BFC Financial Corporation
P.O. Box 5403
Fort Lauderdale, FL 33310-5403
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on September 28, 1994
Fort Lauderdale, Florida
September 2, 1994
To the Stockholders of BFC Financial Corporation:
The Annual Meeting of Stockholders of BFC Financial Corporation (the "Company")
will be held in the Cafeteria Room, at 1750 East Sunrise Boulevard, Fort
Lauderdale, FL 33304, on September 28, 1994, at 9:00 a. m. local time for the
following purposes:
1. To elect one member to the Board of Directors for a term of three
years;
2. To amend the BFC Financial Corporation Stock Option Plan, including an
increase in the number of shares issuable pursuant to the Plan; and
3. To transact such other business as may properly come before the Annual
Meeting or any adjournment or postponement thereof, including any matters
relating or incident to the foregoing.
The foregoing matters are described in more detail in the Proxy Statement which
forms a part of this Notice. Only stockholders of record at the close of
business on August 25, 1994 are entitled to notice of and to vote at the Annual
Meeting.
Enclosed for your review and consideration is a proxy statement in connection
with the solicitation of proxies on behalf of the Board of Directors of the
Company for use at the Annual Meeting of Stockholders. You are urged to read
the proxy statement carefully. YOUR VOTE IS IMPORTANT.
Whether or not you expect to attend the meeting in person, please mark, sign and
return the accompanying proxy card in the enclosed envelope. If you later
desire to revoke your proxy, you may do so at any time prior to its exercise by
giving written notice to the Secretary of the Company, by execution of a
subsequent dated proxy or by personally attending and voting at the Annual
Meeting. Any proxy which is not revoked will be voted at the meeting as
directed in the proxy, or, where no direction is given, the proxy will be voted
in accordance with the recommendations of the Board of Directors.
Sincerely,
/s/ Glen R. Gilbert
Glen R. Gilbert
Secretary
BFC Financial Corporation
P.O. Box 5403
Fort Lauderdale, FL 33310-5403
PROXY STATEMENT
Information Concerning the Solicitation
This statement is furnished in connection with the solicitation of proxies to be
used at the Annual Meeting of Stockholders (the "Annual Meeting") of BFC
Financial Corporation to be held on Wednesday, September 28, 1994 commencing at
9:00 a.m., local time, in the Cafeteria Room, at 1750 East Sunrise Boulevard
Fort Lauderdale, FL 33304, and any adjournment thereof.
The solicitation on proxies in the enclosed form is made on behalf of the Board
of Directors of BFC Financial Corporation.
The cost of preparing, assembling, and mailing the proxy material and of
reimbursing brokers, nominees, and fiduciaries for the out-of-pocket and
clerical expenses of transmitting copies of the proxy material to the beneficial
owners of shares held of record by such persons will be borne by BFC Financial
Corporation. BFC Financial Corporation does not intend to solicit proxies
otherwise than by use of the mail, but certain officers and regular employees of
BFC Financial Corporation without additional compensation, may use their
personal efforts, by telephone or otherwise, to obtain proxies. The proxy
materials are being mailed to stockholders of record at the close of business on
August 25, 1994.
A stockholder signing and returning a proxy on the enclosed form has the power
to revoke it at any time before the shares subject to it are voted, by notifying
the Secretary of BFC Financial Corporation in writing. In voting by proxy in
regard to the election of a director to serve until the 1997 Annual Meeting of
Stockholders, stockholders may vote in favor of the nominee or withhold their
vote as to the nominee. In voting by proxy in regard to the amendment to the
BFC Financial Corporation Stock Option Plan, stockholders may vote either for or
against its adoption. If a stockholder specifies how the proxy is to be voted,
the proxy will be voted in accordance with such specification. If a stockholder
fails to so specify, the proxy will be voted, to the extent applicable, in favor
of the director nominated by the Board of Directors and FOR the adoption of the
amendment to the BFC Financial Corporation Stock Option Plan. If any other
matters are properly brought before the Annual Meeting, the persons named in the
accompanying proxy will vote the shares represented by such proxy in accordance
with their own judgment.
Stockholders' Proposals for Next Annual Meeting
Stockholders' proposals intended to be presented at the 1995 Annual Meeting must
be received by BFC Financial Corporation no later than June 1, 1995, for
inclusion in BFC Financial Corporation's proxy statement and form of proxy for
that meeting.
Outstanding Voting Securities
Only stockholders of record of BFC Financial Corporation Common Stock, $0.01 par
value per share, ("Common Stock") at the close of business on August 25, 1994
are entitled to vote at the Annual Meeting. On that day, there were issued and
outstanding 2,305,682 shares of Common Stock. The Common Stock constitutes the
only class of capital stock of the Company presently issued and outstanding.
Each shareholder is entitled to one vote for each share held. See "Quorum and
Required Vote" and "Security Ownership of Certain Beneficial Owners and
Management."
Quorum and Required Vote
A majority of the outstanding shares of Common Stock, represented in person or
by proxy, constitutes a quorum for transaction of business at the Annual
Meeting. The election of a director will require the affirmative vote of a
plurality of the shares of Common Stock voting in person or by proxy at the
Annual Meeting; accordingly, votes that are withheld and broker non-votes will
not affect the outcome of the election. The proposal for the approval of
amendments to the BFC Financial Corporation Stock Option Plan requires the
affirmative vote of a majority of the shares of Common Stock voting in person or
by proxy at the Annual Meeting; accordingly, an abstention will have the same
effect as a negative vote, but, because shares held by brokers will not be
considered entitled to vote on matters as to which the brokers withhold
authority, broker non-votes will have no effect on the vote.
Security Ownership of Certain Beneficial Owners and Management
Principal Stockholders
The following table and the notes thereto set forth certain information as to
those persons known to the Board of Directors of BFC Financial Corporation to be
the beneficial owners of more than five percent (5%) of the Company's
outstanding Common Stock as of August 25, 1994. Unless otherwise indicated, the
beneficial owners listed below have sole voting and investment power over the
shares listed beside their names.
Amount and Nature
Title Name and Address of Beneficial Percent
of Class of Beneficial Owner Ownership of Class
-------- --------------------------- ----------------- --------
Common I.R.E. Realty Advisors, Inc. 242,221 10.2%
1750 East Sunrise Boulevard Direct
Fort Lauderdale, FL 33304
Common I.R.E. Properties, Inc. 136,666 5.7%
1750 East Sunrise Boulevard Direct
Fort Lauderdale, FL 33304
I.R.E. Realty Advisory
Common Group, Inc.(1) 500,000 21.0%
1750 East Sunrise Boulevard Direct
Fort Lauderdale, FL 33304
Common Alan B. Levan (2)(3) 90,398 3.8%
1750 East Sunrise Boulevard Direct
Fort Lauderdale, FL 33304
Common Florida Partners Corporation 133,314 5.6%
1750 East Sunrise Boulevard Direct
Fort Lauderdale, FL 33304
Common John E. Abdo (3) 394,361 16.6%
1350 N.E. 56 Street Direct
Fort Lauderdale, FL 33334
Common Dr. Herbert A. Wertheim (4) 349,100 14.7%
191 Leucadendra Drive Direct
Coral Gables, FL 33156
(1) BFC Financial Corporation owns 50% of I.R.E. Realty Advisory Group,
Inc.
