o Preliminary Proxy Statement | ||
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) | ||
þ Definitive Proxy Statement | ||
o Definitive Additional Materials | ||
o Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12 |
þ | No fee required. |
o | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
(1) | Title of each class of securities to which transaction applies: |
(2) | Aggregate number of securities to which transaction applies: |
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): |
(4) | Proposed maximum aggregate value of transaction: |
(5) | Total fee paid: |
o | Fee paid previously with preliminary materials. |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: |
(2) | Form, Schedule or Registration Statement No.: |
(3) | Filing Party: |
(4) | Date Filed: |
Sincerely, | |
![]() | |
Alan B. Levan | |
Chairman of the Board |
1. To elect three directors to the Company’s Board of Directors to serve until the Annual Meeting in 2008. | |
2. To approve the Company’s 2005 Restricted Stock and Option Plan. | |
3. To transact such other business as may properly be brought before the Annual Meeting or any adjournment thereof. |
Sincerely yours, | |
![]() | |
Alan B. Levan | |
Chairman of the Board |
• | by submitting written notice of revocation to the Company’s Secretary; | |
• | by submitting another proxy by mail that is dated later and is properly signed; or | |
• | by voting in person at the meeting. |
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our Website
The Audit Committee |
The Compensation Committee |
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The Nominating/ Corporate Governance Committee |
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• | forward the letter to the director or directors to whom it is addressed; | |
• | attempt to handle the inquiry directly if it relates to routine or ministerial matters, including requests for information; or | |
• | not forward the letter if it is primarily commercial in nature or if it is determined to relate to an improper or irrelevant topic. |
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Nominees for Election as Director |
D. KEITH COBB | Director since 2003 |
BRUNO L. DIGIULIAN | Director since 1985* |
ALAN B. LEVAN | Director since 1984* |
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STEVEN M. COLDREN | Director since 1986* |
MARY E. GINESTRA | Director since 1980* |
WILLIS N. HOLCOMBE | Director since 2003 |
JARETT S. LEVAN | Director since 1999 |
JOHN E. ABDO | Director since 1984* |
JONATHAN D. MARINER | Director since 2001 |
CHARLIE C. WINNINGHAM, II | Director since 1976* |
* | Date indicated is date when the named individual became a director of BankAtlantic. Each such director became a director of the Company in 1994 when BankAtlantic reorganized into a holding company structure. |
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Name | Age | Position | ||||
Alan B. Levan | 60 | Chairman of the Board, Chief Executive Officer and President of the Company and BankAtlantic | ||||
John E. Abdo | 61 | Vice Chairman of the Company and BankAtlantic | ||||
Andrea J. Allen | 48 | Executive Vice President, Operations of BankAtlantic | ||||
Lloyd B. DeVaux | 52 | Executive Vice President and Chief Operating Officer of BankAtlantic | ||||
Jay R. Fuchs | 50 | Executive Vice President, Community Banking Division of BankAtlantic; President of BA Financial Services, LLC, a subsidiary of BankAtlantic | ||||
Jarett S. Levan | 31 | Executive Vice President and Chief Marketing Officer of BankAtlantic | ||||
Jay C. McClung | 56 | Executive Vice President and Chief Risk Officer of BankAtlantic | ||||
Susan D. McGregor | 44 | Executive Vice President, Human Resources of the Company and BankAtlantic | ||||
Lewis F. Sarrica | 61 | Executive Vice President and Chief Investment Officer of BankAtlantic | ||||
Marcia K. Snyder | 49 | Executive Vice President, Commercial Lending Division of BankAtlantic | ||||
James A. White | 61 | Executive Vice President and Chief Financial Officer of the Company and BankAtlantic |
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Name | Age | Position | ||||
Ben A. Plotkin | 49 | Chairman of the Board and President of RB Holdings, Inc. and Ryan Beck & Co., Inc. |
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Long-Term Compensation | |||||||||||||||||||||||||||||||||||||
Awards | Payouts | ||||||||||||||||||||||||||||||||||||
Annual Compensation | |||||||||||||||||||||||||||||||||||||
Restricted | Securities | ||||||||||||||||||||||||||||||||||||
Other Annual | Stock | Underlying | Payouts | All Other | |||||||||||||||||||||||||||||||||
Name and Principal Position | Source | Year | Salary | Bonus | Compensation | Award(s)(g) | Options/SARs(h) | LTIP | Compensation(i) | ||||||||||||||||||||||||||||
Alan B. Levan | BankAtlantic | 2004 | $ | 480,962 | $ | 568,007 | (b) | $ | — | — | 60,000 | — | $ | 100,442 | (c) | ||||||||||||||||||||||
