ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
BANKATLANTIC BANCORP, INC.
The Articles of Incorporation of BANKATLANTIC BANCORP, INC., a Florida
corporation (the "Corporation"), are hereby amended pursuant to the provisions
of Section 607.1006 of the Florida Business Corporation Act as follows:
1. The introductory paragraph and Section A of Article III shall be deleted in
their entirety and amended to read as follows:
ARTICLE III - CAPITAL STOCK
The aggregate number of shares of capital stock which this Corporation
shall have authority to issue is One Hundred Thirty Five Million
(135,000,000) of which Ten Million (10,000,000) shall be preferred stock,
par value $.01 per share, and of which One Hundred Twenty Five Million
(125,000,000) shall be common stock, par value $.01 per share, consisting
of Eighty Million (80,000,000) shares of a class designated "Class A Common
Stock" and Forty Five Million (45,000,000) shares of a class designated
"Class B Common Stock" (the Class A Common Stock and the Class B Common
Stock are sometimes hereinafter referred to collectively as the "Common
Stock"). The preferred stock may be divided into and issued in series by
the Board of Directors as set forth below. The Board of Directors shall fix
the consideration to be received for each share. Such consideration shall
consist of any tangible or intangible property or benefit to this
Corporation, including cash, promissory notes, services performed or
securities of other corporations or entities and shall have a value, in the
judgment of the Board of Directors, equivalent to or greater than the full
par value of the shares. In the case of a stock dividend, that part of the
surplus of the Corporation which is transferred to stated capital upon the
issuance of shares as a share dividend shall be deemed to be the
consideration for their issuance.
A. Class A Common Stock and Class B Common Stock. The relative rights,
preferences, privileges and restrictions of the Class A Common Stock and
the Class B Common Stock are as follows:
1. Voting. Except as provided in this Article III (or in any
supplementary sections thereto), all rights to vote and all voting
power (including, without limitation, the right to elect directors)
shall be vested exclusively in the holders of Class A Common Stock and
the holders of Class B Common Stock, voting together without regard to
class.
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(i) Class A Common Stock. On all matters presented for a vote of
shareholders, holders of Class A Common Stock shall be entitled
to one vote for each share held. Until the total number of
outstanding shares of Class B Common Stock shall first fall below
2,438,062 shares (a "Trigger Event"), the Class A Common Stock
shall possess in the aggregate 53% of the total voting power of
the Common Stock.
(ii) Class B Common Stock. (a) On all matters presented for a vote of
shareholders, holders of Class B Common Stock shall until the
occurrence of a Trigger Event be entitled to such number of votes
(which may be or include a fraction of a vote) for each share
held which, based on the number of shares of Class A Common Stock
and Class B Common Stock outstanding on the record date relating
to the matter to be voted upon, will fix the aggregate voting
power of the Class B Common Stock at 47% of the total voting
power of the Common Stock. Until the occurrence of a Trigger
Event, the number of votes per share of Class B Common Stock
shall equal the quotient derived by dividing (1) the number equal
to (x) the total number of shares of Class A Common Stock
outstanding on the relevant record date divided by .53 less (y)
the total number of shares of Class A Common Stock outstanding on
such record date by (2) the total number of shares of Class B
Common Stock outstanding on such record date.
(b) From and after the occurrence of a Trigger Event, holders of
Class A Common Stock and Class B Common Stock shall each be
entitled to one vote for each share held.
(iii)Cumulative Voting. There shall be no cumulation of votes for the
election of directors.
(iv) Class Vote by Class B Common Stock. Notwithstanding any other
provision of this Article III, until the occurrence of a Trigger
Event the Corporation shall not take any of the following actions
without the affirmative vote of the holders of a majority of the
outstanding shares of Class B Common Stock, given separately as a
class, which vote shall be in addition to any right to vote
required by the laws of the State of Florida: (1) issue any
additional shares of Class B Common Stock except pursuant to a
stock dividend issued exclusively to the holders of Class B
Common Stock; (2) effect any reduction in the number of
outstanding shares of Class B Common Stock (other than by holders
of Class B Common Stock converting Class B Common Stock into
Class A Common Stock or through voluntary disposition thereof to
the Corporation); or (3) effect any change or alteration in any
provision of this Article III.