(2) Alan B. Levan is the controlling and majority shareholder of I.R.E.
Realty Advisors, Inc. and I.R.E. Properties, Inc. and may be deemed to be the
controlling shareholder of I.R.E. Realty Advisory Group, Inc. and Florida
Partners Corporation. Therefore, Mr. Levan may be deemed to be the beneficial
owner of the shares of Common Stock owned by each of such entities in addition
to his personal holdings of 90,398 shares of Common Stock, for an aggregate
beneficial ownership of 1,102,599 shares of Common Stock (46.3%). During 1994,
Mr. Levan received options to acquire 100,000 shares of Common Stock of
Registrant.
(3) On May 10, 1989, Mr. Abdo and certain members of his family (the
"Abdos") were issued 353,478 shares of BFC Financial Corporation's authorized
but unissued Common Stock pursuant to the terms of a Stock Purchase Agreement
with BFC Financial Corporation under which the Company acquired 282,782 shares
(9.17%) of BankAtlantic, owned by the Abdo family. As a result of such
transaction, the Abdos beneficially owned 361,028 shares (15.7%) of the
Company's outstanding Common Stock. In connection with the Stock Purchase
Agreement, BFC Financial Corporation, the Abdos and Mr. Alan B. Levan, President
of BFC Financial Corporation, entered into a Shareholders' Agreement dated May
10, 1989, pursuant to which, among other things, the Abdos had the right to
require the Company to repurchase the shares of the Company's Common Stock which
they received for the higher of the book value or the average market value (as
defined) of the shares. Pursuant to the Shareholders' Agreement, BFC Financial
Corporation and Mr. Levan had the right to require the Abdos to sell such shares
to either of them on the same terms. In February 1994, the parties mutually
agreed to terminate the above agreement.
(4) Dr. Wertheim reported that he owns 349,100 shares of BFC Financial
Corporation's Common Stock on a Schedule 13D dated June 19, 1991. The Schedule
13D indicates that the shares were acquired for private investment.
The Company knows of no other persons who beneficially own 5% or more of its
outstanding Common Stock.
Common Stock Ownership of Management
Set forth in the following table and notes thereto is certain information with
respect to the beneficial ownership of shares of Common Stock as of August 25,
1994 owned by each of the directors of BFC Financial Corporation and all
directors and officers of the Company as a group. Unless otherwise indicated,
the persons listed below have sole voting and investment power over the shares
listed beside their names.
Amount and Nature
Title Name and Address of Beneficial Percent
of Class of Beneficial Owner Ownership of Class
-------- --------------------------- ----------------- --------
Common Alan B. Levan (1) 90,398 Direct 3.9%
1,012,201 Indirect 43.9%
Common Earl Pertnoy (2) 5,167 Direct 0.2%
Common Carl E.B. McKenry (3) 2,334 Direct 0.1%
Common John E. Abdo (4) 394,361 Direct 17.1%
Common Glen R. Gilbert 5,978 direct 0.3%
Common All executive officers and
directors as a group 1,510,439 65.5%
(1) See Footnote 2 and 3 to the table under the heading "Principal
Stockholders of BFC Financial Corporation".
(2) 3,500 of such shares are held of record by Mr. Pertnoy's wife.
(3) 667 of such shares are held of record in an IRA account.
(4) See note 3 to the table under the heading "Principal Stockholders"
with respect to the acquisition of such shares of Common Stock by the Abdos.
ELECTION OF DIRECTORS
The bylaws of BFC Financial Corporation provide that the Board of Directors
shall consist of not less than three nor more than twelve members divided into
three classes. The Board currently consists of four members. The term of one
director expires at the Annual Meeting and it is therefore necessary to elect a
director to serve for a three year term, or until his respective successor has
been elected and qualified. The Board of Directors has nominated Carl E.B.
McKenry to serve as a director in the class whose term expires at the 1997
Annual Meeting of Shareholders. The nominee is currently a member of the
Company's Board of Directors.
Simultaneous with the termination of the Shareholders' Agreement described in
note 3 under "Principal Stockholders", the Abdos and Mr. Levan agreed to vote
the shares owned by each and to use their best efforts to cause and maintain the
election to the Company's Board of one nominee of each.
There are no other arrangements or understandings between the Company and any
person pursuant to which such person has been or will be elected a director.
There is no relationship between any director or officer of the Company by
blood, marriage or adoption.
It is intended that the shares represented by each proxy, when properly in the
form of the accompanying proxy card and timely received, will be voted for the
nominee for director set forth below, or in the discretion of the proxy, for a
substitute nominee designated by the Board of Directors in the event that a
nominee becomes unavailable for election. See "Quorum and Required Vote.:
DIRECTORS AND NOMINEES
IDENTIFICATION OF DIRECTORS
Name Age Director Since Term Expires
------------------- --- -------------- ------------
Alan B. Levan 49 1978 1995
Earl Pertnoy 68 1978 1996
Carl E.B. McKenry, Jr. 65 1981 1994
John E. Abdo 51 1988 1996
The principal occupation and certain other information with respect to the
nominee for election as director (who is presently a director) and other
directors of the Company is set forth below.
NOMINEE TO SERVE THREE-YEAR TERM EXPIRING AT THE 1997 ANNUAL MEETING:
CARL E. B. McKenry, JR. is the Director of the Small Business Institute at the
University of Miami in Coral Gables, Florida. He has been associated in various
capacities with the University since 1955. He has been a director of BFC
Financial Corporation since 1981 and is also a director of the corporate general
partners of various affiliated public limited partnerships.
DIRECTORS SERVING THREE-YEAR TERMS EXPIRING AT THE 1996 ANNUAL MEETING:
EARL PERTNOY has been a real estate investor and developer for more than five
years. He has been a director of BFC Financial Corporation and its predecessor
companies since 1978 and is also a director of the corporate general partners of
various affiliated public limited partnerships.
JOHN E. ABDO has been principally employed as President and Chief Executive
Officer of Wellington Construction & Realty, Inc., a real estate development,
construction and brokerage firm, for more than five years. He is Vice Chairman
of the Board of BFC Financial Corporation since 1993, has been a director of
BankAtlantic, A Federal Savings Bank, ("BankAtlantic") since 1984 and President
of BankAtlantic Development Corporation, a wholly-owned subsidiary of
BankAtlantic, since 1985. He has been Chairman of the Executive Committee of
BankAtlantic since October 1985 and Vice Chairman of the Board of BankAtlantic
since April 1987. In 1994, he became a director of BankAtlantic Bancorp, Inc.