Chairman of the | Bancorp | ||||||||||||||||||||||||||||||||||||
Board, CEO, | BankAtlantic | 2003 | (a) | 445,923 | 435,488 | (b) | — | — | 78,377 | — | 110,282 | (c) | |||||||||||||||||||||||||
President | BankAtlantic | 2002 | (a) | 419,541 | 443,800 | 9,600 | (d) | — | 78,377 | — | 121,707 | (c) | |||||||||||||||||||||||||
Jay C. McClung | BankAtlantic | 2004 | 330,071 | 326,772 | (b) | 9,969 | (d) | — | 15,000 | — | 8,200 | (e) | |||||||||||||||||||||||||
Executive Vice | BankAtlantic | 2003 | (f) | 308,256 | 297,021 | (b) | 9,600 | (d) | — | 19,593 | — | 758 | (e) | ||||||||||||||||||||||||
President, Chief | BankAtlantic | 2002 | (f) | 305,976 | 75,000 | 9,600 | (d) | — | — | — | — | ||||||||||||||||||||||||||
Risk Officer | |||||||||||||||||||||||||||||||||||||
Jay R. Fuchs | BankAtlantic | 2004 | 318,944 | 239,552 | (b) | 9,231 | (d) | — | 25,000 | — | — | ||||||||||||||||||||||||||
Executive Vice | BankAtlantic | 2003 | 295,661 | 209,046 | (b) | 9,969 | (d) | — | 32,657 | — | — | ||||||||||||||||||||||||||
President, | BankAtlantic | 2002 | 286,408 | 177,057 | 9,600 | (d) | — | 39,188 | — | — | |||||||||||||||||||||||||||
Chief Community Banking Officer | |||||||||||||||||||||||||||||||||||||
James A. White | BankAtlantic | 2004 | 347,443 | 219,238 | (b) | 9,969 | (d) | — | 25,000 | 8,200 | (e) | ||||||||||||||||||||||||||
Executive Vice | Bancorp | ||||||||||||||||||||||||||||||||||||
President, Chief | BankAtlantic | 2003 | 322,080 | 168,720 | (b) | 9,600 | (d) | — | 32,657 | — | 8,000 | (e) | |||||||||||||||||||||||||
Financial Officer | BankAtlantic | 2002 | 312,000 | 165,984 | 9,600 | (d) | — | 32,656 | — | 8,000 | (e) | ||||||||||||||||||||||||||
Lloyd B. DeVaux | BankAtlantic | 2004 | 355,401 | 226,243 | (b) | 258,041 | (g) | (g | ) | 25,000 | — | 8,200 | (e) | ||||||||||||||||||||||||
Executive Vice | BankAtlantic | 2003 | 310,002 | 176,176 | (b) | 142,471 | (g) | (g | ) | 32,657 | — | 8,000 | (e) | ||||||||||||||||||||||||
President, Chief | BankAtlantic | 2002 | 300,300 | 156,156 | 153,120 | (g) | (g | ) | 32,656 | — | 8,000 | (e) | |||||||||||||||||||||||||
Operating Officer |
(a) | Excludes the following compensation paid to Mr. Levan by Levitt prior to its spin-off from the Company on December 31, 2003: salary of $103,231 and bonus of $62,400 paid in 2003; and salary of $80,769 and bonus of $62,500 paid in 2002. | |
(b) | Amounts shown include amounts paid under both the Annual Incentive Program and the Profit Sharing Plan, described below. With respect to 2004, Alan B. Levan did not receive any payments under the Profit Sharing Plan, and Lloyd B. DeVaux’s payments under the Profit Sharing Plan were limited, due to restrictions in such plan on payments not deductible under Internal Revenue Code Section 162(m). Amounts shown include a bonus payable to Mr. Levan of $42,043 and a bonus payable to Mr. DeVaux of $21,047 in 2005 to compensate each officer for amounts that he would have been entitled to receive under the Profit Sharing Plan had those restrictions not applied. | |
(c) | Includes: BankAtlantic contributions of $8,200 in 2004 and $8,000 in 2003 and 2002 to its 401(k) savings plan on behalf of Mr. Levan; a $40 dividend payment for a Real Estate Investment Trust (“REIT”) controlled by BankAtlantic for 2004, 2003 and 2002; and $92,202 in 2004, $102,242 in 2003 and $113,667 in 2002 representing the value of the benefit received by Mr. Levan in connection with premiums paid by the Company for a split-dollar life insurance policy. See“— Split-Dollar Life Insurance Plan”. | |
(d) | Amount paid as an auto allowance. |
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(e) | Represents BankAtlantic contributions to its 401(k) savings plan on behalf of the named executive officer. | |
(f) | Amounts shown include amounts paid for the period April 15, 2002 through April 15, 2003 to Mr. McClung in his capacity as a consultant, as Mr. McClung was on a leave of absence from his officer positions during this period. | |
(g) | In 2001, Mr. DeVaux was granted 195,000 restricted shares of the Company’s Class A Stock in connection with the commencement of his employment, which shares vest at a rate of 10% per year for 10 years beginning one year from his employment date, subject to acceleration, as described below under“Employment Agreement.”As of December 31, 2004, 58,500 of these shares of Class A Stock having a fair market value of $1,164,150 were vested, and 136,500 shares having a fair market value of $2,716,350 remained unvested. The fair market value of these shares is based on the per share closing price of the Company’s Class A Stock of $19.90 on December 31, 2004. The Company pays Mr. DeVaux a cash gross-up for taxes due as a result of the vesting of the restricted shares, and the amount in the table includes the following amounts paid as a gross-up for such taxes: 2004 — $248,072; 2003 — $132,871; 2002 — $143,520. Mr. DeVaux is entitled to receive and retain any cash dividends on the restricted shares, including on unvested restricted shares. The amount in the table also includes the following auto allowances: 2004 — $9,969; 2003 — $9,600; 2002 — $9,600. During each of the three years set forth in the above table Mr. DeVaux received the following dividends on such shares: 2004 — $21,041; 2003 — $22,074; 2002 — $28,665, which are not included in the table. | |