2. Conversion and Reservation of Shares. Each share of Class B Common
Stock shall be convertible, at any time, and from time to time at the
option of the holder thereof, into one fully paid and nonassessable
share of Class A Common Stock. In order to exercise the conversion
right, a holder of shares of Class B Common Stock shall surrender the
certificate or certificates representing such shares, duly endorsed or
assigned to the Corporation, at the office of the Corporation together
with written notice to the Corporation of the number of shares which
the holder elects to convert and written instructions regarding the
registration and delivery of certificates for shares of Class A Common
Stock acquired thereby. As promptly as practicable thereafter, the
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Corporation shall issue and deliver to the holder to the place
designated by such holder, a certificate or certificates for the
number of shares of Class A Common Stock to which such holder is
entitled. The person entitled to receive shares of Class A Common
Stock issuable upon conversion shall be deemed to have become the
holder of record of such shares of Class A Common Stock at the close
of business on the date upon which the conversion right is so
exercised. If any certificate representing shares of Class B Common
Stock shall have been converted in part, the holder shall be entitled
to a new certificate representing the unconverted shares of Class B
Common Stock. There shall be no charge to holders of Class B Common
Stock for any costs associated with the conversion of Class B Common
Stock, including any stamp or other tax resulting from the issuance;
provided, however, that the Corporation shall not be responsible for
any taxes which may be payable in respect of any conversion in which
any share or shares of Class A Common Stock are to be issued in the
name of a holder other than the record holder of the Class B Common
Stock being converted. The Corporation shall at all times reserve and
keep available, out of its authorized but unissued Class A Common
Stock, such number of shares as would become issuable upon the
conversion of all shares of Class B Common Stock then outstanding.
3. Ownership of Class B Common Stock. Until the occurrence of a Trigger
Event, shares of Class B Common Stock may only be held by or
transferred to BFC Financial Corporation, a Florida corporation
("BFC"), or to successors or affiliates of BFC. For purposes of this
Article III, the term "affiliate" shall mean a person who, directly or
indirectly, controls or is controlled by, or is under common control
with, BFC or the specified person; provided, however, that the
following persons shall also be deemed to be affiliates of BFC:
(i) a natural person who is a descendant (including any descendant by
adoption and any descendant of an adopted descendant) of an
affiliate of BFC or who is or was at any time the spouse or
surviving spouse of an affiliate of BFC; or
(ii) a trust established primarily for the benefit of an affiliate of
BFC or any natural person described in clause (i) above; or
(iii)a partnership, limited liability company, corporation or other
entity in which an affiliate of BFC or any natural person
described in clause (i) above or any trust described in clause
(ii) above beneficially own at least 50% of the equity interests
in such entity.
From and after the occurrence of a Trigger Event, holders of shares of
Class B Common Stock may transfer or otherwise dispose of such shares
to any person, and any person may have the status of an owner or
holder of shares of Class B Common Stock.
4. Transfers of Class B Common Stock on Corporate Books. Shares of Class
B Common Stock shall be transferred on the books of the Corporation
and a new certificate issued, upon due presentation at the office of
the Secretary of the Corporation (or at such additional place or
places as may from time to time be designated by the Corporation,
including the transfer agent of the Corporation) of the certificate
for such shares, in proper form for transfer; provided, however,
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that if at the time such certificate is presented for transfer there
has not occurred a Trigger Event, then such transfer will not be
effected unless such certificate is accompanied by an affidavit of the
record holder certifying that the transfer of such shares is to a
person permitted by the provisions of subsection A.3. of this Article
III.
5. Dividends. Whenever there shall have been paid, or declared and set
aside for payment, to the holders of the outstanding shares of any
class of stock having preference over the Common Stock as to the
payment of dividends, the full amount of dividends and of a sinking
fund, retirement fund, or other required payments, if any, to which
such holders are respectively entitled in preference to the Common
Stock, then dividends may be paid on the Common Stock and on any class
or series of stock entitled to participate therewith as to dividends
when and as declared by the Board of Directors out of any assets
legally available for the payment of dividends. Holders of Common
Stock shall be entitled to such dividends as may be declared by the
Board of Directors, provided that the distribution per share of Class
A Common Stock must be identical to the distribution per share of
Class B Common Stock, except that a dividend or other distribution to
holders of Class A Common Stock may be declared and issued in Class A
Common Stock and a dividend or other distribution to holders of Class
B Common Stock may be declared and issued in either Class A Common
Stock or Class B Common Stock provided that in each case the number of
shares so declared and issued on a per share basis to such holders is
the same.