("BANC"), a newly formed bank holding company and parent corporation of
BankAtlantic. He is also a Director of Benihana National Corporation and
Chairman of the Board of Coconut Code, Inc.
DIRECTOR SERVING THREE-YEAR TERMS EXPIRING AT THE 1995 ANNUAL MEETING:
ALAN B. LEVAN formed the I.R.E. Group in 1972. Since 1978, he has been the
Chairman of the Board, President, and Chief Executive Officer of BFC Financial
Corporation or its predecessors. He is Chairman of the Board and President of
I.R.E. Realty Advisors, Inc., I.R.E. Properties, Inc., I.R.E. Realty Advisory
Group, Inc., U.S. Capital Securities, Inc., and Florida Partners Corporation. He
is also Chairman of the Board and Chief Executive Officer of BANC and
BankAtlantic. He is an individual general partner and an officer and a director
of the corporate general partners of various public limited partnerships all of
which are affiliated with BFC Financial Corporation.
MEETINGS AND COMMITTEES OF THE BOARD OF DIRECTORS
During 1993, the Board of Directors held eight (8) meetings and took no actions
by unanimous written consent. No director attended fewer than seventy-five
percent (75%) of the total number of meetings of the Board of Directors or of
the committees on which such Board member served during this period.
The members of the Audit Committee are Dr. Carl E.B. McKenry, Jr. and Earl
Pertnoy. The Audit Committee meets annually or as needed to consider the
findings of BFC Financial Corporation's independent auditors and to evaluate
policies and procedures relating to internal auditing functions and controls.
The Audit Committee held four (4) meetings during the year ended December 31,
1993.
The members of the Compensation Committee are Dr. Carl E.B. McKenry, Jr. and
Earl Pertnoy. The Committee was formed in 1993 to be effective January 1, 1994.
The Compensation Committee did not meet in 1993. Prior to the formation of the
Committee, the entire Board of Directors served in this capacity. The primary
purpose of the Compensation Committee is to establish and implement compensation
policy and programs for BFC Financial Corporation executives. The Compensation
Committee will recommend the compensation arrangements for executive officers
and directors. It will also serve as the Stock Option Committee for the purpose
of determining any options to be granted under the BFC Financial Corporation
Stock Option Plan.
The Board of Directors has no standing nominating committee. The Board
considers persons who would be eligible or desirable for membership on the Board
of Directors. Names are solicited from all directors and from management.
Stockholder nominees also are considered by the Board.
COMPENSATION OF DIRECTORS
Members of the Board of Directors of the Company who are not employees of the
Company receive $1,300 per month for serving on the Company's Board.
Additionally, members of the Audit Committee receive a fee of $1,000 per Audit
Committee meeting attended. Other than such compensation, there are no other
arrangements pursuant to which any director is compensated for his services as
such.
IDENTIFICATION OF EXECUTIVE OFFICERS
Name Age Position
---------- --- ----------------------------
Alan B. Levan 49 President, Chairman of the Board, Director
John E. Abdo 51 Vice Chairman of the Board, Director
Glen R. Gilbert 49 Senior Vice President, Chief Financial
Officer and Secretary
All officers will serve until they resign or are replaced by the Board of
Directors.
IDENTIFICATION OF CERTAIN SIGNIFICANT EMPLOYEES
The following persons are executive officers of the Company's principal
subsidiary, BANC. Positions indicated are those held at BANC.
Name Age Position
--------------- --- ---------------------------------
Alan B. Levan 49 Director, Chief Executive Officer
John E. Abdo 51 Director, Vice Chairman of the Board
Jasper Eanes 49 Executive Vice President, Chief
Financial Officer
Frank V. Grieco 50 Director, Senior Executive Vice
President, Secretary
John P. O'Neill 44 Director, President
The following persons are executive officers of BANC's wholly owned subsidiary,
BankAtlantic. Positions indicated are those held at BankAtlantic.
Name Age Position
--------------- --- -----------------------------------
Alan B. Levan 49 Director, Chief Executive Officer
John E. Abdo 51 Director, Vice Chairman of the Board
Jasper Eanes 49 Executive Vice President, Chief
Financial Officer
Frank V. Grieco 50 Director, Senior Executive Vice
President
John P. O'Neill 44 Director, President
Lewis F. Sarrica 50 Executive Vice President
Marcia K. Snyder 39 Executive Vice President
Gerald S. Watson 57 Executive Vice President
FAMILY RELATIONSHIPS
None.
BUSINESS EXPERIENCE
ALAN B. LEVAN - See "ELECTION OF DIRECTORS".
GLEN R. GILBERT has been Senior Vice President of BFC Financial Corporation
since January 1984. In May 1987, he was appointed Chief Financial Officer and
in October 1988, was appointed Secretary. He joined the Company in November
1980 as Vice President and Chief Accountant. He has been a certified public
accountant since 1970. He serves as an officer of Florida Partners Corporation
and of the corporate general partners of various affiliated public limited
partnerships.
The principal occupation and certain other information with respect to certain
significant employees of the Company is set forth below. All named persons are
executive officers of the Company's principal subsidiary, BANC or its wholly
owned subsidiary, BankAtlantic. The positions indicated are those held at
BankAtlantic.
ALAN B. LEVAN - See "ELECTION OF DIRECTORS".
JOHN E. ABDO - See "ELECTION OF DIRECTORS".
JASPER R. EANES joined BankAtlantic in January 1989 as Senior Vice President,
Director of Internal Auditing and became Executive Vice President, Chief
Financial Officer in August 1989. In 1994, became Executive Vice President,
Chief Financial Officer of BANC. Prior to joining BankAtlantic, he served as
Senior Vice President, Chief Financial Officer of Newport News Savings Bank,
Newport News, Virginia.
FRANK V. GRIECO joined BankAtlantic in April 1991 as a Director and Senior
Executive Vice President. For four years prior to joining BankAtlantic, he was
the sole proprietor of a financial consulting firm. In 1994, he became a
Director, Senior Executive Vice President and Secretary of BANC.
JOHN P. O'NEILL joined BankAtlantic in March 1986 as Vice President and Manager
of Branch Sales and Administration. He became Senior Vice President, Community
Banking in December 1986 and Executive Vice President, Retail Banking in June
1988. He was elected President in July 1991 and became a Director in August
1991, filling a vacancy on the Board. In 1994, he became a Director and
President of BANK.
LEWIS F. SARRICA joined BankAtlantic in April 1986 as Senior Vice President and
Senior Investment Officer. He became Executive Vice President, Chief Investment
Officer in December 1986. In August 1991, he assumed responsibility for the
Consumer Lending Division.
MARCIA K. SNYDER joined BankAtlantic in November 1987 as Senior Vice President,
Commercial Real Estate Department Head. She became Corporate Banking Department
Head in April 1989 and Executive Vice President, Commercial Lending in August
1989.