(h) | All options are to purchase shares of the Company’s Class A Stock, and amounts for 2003 and 2002 have been adjusted to reflect adjustments made as a consequence of the spin off of Levitt Corporation in 2003. | |
(i) | The Company provides the named executive officers with certain group life, health, medical and other non-cash benefits generally available to all salaried employees and not included in this column pursuant to SEC rules. |
Individual Grants | Potential Realizable | |||||||||||||||||||||||
Value at Assumed | ||||||||||||||||||||||||
Number of | % of Total | Annual Rates of Stock | ||||||||||||||||||||||
Securities | Options | Exercise | Price Appreciation for | |||||||||||||||||||||
Underlying | Granted to | Price | Option Term(2) | |||||||||||||||||||||
Options | Employees in | Per | Expiration | |||||||||||||||||||||
Name | Granted(1) | Fiscal Year | Share | Date | 5%($) | 10%($) | ||||||||||||||||||
Alan B. Levan | 60,000 | 8.03 | % | $ | 18.20 | 7/5/2014 | $ | 686,753 | $ | 1,740,367 | ||||||||||||||
Jay C. McClung | 15,000 | 2.01 | % | 18.20 | 7/5/2014 | 171,688 | 435,092 | |||||||||||||||||
Jay R. Fuchs | 25,000 | 2.95 | % | 18.20 | 7/5/2014 | 286,147 | 725,153 | |||||||||||||||||
James A. White | 25,000 | 2.95 | % | 18.20 | 7/5/2014 | 286,147 | 725,153 | |||||||||||||||||
Lloyd B. DeVaux | 25,000 | 2.95 | % | 18.20 | 7/5/2014 | 286,147 | 725,153 |
(1) | All option grants are in Class A Stock. All options vest in 2009. |
(2) | Amounts for the named executive have been calculated by multiplying the exercise price by the annual appreciation rate shown (compounded for the remaining term of the options), subtracting the exercise price per share and multiplying the gain per share by the number of shares covered by the options. The dollar amounts set forth in these columns are the result of calculations based upon assumed rates of annual compounded stock price appreciation specified by regulation and are not intended to forecast actual future appreciation rates of the Company’s stock price. |
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Number of Securities | Value of Unexercised In-the- | |||||||||||||||||||||||
Number of | Underlying Unexercised | Money Options on | ||||||||||||||||||||||
Class A Shares | Options on 12/31/04 | 12/31/04(2) | ||||||||||||||||||||||
Acquired Upon | Value Realized | |||||||||||||||||||||||
Name | Exercise of Option | Upon Exercise(1) | Exercisable | Unexercisable | Exercisable | Unexercisable | ||||||||||||||||||
Alan B. Levan | 515,752 | $ | 6,848,877 | 985,050 | 347,382 | $ | 16,562,001 | $ | 4,174,859 | |||||||||||||||
Jay C. McClung | 0 | 0 | 0 | 99,905 | 0 | 1,340,252 | ||||||||||||||||||
Jay R. Fuchs | 0 | 0 | 0 | 234,003 | 0 | 3,231,434 | ||||||||||||||||||
James A. White | 0 | 0 | 7,838 | 142,564 | 132,351 | 1,373,744 | ||||||||||||||||||
Lloyd B. DeVaux | 0 | 0 | 0 | 90,313 | 0 | 820,743 |
(1) | Based upon a fair market value of $15.01, the closing price at May 17, 2004 (the date of exercise) of the Company’s Class A Stock as reported on the New York Stock Exchange |
(2) | Based upon a fair market value of $19.90, the closing price at December 31, 2004 of the Company’s Class A Stock as reported on the New York Stock Exchange |
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Estimated Annual Benefits | ||||||||||||||||||||
Years of Credited Service at December 31, 1998 | ||||||||||||||||||||
Average Five Year Compensation 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 |
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Steven M. Coldren, Chairman | |
Mary E. Ginestra | |
Charlie C. Winningham, II |
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![(PERFORMANCE GRAPH)](https://capedge.com/proxy/DEF 14A/0000950144-05-003936/g94359g9435901.gif)
12/31/00 | 12/31/01 | 12/31/02 | 12/31/03 | 12/31/04 | ||||||||||||||||
Standard and Poor’s 500 Stock Index | 91.20 | 80.42 | 62.64 | 80.62 | 89.47 | |||||||||||||||
Nasdaq Bank Stocks | 114.23 | 123.68 | 126.65 | 162.92 | 186.45 | |||||||||||||||
BankAtlantic Bancorp, Inc. | 92.75 | 230.45 | 240.25 | 485.44 | 694.64 |
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D. Keith Cobb, Chairman | |
Jonathan D. Mariner | |
Steven M. Coldren |
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Fiscal 2004 | Fiscal 2003 | |||||||
(in thousands) | ||||||||
(1) Audit fees(a) | $ | 2,406 | $ | 951 | ||||
(2) Audit-related fees(b) | 39 | 27 | ||||||
(3) Tax fees(c) | 4 | 451 | ||||||
(4) All other fees | — | — |
