(b) “Award Recipient” shall mean the recipient of a Restricted Stock Award.
(c) “Beneficiary” shall mean the Person designated by an Award Recipient to receive any Shares subject to a Restricted Stock Award made to such Award Recipient that become distributable following the Award Recipient’s death.
(d) “Board of Directors” shall mean the Board of Directors of RAG has adopted this Agreement and approved the Merger and the transactions contemplated by this Agreement; and
WHEREAS, Enterprises and Properties consent to and approve the Merger in accordance with the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual representations, warranties and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
MERGER
1.1. On the Effective Date of the Merger (as hereinafter defined) and in accordance with the laws of the State of Florida, RAG shall merge with and into BFC with BFC being the corporation surviving the Merger (hereinafter sometimes referred to as the “Surviving Corporation”) as a corporation organized and existing under the laws of the State of Florida.
1.2. As soon as practicable following fulfillment of the condition specified in Sections 6.1(a) and 6.2(b) and provided that this Agreement has not been terminated and abandoned pursuant to Article 7 hereof, BFC will cause an executed counterpart of the Articles of Merger substantially in the form attached asAppendix A hereto (the “Articles”), executed in accordance with the laws of the State of Florida to be filed with the Secretary of State of the State of Florida. The Merger shall become effective upon the filing of the Articles with the Secretary of State of the
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State of Florida in accordance with the provisions of Section 607.0120 and 607.1105 of the Florida Business Corporation Act (the “FBCA”) (such date hereinafter sometimes referred to as the “Effective Date of the Merger”).
1.3. Upon the Effective Date of the Merger:
(a) The separate corporate existence of RAG and BFC shall cease and RAG and BFC shall become and be a single corporation, with BFC continuing to exist as a corporation under the laws of the State of Florida, with all of the rights and obligations of such as Surviving Corporation as are provided by the FBCA;
(b) RAG shall cease to exist, and its property shall become the property of BFC as the Surviving Corporation;
(c) The 4,764,285 shares of BFC Class A Common Stock and the 500,000 shares of BFC Class B Common Stock currently held by RAG shall be canceled;
(d) The Articles of Incorporation of BFC as in effect immediately prior to the Effective Date of the Merger, shall be the Articles of Incorporation of the Surviving Corporation until amended in the manner provided by law and said Articles of Incorporation;Company.
(e) The Bylaws of BFC in effect immediately prior to“Class A Common Stock” shall mean the Effective Date of the Merger shall be the Bylaws of the Surviving Corporation until amended in the manner provided by law, the Articles of Incorporation of the Surviving Corporation and said Bylaws; and
(f) The officers and directors of BFC immediately prior to the Effective Date of the Merger shall continue as the officers and directors of the Surviving Corporation for the full unexpired terms of their respective offices or until their respective successors have been duly elected or appointed and qualified.
1.4. Upon the Effective Date of the Merger all of the issued and outstanding shares of RAG shall, by virtue of the Merger and without any action on the part of the respective holders thereof, be converted or be canceled as the case may be, as follows:
(a) Each share of common stock of RAG issued to the Other RAG Holders and outstanding prior to the Effective Date of the Merger shall be converted without any action on the part of such holders into and be exchanged for the number of shares ofClass A common stock, par value $0.01 per share, of the SurvivingCompany.
(f) “Code” shall mean the Internal Revenue Code of 1986, as amended.
(g) “Committee” shall mean the Committee appointed by the Board of Directors in accordance with paragraph (a) of Section 4 of the Plan.
(h) “Company” shall mean BFC Financial Corporation, a Florida corporation, and its successors and assigns.
(i) “Continuous Status as set forthan Employee” shall mean the absence of any interruption or termination of service as an Employee. Continuous Status as an Employee shall not be considered interrupted in the case of sick leave, military leave, or any other leave of absence approved by the Board of Directors of the Company or the Committee. Continuous Status as an Employee shall not be deemed terminated or interrupted by a termination of employment followed immediately by service as a non-Employee director of the Company or one or more of its Subsidiaries until a subsequent termination of all service as either a non-Employee director or an Employee.
(j) “Covered Employee” shall mean, for any taxable year of the Company, a person who is, or who the Committee determines is reasonably likely to be, a “covered employee” (within the meaning of section 162(m) of the Code).
(k) “Disability” shall mean permanent and total disability as defined in Section 22(e)(3) of the Code.
(l) “Employee” shall mean any person, including officers and directors, employed by the Company or any Parent or Subsidiary of the Company. The payment of a director’s fee by the Company shall not be sufficient to constitute “employment” by the Company.
(m) “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
B-1
(n) “Fair Market Value” shall be determined by the Committee in its discretion; provided, however, that where there is a public market for the Class A Common Stock, the fair market value per Share shall be (i) if the Class A Common Stock is listed or admitted for trading onSchedule 1 hereto based upon each any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the closing price of such shareholder’s respective pro rata ownership intereststock on such exchange or reporting system, as the case may be, on the relevant date, as reported in RAG priorany newspaper of general circulation, or (ii) if the Class A Common Stock is quoted on the National Association of Securities Dealers Automated Quotations (“NASDAQ”) System, or any similar system of automated dissemination of quotations of securities prices in common use, the mean between the closing bid and asked quotations for such stock on the relevant date, as reported by a generally recognized reporting service.
(o) “Incentive Stock Option” shall mean a stock option intended to qualify as an incentive stock option within the meaning of Section 422 of the Code.
(p) “Nonqualified Stock Option” shall mean a stock option not intended to qualify as an Incentive Stock Option or a stock option that at the time of grant, or subsequent thereto, fails to satisfy the requirements of Section 422 of the Code.
(q) “Option” shall mean a stock option granted pursuant to the Effective DatePlan.
(r) “Optioned Stock” shall mean the Class A Common Stock subject to an Option.
(s) “Optionee” shall mean the recipient of an Option.
(t) “Parent” shall mean a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Merger.Code.
(b) Each share(u) “Performance-Based Restricted Stock Award” shall mean a Restricted Stock Award to which Section 8.3 is applicable.
(v) “Performance Goal” shall mean, with respect to any Performance-Based Restricted Stock Award, the performance goal(s) established pursuant to Section 8.3(a), the attainment of common stockwhich is a condition of RAG owned by BFC shall be canceled and retired and shall cease to exist at the Effective Datevesting of the Merger, and no consideration shall be delivered in exchange therefore.Performance-Based Restricted Stock Award.
1.5. As soon as practicable after(w) “Performance Measurement Period” shall mean, with respect to any Performance Goal, the Effective Dateperiod of time over which attainment of the Merger, each holderPerformance Goal is measured.
(x) “Person” shall mean an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust, an estate, an unincorporated organization and any other business organization or institution.
(y) “Restricted Stock Award” shall mean an award of sharesShares pursuant to Section 8.
(z) “Rule 16b-3” shall meanRule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act or any successor rule.
(aa) “Service” shall mean, unless the Committee provides otherwise in an Award Notice: (a) service in any capacity as a common-law employee, director, advisor or consultant to the Company or a Parent or Subsidiary; (b) service in any capacity as a common-law employee, director, advisor or consultant (including periods of RAG common stock which,contractual availability to perform services under a retainer arrangement) to an entity that was formerly a Parent or Subsidiary, to the extent that such service is an uninterrupted continuation of services being provided immediately prior to the Effective Datedate on which such entity ceased to be a Parent or Subsidiary; and (c) performance of the Merger, were issued and outstanding shall surrender to BFC, or its duly appointed agent,terms of any certificates which, immediately prior tocontractual non-compete agreement for the Effective Datebenefit of the Merger,Company or a Parent or Subsidiary.
(bb) “Share” shall have represented any sharesmean a share of RAG shares then issued and outstanding. Upon receipt of such surrendered share certificates, BFC shall issue and exchange therefore certificates or other evidence of ownership of shares of BFCthe Class A Common Stock, as adjusted in accordance with Section 9 of the Plan.
(cc) “Stock Option Agreement” shall mean the written option agreements described in Section 14 of the Plan.
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(dd) “Subsidiary” shall mean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
(ee) “Transferee” shall mean a “transferee” of the Optionee as defined in Section 7.4 of the Plan.
3. STOCK. Subject to the provisions of Section 9 of the Plan, the maximum aggregate number of Shares which may be issued for Restricted Stock Awards and BFC Class B Commonupon the exercise of Options under the Plan is 6,000,000 Shares. During any calendar year, individuals who are Covered Employees may not be issued in the aggregate Shares covered by Restricted Stock representingAwards or Options in excess of the full amount of Shares available for grant under the Plan. If an Option or Restricted Stock Award should expire or become unexercisable for any reason without having been exercised or vested in full, the unpurchased Shares which were subject thereto shall, unless the Plan shall have been terminated, become available for further grant under the Plan.
Subject to the provisions of Section 9 of the Plan, no person shall be granted Options under the Plan in any calendar year covering an aggregate of more than the full amount of Shares available for grant under the Plan. If an Option should expire, become unexercisable for any reason without having been exercised in full, or be cancelled for any reason during the calendar year in which it was granted, the number of Shares covered by such Option shall nevertheless be treated as Options granted for purposes of the limitation in the preceding sentence.
4. ADMINISTRATION.
(a) Procedure. The Plan shall be administered by a Committee appointed by the Board of Directors, which initially shall be the Compensation Committee of the Company. The Committee shall consist of not less than two (2) members of the Board of Directors. Once appointed, the Committee shall continue to serve until otherwise directed by the Board of Directors. From time to time the Board of Directors, at its discretion, may increase the size of the Committee and appoint additional members thereof, remove members (with or without cause), and appoint new members in substitution therefor, and fill vacancies however caused; provided, however, that at no time shall a Committee of less than two (2) members of the Board of Directors administer the Plan. If the Committee does not exist, or for any other reason determined by the Board of Directors, the Board may take any action and exercise any power, privilege or discretion under the Plan that would otherwise be the responsibility of the Committee.