GERALD S. WATSON joined BankAtlantic in August 1989 and became Executive Vice
President and Director of Operations the same month. In August 1991, he assumed
the responsibility for the Management Information Systems Division. Prior to
joining BankAtlantic, he was Executive Vice President - Operations at Eagle
National Bank of Miami and Senior Vice President and Senior Operations Officer
at First American Bank & Trust, Lake Worth, Florida.
INVOLVEMENT IN CERTAIN LEGAL PROCEEDINGS
BFC and others, including Alan B. Levan, are parties in litigation entitled
"Timothy J. Chelling vs. BFC Financial Corporation, Alan B. Levan, I.R.E. Series
21, Corp., et al," in the U.S. District Court, Southern district of Florida,
Case No. 89-1850 "John D. Purcell and Debra A. Purcell vs. BFC Financial
Corporation, Alan B. Levan, I.R.E. Advisors Series 23 Corp., et al," in the U.S.
District court, Southern District of Florida, Case No. 89-1284; and, "William A.
Smith and Else M. Smith vs. BFC Financial Corporation, Alan B. Levan, I.R.E.
Advisors Series 24, Corp. et al," in the U.S. District Court, Southern District
of Florida, Case No. 89-1605. These actions were filed by the plaintiffs as
class actions during September 1989, June 1989 and August 1989, respectively.
The actions arose out of an Exchange Offer made by BFC to the limited partners
of the I.R.E. Real Estate Fund, Ltd. - Series 21, I.R.E. Real Estate Fund, Ltd.
- - - Series 23 and I.R.E. Real Estate Fund, Ltd. - Series 24. The plaintiffs were
limited partners of the above named partnerships who did not consent to the
Exchange Offer. The Exchange Offer was made through the solicitation of
consents pursuant to a Proxy Statement/Prospectus dated February 14, 1989 and
was approved by the holders of a majority of the limited partnership interests
of each of the partnerships in March 1989. Alan B. Levan served as an
individual general partner and was president of the corporate general partners
of each of the partnerships. The plaintiffs alleged that the Proxy
Statement/Prospectus contained material misstatements and omissions, that
defendants violated federal securities laws in connection with the Offer and
Exchange, that the Exchange breached the respective Limited Partners Agreement
and that the defendants violated the Florida Limited Partnership statute in
effectuating the Exchange. The complaint also alleged that the defendant
general partners violated their fiduciary duties to the plaintiffs.
The court granted summary judgment in favor of BFC, Mr. Levan and the other
defendants, ruling that the Exchange Offer did not violate the partnership
agreements of the Florida partnership statue. In July 1992, the court granted
an additional summary judgment in favor of the defendants and dismissed the
plaintiffs' claims for breach of fiduciary duty. Subsequently, the court
entered summary judgment or dismissals in favor of the defendants on all claims
of misinterpretations or omissions except with respect to the statement in the
Proxy Statement/Prospectus to the effect that BFC, Alan Levan and the corporate
general partners believed the Exchange transaction was fair. That issue was
tried in December 1992, and the jury returned a verdict in favor of the
plaintiffs in the amount of $8 million but extinguished approximately $16
million of debentures held by the plaintiffs. BFC and Mr. Levan do not believe
that the verdict was supported by the evidence at trial and appealed the
verdict. In July 1994, a settlement was reached between the parties, subject to
approval by the Courts in September 1994, whereby this litigation would be
settled for approximately the amounts indicated above and the litigation would
be dismissed with prejudice. If the settlement is approved and consummated, BFC
Financial Corporation will record a pre-tax gain of approximately $6 million.
EXECUTIVE COMPENSATION
The following table and the notes thereto set forth information with respect to
annual compensation paid by the Company and its subsidiaries, excluding
BankAtlantic, for services rendered in all capacities during the year ended
December 31, 1993 to each of the executive officers of the Company as well as
total annual compensation paid to each of those individuals for the prior two
years.
SUMMARY COMPENSATION TABLE
Annual Compensation Long-Term
Name and ------------------------ Incentive
Principal Position Year Salary Bonus Other Plan
- - ------------------------- -------- -------- -------- -------- --------
Alan B. Levan (1)
Chairman of the Board, 1993 $ 301,154 11,538 46,394 431
President and Chief 1992 302,307 - 448
Executive Officer 1991 563,940 - 374
Glen R. Gilbert
Senior Vice President, 1993 191,164 7,320 431
Chief Financial Officer 1992 188,165 - 448
and Secretary 1991 182,459 34,600 374
(1) Excludes salary and bonuses, respectively, paid by the Company's
principal subsidiary, BankAtlantic, in the amount of $263,853 and $101,517 for
1993, $259,614 and $14,274 for 1992 and $315,267 and $0 for 1991.
The foregoing table includes only executive officers of the Company and does not
include executive officers of the Company's principal subsidiary, BANC or
BankAtlantic. Executive officers of BANC and BankAtlantic do not have
significant executive responsibilities with respect to key policy decisions of
the Company.
OPTIONS/SAR GRANTS TABLE
No options were granted during 1993 to the above named executive officers. The
Company does not currently grant stock appreciation rights.
STOCK OPTION PLAN
On November 19, 1993, BFC Financial Corporation's stockholders approved a Stock
Option Plan under which options to purchase up to 250,000 shares of common stock
may be granted. The plan provided for the grant of both incentive stock options
within the meaning of Section 422 of the Internal Revenue Code of 1986, as
amended, and non-qualifying options not intended to meet the requirements of
Section 422 of the Internal Revenue Code. The Plan is administered by a
committee of the Board of Directors which, subject to the terms of the Plan,
determines to whom grants are made and the vesting, timing and amounts of such
grants. On November 22, 1993, in accordance with the terms of the Stock Option
Plan, non-qualifying stock options for 5,000 shares of common stock were
granted to each of the non-employee directors. The options were issued at $4.50
per share, the fair market value at the date of grant. No other options were
granted during 1993.
During 1994, options to purchase 215,000 shares of the Company's Common Stock
were issued at exercise prices ranging from $4.50 to $4.95 per share (in each
case equal to or in excess of the fair market value of the Common Stock as of
the dates of grant). The following table indicates options outstanding and
exercisable as of July 31, 1994 under the Plan.
Options
Options Currently
Name Outstanding Exercisable
- - ---------------- ----------- -----------
Alan B. Levan 100,000 33,333
Earl Pertnoy 5,000 1,666
Carl E.B. McKenry 5,000 1,666
John E. Abdo 100,000 33,333
Glen R. Gilbert 15,000 5,000
The Company's subsidiary, BANC maintains a Key Employee's Stock Option Plan
pursuant to which key employees of BANC and its subsidiaries are eligible to
receive grants of options of BANC common stock. Other than Alan B. Levan and
John E. Abdo, none of the officers, directors or employees of the Company
participate in the Key Employee's Stock Option Plan.
LONG-TERM INCENTIVE PLAN ("LTIP") AWARDS TABLE
PROFIT SHARING PLAN
The Company has made available a profit-sharing plan to all employees (other
than employees BANC or its subsidiaries) who meet certain minimum requirements.