(a) | Includes primarily fees for services related to the annual financial statement audits, the 2004 audit of effectiveness of internal control over financial reporting, and reviews of quarterly financial statements filed in the Company’s reports on Form 10-Q |
(b) | Principally audits of employee benefit plans and consultations regarding generally accepted accounting principles |
(c) | Principally, in 2003, work related to the preparation, filing and completion of a private letter ruling request in connection with the Levitt spin-off, and in both 2003 and 2004, tax compliance services, tax advice, tax planning and tax examination assistance |
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2) | PROPOSAL TO APPROVE THE COMPANY’S 2005 RESTRICTED STOCK AND OPTION PLAN |
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• | earnings per share, | |
• | net income, | |
• | return on average equity, | |
• | return on average assets, | |
• | core earnings, | |
• | stock price, | |
• | 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 | |
• | except in the case of a “covered employee” under section 162(m) of the Code, any other performance criteria established by the administrative committee. |
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• | It may not grant options to purchase more than 2,000,000 shares in the aggregate during any calendar year to individuals who are “covered employees” under section 162(m) of the Code. In addition, it may not grant options to purchase more than 300,000 shares to any individual during any calendar year. | |
• | It may not grant a stock option 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. | |
• | It may not grant a stock option with a term that is longer than 10 years. |
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Number of securities | ||||||||||||
Number of securities to | Weighted average | remaining available for | ||||||||||
be issued upon exercise | exercise price of | future issuance | ||||||||||
of outstanding options, | outstanding options, | (excluding securities | ||||||||||
Warrants or rights | warrants and rights | reflected in column (a)) | ||||||||||
Plan Category | (a) | (b) | (c) | |||||||||
Equity compensation plans approved by security holders | 6,092,480 | 6.81 | 596,393 | (1) | ||||||||
Equity Compensation plans not approved by security holders | 82,365 | (2) | 4.89 | — | ||||||||
Total | 6,174,845 | 6.79 | 596,393 | |||||||||
(1) | If the Company’s 2005 Restricted Stock and Option Plan is approved by shareholders, there will be no new grants of stock or options to acquire stock of the Company under these plans. |
(2) | In 1999, non-qualifying stock options for 751 shares of Class A Stock were granted to each employee of BankAtlantic except certain executive officers, under the BankAtlantic Bancorp 1999 non-qualifying stock option plan. The options were granted with exercise prices equal to the fair value on the grant date with a ten year term. All outstanding options under the BankAtlantic Bancorp 1999 non-qualifying stock option plan were vested as of December 31, 2004. |
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Amount | ||||||||||
and | ||||||||||
Nature of | ||||||||||
Beneficial | Percent | |||||||||
Title of Class | Name and Address of Beneficial Owner | Ownership | of Class | |||||||
Class A Common Stock | BFC Financial Corporation 1750 E. Sunrise Blvd. Ft. Lauderdale, Florida 33304 | 8,329,236 | (1) | 15 | % | |||||
Class B Common Stock | BFC Financial Corporation 1750 E. Sunrise Blvd. Ft. Lauderdale, Florida 33304 | 4,876,124 | (1) | 100 | % |
(1) | BFC has sole voting and dispositive power over all shares listed. BFC may be deemed to be controlled by Alan B. Levan and John E. Abdo, who collectively may be deemed to have an aggregate beneficial ownership of 69.3% of the outstanding common stock of BFC. Mr. Alan B. Levan serves as Chairman, President and CEO of the Company, BankAtlantic and BFC, and Mr. John E. Abdo serves as Vice Chairman of the Company, BankAtlantic and BFC. |
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Class A | Class B | |||||||||||||||
Common | Common | |||||||||||||||
Stock | Stock | |||||||||||||||
Ownership | Ownership | Percent of | Percent of | |||||||||||||
as of | as of | Class A | Class B | |||||||||||||
Name of Beneficial Owner | March 28, 2005 | March 28, 2005 | Common Stock | Common Stock | ||||||||||||
BFC Financial Corporation(1) | 8,329,236 | 4,876,124 | 14.95 | % | 100 | % | ||||||||||
Alan B. Levan(1)(7) | 1,261,799 | (2) | 0 | (2) | 2.27 | 0 | ||||||||||
John E. Abdo(1) | 820,036 | (3)(5) | 0 | 1.48 | 0 | |||||||||||
Bruno L. DiGiulian | 84,196 | (4)(5) | 0 | * | 0 | |||||||||||
Charlie C. Winningham, II | 125,529 | (5) | 0 | * | 0 | |||||||||||
Steven M. Coldren | 58,433 | (4)(5) | 0 | * | 0 | |||||||||||
Mary E. Ginestra | 82,976 | (5) | 0 | * | 0 | |||||||||||
D. Keith Cobb | 14,531 | (5) | 0 | * | 0 | |||||||||||
