RESTATED
ARTICLES OF INCORPORATION
OF
BANKATLANTIC BANCORP, INC.
Pursuant to Section 607.1007 of the Florida Business Corporation Act, the
undersigned, Chairman of the Board of BANKATLANTIC BANCORP, INC., a Florida
corporation (the "Corporation"), hereby executes and submits for filing with the
Department of State, State of Florida, these Restated Articles of Incorporation,
to read as follows:
ARTICLE I - NAME AND ADDRESS
The name of this Corporation is BankAtlantic Bancorp, Inc. The address of
the principal office and the mailing address of this Corporation is 1750 East
Sunrise Boulevard, Fort Lauderdale, Florida 33304.
ARTICLE II - PURPOSE
This Corporation is organized for the purpose of transacting any and all
lawful business.
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:
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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.
(i) CLASS A COMMON STOCK. On all matters presented for a vote
ofshareholders, holders of Class A Common Stock shall be entitled
to one vote foreach 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 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
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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, 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
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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.
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
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of the Articles of Incorporation, then such amendment shall itself adjust
such threshold share number or conversion rate in accordance with the
foregoing.
B. PREFERRED STOCK. The preferred stock may be divided into one or more
series or classes, with each series separately designated so as to distinguish
the shares thereof from the shares of all other series and classes. The Board of
Directors is authorized to divide the preferred stock into one or more series or
classes, by adoption of supplementary sections or amendments to the articles of
incorporation, having the relative rights, preferences and limitations as may
from time to time be determined by the Board of Directors. Without limiting the
generality of the foregoing, the Board of Directors is authorized to fix and
determine:
1. The number of shares which shall constitute the series and the
designation of such shares;
2. The rate and the time at which dividends on that series shall be
paid, whether dividends shall be cumulative and the participating or other
special rights, if any, with respect to dividends;
3. The voting powers, full or limited, if any, of shares of such
series;
4. Whether the shares of such series shall be redeemable and, if so,
the price(s) at which, and the terms and conditions on which, such shares
may be redeemed and the terms and amount of any sinking fund or purchase
fund, if any, for the purchase or redemption of that series;
5. The amount(s) payable upon the shares of such series in the event
of voluntary or involuntary liquidation, dissolution, or winding up of the
Corporation.
6. The terms upon which the holder of any series may convert their
shares into any class or classes;
7. The price or other consideration for which the shares of such
series shall be issued; and
8. Whether the shares of such series which are redeemed or converted
shall have the status of authorized but unissued shares of serial preferred
stock and whether such shares may be reissued as shares of the same or any
other series of serial preferred stock.
Each share of each series of serial preferred stock shall have the same
relative rights as and be identical in respects with all the other shares of the
same series.
ARTICLE IV - PREEMPTIVE RIGHTS
Shareholders shall not be entitled to preemptive rights with respect to any
shares of the Corporation which may be issued.
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ARTICLE V - INITIAL REGISTERED OFFICE AND AGENT
The street address of the initial registered office of this Corporation is
150 West Flagler Street, Miami, Florida 33130 and the name of the initial
registered agent of this Corporation is Alison W. Miller.
ARTICLE VI - BYLAWS
The power to alter, amend or repeal the Bylaws shall be vested in each of
the Board of Directors and the shareholders of this Corporation.
ARTICLE VII - INDEMNIFICATION
This Corporation shall indemnify any officer or director, or any former
officer or director of this Corporation, to the fullest extent permitted by law.
The foregoing right of indemnification shall not be exclusive of any other
rights to which any Director, officer, employee or agent may be entitled as a
matter of law or which he may be lawfully granted.
ARTICLE VIII - AMENDMENT
This Corporation reserves to its shareholders the right to amend or repeal
any provisions now or hereafter contained in these Articles of Incorporation.
Any rights which these Articles of Incorporation may confer upon this
Corporation may be modified or cancelled by a vote of the holders of a majority
of the Corporation's stock entitled to vote thereon to amend or repeal said
Articles of Incorporation.
The foregoing Restated Articles of Incorporation were duly adopted and
approved without shareholder action by the Board of Directors of the Corporation
by unanimous written consent in lieu of a meeting as of May 23, 2001. Pursuant
to Section 607.1007 of the Florida Business Corporation Act, shareholder action
was not required with respect to the adoption of the foregoing Restated Articles
of Incorporation.
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IN WITNESS WHEREOF, the undersigned Chairman of the Board and Chief
Executive Officer of the Corporation has executed these Restated Articles of
Incorporation in his capacity as such this 11th day of June, 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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