The Company is not required to make any contribution and the amount of the
Company's contribution is determined each year by the Board of Directors. It
requires a uniform allocation to each employee of 0% to 15% of compensation
(maximum compensation considered is $50,000). Vesting is in increments over a
7-year period to 100%. Alan B. Levan and Glen R. Gilbert are 100% vested in the
amount indicated below as "Threshold, Target and
Maximum".
Performance
Amount of Period Threshold,
Award in Until Target
Name 1993 Payment and Maximum
------------- -------- ----------- -----------
Alan B. Levan $ 431 1993 $ 56,279
Glen R. Gilbert 431 1993 44,438
BANKATLANTIC BONUS PLAN
Subject to receipt of required regulatory approval, BankAtlantic had in previous
years agreed to pay its executives long term compensation. Such deferred
compensation was generally equal to $100,000 on the fifth and tenth anniversary
of an established date relating to the individual's election to an executive
position and $50,000 a year beginning on the eleventh anniversary and ending on
the twentieth anniversary or age 65, whichever occurred first. John E. Abdo had
a similar plan except his deferred compensation was equal to $25,000 on the
fifth and tenth anniversary, and $12,500 a year beginning on the eleventh
anniversary and ending on the twentieth anniversary or age 65, whichever occurs
first. Such compensation was payable only if their employment continued through
the relevant anniversary date and such agreement did not obligate BankAtlantic
to employ any of these individuals during the periods giving rise to the
payment. This plan was terminated on June 30, 1993. No payments were made to
Mr. Levan or Mr. Abdo upon termination of the plan, but, Mr. Levan and Mr. Abdo
received bonuses from BankAtlantic of $100,000 and $25,000, respectively, based
on 1993 performance.
DEFINED BENEFIT OR ACTUARIAL PLAN DISCLOSURE
BANKATLANTIC RETIREMENT PLAN
BankAtlantic maintains a qualified noncontributory defined benefit pension plan
for all of its employees (the "Pension Plan"). The Pension Plan is administered
by a Retirement Sub-Committee of the Benefits Committee appointed by the Board
of Directors of BankAtlantic. When an employee is hired by BankAtlantic, the
employee becomes eligible to participate in the pension plan when the employee
has completed 1,000 hours of service at December 31 and is at least 21 years
old.
The pension plan provides in general for monthly payments to or on behalf of
each covered employee upon such employee's retirement (with provisions for early
or postponed retirement), death or disability. The amount of the monthly
payments is based generally upon the employee's average regular monthly
compensation from BankAtlantic for the highest consecutive five years of the
last ten years prior to retirement, death or disability, and upon such
employee's years of service with BankAtlantic. Benefits under the pension plan
vest fully upon completion of five years of service. Benefits are payable on a
basis of ten-year certain and life thereafter. The benefits are not subject to
any deduction for Social Security or other offset amounts. At December 31,
1992, both Mr. Levan and Mr. Abdo were fully vested under the Pension Plan.
The following table illustrates annual pension benefits at age 65 for various
levels of compensation and years of services.
Estimated Annual Benefits
Average Annual Years of Credited Service
Compensation --------------------------------------
at Retirement 5 Years 10 Years 20 Years 30 Years 40 Years
- - -------------- -------- ------- -------- -------- --------
$ 40,000 3,380 6,760 13,520 20,280 27,160
80,000 6,880 13,760 27,520 41,280 55,160
120,000 10,380 20,760 41,520 62,280 83,160
160,000 13,880 27,760 55,520 83,280 111,160
200,000 17,380 34,760 69,520 104,280 118,800 *
240,000 20,880 41,760 83,520 118,800 * 118,800 *
280,000 24,380 48,760 97,520 118,800 * 118,800 *
~~~~~~~~~~~~~~~~~~
*Current maximum benefit permissible prior to enactment of OBRA. OBRA includes
a provision which now limits an employee's compensation that may be taken into
account in determining the employee's benefit under the Pension Plan to $150,000
per year. The Pension Plan will be amended to reflect this provision.
COMPENSATION COMMITTEE INTERLOCKS AND INSIDER PARTICIPATION
BFC Financial Corporation's Board of Directors served as the Compensation
Committee for BFC Financial Corporation during 1993. During 1993, there were no
increases in base salaries for executive officers including the CEO. Mr. Levan
and Mr. Abdo serve on the Board of Directors and as such would have participated
in decisions by BFC Financial Corporation's Board of Directors regarding
compensation of its executives.
Additionally, Alan B. Levan and John E. Abdo serve as directors of BankAtlantic.
Mr. Levan is Chief Executive Officer and Chairman of the Board of Directors of
BankAtlantic and Mr. Abdo is Vice Chairman of BankAtlantic's Board of Directors.
Prior to 1993, BankAtlantic's Board of Directors served as the Compensation
Committee for BankAtlantic and Mr. Levan and Mr. Abdo participated in decisions
by BankAtlantic's Board of Directors regarding compensation of its executives.
STOCK PERFORMANCE GRAPH AND COMPENSATION COMMITTEE REPORT
Notwithstanding contrary statements set forth in any of the Company's previous
filings under the Securities Act of 1933 or the Securities Exchange Act of 1934
that might incorporate future filings, including this proxy statement, the Stock
Performance Graph and the Compensation Committee Report set forth below shall
not be incorporated by reference into such filings.
STOCK PERFORMANCE GRAPH
The following graph provides an indicator of cumulative total stockholder
returns for the Company as compared with the Total Return Index for the NASDAQ
Stock Market (U.S. companies) and Total Return Index for the NASDAQ Financial
Stocks:
FIVE YEAR PERFORMANCE COMPARISON
12/31/88 1989 1990 1991 1992 1993
-------- ----- ----- ----- ----- -----
BFC Financial Corporation 100 116 29 14 42 95
NASDAQ Stock Market 100 121 103 165 192 219
NASDAQ Financial Stocks 100 115 88 136 195 226
*Assumes $100 invested on January 1, 1989 with all dividends reinvested.
COMPENSATION COMMITTEE REPORT
The entire Board of Directors acting as a Compensation Committee has provided
the following Report:
EXECUTIVE MANAGEMENT COMPENSATION
GENERAL - A new Compensation Committee of the Board of Directors (the
"Committee") was formed effective January 1, 1994 which is composed entirely of
outside directors. The entire Board of Directors acted as the Compensation
Committee for 1993. The primary focus of the Committee is to develop and
implement compensation policies, plans and programs relating to compensation of
BFC Financial Corporation's executive group.
EXECUTIVE OFFICER COMPENSATION - The Committee believes that executive
compensation levels in 1993 were substantially within market ranges for
comparable positions at financial institution holding companies comparable in
size to BFC Financial Corporation. During 1991, the CEO took an annual salary
reduction equal to 49% of his pay, reducing his compensation to $300,000.
During 1992 and 1993, none of the executive officers received any salary
increases, other than a bonus equivalent to two weeks salary that was paid to
all employees in lieu of a salary increase.