Jonathan D. Mariner | 25,993 | (5) | 0 | * | 0 | |||||||||||
Willis N. Holcombe | 11,531 | (5) | 0 | * | 0 | |||||||||||
Jay C. McClung | 36,118 | (3)(5) | 0 | * | 0 | |||||||||||
Lloyd B. DeVaux | 195,000 | (6) | 0 | * | 0 | |||||||||||
Jay R. Fuchs | 382,952 | (3)(5) | 0 | * | 0 | |||||||||||
James A. White | 46,431 | (5) | 0 | * | 0 | |||||||||||
Jarett S. Levan(7) | 15,874 | (5) | 0 | * | 0 | |||||||||||
All directors and executive officers of the Company and BankAtlantic, as a group (18 persons, including the individuals identified above) | 11,939,860 | (8) | 4,876,124 | 21.43 | % | 100 | % |
* | Less than one percent of the class. |
(1) | BFC Financial Corporation may be deemed to be controlled by Alan B. Levan and John E. Abdo, who collectively may be deemed to have an aggregate beneficial ownership of 69.3% of the outstanding common stock of BFC Financial Corporation. Mr. Alan B. Levan serves as Chairman, President and CEO of the Company, BankAtlantic and BFC Financial Corporation and Mr. John E. Abdo serves as Vice Chairman of the Company, BankAtlantic and BFC Financial Corporation. |
(2) | Mr. Alan B. Levan may be deemed to be the beneficial owner of the shares of Class A Stock and Class B Stock beneficially owned by BFC Financial Corporation by virtue of his control of Levan Enterprises, Ltd. These shares are not included in the number set forth above. Mr. Alan B. Levan may also be deemed to beneficially own, and the number set forth above includes, 547,661 shares of Class A Stock that he can acquire within 60 days pursuant to stock options, interests in 10,039 shares of Class A Stock held by the BankAtlantic 401(k) Plan, 1,109 shares of Class A Stock held by Levan Enterprises, Ltd., and 741 shares of Class A Stock held by Levan Partners. |
(3) | Includes beneficial ownership of units of interest in shares of Class A stock held by the BankAtlantic 401(k) Plan representing the following numbers of shares: Mr. Abdo — 35,465 shares; Mr. Fuchs — 169,040 shares; Mr. McClung — 1,723 shares. |
(4) | 1,000 shares of Class A Stock are held by Mr. DiGiulian’s wife, as to which Mr. DiGiulian does not have voting or investment power. 100 shares of Class A Stock are beneficially owned by Mr. Coldren and his wife, and Mr. Coldren shares voting and investment power with respect to these shares. |
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(5) | Includes beneficial ownership of the following shares of Class A Stock which may be acquired within 60 days pursuant to stock options: Mr. Abdo — 309,767 shares; Mr. DiGiulian — 69,764 shares; Mr. Winningham — 20,022 shares; Mr. Coldren — 57,955 shares; Mrs. Ginestra — 82,826 shares; Mr. Cobb — 11,531 shares; Mr. Mariner — 24,593 shares; Dr. Holcombe — 11,531 shares; Mr. McClung — 30,109 shares; Mr. Fuchs — 62,552 shares; Mr. White — 27,432 shares; Mr. Jarett Levan — 15,054 shares. |
(6) | Includes beneficial ownership of 136,500 shares of restricted Class A Stock held on behalf of Mr. DeVaux, as to which Mr. DeVaux has voting, but not dispositive, power. |
(7) | Mr. Jarett Levan is the son of Mr. Alan B. Levan. |
(8) | Includes beneficial ownership of 1,515,119 shares of Class A Stock which may be acquired by executive officers and directors within 60 days pursuant to stock options, 248,675 units of interest held by executive officers in shares of Class A Stock held by the BankAtlantic 401(k) Plan, and 136,500 shares of restricted stock held on behalf of Mr. DeVaux, as to which he has voting, but not dispositive, power and shares of Class A stock owned by BFC that may be deemed beneficially owned by Alan B. Levan. |
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BY ORDER OF THE BOARD OF DIRECTORS | |
![]() | |
Alan B. Levan | |
Chairman |
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(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 thereof. | |
(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 the Company. | |
(e) “Class A Common Stock” shall mean the Class A common stock, par value $0.01 per share, of the Company. | |
(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 BankAtlantic Bancorp, Inc., a Florida corporation, and its successors and assigns. | |
(i) “Continuous Status as an 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. |
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(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 on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the closing price of such stock on such exchange or reporting system, as the case may be, on the relevant date, as reported in any 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 Plan. | |
(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 Code. | |
(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 which is a condition of vesting of the Performance-Based Restricted Stock Award. | |