(b) Powers of the Committee. Subject to the provisions of the Plan, the Committee shall have the authority, in its discretion: (i) to grant Incentive Stock Options, in accordance with Section 422 of the Code, to grant Nonqualified Stock Options or to grant Restricted Stock Awards; (ii) to determine, upon review of relevant information, the Fair Market Value of the Class A Common Stock; (iii) to determine the exercise price per share of Options to be granted or consideration for Restricted Stock Awards; (iv) to determine the persons to whom, and the time or times at which, Options and Restricted Stock Awards shall be granted and the number of Shares to be represented by each Option or Restricted Stock Award; (v) to determine the vesting schedule of the Options and Restricted Stock Awards to be granted; (vi) to interpret the Plan; (vii) to prescribe, amend and rescind rules and regulations relating to the Plan; (viii) to determine the terms and provisions of each Option or Restricted Stock Award granted (which need not be identical) and, with the consent of the holder thereof if required, modify or amend each Option or Restricted Stock Award; (ix) to accelerate or defer (with the consent of the holder thereof) the exercise or vesting date of any Option or the vesting date of any Restricted Stock Award; (x) to authorize any person to execute on behalf of the Company any instrument required to effectuate the grant of an Option or Restricted Stock Award previously granted by the Committee; (xi) to substitute new Options or Restricted Stock Awards for previously granted Options or Restricted Stock Awards, as the case may be, which previously granted Options or Restricted Stock Awards contain less favorable terms, including, in the case of Options, higher exercise prices (for example, a “re-pricing”), providing that any such substitution would not result in penalties imposed by Section 409A of the Code; and (xii) to make all other determinations deemed necessary or advisable for the administration of the Plan.
(c) Effect of the Committee’s Decision. All decisions, determinations and interpretations of the Committee shall be final and binding on all Optionees, Award Recipients or Transferees, if applicable.
5. ELIGIBILITY. Incentive Stock Options may be granted only to Employees. Nonqualified Stock Options and Restricted Stock Awards may be granted to Employees as well as directors, independent contractors and agents who are natural persons (but only if such Options or Restricted Stock Awards are granted as compensation for
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personal services rendered by the independent contractor or agent to the Company or a Subsidiary that are not services in connection with the offer or sale of securities in a capital-raising transaction or services that directly or indirectly promote or maintain a market for the Company’s securities), as determined by the Committee. Any person who has been granted an Option or Restricted Stock Award may, if he is otherwise eligible, be granted an additional Option or Options or Restricted Stock Award.
Except as otherwise provided under the Code, to the extent that the aggregate Fair Market Value of Shares for which Incentive Stock Options (under all stock option plans of the Company and of any Parent or Subsidiary) are exercisable for the first time by an Employee during any calendar year exceeds $100,000, such excess Options shall be treated as Nonqualified Stock Options. For purposes of this limitation, (a) the Fair Market Value of Shares is determined as of the time the Option is granted and (b) the limitation is applied by taking into account Options in the order in which they were granted.
The Plan shall not constitute a contract of employment nor shall the Plan confer upon any Optionee or Award Recipient any right with respect to continuation of employment or continuation of providing services to the Company, nor shall it interfere in any way with his right or the Company’s or any Parent or Subsidiary’s right to terminate his employment or his provision of services at any time.
6. TERM OF PLAN. The Plan shall continue in effect ten (10) years from the date of its adoption by the Board of Directors, unless sooner terminated under Section 11 of the Plan.
7. STOCK OPTIONS.
7.1 Term of Option. The term of each Option shall be ten (10) years from the date of grant thereof or such shorter term as may be provided in the Stock Option Agreement. However, in the case of an Incentive Stock Option granted to an Employee who, immediately before the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the term of the Incentive Stock Option shall be five (5) years from the date of grant thereof or such shorter time as may be provided in such Optionee’s Stock Option Agreement.
7.2 Exercise Price and Consideration.
(a) Price. The per Share exercise price for the Shares to be issued pursuant to exercise of an Option shall be such price as determined by the Committee, but shall be subject to the following:
(i) In the case of an Incentive Stock Option which is
(A) granted to an Employee who, immediately before the grant of such Incentive Stock Option, owns stock representing more than ten percent (10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary, the per Share exercise price shall be no less than one hundred and ten percent (110%) of the Fair Market Value per Share on the date of grant.
(B) granted to an Employee not within (A), the per share exercise price shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.
(C) In the case of a Nonqualified Stock Option, the per Share exercise price shall be no less than one hundred percent (100%) of the Fair Market Value per Share on the date of grant.
(b) Certain Corporate Transactions. In the event the Company substitutes an Option for a stock option issued by another corporation in connection with a corporate transaction, such as a merger, consolidation, acquisition of property or stock, separation (including a spin-off or other distribution of stock or property), reorganization (whether or not such reorganization comes within the definition of such term in Section 368 of the Code) or partial or complete liquidation involving the Company and such other corporation, the exercise price of such substituted Option shall be as determined by the Committee in its discretion (subject to the provisions of Section 424(a) of the Code in the case of a stock option that was intended to qualify as an “incentive stock option”) to preserve, on a per Share basis immediately after such corporate transaction, the same ratio of Fair Market Value per Option Share to exercise price per Share which existed immediately prior to such corporate transaction under the option issued by such other corporation.
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(c) Payment. The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be determined by the Committee and may consist entirely of cash, check, promissory note, or other shares of the Company’s capital stock having a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said Option shall be exercised, or any combination of such holdermethods of payment, or such other consideration and method of payment for the issuance of Shares to the extent permitted under the law of the Company’s jurisdiction of incorporation. The Committee may also establish coordinated procedures with one or more brokerage firms for the “cashless exercise” of Options, whereby Shares issued upon exercise of an Option are delivered against payment by the brokerage firm on the Optionee’s behalf. When payment of the exercise price for the Shares to be issued upon exercise of an Option consists of shares of the Company’s capital stock, such shares will not be accepted as payment unless the Optionee or Transferee, if applicable, has held such shares for the requisite period necessary to avoid a charge to the Company’s earnings for financial reporting purposes.
7.3 Exercise Of Option.
(a) Procedure for Exercise; Rights as a Shareholder. Any Option granted hereunder shall be exercisable at such times and under such conditions as determined by the Committee, including performance criteria with respect to the Company or its Subsidiariesand/or the Optionee, and as shall be permissible under the terms of the Plan. An Option may not be exercised for a fraction of a Share. An Option shall be deemed to be exercised when written notice of such exercise has been given to the Company in accordance with the terms of the Option by the person entitled to exercise the Option and full payment for the Shares with respect to which the Option is entitledexercised has been received by the Company. Full payment may, as authorized by the Committee, consist of any consideration and method of payment allowable under Section 7.2(c) of the Plan. Until the issuance of the stock certificate evidencing such Shares (as evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer agent of the Company), which in no event will be delayed more than thirty (30) days from the date of the exercise of the Option, no right to vote or receive dividends or any other rights as a shareholder shall exist with respect to the Optioned Stock, notwithstanding the exercise of the Option. No adjustment will be made for a dividend or other right for which the record date is prior to the date the stock certificate is issued, except as provided onSchedule 1 hereto.in the Plan. Exercise of an Option in any manner shall result in a decrease in the number of Shares which thereafter may be available, both for purposes of the Plan and for sale under the Option, by the number of Shares as to which the Option is exercised.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF BFC(b) Termination of Status as an Employee. Subject to this Section 7.3(b), if any Employee ceases to be in Continuous Status as an Employee, he or any Transferee may, but only within thirty (30) days or such other period of time not exceeding three (3) months as is determined by the Committee (or, provided that the applicable Option is not to be treated as an Incentive Stock Option, such longer period of time as may be determined by the Committee) after the date he ceases to be an Employee, exercise his Option to the extent that he or any Transferee was entitled to exercise it as of the date of such termination. To the extent that he or any Transferee was not entitled to exercise the Option at the date of such termination, or if he or any Transferee does not exercise such Option (which he or any Transferee was entitled to exercise) within the time specified herein, the Option shall terminate. If any Employee ceases to serve as an Employee as a result of a termination for cause (as determined by the Committee), any Option held by such Employee or any Transferee shall terminate immediately and automatically on the date of his termination as an Employee unless otherwise determined by the Committee. Notwithstanding the foregoing, if an Employee ceases to be in Continuous Status as an Employee solely due to a reorganization, merger, consolidation, spin-off, combination, re-assignment to another member of the affiliated group of which the Company is a member or other similar corporate transaction or event, the Committee may, in its discretion, suspend the operation of this Section 7.3(b); provided that the Employee shall execute an agreement, in form and substance satisfactory to the Committee, waiving such Employee’s right to have such Employee’s Options treated as Incentive Stock Options from and after a date determined by the Committee which shall be no later than three months from the date on which such Employee ceases to be in Continuous Status as an Employee, and such Employee’s Options shall thereafter be treated as Nonqualified Options for all purposes.
(c) Disability of Optionee. Notwithstanding the provisions of Section 7.3(b) above, in the event an Employee is unable to continue his employment as a result of his Disability, he or any Transferee may, but only within three (3) months or such other period of time not exceeding twelve (12) months as is determined by the Committee (or,
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provided that the applicable Option is not to be treated as an Incentive Stock Option, such longer period of time as may be determined by the Committee) from the date of termination of employment, exercise his Option to the extent he or any Transferee was entitled to exercise it at the date of such Disability. To the extent that he or any Transferee was not entitled to exercise the Option at the date of Disability, or if he or any Transferee does not exercise such Option (which he or any Transferee was entitled to exercise) within the time specified herein, the Option shall terminate.
(d) Death of Optionee. In the event of the death of an Optionee:
(i) during the term of the Option and who is at the time of his death an Employee and who shall have been in Continuous Status as an Employee since the date of grant of the Option, the Option may be exercised at any time within twelve (12) months (or, provided that the applicable Option is not to be treated as an Incentive Stock Option, such longer period of time as may be determined by the Committee) following the date of death, by the Optionee’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance, or by any Transferee, as the case may be, but only to the extent of the right to exercise that would have accrued had the Optionee continued living one (1) month after the date of death; or
(ii) within thirty (30) days or such other period of time not exceeding three (3) months as is determined by the Committee (or, provided that the applicable Option is not to be treated as an Incentive Stock Option, such longer period of time as may be determined by the Committee) after the termination of Continuous Status as an Employee, the Option may be exercised, at any time within three (3) months following the date of death, by the Optionee’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance, or by any Transferee, as the case may be, but only to the extent of the right to exercise that had accrued at the date of termination.