6. Rights upon Liquidation or Dissolution. In the event of any
liquidation, dissolution, or winding up of the Corporation, the
holders of Common Stock (and the holders of any class or series of
stock entitled to participate with such stock in the distribution of
assets) shall be entitled to receive, in cash or in kind, the assets
of the Corporation available for distribution remaining after: (i)
payment or provision for payment of the Corporation's debts and
liabilities; (ii) distributions or provision for distributions in
settlement of its liquidation account; and (iii) distributions or
provision for distributions to holders of any class or series of stock
having preference over the Common Stock in the liquidation,
dissolution, or winding up of the Corporation. Each share of Class A
Common Stock and Class B Common Stock shall be entitled to share
ratably, as a single class, in such remaining assets of the
Corporation.
7. Subscription and Preemptive Rights. No shares of Class A Common Stock
or Class B Common Stock, and no obligations or shares convertible into
shares of Class A Common Stock or Class B Common Stock, shall have any
preemptive right or preferential right to subscribe to or purchase any
shares of any class of stock of the Corporation or any right to
subscribe to or purchase thereof.
8. Violations of Subsections A.3. In the event that the Board of
Directors of the Corporation shall determine, upon the basis of facts
not disclosed in any affidavit or other document accompanying the
certificate for shares of Class B Common Stock when presented for
transfer, that such shares of Class B Common Stock have been
registered in violation of the provisions of subsection A.3., then the
Corporation may seek a judicial determination including an action at
law or in equity as may be appropriate under the circumstances.
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9. Legend on Certificates for Class B Common Stock. Every certificate for
shares of Class B Common Stock shall bear a legend on the face thereof
reading as follows:
"The shares of Class B Common Stock represented by this certificate
may not be transferred to any person who does not meet the
qualifications set forth in subsection A.3. of Article III of the
Articles of Incorporation of this Corporation and no person who does
not meet the qualifications prescribed by subsection A.3. of said
Article III is entitled to own or to be registered as the record
holder of such shares of Class B Common Stock, until the time referred
to in said subsection A.3., but the record holder of this certificate
may at any time convert such shares of Class B Common Stock into the
same number of shares of Class A Common Stock of the Corporation for
the purpose of effecting the sale or other disposition of such shares
to any person. Each holder of this certificate, by accepting the same,
accepts and agrees to all of the foregoing."
Any certificate for shares of Class B Common Stock which shall be
issued after the occurrence of a Trigger Event shall not bear such
legend.
10. Adjustments. In the event of a reorganization, recapitalization,
merger or stock split affecting the Class B Common Stock, then the
threshold number of shares of Class B Common Stock referenced in the
definition of Trigger Event in subsection A.1.(i) of this Article III
and the number or kind of shares into which the Class B Common Stock
are convertible pursuant to subsection A.2. of this Article III shall
be appropriately and proportionately adjusted; and in each such case
such provisions shall be applied so as to give effect to such
adjustments. If any such transaction shall be effected by amendment of
the Articles of Incorporation, then such amendment shall itself adjust
such threshold share number or conversion rate in accordance with the
foregoing.
The foregoing Articles of Amendment to the Articles of Incorporation were
adopted and approved at a meeting of the Board of Directors of the Corporation
on April 3, 2001 and at a meeting of the Shareholders held on May 23, 2001. In
each case, the number of votes cast was sufficient for approval.
IN WITNESS WHEREOF, the undersigned Chairman of the Board and Chief
Executive Officer has executed these Articles of Amendment to the Articles of
Incorporation this 23rd day of May, 2001.
BANKATLANTIC BANCORP, INC.
By: /s/ Alan B. Levan
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Alan B. Levan, Chairman of
the Board and Chief Executive
Officer
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