(w) “Performance Measurement Period” shall mean, with respect to any Performance Goal, the period of time over which attainment of the Performance 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 Shares pursuant to Section 8. | |
(z) “Rule 16b-3” shall mean Rule 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 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 date on which such entity ceased to be a Parent or Subsidiary; and (c) performance of the terms of any contractual non-compete agreement for the benefit of the Company or a Parent or Subsidiary. | |
(bb) “Share” shall mean a share of the 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. |
(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 grant an Option in replacement of Options previously granted under this Plan; 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. |
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7.1Term 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 |
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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. | |
(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 methods 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 Subsidiaries and/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 exercised 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 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. | |
(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 |
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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, 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 and Rule 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 Optionee and/or a family member of said Optionee in which the Optionee and/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 |
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(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. |
8.1In 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; | |
(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 BankAtlantic Bancorp, Inc. and [Name of Award Recipient] dated [Date] made pursuant to the terms of the BankAtlantic Bancorp, Inc. 2005 Restricted Stock and Option Plan, copies of which are on file at the executive offices of BankAtlantic Bancorp, Inc., and may not be sold, encumbered, hypothecated or otherwise transferred except in accordance with the terms of such Plan and Agreement. |
(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. |
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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); and |
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; | |
(iii) return on average equity; | |
(iv) return on average assets; | |
(v) core earnings; | |
(vi) stock price; | |
(vii) 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; | |
(viii) except in the case of a Covered Employee, any other performance criteria established by the Committee; | |
(ix) any combination of (i) through (viii) 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 items and/or the results of discontinued operations. Each Performance Goal may be expressed on an absolute and/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 |
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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). | |
(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 extent that such adjustments would have the effect of increasing the amount of a Restricted Stock Award to such Covered Employee. |
8.4 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. |
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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. |
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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. |
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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 Option Agreement, an Option holder shall have the right to direct the Company to satisfy the minimum required federal, state and local tax withholding by reducing the number of Shares subject to the Option (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 BankAtlantic Bancorp, Inc. and [Name of Recipient] dated [Date] made pursuant to the terms of the BankAtlantic Bancorp, Inc. 2005 Restricted Stock and Option Plan, copies of which are on file at the executive offices of BankAtlantic Bancorp, Inc., 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 relevant vesting date or forfeiture of the Shares for any other reason, the Award Recipient shall be required 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 (B) the Fair Market Value of such Shares on the date of forfeiture). |
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April 19, 2005
Dear 401(k) Account Holder:
As you know, you are a participant in the BankAtlantic Security Plus Plan, BankAtlantic’s 401(k) Plan, and you have shares of BankAtlantic Bancorp (“BBX”) Class A Common Stock allocated to your 401(k) account.