EXECUTIVE COMPENSATION POLICY - BFC Financial Corporation's overall
compensation philosophy is to attract and retain quality personnel, which is
critical to both the short-term and long-term success of BFC Financial
Corporation.
BASE COMPENSATION - BFC Financial Corporation's approach to base compensation
is to offer competitive salaries in comparison to market practices. During 1993
base salaries for all executives, including the CEO, were frozen at 1992 levels
as a part of BFC Financial Corporation's efforts to reduce expenses.
In setting base compensation, market compensation levels and trends in the labor
market are observed. Market information is used as a frame of reference for
annual salary adjustments.
STOCK OPTIONS - During 1993 stockholders approved the BFC Financial Corporation
Stock Option Plan. The only options issued during 1993 related to the automatic
grant of options to the non-employee directors in connection with the approval
of the stock option plan. During 1994, stock options were granted to executive
officers. All of the stock options granted were granted with an exercise price
equal to at least 100% of the market value of BFC Financial Corporation Common
Stock on the date of the grant. As such, the stock options will only have value
if the value of BFC Financial Corporation Common Stock increases. The granting
of options is totally discretionary and options are awarded based on an
assessment of an employee's contribution to the success and growth of the
Company. Grants of stock options to executive officers are generally made upon
the recommendation of the chief executive officer based on the level of an
executive's position with the Company, an evaluation of the executive's past and
expected performance, the number of outstanding and previously granted options
and discussions with the executive. The Committee believes that providing
executives with opportunities to acquire an interest in the growth and
prosperity of BFC Financial Corporation through the grant of stock options will
enable BFC Financial Corporation to attract and retain qualified and experienced
executive officers. The Committee believes that dependence on stock options for
a portion of executive compensation more closely aligns the executives'
interests with those of BFC Financial Corporation stockholders, since the
ultimate value of such compensation is directly dependent on the stock price.
CEO COMPENSATION - The Committee reviews and fixes the base salary of the Chief
Executive Officer based on the factors described above with respect to all
executive officers as well as the Committee's assessment of past performance and
its expectation as to future contributions in leading BFC Financial Corporation.
In 1991, as part of BFC Financial Corporation's efforts to reduce expenses, Mr.
Levan took a salary reduction of $288,500 or 49% of his then existing salary and
he participated in a base salary freeze at the reduced 1991 levels during 1992
and 1993.
1993 OBRA - EXECUTIVE COMPENSATION TAX DEDUCTIBILITY. The Omnibus Budget
Reduction Act ("OBRA") of 1993 included a provision which eliminates a company's
tax deduction for any compensation over one million dollars paid to any one of
the executives who appear in the Summary Compensation Table, subject to several
statutory exceptions. The Committee is studying this issue and following
developments relating to the promulgation of applicable regulations. However,
based on the proposed regulations and transition rules, the Committee does not
anticipate additional tax exposure based on BFC Financial Corporation's
executive compensation program.
The above report was submitted by Alan B. Levan, John E. Abdo, Earl Pertnoy and
Carl E.B. McKenry.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
TRANSACTIONS WITH MANAGEMENT AND OTHERS
During the year ended December 31, 1993, the Company provided the following
services for and received reimbursements from the entity indicated, for the
amounts indicated:
Amount of Fee
or Payment
Name and Relationship to the Company Transaction or Accrual
- - ------------------------------------ ---------------- -------------
I.R.E Pension Investors, Ltd. Property management $ 64,170
(Managing General Partner is Administrative and
subsidiary of the Company) accounting services 63,987
CERTAIN BUSINESS RELATIONSHIPS
Alan B. Levan, the President and a director of the Company, is also President
and a director of I.R.E. Properties, Inc., I.R.E. Realty Advisory Group, Inc.
and Florida Partners Corporation. Mr. Levan is also Chairman of the Board and
Chief Executive Officer of BANC and BankAtlantic. Mr. Levan is also a
shareholder of I.R.E. Properties, Inc. and may be deemed to be a controlling
shareholder of the Company. Mr. Levan, Earl Pertnoy and Carl McKenry serve on
the Board of Directors of the managing general partners of certain affiliated
public limited partnerships. John E. Abdo, a director and Vice Chairman of the
Board of the Company is Vice Chairman of the Board of BANC and BankAtlantic.
Management believes that all transactions between the Company and its affiliates
were on terms at least as favorable as could have been obtained from
unaffiliated third parties.
INDEBTEDNESS OF MANAGEMENT
BankAtlantic, in the ordinary course of its business, makes home improvement,
mortgage and other installment loans to its employees, officers and directors.
These loans are made pursuant to normal lending criteria and in BankAtlantic
management's judgment, do not involve more than the normal risk of
collectability or present any other unfavorable features. Employees, officers
and directors of BankAtlantic previously received a preferential interest rate
on home mortgage loans. BankAtlantic's current policy with respect to mortgages
made to employees is to charge current market rates and reduce the points by 1/2
of 1%. BankAtlantic's current policy with respect to employee installment loans
provides that the interest rate on installment loans is equal to the current
market rate applicable to the particular loan less 1%. This rate remains in
effect after any termination of employment. Effective May 31, 1990, executive
officers and directors have not been entitled to reduced rates on any new loans
granted. None of the executive officers or directors of the Company have been
indebted to BankAtlantic or to the Company for an amount exceeding $60,000 at
any time within the past fiscal year.
STOCKHOLDER APPROVAL OF AMENDMENT TO
BFC FINANCIAL CORPORATION STOCK OPTION PLAN
DESCRIPTION OF THE BFC FINANCIAL CORPORATION STOCK OPTION PLAN
The BFC Financial Corporation Stock Option Plan (the "Plan") was established by
the Company in 1993 to provide the Company with an effective means to compensate
and motivate employees of the Company. The Plan is designed to comply with the
requirements of Section 16(b) of the Securities Exchange Act of 1934, and was
adopted in its current form by the stockholders of the Company in November 1993.
SHARES SUBJECT TO THE PLAN
A maximum of 250,000 shares of Common Stock were issuable under the Plan, and as
of July 31, 1994, 25,000 shares remained available for issuance under the Plan.
Additional shares may become available for issuance under the Plan, however, to
the extent any granted stock options expire or become unexercisable for any
reason without having been exercised in full.
ADMINISTRATION
The Plan provides that it will be administered by a Committee appointed by the
Board of Directors of the Company. The Committee shall consist of not less than
two members of the Board of Directors, each of whom will be a disinterested
person as defined in Rule 16b-3. The Committee has the authority, in its
discretion to (i) select grantees, (ii) determine the nature, amount, time and
manner of issuance of awards made under the Plan and the terms and conditions
applicable thereto, (iii) interpret the Plan and (iv) make all other
determinations deemed necessary or advisable for the administration of the Plan.
Messrs. McKenry and Pertnoy serve as the Committee for administration of the
Plan.