7.4 Transferability Of Options. During an Optionee’s lifetime, an Option may be exercisable only by the Optionee and an Option granted under the Plan and the rights and privileges conferred thereby shall not be subject to execution, attachment or similar process and may not be sold, pledged, assigned, hypothecated, transferred or otherwise disposed of in any manner (whether by operation of law or otherwise) other than by will or by the laws of descent and distribution. Notwithstanding the foregoing, to the extent permitted by applicable law andRule 16b-3, the Committee may determine that an Option may be transferred by an Optionee to any of the following: (1) a family member of the Optionee; (2) a trust established primarily for the benefit of the Optioneeand/or a family member of said Optionee in which the Optioneeand/or one or more of his family members collectively have a more than 50% beneficial interest; (3) a foundation in which such persons collectively control the management of assets; (4) any other legal entity in which such persons collectively own more than 50% of the voting interests; or (5) any charitable organization exempt from income tax under Section 501(c)(3) of the Code (collectively, a “Transferee”); provided, however, in no event shall an Incentive Stock Option be transferable if such transferability would violate the applicable requirements under Section 422 of the Code. Any other attempt to sell, pledge, assign, hypothecate, transfer or otherwise dispose of any Option under the Plan or of any right or privilege conferred thereby, contrary to the provisions of the Plan, or the sale or levy or any attachment or similar process upon the rights and privileges conferred hereby, shall be null and void.
8. RESTRICTED STOCK AWARDS.
8.1 In General.
(a) Each Restricted Stock Award shall be evidenced by an Award Notice issued by the Committee to the Award Recipient containing such terms and conditions not inconsistent with the Plan as the Committee may, in its discretion, prescribe, including, without limitation, any of the following terms or conditions:
(i) the number of Shares covered by the Restricted Stock Award;
(ii) the amount (if any) which the Award Recipient shall be required to pay to the Company in consideration for the issuance of such Shares (which shall in no event be less than the minimum amount required for such Shares to be validly issued, fully paid and nonassessable under applicable law);
(iii) whether the Restricted Stock Award is a Performance-Based Award and, if it is, the applicable Performance Goal or Performance Goals;
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(iv) the date of grant of the Restricted Stock Award; and
(v) the vesting date for the Restricted Stock Award.
(b) All Restricted Stock Awards shall be in the form of issued and outstanding Shares that shall be either:
(i) registered in the name of the Committee for the benefit of the Award Recipient and held by the Committee pending the vesting or forfeiture of the Restricted Stock Award;
(ii) registered in the name of Award Recipient and held by the Committee, together with a stock power executed by the Award Recipient in favor of the Committee, pending the vesting or forfeiture of the Restricted Stock Award; or
(iii) registered in the name of and delivered to the Award Recipient.
In any event, the certificates evidencing the Shares shall at all times prior to the applicable vesting date bear the following legend:
The Class A Common Stock evidenced hereby is subject to the terms of a Restricted Stock Award agreement between BFC hereby representsFinancial Corporation and warrants[Name of Award Recipient] dated [Date] made pursuant to RAGthe terms of the BFC Financial Corporation 2005 Stock Incentive Plan, copies of which are on file at the executive offices of BFC Financial Corporation, and may not be sold, encumbered, hypothecated or otherwise transferred except in accordance with the terms of such Plan and Agreement.
and/or such other restrictive legend as the Committee, in its discretion, may specify.
(c) Except as otherwise provided by the Committee, a Restricted Stock Award shall not be transferable by the Award Recipient other than by will or by the laws of descent and distribution, and the Shares granted pursuant to such Restricted Stock Award shall be distributable, during the lifetime of the Award Recipient, only to the Award Recipient.
8.2 Vesting Date.
(a) The vesting date for each Restricted Stock Award shall be determined by the Committee and specified in the Award Notice and, if no date is specified in the Award Notice, shall be the first anniversary of the date on which the Restricted Stock Award is granted. Unless otherwise determined by the Committee and specified in the Award Notice:
(i) if the Service of an Award Recipient is terminated prior to the vesting date of a Restricted Stock Award for any reason other than death or Disability, any unvested Shares shall be forfeited without consideration (other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares being forfeited and (B) the Fair Market Value of such Shares on the date of forfeiture);
(ii) if the Service of an Award Recipient is terminated prior to the vesting date of a Restricted Stock Award on account of death or Disability, any unvested Shares with a vesting date that is during the period of six (6) months beginning on the date of termination of Service shall become vested on the date of termination of Service and any remaining unvested Shares forfeited without consideration (other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares being forfeited and (B) the Fair Market Value of such Shares on the date of forfeiture).
8.3 Performance-Based Restricted Stock Awards.
(a) At the time it grants a Performance-Based Restricted Stock Award, the Committee shall establish one or more Performance Goals the attainment of which shall be a condition of the Award Recipient’s right to retain the related Shares. The Performance Goals shall be selected from among the following:
(i) earnings per share;
(ii) net income;
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(iii) EBITDA;
(iv) return on equity;
(v) return on assets;
(vi) core earnings;
(vii) stock price;
(viii) strategic business objectives, consisting of one or more objectives based on meeting specified cost targets, business expansion goals, goals relating to acquisitions or divestitures, revenue targets or business development goals;
(ix) except in the case of a Covered Employee, any other performance criteria established by the Committee; or
(x) any combination of (i) through (ix) above.
Performance Goals may be established on the basis of reported earnings or cash earnings, and consolidated results or individual business units and may, in the discretion of the Committee, include or exclude extraordinary itemsand/or the results of discontinued operations. Each Performance Goal may be expressed on an absoluteand/or relative basis, may be based on or otherwise employ comparisons based on internal targets, the past performance of the Company (or individual business units)and/or the past or current performance of other companies.
(b) At the time it grants a Performance-Based Restricted Stock Award, the Committee shall establish a Performance Measurement Period for each Performance Goal. The Performance Measurement Period shall be the period over which the Performance Goal is measured and its attainment is determined. If the Committee establishes a Performance Goal but fails to specify a Performance Measurement Period, the Performance Measurement Period shall be:
(i) if the Performance-Based Restricted Stock Award is granted during the first three months of the Company’s fiscal year, the fiscal year of the Company in which the Performance-Based Restricted Stock Award is granted; and
(ii) in all other cases, the period of four (4) consecutive fiscal quarters of the Company that begins with the fiscal quarter in which the Performance-Based Restricted Stock Award is granted.
(c) Within a reasonable period of time as shall be determined by the Committee following the end of each Performance Measurement Period, the Committee shall determine, on the basis of such evidence as it deems appropriate, whether the Performance Goals for such Performance Measurement Period have been attained and, if they have been obtained, shall certify such fact in writing.
(d) If the Performance Goals for a Performance-Based Restricted Stock Award have been determined by the Committee to have been attained and certified, the Committee shall either:
(i) if the relevant vesting date has occurred, cause the ownership of the Shares subject to such Restricted Stock Award, together with all dividends and other distributions with respect thereto that have been accumulated, to be transferred on the stock transfer records of the Company, free of any restrictive legend other than as may be required by applicable law, to the Award Recipient;
(ii) in all other cases, continue the Shares in their current status pending the occurrence of the relevant vesting date or forfeiture of the Shares.
If any one or more of the relevant Performance Goals have been determined by the Committee to not have been attained, all of the Shares subject to such Restricted Stock Award shall be forfeited without consideration (other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares being forfeited and (B) the Fair Market Value of such Shares on the date of forfeiture).
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(e) If the Performance Goals for any Performance Measurement Period shall have been affected by special factors (including material changes in accounting policies or practices, material acquisitions or dispositions of property, or other unusual items) that in the Committee’s judgment should or should not be taken into account, in whole or in part, in the equitable administration of the Plan, the Committee may, for any purpose of the Plan, adjust such Performance Goals and make payments accordingly under the Plan; provided, however, that any adjustments made in accordance with or for the purposes of this section 8.3(e) shall be disregarded for purposes of calculating the Performance Goals for a Performance-Based Restricted Stock Award to a Covered Employee if and to the Other RAG Holders as follows:extent that such adjustments would have the effect of increasing the amount of a Restricted Stock Award to such Covered Employee.
2.1. Corporate Status. BFC8.4 Dividend Rights. Unless the Committee determines otherwise with respect to any Restricted Stock Award and specifies such determination in the relevant Award Notice, any dividends or distributions declared and paid with respect to Shares subject to the Restricted Stock Award, whether or not in cash, shall be held and accumulated for distribution at the same time and subject to the same terms and conditions as the underlying Shares.
8.5 Voting Rights. Unless the Committee determines otherwise with respect to any Restricted Stock Award and specifies such determination in the relevant Award Notice, voting rights appurtenant to the Shares subject to the Restricted Stock Award, shall be exercised by the Committee in its discretion.
8.6 Tender Offers. Each Award Recipient shall have the right to respond, or to direct the response, with respect to the issued Shares related to its Restricted Stock Award, to any tender offer, exchange offer or other offer made to the holders of Shares. Such a direction for any such Shares shall be given by completing and filing, with the inspector of elections, the trustee or such other person who shall be independent of the Company as the Committee shall designate in the direction, a written direction in the form and manner prescribed by the Committee. If no such direction is duly organized, validly existinggiven, then the Shares shall not be tendered.
8.7 Designation of Beneficiary. An Award Recipient may designate a Beneficiary to receive any unvested Shares that become available for distribution on the date of his death. Such designation (and any change or revocation of such designation) shall be made in writing in the form and manner prescribed by the Committee. In the event that the Beneficiary designated by an Award Recipient dies prior to the Award Recipient, or in the event that no Beneficiary has been designated, any vested Shares that become available for distribution on the Award Recipient’s death shall be paid to the executor or administrator of the Award Recipient’s estate, or if no such executor or administrator is appointed within such time as the Committee, in its sole discretion, shall deem reasonable, to such one or more of the spouse and descendants and blood relatives of such deceased person as the Committee may select.
8.8 Taxes. The Company or the Committee shall have the right to require any person entitled to receive Shares pursuant to a Restricted Stock Award to pay the amount of any tax which is required to be withheld with respect to such Shares, or, in lieu thereof, to retain, or to sell without notice, a sufficient number of Shares to cover the amount required to be withheld.
9. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any required action by the shareholders of the Company, in the event any recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, or exchange of Class A Common Stock or other securities, stock dividend or other special and nonrecurring dividend or distribution (whether in the form of cash, securities or other property), liquidation, dissolution, or other similar corporate transaction or event, affects the Class A Common Stock such that an adjustment is appropriate in the Committee’s discretion in order to prevent dilution or enlargement of the rights of Optionees and Award Recipients under the Plan, then the Committee shall, in such manner as it may deem equitable, adjust any or all of (i) the number and kind of shares of Class A Common Stock or other securities deemed to be available thereafter for grants of Options and Restricted Stock Awards under the Plan in the aggregate to all eligible individuals and individually to any one eligible individual, (ii) the number and kind of shares of Class A Common Stock or other securities that may be delivered or deliverable in respect of outstanding Options or Restricted Stock Awards, and (iii) the exercise price of Options. In addition, the Committee is authorized to make adjustments in the terms and conditions of, and the criteria included in, Options and Restricted Stock Awards (including, without limitation, cancellation of Options or Restricted Stock Awards in exchange for the in-the-money value, if any, of the vested portion thereof, or substitution of Options or Restricted Stock Awards
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using stock of a successor or other entity) in recognition of unusual or nonrecurring events (including, without limitation, events described in the preceding sentence) affecting the Company or any Subsidiary or the financial statements of the Company or any Subsidiary, or in response to changes in applicable laws, regulations, or account principles; provided, however, that any such adjustment to an Option or Performance-Based Restricted Stock Award granted to a Covered Employee with respect to the Company or its Parent or Subsidiaries shall conform to the requirements of section 162(m) of the Code and the regulations thereunder then in effect. In addition, each such adjustment with respect to an Incentive Stock Option shall comply with the rules of Section 424(a) of the Code (or any successor provision), and in good standingno event shall any adjustment be made which would render any Incentive Stock Option granted hereunder other than an “incentive stock option” as defined in Section 422 of the Code. The Committee’s determination shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number or price of shares of Class A Common Stock subject to an Option or Restricted Stock Award.
In the event of the proposed dissolution or liquidation of the Company, or in the Stateevent of Florida.
2.2. Authority; Enforceability. The execution, deliverya proposed sale of all or substantially all of the assets of the Company, or the merger of the Company with or into another corporation, the Committee or the Board of Directors may determine, in its discretion, that (i) if any such transaction is effected in a manner that holders of Class A Common Stock will be entitled to receive stock or other securities in exchange for such shares, then, as a condition of such transaction, lawful and performanceadequate provision shall be made whereby the provisions of this Agreement by BFCthe Plan and the consummation by BFCOptions granted hereunder shall thereafter be applicable, as nearly equivalent as may be practicable, in relation to any shares of stock or securities thereafter deliverable upon the transactions contemplated hereby have been duly authorized by all requisite corporate action, except thatexercise of any Option or (ii) the Option will terminate immediately prior to the consummation of such proposed transaction. The Committee or the Merger,Board of Directors may, in the BFC Shareholders votingexercise of its sole discretion in such instances, declare that any Option shall terminate as one classof a date fixed by the Committee or the Board of Directors and give each Optionee or Transferee, if applicable, the right to exercise his Option as wellto all or any part of the Optioned Stock, including Shares as to which the Option would not otherwise be exercisable; provided, however, that the Committee may, at any time prior to the consummation of such merger, consolidation or other business reorganization, direct that all, but not less than all, outstanding Options be cancelled as of the effective date of such merger, consolidation or other business reorganization in exchange for a cash payment per optioned Share equal to the excess (if any) of the value exchanged for an outstanding Share in such merger, consolidation or other business reorganization over the exercise price of the Option being cancelled.
In the event of any merger, consolidation, or other business reorganization in which the Company is not the surviving entity, any Restricted Stock Award with respect to which Shares had been awarded to an Award Recipient shall be adjusted by allocating to the Award Recipient the amount of money, stock, securities or other property to be received by the other shareholders of record, and such money, stock, securities or other property shall be subject to the same terms and conditions of the Restricted Stock Award that applied to the Shares for which it has been exchanged.
Without limiting the generality of the foregoing, the existence of outstanding Options or Restricted Stock Awards granted under the Plan shall not affect in any manner the right or power of the Company to make, authorize or consummate (i) any or all adjustments, recapitalizations, reorganizations or other changes in the Company’s capital structure or its business; (ii) any merger or consolidation of the Company; (iii) any issuance by the Company of debt securities or preferred or preference stock that would rank above the Shares subject to outstanding Options or Restricted Stock Awards; (iv) the dissolution or liquidation of the Company; (v) any sale, transfer or assignment of all or any part of the assets or business of the Company; or (vi) any other corporate act or proceeding, whether of a similar character or otherwise.
10. TIME FOR GRANTING OPTIONS AND RESTRICTED STOCK AWARDS. The date of grant of an Option or Restricted Stock Award shall, for all purposes, be the date on which the Committee makes the determination granting such Option or Restricted Stock Award or such later date as the holdersCommittee may specify. Notice of BFC Class B Common Stock voting separatelythe determination shall have approvedbe given to each Optionee or Award Recipient within a reasonable time after the Merger. This Agreement has beendate of such grant.
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duly executed11. AMENDMENT AND TERMINATION OF THE PLAN.
11.1 Committee Action; Shareholders’ Approval. Subject to applicable laws and regulations, the Committee or the Board of Directors may amend or terminate the Plan from time to time in such respects as the Committee or the Board of Directors may deem advisable, without the approval of the Company’s shareholders.
11.2 Effect of Amendment or Termination. No amendment or termination or modification of the Plan shall in any manner affect any Option or Restricted Stock Award theretofore granted without the consent of the Optionee or Award Recipient, except that the Committee or the Board of Directors may amend or modify the Plan in a manner that does affect Options or Restricted Stock Awards theretofore granted upon a finding by the Committee or the Board of Directors that such amendment or modification is in the best interest of Shareholders, Optionees or Award Recipients.
12. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to the exercise of an Option or delivered by BFC,with respect to a Restricted Stock Award unless the exercise of such Option and upon due executionthe issuance and delivery by RAGof such Shares pursuant thereto or the grant of a Restricted Stock Award and the Other RAG Holders will constitute the legal, valid and binding obligationdelivery of BFC, enforceable in accordanceShares with its terms, except to the extent that its enforcement is limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity.
2.3. No Violation or Conflict. The execution, delivery and performance of this Agreement by BFC and the consummation by BFC of the transactions contemplated hereby: (a) do not and will not violate or conflictrespect thereto shall comply with any provisionall relevant provisions of law, or regulation, or any writ, order, judgment or decree of any court or governmental or regulatory authority, or any provision of BFC’s Articles of Incorporation or Bylaws; and (b) do not and will not, with orincluding, without the passage of time or the giving of notice, result in the breach of, or constitute a default, cause the acceleration of performance, or require any consent under, or result in the creation of any lien, charge or encumbrance upon any property or assets of BFC pursuant to any material instrument or agreement to which BFC is a party or by which BFC or its properties may be bound or affected, except that prior to the consummation of the Merger, the BFC Shareholders voting together as one class as well as the holders of BFC Class B Common Stock voting separately shall each have approved the Merger.
2.4. Validity of BFC Shares. When issued and delivered in accordance with this Agreement, the BFC shares to be issued shall be duly and validly authorized, issued and outstanding, fully paid and non-assessable, and shall not have been issued in violation of any preemptive rights.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RAG
RAG represents and warrants to BFC as follows:
3.1. Corporate Status. RAG is a corporation duly organized, validly existing and in good standing under the laws of the State of Florida, with all requisite right, power and authority to engage in and consummate the transactions contemplated hereby.
3.2. Authority; Enforceability. The execution, delivery and performance of this Agreement by RAG and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action. This Agreement has been duly executed and delivered by RAG, and upon due execution and delivery by BFC and the Other RAG Holders will constitute the legal, valid and binding obligation of RAG, enforceable in accordance with its terms, except to the extent that its enforcement is limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity.
3.3. No Violation or Conflict. The execution, delivery and performance of this Agreement by RAG and the consummation of the transactions contemplated hereby: (a) do not and will not violate or conflict with any provision of law or regulation, or any writ, order, judgment or decree of any court or governmental or regulatory authority, or any provision of RAG’s Articles of Incorporation or Bylaws or any other governing documents of RAG; and (b) do not and will not, with or without the passage of time or the giving of notice, result in the breach of, or constitute a default, cause the acceleration of performance, or require any consent under, or result in the creation of any lien, charge or encumbrance upon any property or assets of RAG pursuant to any material instrument or agreement to which RAG is a party or by which RAG or any of its properties may be bound or affected.
3.4. Ownership and Title to the Shares. RAG is the legal and beneficial owner of 4,764,285 shares of BFC Class A Common Stock and 500,000 shares of BFC Class B Common Stock and such shares are owned free and clear of any pledges, security interests, mortgages, liens, claims, charges, restrictions or encumbrances.
3.5. Independent Representation. RAG acknowledges that counsel to BFC has not represented it or its shareholders, including the Other RAG Holders, nor provided it or its shareholders, including the Other RAG Holders, with any legal or other advice in connection with the transactions contemplated hereby and that each has been urged to seek independent professional legal, tax and financial advice in order to analyze the risks and merits of entering into this Agreement and consummating the transactions contemplated hereby.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE OTHER RAG HOLDERS
The Other RAG Holders jointly and severally represent and warrant to BFC as follows:
4.1. Entity Status. Each of Enterprises and Properties are entities duly organized, validly existing and in good standing under the laws of the State of Florida, with all requisite right, power and authority to engage in and consummate the transactions contemplated hereby.
4.2. Authority; Enforceability. The execution, delivery and performance of this Agreement by each of Enterprises and Properties and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on behalf of Enterprises and Properties. This Agreement has been duly executed and delivered by each of Enterprises and Properties, and upon due execution and delivery by each of BFC and RAG will constitute the legal, valid and binding obligation of each of them, enforceable in accordance with its terms, except to the extent that its enforcement is limited by bankruptcy, insolvency, reorganization or other laws relating to or affecting the enforcement of creditors’ rights generally and by general principles of equity.
4.3. Ownership and Title to RAG Shares. Enterprises is the legal and beneficial owner of 200 shares of RAG Common Stock and Properties is the legal and beneficial owner of 400 shares of RAG Common Stock and such shares are owned free and clear of any pledges, security interests, mortgages, liens, claims, charges, restrictions or encumbrances.
4.4. No Registration. Each of Enterprises and Properties understands that the BFC Shares being issued in the Merger have not been registered underlimitation, the Securities Act of 1933, as amended, (the “Securitiesthe Exchange Act,”), the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance.
As a condition to the exercise of an Option, grant of a Restricted Stock Award or delivery of Shares with respect to a Restricted Stock Award, the Company may require the Person exercising such Option or acquiring such Shares or Restricted Stock Award to represent and warrant at the time of any such exercise, grant or acquisition that the Shares are being purchased only for investment and without any present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law. The Company shall not be required to deliver any Shares under the Plan prior to (i) the admission of such Shares to listing on any stock exchange on which Shares may then be listed, or (ii) the completion of such registration or other qualification under any state securities laws. Eachor federal law, rule or regulation as the Committee shall determine to be necessary or advisable.