As a participant in the BBX Stock Fund, you may direct the voting at the BankAtlantic Bancorp 2005 Annual Meeting of Shareholders to be held on May 17, 2005 (“2005 Annual Meeting”) of the shares of Class A Common Stock of BBX (“Class A Common Stock”) held by the
401(k) Plan Trust and allocated to your account as of the voting record date of March 28, 2005 (“Record Date”). The number of “share equivalents” held in your account as of the Record Date appears on the enclosed Confidential Voting Instruction Card. Please note that the number of “units” reported on your quarterly MetLife 401(k) statements isnotthe same as the number of “share equivalents” represented by your unit ownership.
A total of 452,683 share equivalents of Class A Common Stock were held in the 401(k) Plan as of the Record Date for BBX’s 2005 Annual Meeting.
A committee consisting of James White, Lewis Sarrica, Susan McGregor and Anne Chervony administers the 401(k) Plan (“Committee”). An unrelated corporate trustee for the 401(k) Plan has been appointed, Reliance Trust (“Trustee”).
HOW YOU EXERCISE YOUR VOTING RIGHTS
Because the Trustee is the owner of record of all of the Class A Common Stock held in the Trust, only it may submit an official proxy card or ballot to cast votes for this Class A Common Stock. You exercise your right to direct the vote of Class A Common Stock that has been allocated to your account by submitting a Confidential Voting Instruction Card that will tell the Trustee how to complete the proxy card or ballot for your shares. The Committee is furnishing to you the Confidential Voting Instruction Card, together with a copy of BBX’s Proxy Statement for the 2005 Annual Meeting, so that you may exercise your right to direct the voting of shares of Class A Common Stock allocated to your account. The Confidential Voting Instruction Card indicates how many shares of Common Stock were allocated to your account, and thus how many votes you have, as of the Record Date. The Confidential Voting Instruction Card also lists the specific proposals to be voted on at the 2005 Annual Meeting.
In order to direct the voting of shares allocated to your account under the 401(k) Plan, you must fill-out and sign the Confidential Voting Instruction Card and return it in the accompanying envelope by May 9, 2005.
The Confidential Voting Instruction Card will be delivered directly to the Trustee who will tally all the instructions received. If your Confidential Voting Instruction Card is received on or before May 9, 2005, the Trustee will vote the number of shares of Class A Common Stock indicated on your Confidential Voting Instruction Card in the manner you direct. The contents of your Confidential Voting Instruction Card will be kept confidential. No one at BBX or BankAtlantic will have access to information about anyone’s individual choices.
UNSPECIFIED PROPOSALS
At the 2005 Annual Meeting, it is possible, although very unlikely, that shareholders will be asked to vote on matters other than those specified on the attached Confidential Voting Instruction Card. In such a case, there may not be time to ask you for further voting directions. If this situation arises, the Trustee has a legal duty to decide how to vote all of the shares held in the Trust. In making a decision, it will act solely in the interest of participating employees and their beneficiaries.
IF YOU DO NOT VOTE
The Trustee has a legal duty to see that all voting rights for shares of Class A Common Stock held in the Trust are exercised. If you do not file a Confidential Voting Instruction Card, or if the independent tabulator receives your Confidential Voting Instruction Card after the deadline, the Trustee will decide how to exercise the votes for your shares. In making a decision, it will act solely in the interest of participating employees and their beneficiaries.