PARTICIPATION
Incentive stock options may be granted only to employees. Nonqualified stock
options may be granted to employees as well as Directors, independent
contractors and agents, as determined by the Committee. Any person who has been
granted an option may, if he is otherwise eligible, be granted an additional
option or options.
OPTIONS
Stock options will be exercisable at such time following the date of grant as
may be determined by the Committee administering the Plan. The option price may
not be less than 100% of the fair market value of the Common Stock on the date
the option is granted. In order to exercise an option, in whole or in part, the
grantee must give written notice to the Company's Secretary accompanied by full
payment in cash, check, promissory note or, if the grantee elects, with the
approval of the Committee, in shares of Common Stock having a fair market value
on the date of exercise equal to the purchase price, or a combination of the
foregoing. As noted above, the Plan provides for the delivery of shares of
already owned Common Stock as payment of the option price. Accordingly, if the
shares owned by an option holder have a market value greater than the exercise
price of the option, the owner may exchange the shares held by him for a larger
number of lower priced option shares by applying the market value determined by
the Committee of the shares owned by him towards payment of the option price.
Stock options shall in all cases terminate and will not be exercisable after the
expiration of the term of the option and may, except in certain circumstances,
only be exercised if the grantee at the time of exercise is an employee of the
Company or a subsidiary. In the case of termination, the option shall be
exercisable for a period of thirty days unless termination is as a consequence
of physical or mental disability in which case the option may be exercised for a
period of up to twelve months after termination. Further, in the event of an
employee's death, the option may be exercised for twelve months following
termination of employment. If death occurs within thirty days following
termination, the option may be exercised for up to three months following death.
The Plan states that the Committee may provide for the immediate exercise of any
unvested stock options in the event of a tender offer or exchange offer for the
Company's Common Stock.
FEDERAL INCOME TAX CONSEQUENCES
Incentive Stock Options. The grant of an incentive stock option has no
immediate tax consequences to the optionee or to the Company. The exercise of
an incentive stock option generally has no immediate tax consequences to the
optionee (except to the extent it is an adjustment in computing alternative
minimum taxable income) or to the Company. If an optionee holds the shares
acquired pursuant to the exercise of an incentive stock option for the required
holding period, the optionee generally recognizes long-term capital gain or loss
upon a subsequent sale of the shares in the amount of the difference between the
amount realized upon sale and the exercise price of shares. In such a case, the
Company is not entitled to a deduction in connection with the grant or exercise
of the incentive stock option or the sale of shares acquired pursuant to such
exercise. If, however, an optionee disposes of the shares prior to the
expiration of the required holding period, the optionee recognizes ordinary
income equal to the excess of the fair market value of the shares on the date of
exercise (or the proceeds of disposition, if less) over the exercise price, and
the Company is entitled to a corresponding deduction if applicable withholding
requirements are satisfied. The required holding period is two years from the
date of grant and one year after the date of issuance of the shares. The tax
basis of the shares received upon exercise will be equal to the amount paid as
the exercise price plus the amount, if any, included in gross income as
compensation income.
Non-qualified options. The grant of non-qualified stock options has no
immediate tax consequences to the optionee or the Company. Upon the exercise of
the non-qualified stock option, the optionee recognizes ordinary income in the
amount equal to the excess of the fair market value of the shares on the date of
exercise over the exercise price, and the Company is entitled to a corresponding
deduction if applicable withholding requirements are satisfied. The optionee's
tax basis in the shares will be equal to the exercise price plus the amount of
ordinary income recognized by the optionee, and the optionee's holding period
will commence on the date the shares are received. Upon a subsequent sale of
the shares, any difference between the optionee's tax basis in the shares and
the amount realized on the sale is treated as long-term or short-term capital
gain or loss, depending on the holding period of the shares and assuming the
shares are held as capital assets.
OPTIONS GRANTED UNDER THE PLAN
As of July 30, 1994, options to purchase 225,000 shares of Common Stock were
outstanding and exercisable at exercise prices ranging from $4.50 per share to
$4.95 per share (in each case equal to or in excess of the fair market value of
the Common Stock as of the dates of grant). As of July 31, 1994, 25,000 shares
of Common Stock remained eligible for grant under the Plan. As of July 29,
1994, the market value of the Common Stock was $1.75 bid, $3.75 asked, as
reported by the National Quotation Bureau, Incorporated.
The table below indicates, as of July 31, 1994, the aggregate number of options
granted under the Plan since its inception to the persons and groups indicated,
and the number of outstanding options held by such persons and groups as of such
date.
Name of Individual Position with Options Options
or Group BFC Financial Corporation Granted Outstanding
- - ------------------ ------------------------- ----------- -----------
John E. Abdo Director, Vice Chairman 100,000 100,000
of the Board
Glen R. Gilbert Senior Vice President, Chief 15,000 15,000
Financial Officer, Secretary
Alan B. Levan President, Chairman of the 100,000 100,000
Board, Director
Carl E.B. McKenry Director 5,000 5,000
Earl Pertnoy Director 5,000 5,000
- - --------
All current executive officers 215,000 215,000
All current directors who
are not executive officers 10,000 10,000
All employees, other than
executive officers 0 0
AMENDMENTS TO THE PLAN
On August 2, 1994, the Board of Directors unanimously approved, subject to the
approval of the Company's stockholders, amendments to the Plan (I) to increase
the number of shares issuable pursuant to the Plan from 250,000 shares to
500,000 shares and (ii) to attempt to ensure that the Plan meets the
requirements for deductibility under the Internal Revenue Code. A copy of the
entire text of BFC Financial Corporation's Stock Option Plan, marked to indicate
the proposed revisions to the Plan, is attached to this Proxy Statement as
Exhibit A. The foregoing summary of the Plan and principal provisions of the
Proposed amendments are subject in all respects to the attached full text of the
proposed revised Plan.
The purpose of increasing the number of shares available for issuance under the
Plan is to ensure that the Company will continue to be able to grant options as
incentives to and compensation for those individuals upon whose efforts the
Company relies for the continued success and development of its business. The
purpose of the other proposed amendment to the Plan is to comply with the
requirements for deductibility under the Internal Revenue Code.
The Internal Revenue Service (the "IRS") recently issued proposed regulations
providing guidance with respect to new Internal Revenue Code Section 162 (m),
which generally places limitations on the deduction a publicly held corporation
may take for compensation paid to its Chief Executive Officer and each of the
four other most highly compensated executive officers (a "Covered Officer").
The proposed regulations, among other things, set forth the requirements that
must be satisfied for compensation to be treated as "performance-based" and
therefore outside the limitations. Under the proposed regulations, compensation
attributable to a stock option will generally be deemed to satisfy the
applicable performance based requirements if: (i) the grant is made by a
compensation committee comprised solely of two or more "outside directors", (ii)
the plan under which the grant is made includes a per-employee limit on the
number of shares with respect to which options may be granted during a specified
period, and (iii) the amount of compensation the employee could receive pursuant
to the terms of the option is based solely on an increase in the value of the
stock after the date of the grant (i.e., the exercise price is equal to or
exceeds the fair market value of the underlying stock as of the date of the
grant). An "outside director" is a director who (i) is not a current employee,
(ii) is not a former employee who receives compensation for prior services
during the taxable year, (iii) has not been an officer of the Company and (iv)
does not receive remuneration, either directly or indirectly, in any capacity
other than as a director.