13. RESERVATION OF SHARES. The Company, during the term of Enterprisesthis Plan, will at all times reserve and Properties understands that it will notkeep available such number of Shares as shall be ablesufficient to sell, transfer or otherwise disposesatisfy the requirements of the BFCPlan. Inability of the Company to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any Shares it receiveshereunder, shall relieve the Company of any liability in respect of the Merger except pursuantfailure to a valid registration statementissue or sell such shares as to which such requisite authority shall not have been obtained.
14. STOCK OPTION AGREEMENT; AWARD NOTICE. Options shall be evidenced by written option agreements and Restricted Stock Awards shall be evidenced by Award Notices, each in such form as the Board of Directors or the Committee shall approve.
15. Intentionally omitted.
16. OTHER PROVISIONS. The Stock Option Agreements or Award Notices authorized under the Securities ActPlan may contain such other provisions, including, without limitation, restrictions upon the exercise of the Option or a transaction which is exempt fromvesting of the registration requirements underRestricted Stock Award, as the Securities Act. EachBoard of EnterprisesDirectors or the Committee shall deem advisable. Any Incentive Stock Option Agreement shall contain such limitations and Properties acknowledgesrestrictions upon the exercise of the Incentive Stock Option as shall be necessary in order that it is acquiringsuch Option will be an incentive stock option as defined in Section 422 of the BFC Shares for its own account, for investment only, and not with a view toward the resale or distribution thereof.Code.
4.5. Independent Representation. Each17. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights of Enterprisesindemnification they may have as directors, the members of the Committee shall be indemnified by the Company against the reasonable expenses, including attorneys’ fees actually and Properties acknowledges that counsel to BFC has not represented it nor provided it with any legal or other advicenecessarily incurred in connection with the transactions contemplated herebydefense of any action, suit or proceeding, or in connection with any appeal thereon, to which they or any of them may be a party by reason of any action taken or failure to act under or in connection with the Plan or any Option or Restricted Stock Award granted thereunder, and that each has been urgedagainst all amounts paid by them in settlement thereof (provided such settlement is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action, suit or proceeding, except in relation to seek independent professional legal, tax and financial advice in ordermatters as to analyze the risks and merits of entering into this Agreement and consummating the transactions contemplated hereby.
ARTICLE V
COVENANT
5.1. Covenant. The parties hereto acknowledge that the transactions contemplated hereby are intended to qualify as a tax-free reorganization under the Internal Revenue Code of 1986, as amended (the “Code”) and each party hereto agrees to report the transactions consistently therewith.
ARTICLE VI
CONDITIONS PRECEDENT TO THE MERGER
6.1. The obligations of BFC to consummate the Merger are subject to the satisfaction at or prior to the Effective Date of the Merger of the following conditions:
(a) The representations and warranties of RAG and the Other RAG Holders contained in this Agreementwhich it shall be true and correct on the date hereof and shall also be true and correct on the Effective Date of the Merger as if then made.
(b) The Merger shall have been approved by the BFC Shareholders voting as one class as well as by the holders of BFC Class B Stock voting separately.adjudged in such action, suit
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6.2.or proceeding that such Committee member is liable for gross negligence or misconduct in the performance of his duties; provided that within sixty (60) days after institution of any such action, suit or proceeding a Committee member shall in writing offer the Company the opportunity, at its own expense, to handle and defend the same.
18. NO OBLIGATION TO EXERCISE OPTION. The obligationsgranting of RAGan Option shall impose no obligation upon the Optionee to exercise such Option.
19. WITHHOLDINGS; TAX MATTERS.
19.1 The Company shall have the right to deduct from all amounts paid by the Company in cash with respect to an Option under the Plan any taxes required by law to be withheld with respect to such Option. Where any Person is entitled to receive Shares pursuant to the exercise of an Option, the Company shall have the right to require such Person to pay to the Company the amount of any tax which the Company is required to withhold with respect to such Shares, or, in lieu thereof, to retain, or to sell without notice, a sufficient number of Shares to cover the minimum amount required to be withheld. To the extent determined by the Committee and specified in the Other RAG HoldersOption Agreement, an Option holder shall have the right to consummatedirect the transaction contemplatedCompany to satisfy the minimum required federal, state and local tax withholding by this Agreement arereducing the number of Shares subject to the satisfactionOption (without issuance of such Shares to the Option holder) by a number equal to the quotient of (a) the total minimum amount of required tax withholding divided by (b) the excess of the Fair Market Value of a Share on the Option exercise date over the Option exercise price per Share.
19.2 If and to the extent permitted by the Committee and specified in an Award Notice for a Restricted Stock Award other than a Performance-Based Restricted Stock Award, an Award Recipient may be permitted or required to make an election under section 83(b) of the Code to include the compensation related thereto in income for federal income tax purposes at the time of issuance of the Shares to such Award Recipient instead of at a subsequent vesting date. In such event, the Shares issued prior to their vesting date shall be issued in certificated form only, and the certificates therefor shall bear the following legend:
The Class A Common Stock evidenced hereby is subject to the terms of a Restricted Stock Award agreement between BFC Financial Corporation and [Name of Recipient] dated [Date] made pursuant to the terms of the BFC Financial Corporation 2005 Stock Incentive Plan, copies of which are on file at the executive offices of BFC Financial Corporation, and may not be sold, encumbered, hypothecated or otherwise transferred except in accordance with the terms of such Plan and Agreement.
or such other restrictive legend as the Committee, in its discretion, may specify. In the event of the Award Recipient’s termination of Service prior to the Effective Daterelevant vesting date or forfeiture of the Merger ofShares for any other reason, the following conditions:
(a) The representations and warranties of BFC contained in this AgreementAward Recipient shall be truerequired to return all forfeited Shares to the Company without consideration therefor (other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares being forfeited and correct(B) the Fair Market Value of such Shares on the date hereof and shall also be true and correct on the Effective Dateof forfeiture).
20. OTHER COMPENSATION PLANS. The adoption of the Merger as if then made.Plan shall not affect any other stock option or incentive or other compensation plans in effect for the Company or any Subsidiary, nor shall the Plan preclude the Company from establishing any other forms of incentive or other compensation for employees and directors of the Company or any Subsidiary.
(b) The Merger21. SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the singular shall have been approved byinclude the BFC Shareholders voting as one class as well as byplural, and the holders of BFC Class B Stock voting separately.masculine pronoun shall include the feminine gender.
ARTICLE VII
TERMINATION AND ABANDONMENT22. HEADINGS, ETC. NO PART OF PLAN. Headings of Articles and Sections hereof are inserted for convenience and reference; they constitute no part of the Plan.
This Agreement may be terminated and the transactions contemplated herein may be abandoned at23. SEVERABILITY. If any time by the mutual consentprovision of the parties hereto.
ARTICLE VIII
MISCELLANEOUS
8.1. Expenses. Each of the parties hereto shall bear their own costs and expenses relatingPlan is held to each of the transactions contemplated hereby, including fees and expenses of legal counsel.
8.2. Amendment and Modification. This Agreement may be amended, supplementedinvalid or modified only in a writing duly executed by all of the parties hereto.
8.3. Waiver. No waiver of any breach of any one of the terms, conditions or covenants of this Agreement by the parties shall be deemed to imply or constitute a waiver of any other term, condition or covenant of this Agreement. The failure of any party hereto to insist on strict performance of any term, condition or covenant of this Agreement shall not constitute or be construed as a waiver of the rights of either or the other thereafter to enforce any other default of such term, condition or covenant; neither shall such failure to insist upon strict performance be deemed sufficient grounds to enable any party hereto to forego or subvert or otherwise disregard any other term, condition or covenant of this Agreement.
8.4. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered in person or sent by prepaid first-class registered or certified mail, return receipt requested, as follows:
BFC Financial Corporation
2100 W. Cypress Creek Road
Fort Lauderdale, Florida 33309
Attn: Alan B. Levan
(Fax): (954) 940-5050
I.R.E. Realty Advisory Group, Inc.
2100 W. Cypress Creek Road
Fort Lauderdale, Florida 33309
Attn: Alan B. Levan
(Fax): (954) 940-5050
Levan Enterprises, Ltd.
2100 W. Cypress Creek Road
Fort Lauderdale, Florida 33309
Attn: Alan B. Levan
(Fax): (954) 940-5050
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I.R.E. Properties, Inc.
2100 W. Cypress Creek Road
Fort Lauderdale, Florida 33309
Attn: Alan B. Levan
(Fax): (954) 940-5050
or to such other person, address or facsimile number as such party shall furnish to the other parties hereto in accordance with this section.
8.5. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and cancels any other agreements, representations or communications, whether oral or written, between the parties hereto relating to the transactions contemplated herein or the subject matter hereof.
8.6. Headings. The article and section headings in this Agreement are inserted as a matter of convenience and are for reference only and shall not be construed to define, limit, extend or describe the scope of this Agreement or the intent of any provision.
8.7. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Florida (without regard to conflict of laws principles), all rights and remedies being governed by said laws.
8.8. Counterparts. This Agreement may be executed in several counterparts, by original or facsimile, and all so executed shall constitute one Agreement binding on all of the parties hereto, notwithstanding that all of the parties are not signatory to the original or the same counterpart.
8.9. Severability. In the event any sentence, paragraph, provision, word, section or article of this Agreement is declaredunenforceable by a court of competent jurisdiction, then such invalidity or unenforceability shall not affect the validity and enforceability of the other provisions of the Plan and the provision held to be void, such sentence, paragraph, provision, word, sectioninvalid or articleunenforceable shall be deemed severed from the remainder of this Agreementenforced as nearly as possible according to its original terms and the balance of this Agreement shall remain in effect.
[Signatures on the next page]intent to eliminate such invalidity or unenforceability.
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IN WITNESS WHEREOF,the parties hereto have executed this Agreement and PlanForm of Merger as of the date first above written.Proxy
Class A Common Stock
BFC FINANCIAL CORPORATION
2100 WEST CYPRESS CREEK ROAD
FT. LAUDERDALE, FL 33309a Florida corporation
ANNUAL MEETING OF SHAREHOLDERS OF
BFC FINANCIAL CORPORATION
MAY 19, 2009
The undersigned hereby appoints John K. Grelle and Maria R. Scheker, and each of them acting alone, with the power to appoint his or her substitute, proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class A Common Stock of BFC Financial Corporation held of record by the undersigned on April 2, 2009 at the Annual Meeting of Shareholders to be held on May 19, 2009 and at any adjournment or postponement thereof.
Please mark, date, sign and mail your proxy card in the envelope provided as soon as possible.