This voting direction procedure is your opportunity to participate in decisions that will affect the future of BBX. Please take advantage of this opportunity by completing and signing the Confidential Voting Instruction Card using the self-addressed envelope provided.
Sincerely,
The 401(k) Committee
Enclosures: | Proxy Statement Annual Report Confidential Voting Instruction Card Self-addressed, stamped envelope |
INSTRUCTION: | To withhold your vote for any individual nominee, write that nominee’s name in the space provided: |
2. | Approval of the Company’s 2005 Restricted Stock and Option Plan |
FOR | AGAINST | ABSTAIN | ||
o | o | o |
3. | In the discretion of the Trustee, as to any other matter or proposal to be voted on by the Company’s shareholders at the Annual Meeting of Shareholders. |
Dated: | |
PRINT NAME OF 401(k) ACCOUNT HOLDER | |
SIGNATURE OF 401(k) ACCOUNT HOLDER |
ANNUAL MEETING OF SHAREHOLDERS OF
BANKATLANTIC BANCORP, INC.
May 17, 2005
Please date, sign and mail
your proxy card in the
envelope provided as soon
as possible.
âPlease detach along perforated line and mail in the envelope provided.â
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREx
1. Election of three directors, each for a term of three years. | 2. | Approval of the Company’s 2005 Restricted Stock and Option Plan. | FOR o | AGAINST o | ABSTAIN o | ||||||||||||||||||
o o o | FOR ALL NOMINEES WITHHOLD AUTHORITY FOR ALL NOMINEES FOR ALL EXCEPT (See instructions below) | NOMINEES: 3-YEAR TERM: D. Keith Cobb Bruno L. DiGiulian Alan B. Levan | 3. | In his 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 DIRECTORS NAMED IN PROPOSAL 1 AND “FOR” PROPOSAL 2. | |||||||||||||||||||||||
INSTRUCTION: | To withhold authority to vote for any individual nominee(s), mark“FOR ALL EXCEPT”and write the nominee name(s) below: | PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE. TO INCLUDE ANY COMMENTS, USE THE COMMENTS BOX ON THE REVERSE SIDE OF THIS CARD. | |||||||||||||||||||||
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. | o |
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. |
BANKATLANTIC BANCORP, INC.
1750 E. SUNRISE BLVD.
FT. LAUDERDALE, FL 33304
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned hereby appoints James A. White and Lloyd B. DeVaux, 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 side all of the shares of Class A Common Stock of BankAtlantic Bancorp, Inc. held of record by the undersigned on March 28, 2005, at the Annual Meeting of the Shareholders to be held on May 17, 2005 and at any adjournment or postponement thereof.
(Continued and to be signed on the reverse side)
COMMENTS:
ANNUAL MEETING OF SHAREHOLDERS OF
BANKATLANTIC BANCORP, INC.
May 17, 2005
PROXY VOTING INSTRUCTIONS |
MAIL — Date, sign and mail your proxy card in the
envelope provided as soon as possible.
(1-800-776-9437) from any touch-tone telephone
and follow the instructions. Have your proxy card
available when you call.
follow the on-screen instructions. Have your proxy
card available when you access the web page.
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.
âPlease detach along perforated line and mail in the envelope provided IF you are not voting via telephone or the Internet.â
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HEREx
1. Election of three directors, each for a term of three years. | 2. | Approval of the Company’s 2005 Restricted Stock and Option Plan. | FOR o | AGAINST o | ABSTAIN o | ||||||||||||||||||
o o o | FOR ALL NOMINEES WITHHOLD AUTHORITY FOR ALL NOMINEES FOR ALL EXCEPT (See instructions below) | NOMINEES: D. Keith Cobb Bruno L. DiGiulian Alan B. Levan | 3. | In his 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 DIRECTORS NAMED IN PROPOSAL 1 AND “FOR” PROPOSAL 2. | |||||||||||||||||||||||
INSTRUCTION: | To withhold authority to vote for any individual nominee(s), mark“FOR ALL EXCEPT”and write the nominee name(s) below: | PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY USING THE ENCLOSED ENVELOPE. TO INCLUDE ANY COMMENTS, USE THE COMMENTS BOX ON THE REVERSE SIDE OF THIS CARD. | |||||||||||||||||||||
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. | o |
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. |