Please detach along the perforated line and mail in the envelope provided.
| | | | | | |
| | By: | /s/ Alan B. Levan
Alan B. Levan, Chief Executive Officer and President |
I.R.E. REALTY ADVISORY GROUP, INC.,
a Florida corporation
| | |
| | By: | /s/ Alan B. Levan
Alan B. Levan, President |
LEVAN ENTERPRISES, LTD.,
a Florida limited partnership
| | | | |
| | By: Comments: | LEVAN GENERAL CORP., a Florida corporation,
its general partner |
| | | | |
| | By: | /s/ Alan B. Levan
Alan B. Levan, President |
I.R.E. PROPERTIES, INC.,
a Florida corporation
| | | | |
| | By: | /s/ Alan B. Levan
Alan B. Levan, President | | | | |
| | | | | | |
| | | | |
| | | | | | |
| | | | | | |
| | | | |
(Continued and to be signed on the reverse side)
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Appendix B
SELECTED CONSOLIDATED FINANCIAL AND OTHER DATA
The following table sets forth our selected consolidated financial and other data as of, and for the years ended, December 31, 2002 through 2006 and as of, and for the six months ended, June 30, 2006 and 2007. Certain selected consolidated financial and other data presented below as of, and for the years ended, December 31, 2002 through 2006 are derived from our consolidated financial statements. The selected consolidated financial and other data as of, and for the six months ended, June 30, 2006 and 2007 are derived from our unaudited consolidated financial statements and reflect, in the opinion of management, all adjustments (consisting only of normal recurring adjustments) necessary for a fair statement of such data. Results for the six months ended June 30, 2007 are not necessarily indicative of results that may be expected for the entire year or any future period. The following table is a summary and should be read in conjunction with “Management’s Discussion and Analysis of Results of Operations and Financial Condition” and the consolidated financial statements and related notes contained in Amendment No. 2 to our Annual Report onForm 10-K/A for the year ended December 31, 2006 and our Quarterly Report onForm 10-Q for the quarter ended June 30, 2007.
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | As of and for the
| | | | |
| | | Six Months
| | | | |
| | | Ended June 30, | | | As of and for the Years Ended December 31, | |
| | | 2007 | | | 2006 | | | 2006 | | | 2005 | | | 2004 | | | 2003 | | | 2002 | |
| | | (Dollars in thousands, except for per share data, average price data,
| |
| | | ratios, percentages, units and acres) | |
| |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Income Statement | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Revenues | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| BFC Activities | | $ | 4,212 | | | $ | 1,997 | | | $ | 3,682 | | | $ | 3,129 | | | $ | 5,683 | | | $ | 1,073 | | | $ | 607 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Financial Services | | | 267,652 | | | | 242,899 | | | | 507,746 | | | | 445,537 | | | | 358,703 | | | | 320,534 | | | | 350,987 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Homebuilding & Real Estate Development | | | 277,204 | | | | 263,525 | | | | 583,152 | | | | 574,824 | | | | 558,838 | | | | 288,686 | | | | 212,081 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 549,068 | | | | 508,421 | | | | 1,094,580 | | | | 1,023,490 | | | | 923,224 | | | | 610,293 | | | | 563,675 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Costs and Expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| BFC Activities | | | 7,038 | | | | 6,272 | | | | 12,370 | | | | 9,665 | | | | 7,452 | | | | 7,019 | | | | 5,141 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Financial Services | | | 258,323 | | | | 218,436 | | | | 474,311 | | | | 381,916 | | | | 280,431 | | | | 275,507 | | | | 321,243 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Homebuilding & Real Estate Development | | | 351,419 | | | | 267,413 | | | | 606,655 | | | | 498,760 | | | | 481,618 | | | | 253,169 | | | | 191,662 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | 616,780 | | | | 492,121 | | | | 1,093,336 | | | | 890,341 | | | | 769,501 | | | | 535,695 | | | | 518,046 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Equity in earnings from unconsolidated affiliates | | | 4,919 | | | | 3,124 | | | | 10,935 | | | | 13,404 | | | | 19,603 | | | | 10,126 | | | | 9,327 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (Loss) income from continuing operations | | | (62,793 | ) | | | 19,424 | | | | 12,179 | | | | 146,553 | | | | 173,326 | | | | 84,724 | | | | 54,956 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (Benefit) provision for income taxes | | | (18,046 | ) | | | 5,979 | | | | (528 | ) | | | 59,566 | | | | 70,920 | | | | 36,466 | | | | 19,615 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Noncontrolling interest | | | (40,222 | ) | | | 13,301 | | | | 13,404 | | | | 79,267 | | | | 90,388 | | | | 43,616 | | | | 33,501 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (Loss) income from continuing operations | | | (4,525 | ) | | | 144 | | | | (697 | ) | | | 7,720 | | | | 12,018 | | | | 4,642 | | | | 1,840 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| (Loss) income from discontinued operations, net of noncontrolling interest and income taxes | | | 1,038 | | | | (522 | ) | | | (1,524 | ) | | | 5,054 | | | | 2,212 | | | | 2,380 | | | | 2,151 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Income from extraordinary items, net of noncontrolling interest and income taxes | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 3,298 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cumulative effect of a change in accounting principle, net of noncontrolling interest and income taxes | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | (2,097 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net (loss) income | | | (3,487 | ) | | | (378 | ) | | | (2,221 | ) | | | 12,774 | | | | 14,230 | | | | 7,022 | | | | 5,192 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| 5% Preferred Stock dividends | | | (375 | ) | | | (375 | ) | | | (750 | ) | | | (750 | ) | | | (392 | ) | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net (loss) income allocable to common stock | | $ | (3,862 | ) | | $ | (753 | ) | | $ | (2,971 | ) | | $ | 12,024 | | | $ | 13,838 | | | $ | 7,022 | | | $ | 5,192 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common Share Data(a),(c), ( d) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic (loss) earnings per share: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Basic (loss) earnings per share from continuing operations | | $ | (0.15 | ) | | $ | (0.01 | ) | | $ | (0.04 | ) | | $ | 0.24 | | | $ | 0.48 | | | $ | 0.21 | | | $ | 0.08 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Discontinued operations | | | 0.03 | | | | (0.02 | ) | | | (0.05 | ) | | | 0.18 | | | | 0.09 | | | | 0.10 | | | | 0.10 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Extraordinary items | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 0.15 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cumulative effect of a change in accounting principle | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | (0.09 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Basic (loss) earnings per share of common stock | | $ | (0.12 | ) | | $ | (0.03 | ) | | $ | (0.09 | ) | | $ | 0.42 | | | $ | 0.57 | | | $ | 0.31 | | | $ | 0.23 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
B-1
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | As of and for the
| | | | |
| | | Six Months
| | | | |
| | | Ended June 30, | | | As of and for the Years Ended December 31, | |
| | | 2007 | | | 2006 | | | 2006 | | | 2005 | | | 2004 | | | 2003 | | | 2002 | |
| | | (Dollars in thousands, except for per share data, average price data,
| |
| | | ratios, percentages, units and acres) | |
| |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Diluted (loss) earnings per share: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Diluted earnings (loss) per share from continuing operations | | $ | (0.15 | ) | | $ | (0.01 | ) | | $ | (0.05 | ) | | $ | 0.22 | | | $ | 0.40 | | | $ | 0.16 | | | $ | 0.07 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Discontinued operations | | | 0.03 | | | | (0.02 | ) | | | (0.05 | ) | | | 0.15 | | | | 0.07 | | | | 0.09 | | | | 0.09 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Extraordinary items | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | 0.14 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cumulative effect of a change in accounting principle | | | — | | | | — | | | | — | | | | — | | | | — | | | | — | | | | (0.09 | ) |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Diluted (loss) earnings per share of common stock | | $ | (0.12 | ) | | $ | (0.03 | ) | | $ | (0.10 | ) | | $ | 0.37 | | | $ | 0.47 | | | $ | 0.25 | | | $ | 0.21 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Basic weighted average number of common shares outstanding | | | 33,458 | | | | 33,057 | | | | 33,249 | | | | 28,952 | | | | 24,183 | | | | 22,818 | | | | 22,454 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Diluted weighted average number of common shares outstanding | | | 33,458 | | | | 33,057 | | | | 33,249 | | | | 31,219 | | | | 27,806 | | | | 26,031 | | | | 22,454 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Ratio of earnings to fixed charges(e) | | | — | | | | — | | | | — | | | | — | | | | — | | | | 0.28 | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Dollar deficiency of earnings to fixed charges(e) | | $ | 853 | | | $ | 2,583 | | | $ | 5,197 | | | $ | 7,217 | | | $ | 4,145 | | | $ | — | | | $ | 1,347 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance Sheet (at period end) | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Loans receivable, loans held for sale and leases, net | | $ | 4,621,871 | | | $ | 4,491,054 | | | $ | 4,603,505 | | | $ | 4,628,744 | | | $ | 4,561,073 | | | $ | 3,611,612 | | | $ | 3,377,870 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Securities | | $ | 1,212,644 | | | $ | 1,276,088 | | | $ | 1,081,980 | | | $ | 1,064,857 | | | $ | 1,082,985 | | | $ | 553,148 | | | $ | 975,516 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Total assets | | $ | 7,606,240 | | | $ | 7,417,420 | | | $ | 7,605,766 | | | $ | 7,395,755 | | | $ | 6,954,847 | | | $ | 5,136,235 | | | $ | 5,415,933 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Deposits | | $ | 4,017,143 | | | $ | 3,835,006 | | | $ | 3,867,036 | | | $ | 3,752,676 | | | $ | 3,457,202 | | | $ | 3,058,141 | | | $ | 2,920,555 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Securities sold under agreements to repurchase and federal funds purchased | | $ | 181,513 | | | $ | 407,441 | | | $ | 128,411 | | | $ | 249,263 | | | $ | 257,002 | | | $ | 120,874 | | | $ | 116,279 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Other borrowings(f) | | $ | 2,417,228 | | | $ | 1,951,421 | | | $ | 2,426,000 | | | $ | 2,131,976 | | | $ | 2,086,368 | | | $ | 1,209,571 | | | $ | 1,686,613 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Shareholders’ equity | | $ | 174,152 | | | $ | 177,503 | | | $ | 177,585 | | | $ | 183,080 | | | $ | 125,251 | | | $ | 85,675 | | | $ | 77,411 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Book value per share(d),(g) | | $ | 4.72 | | | $ | 4.84 | | | $ | 4.84 | | | $ | 5.25 | | | $ | 4.25 | | | $ | 3.68 | | | $ | 3.45 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Return on average equity(b)(h) | | | (1.98 | )% | | | (0.21 | )% | | | (1.24 | )% | | | 8.08 | % | | | 13.16 | % | | | 8.63 | % | | | 6.85 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
BankAtlantic Asset quality ratios | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Non-performing assets, net of reserves as a percent of total loans, tax certificates and repossessed assets | | | 0.94 | % | | | 0.17 | % | | | 0.55 | % | | | 0.17 | % | | | 0.19 | % | | | 0.36 | % | | | 0.86 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Loan loss allowance as a percent of non-performing loans | | | 251.1 | % | | | 785.42 | % | | | 982.89 | % | | | 605.68 | % | | | 582.18 | % | | | 422.06 | % | | | 235.61 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Loan loss allowance as a percentage of total loans | | | 1.17 | % | | | 0.93 | % | | | 0.94 | % | | | 0.88 | % | | | 1.00 | % | | | 1.24 | % | | | 1.38 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Capital Ratios for BankAtlantic | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Total risk based capital | | | 12.34 | % | | | 12.28 | % | | | 12.08 | % | | | 11.50 | % | | | 10.80 | % | | | 12.06 | % | | | 11.89 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Tier I risk based capital | | | 10.62 | % | | | 10.71 | % | | | 10.50 | % | | | 10.02 | % | | | 9.19 | % | | | 10.22 | % | | | 10.01 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Leverage | | | 7.48 | % | | | 7.74 | % | | | 7.55 | % | | | 7.42 | % | | | 6.83 | % | | | 8.52 | % | | | 7.26 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Levitt Corporation | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Consolidated | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Consolidated margin on sales of real estate(i) | | $ | (17,840 | ) | | $ | 48,494 | | | $ | 83,125 | | | $ | 150,030 | | | $ | 143,378 | | | $ | 73,627 | | | $ | 48,133 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Consolidated Margin | | | (6.7 | )% | | | 18.9 | % | | | 14.7 | % | | | 26.9 | % | | | 26.1 | % | | | 26.0 | % | | | 23.2 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Homes delivered (units) | | | 741 | | | | 831 | | | | 1,660 | | | | 1,789 | | | | 2,126 | | | | 1,011 | | | | 740 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (units) | | | 926 | | | | 1,803 | | | | 1,248 | | | | 1,792 | | | | 1,814 | | | | 2,053 | | | | 824 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (sales value) | | $ | 297,832 | | | | 609,167 | | | $ | 438,240 | | | $ | 557,325 | | | $ | 448,647 | | | $ | 458,771 | | | $ | 167,526 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Land division acres sold | | | 1 | | | | 105 | | | | 371 | | | | 1,647 | | | | 1,212 | | | | 1,337 | | | | 1,715 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Primary Homebuilding: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Revenues from sales of real estate | | $ | 227,317 | | | $ | 193,132 | | | $ | 424,420 | | | $ | 352,723 | | | $ | 418,550 | | | $ | 222,257 | | | $ | 162,359 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cost of sales of real estate(i) | | | 249,275 | | | | 152,368 | | | | 367,252 | | | | 272,680 | | | | 323,366 | | | | 173,072 | | | | 131,281 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin(i) | | $ | (21,958 | ) | | $ | 40,764 | | | $ | 57,168 | | | $ | 80,043 | | | $ | 95,184 | | | $ | 49,185 | | | $ | 31,078 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin percentage(j) | | | (9.7 | )% | | | 21.1 | % | | | 13.5 | % | | | 22.7 | % | | | 22.7 | % | | | 22.1 | % | | | 19.1 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Construction starts (units) | | | 377 | | | | 786 | | | | 1,445 | | | | 1,212 | | | | 1,893 | | | | 1,593 | | | | 796 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Homes delivered (units) | | | 650 | | | | 634 | | | | 1,320 | | | | 1,338 | | | | 1,783 | | | | 1,011 | | | | 740 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Average selling price of homes delivered | | $ | 350,000 | | | $ | 305,000 | | | $ | 322,000 | | | $ | 264,000 | | | $ | 235,000 | | | $ | 220,000 | | | $ | 219,000 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net orders (units) | | | 344 | | | | 669 | | | | 847 | | | | 1,289 | | | | 1,378 | | | | 2,240 | | | | 980 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net orders (value) | | $ | 86,646 | | | $ | 252,101 | | | $ | 324,217 | | | $ | 448,207 | | | $ | 376,435 | | | $ | 513,436 | | | $ | 204,730 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (units) | | | 820 | | | | 1,634 | | | | 1,126 | | | | 1,599 | | | | 1,648 | | | | 2,053 | | | | 824 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (sales value) | | $ | 270,907 | | | $ | 571,109 | | | $ | 411,578 | | | $ | 512,140 | | | $ | 416,656 | | | $ | 458,771 | | | $ | 167,526 | |
B-2
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | As of and for the
| | | | |
| | | Six Months
| | | | |
| | | Ended June 30, | | | As of and for the Years Ended December 31, | |
| | | 2007 | | | 2006 | | | 2006 | | | 2005 | | | 2004 | | | 2003 | | | 2002 | |
| | | (Dollars in thousands, except for per share data, average price data,
| |
| | | ratios, percentages, units and acres) | |
| |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Tennessee Homebuilding: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Revenues from sales of real estate | | $ | 30,505 | | | $ | 41,717 | | | $ | 76,299 | | | $ | 85,644 | | | $ | 53,746 | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cost of sales of real estate(i) | | | 29,334 | | | | 41,490 | | | | 72,807 | | | | 74,328 | | | | 47,731 | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin(i) | | $ | 1,171 | | | $ | 227 | | | $ | 3,492 | | | $ | 11,316 | | | $ | 6,015 | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin percentage(j)(m) | | | 6.0 | % | | | 0.5 | % | | | 4.6 | % | | | 13.2 | % | | | 11.2 | % | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Construction starts (units) | | | 112 | | | | 136 | | | | 237 | | | | 450 | | | | 401 | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Homes delivered (units) | | | 91 | | | | 197 | | | | 340 | | | | 451 | | | | 343 | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Average selling price of homes delivered | | $ | 214,000 | | | $ | 212,000 | | | $ | 224,000 | | | $ | 190,000 | | | $ | 157,000 | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net orders (units) | | | 63 | | | | 85 | | | | 269 | | | | 478 | | | | 301 | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Net orders (value) | | $ | 19,710 | | | $ | 34,590 | | | $ | 57,776 | | | $ | 98,838 | | | $ | 51,481 | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (units) | | | 106 | | | | 169 | | | | 122 | | | | 193 | | | | 166 | | | | — | | | | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Backlog of homes (sales value) | | $ | 26,925 | | | $ | 38,058 | | | $ | 26,662 | | | $ | 45,185 | | | $ | 31,991 | | | $ | — | | | $ | — | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Land Divison(l): | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Revenues from sales of real estate | | $ | 2,694 | | | $ | 21,358 | | | $ | 69,778 | | | $ | 105,658 | | | $ | 96,200 | | | $ | 55,037 | | | $ | 53,919 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Cost of sales of real estate | | | 555 | | | | 12,737 | | | | 42,662 | | | | 50,706 | | | | 42,838 | | | | 31,362 | | | | 28,722 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin(i) | | $ | 2,139 | | | $ | 8,621 | | | $ | 27,116 | | | $ | 54,952 | | | $ | 53,362 | | | $ | 23,675 | | | $ | 25,197 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Margin percentage(j) | | | 79.4 | % | | | 40.4 | % | | | 38.9 | % | | | 52.0 | % | | | 55.5 | % | | | 43.0 | % | | | 46.7 | % |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Acres sold | | | 1 | | | | 105 | | | | 371 | | | | 1,647 | | | | 1,212 | | | | 1,337 | | | | 1,715 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Inventory of real estate (acres)(k) | | | 6,870 | | | | 7,138 | | | | 6,871 | | | | 7,287 | | | | 5,965 | | | | 6,837 | | | | 5,853 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Inventory of real estate (book value) | | $ | 204,611 | | | $ | 152,470 | | | $ | 176,356 | | | $ | 150,686 | | | $ | 122,056 | | | $ | 43,906 | | | $ | 59,520 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Acres subject to sales contracts — Third parties | | | 98 | | | | 84 | | | | 74 | | | | 246 | | | | 1,833 | | | | 1,433 | | | | 1,845 | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Aggregate sales price of acres subject to sales contracts to third parties | | $ | 29,013 | | | $ | 15,387 | | | $ | 21,124 | | | $ | 39,283 | | | $ | 121,095 | | | $ | 103,174 | | | $ | 72,767 | |
| | |
(a) | | Since its inception, the Company has not paid any cash dividends on its common stock. |
(b) | | Ratios were computed using quarterly averages. |
(c) | | While the Company has two classes of common stock outstanding, the two-class method is not presented because the Company’s capital structure does not provide for different dividend rates or other preferences, other than voting rights, between the two classes. |
(d) | | I.R.E. RAG owns 4,764,282 shares of the Company’s Class A Stock and 500,000 shares of the Company’s Class B Stock. Because the Company owns 45.5% of the outstanding common stock of I.R.E. RAG, 2,165,367 shares of the Company’s Class A Stock and 227,500 shares of the Company’s Class B Stock are eliminated from the number of shares outstanding for purposes of computing earnings per share and book value per share. |
(e) | | The operations, fixed charges and dividends of BankAtlantic Bancorp and Levitt are not included in the calculation because each of those subsidiaries are separate, publicly traded companies whose Boards of Directors are composed of individuals, a majority of whom are independent. Accordingly, decisions made by those Boards, including with respect to the payment of dividends, are not within the Company’s control. |
(f) | | Other borrowings consist of FHLB advances, subordinated debentures, notes, mortgage notes payable, bonds payable, secured borrowings, junior subordinated debentures and borrowings included in liabilities related to assets held for sale. Secured borrowings were recognized on loan participation agreements that constituted a legal sale of a portion of the loan but that were not qualified to be accounted for as a loan sale. |
(g) | | Preferred stock redemption price is eliminated from shareholders’ equity for purposes of computing book value per share. |
(h) | | The return on average equity is equal to net income (loss) (numerator) divided by average consolidated shareholders’ equity (denominator) during the respective period. |
(i) | | Margin is calculated as sales of real estate minus cost of sales of real estate. Included in cost of sales of real estate for the six months ended June 30, 2007 and 2006 are impairment charges of $62.5 million and $0 in the Primary Homebuilding segment and $776,000 and $4.7 million in the Tennessee Homebuilding segment, respectively. For the year ended December 31, 2006, homebuilding inventory impairment charges and write-offs of deposits and pre-acquisition costs were $31.1 million in the Primary Homebuilding segment and $5.7 million in the Tennessee Homebuilding segment. |
(j) | | Margin percentage is calculated by dividing margin by sales of real estate. |
(k) | | Estimated net saleable acres (subject to final zoning, permitting, and other governmental regulations/approvals). |
(l) | | Revenues and costs of sales of real estate include land sales to Levitt and Sons, LLC, Levitt’s homebuilding subsidiary, if any. These inter-segment transactions are eliminated in consolidation. |
(m) | | Calculation for the six months ended June 30, 2007 excludes $11.1 million land sale, which generated no margin. No comparable land sales occurred during the six months ended June 30, 2006 or for the years ended December 31, 2002 through 2006. |
B-3
ANNUAL MEETING OF SHAREHOLDERS OF BFC FINANCIAL CORPORATION November 19, 2007 Class A Common Stock PROXY VOTING INSTRUCTIONS
2100 W. CYPRESS CREEK ROAD
FT. LAUDERDALE, FL 33309 |
| MAIL — – Date, sign and mail your proxy card in the envelope provided as soon as possible. |
| | -OR- |
| | |
| | TELEPHONE —– Call toll-free1-800-PROXIES
(1-800-776-9437) in the United States or1-718-921-8500from foreign countries and follow the instructions. Have your proxy card available when you call. |
| | -OR- |
| | |
| | INTERNET —– Access “www.voteproxy.comwww. voteproxy.com” and follow the on-screen instructions. Have your proxy card available when you access the web page. |
| | -OR- |
| | |
| | IN PERSON —– You may vote your shares in person by attending the Annual Meeting. |
You may enter your voting instructions at 1-800-PROXIES or www.voteproxy.com up until 11:59 PM Eastern Time the day before the cut-off or meeting date.
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREý
You may enter your voting instructions at 1-800-PROXIES or www.voteproxy.com up until 11:59 PM Eastern Time the day before the cut-off or meeting date. |
Please detach along perforated line and mail in the envelope provided IF you are not voting via telephone or the Internet. |
20230000000000001000 9 111907 |
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF DIRECTORS AND “FOR” PROPOSAL 2. |
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREx |
1. The election of two directors, eachone director for a term of three years.
|
NOMINEE: 3-YEAR TERM:
D. Keith Cobb
[ ] FOR ALL NOMINEESO Alan B. Levan |
NOMINEE
[ ] WITHHOLD AUTHORITY |
FOR ALL NOMINEES FOR ALL EXCEPT (See instructions below) |
INSTRUCTION:To withhold authorityNOMINEE
2. The approval of an amendment to vote for any individual nominee(s), mark
“FOR ALL EXCEPT”the Company’s Amended and fill inRestated Articles of Incorporation increasing the circle next to each nominee you wish to withhold, as shown here: |
2. Approvalnumber of authorized shares of the merger of I.R.E. Realty Advisory Group, Inc. with and into the Company. |
3. In his or her discretion, the proxy is authorizedCompany’s Class A Common Stock from 70,000,000 shares to vote upon such other matters as may properly come before the meeting. |
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR” THE ELECTION OF THE DIRECTORS NAMED IN PROPOSAL 1 AND “FOR” PROPOSAL 2. |
100,000,000 shares.
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
To change the address on your account, please check the box at right and indicate your new address in the address space above. Please note that changes to the registered name(s) on the account may not be submitted via this method. [ ]
|
Please mark box if you plan | |
3. The approval of an amendment to attend this meeting. |
Signature of Shareholder Date: Signature of Shareholder Date: |
Note:Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person. |
Proxy Class A CommonCompany’s 2005 Stock |
BFC FINANCIAL CORPORATION2100 WEST CYPRESS CREEK ROAD FT. LAUDERDALE, FL 33309 ANNUAL MEETING OF SHAREHOLDERS OF BFC FINANCIAL CORPORATION November 19, 2007 |
The undersigned hereby appoints George P. Scanlon and Maria R. Scheker, and each of them acting alone, with the power to appoint his or her substitute, proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class A Common Stock of BFC Financial Corporation held of record by the undersigned on October 5, 2007 at the Annual Meeting of Shareholders to be held on November 19, 2007 and at any adjournment or postponement thereof. |
Please date, sign and mail your proxy card in the envelope provided as soon as possible. |
Please detach along the perforated line and mail in the envelope provided. |
(Continued and to be signed on the reverse side) |
ANNUAL MEETING OF SHAREHOLDERS OF |
BFC FINANCIAL CORPORATION |
PROXY VOTING INSTRUCTIONS |
MAIL —Date, sign and mail your proxy card in the envelope provided as soon as possible. |
TELEPHONE —Call toll-free1-800-PROXIES Incentive Plan.
(1-800-776-9437) in the United States or1-718-921-8500from foreign countries and follow the instructions. Have your proxy card available when you call. |
INTERNET —Access “www.voteproxy.com” and follow the on-screen instructions. Have your proxy card available when you access the web page. |
IN PERSON —You may vote your shares in person by attending the Annual Meeting. |
COMPANY NUMBER ACCOUNT NUMBER |
You may enter your voting instructions at 1-800-PROXIES or www.voteproxy.com up until 11:59 PM Eastern Time the day before the cut-off or meeting date. |
Please detach along perforated line and mail in the envelope provided IF you are not voting via telephone or the Internet. |
20230000000000001000 9 111907 |
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE ELECTION OF DIRECTORS AND “FOR” PROPOSAL 2. |
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREx |
1. The election of two directors, each for a term of three years. |
[ ] FOR ALL NOMINEESO Alan B. Levan |
WITHHOLD AUTHORITY FOR ALL NOMINEES |
FOR ALL EXCEPT (See instructions below) |
INSTRUCTION:To withhold authority to vote for any individual nominee(s), mark“FOR ALL EXCEPT”and fill in the circle next to each nominee you wish to withhold, as shown here: |
FOR
[ ] AGAINST
[ ] ABSTAIN |
2. Approval of the merger of I.R.E. Realty Advisory Group, Inc. with and into the Company. |
3.
4. In his or her discretion, the proxy is authorized to vote upon such other matters as may properly come before the meeting. |
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR” THE ELECTION OF THE DIRECTORSDIRECTOR NAMED IN PROPOSAL 1 AND “FOR” PROPOSAL 2.PROPOSALS 2 AND 3.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE.
Please mark box if you plan to attend this meeting. [ ] | |
|
| | | | | | | | | | | | | | |
| Signature of Shareholder: | | | | Date: | | | | Signature of Shareholder: | | | | Date: | | |
| | | | | | | | | | | | | | |
NOTE: Please sign exactly as your name or names appear(s) on this proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
Form of Proxy
Class B Common Stock
BFC FINANCIAL CORPORATION
2100 WEST CYPRESS CREEK ROAD
FT. LAUDERDALE, FL 33309
ANNUAL MEETING OF SHAREHOLDERS OF
BFC FINANCIAL CORPORATION
MAY 19, 2009
The undersigned hereby appoints John K. Grelle and Maria R. Scheker, and each of them acting alone, with the power to appoint his or her substitute, proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class B Common Stock of BFC Financial Corporation held of record by the undersigned on April 2, 2009 at the Annual Meeting of Shareholders to be held on May 19, 2009 and at any adjournment or postponement thereof.
Please mark, date, sign and mail your proxy card in the envelope provided as soon as possible.
Please detach along the perforated line and mail in the envelope provided.
(Continued and to be signed on the reverse side)
| | |
BFC FINANCIAL CORPORATION
2100 W. CYPRESS CREEK ROAD
FT. LAUDERDALE, FL 33309 | | MAIL – Date, sign and mail your proxy card in the envelope provided as soon as possible. |
|
| | -OR- |
| | |
| | TELEPHONE– Call toll-free1-800-PROXIES(1-800-776-9437) in the United States or 1-718-921-8500 from foreign countries and follow the instructions. Have your proxy card available when you call. |
| | |
| | -OR- |
| | |
| | INTERNET– Access “www. voteproxy.com” and follow the on-screen instructions. Have your proxy card available when you access the web page. |
| | |
| | -OR- |
| | |
| | IN PERSON– You may vote your shares in person by attending the Annual Meeting. |
You may enter your voting instructions at 1-800-PROXIES or www.voteproxy.com up until 11:59 PM Eastern Time the day before the cut-off or meeting date.
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREý
| | | | | |
|
1. The election of one director for a term of three years.
NOMINEE: 3-YEAR TERM:
D. Keith Cobb
[ ] FOR NOMINEE
[ ] WITHHOLD AUTHORITY
FOR NOMINEE
2. The approval of an amendment to the Company’s Amended and Restated Articles of Incorporation increasing the number of authorized shares of the Company’s Class A Common Stock from 70,000,000 shares to 100,000,000 shares.
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
To change the address on your account, please check the box at right and indicate your new address in the address space above. Please note that changes to the registered name(s) on the account may not be submitted via this method. [ ]
|
| |
3. The approval of an amendment to the Company’s 2005 Stock Incentive Plan.
[ ] FOR
[ ] AGAINST
[ ] ABSTAIN
4. In his or her discretion, the proxy is authorized to vote upon such other matters as may properly come before the meeting.
THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR”THE ELECTION OF THE DIRECTOR NAMED IN PROPOSAL 1 AND “FOR”PROPOSALS 2 AND 3.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE.
Please mark box if you plan to attend this meeting. [ ] | |
|
| | | | | | | | | | | | | | |
Signature of Shareholder Shareholder: | | | | Date: | | | | Signature of Shareholder Shareholder: | | | | Date: | | |
| | | | | | | | | | | | | | |
Note:Please sign exactly as your name or names appear on this Proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person. |
NOTE: Please sign exactly as your name or names appear(s) on this proxy. When shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
Proxy Class B Common Stock |
BFC FINANCIAL CORPORATION2100 WEST CYPRESS CREEK ROAD FT. LAUDERDALE, FL 33309 |
ANNUAL MEETING OF SHAREHOLDERS OF BFC FINANCIAL CORPORATION November 19, 2007 |
The undersigned hereby appoints George P. Scanlon and Maria R. Scheker, and each of them acting alone, with the power to appoint his or her substitute, proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class B Common Stock of BFC Financial Corporation held of record by the undersigned on October 5, 2007 at the Annual Meeting of Shareholders to be held on November 19, 2007 and at any adjournment or postponement thereof. |
Please date, sign and mail your proxy card in the envelope provided as soon as possible. |
Please detach along the perforated line and mail in the envelope provided. |
(Continued and to be signed on the reverse side) |