The Plan, as currently in effect, does not limit the number of non-qualified
stock options which may be issued to an employee. Additionally, while the Plan
provides that it be administered by a committee comprised of not less than two
members of the Board of Directors, each of whom must be a disinterested person
as defined in Rule 16b-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), it does not incorporate the definition of an "outside
director" which may be more restrictive in that it also requires that no
remuneration be received by the director from the Company, directly or
indirectly, in any capacity other than as a director. The proposed amendments
to the Plan will limit the number of stock options which may be granted to any
individual employee in any given year to options covering not more than 100,000
shares of Company Common Stock and require that the Committee be comprised
solely of two or more members of the Board of Directors, each of whom must be a
"disinterested person" as defined for purposes of Internal Revenue Code Section
162(m). By adopting these revisions, the Board believes that options granted
under the Plan should satisfy the requirements for deductibility under Section
162(m) of the Internal Revenue Code.
GENERAL
The affirmative vote of a majority of the shares, represented in person or by
proxy, cast at the Annual Stockholders' Meeting is required to approve the
proposal to amend the Plan. The Board of Directors believes that the Company's
interests will be served by adopting the proposed amendments to the Plan,
including the proposal to increase the number of shares available for issuance
under the Plan. To remain competitive in attracting and retaining qualified
employees and to continue to provide such employees proper motivation and
incentives, the Board of Directors believes that the proposed amendments should
be approved. Additionally, loss of the federal income tax deduction for any
compensation in excess of $1 million paid to any of the Covered Officers,
attributable to stock options, would result in a higher income tax liability for
the Company and a resulting decrease in after-tax earnings.
The Board of Directors recommends that stockholders vote FOR the proposal.
Unless a contrary direction is given, the persons named as proxy-holders intend
to vote FOR the proposal to amend the Plan.
OTHER MATTERS
The Board of Directors of the Company does not know of any other matters that
are to be presented for action at the meeting. Should any other matter come
before the meeting, however, the persons named in the enclosed Proxy shall have
discretionary authority to vote all shares represented by valid proxies with
respect to such matter in accordance with their judgment.
APPOINTMENT OF INDEPENDENT AUDITORS
The Board of Directors has reappointed KPMG Peat Marwick as independent auditors
to audit the financial statements of BFC Financial Corporation for the current
fiscal year.
Representatives of the firm of KPMG Peat Marwick are expected to be present at
the Annual Meeting and will have an opportunity to make a statement if they so
desire and will be available to respond to appropriate questions.
* * * * * * * * * * * * * * * * * * * * * * * * * * *
By Order of the Board of Directors
/s/ Glen R. Gilbert
Glen R. Gilbert
Secretary
September 2, 1994
A COPY OF THE FORM 10-K AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
WILL BE FURNISHED WITHOUT CHARGE TO BENEFICIAL OWNERS OF THE COMPANY'S COMMON
STOCK AS OF THE RECORD DATE UPON WRITTEN REQUEST TO GLEN R. GILBERT, SECRETARY,
BFC FINANCIAL CORPORATION, P.O. Box 5403, Fort Lauderdale, FL 33310-5403.
MARKED TO INDICATE CHANGES IF THE PROPOSED AMENDMENT IS ADOPTED
DELETED TEXT IS ENCLOSED BY ['S AND ]'S
ADDED TEXT IS ENCLOSED BY <'S AND >'S
EXHIBIT A
BFC FINANCIAL CORPORATION STOCK OPTION PLAN
1. PURPOSES. The purposes of this Stock Option Plan (the "Plan") are to attract
and retain the best available personnel for positions of substantial
responsibility, to provide additional incentive to the Employees of the Company
or its Subsidiaries (as defined in Section 2 below) as well as other individuals
who perform services for the Company and its Subsidiaries, and to promote the
success of the Company's business. Options granted hereunder may be either
"incentive stock options", as defined in section 422 of the Internal Revenue
Code of 1986, as amended, or "nonqualified stock options", at the discretion of
the Committee (as defined in Section 2 below) and as reflected in the terms of
the written option agreement.
2. DEFINITIONS. As used herein, the following definitions shall apply:
<(a) "Code" shall mean the Internal Revenue Code of 1986, as amended.>
(b) "Common Stock" shall mean the Common Stock of the Company (see Section
9 below).
(c) "Company" shall mean BFC Financial Corporation, a Florida corporation.
(d) "Committee" shall mean the Committee appointed by the Board of
Directors in accordance with paragraph (a) of Section 4 of the Plan.
(e) "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.
(f) "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.
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(h) "Incentive Stock Option" shall mean a stock option intended to qualify
as an incentive stock option within the meaning of Section 422 of the [Internal
Revenue] Code [of 1986, as amended].
(i) "Nonqualified Stock Option" shall mean a stock option not intended to
qualify as an Incentive Stock Option.
(j) "Option" shall mean a stock option granted pursuant to the Plan.
(k) "Optioned Stock" shall mean the Common Stock subject to an Option.
(l) "Optionee" shall mean an Employee or other person who receives an
Option.
(m) "Parent" shall mean a "parent corporation", whether now or hereafter
existing, as defined in Section 424(e) of the [Internal Revenue] Code [of 1986,
as amended].
(n) "Rule 16b-3" shall mean Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act or any successor rule.
(o) "Share" shall mean a share of the Common Stock, as adjusted in
accordance with section 12 of the plan.
(p) "Subsidiary" shall mean a "subsidiary corporation", whether now or
hereafter existing, as defined in Section 424(f) of the [Internal Revenue] Code
[of 1986, as amended].
3. STOCK. Subject to the provisions of Section 12 of the Plan, the maximum
aggregate number of shares which may be Optioned and sold under the Plan is
<Five Hundred Thousand (500,000)> [Two Hundred Fifty Thousand (250,000)] shares
of authorized, but unissued, or reserved $.01 par value Common Stock. If an
Option should expire or become unexercisable for any reason without having been
exercised in full, the unpurchased Shares which were subject thereto shall,
unless the Plan shall have been terminated, become available for further grant
under the Plan.
4. ADMINISTRATION.
(a) Procedure. The Plan shall be administered by a Committee appointed by
the Company's Board of Directors. The Committee shall consist of not less than
two members of the Board of Directors, each of whom will be a "disinterested
person" as defined in Rule 16b-3 <and an "outside director" as defined for
purposes of Section 162(m) of the Code>. Once appointed, the Committee shall
continue to serve until otherwise directed by the Board of Directors. From time
to time the Board of Directors 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 that two (2)
members of the Board of Directors administer the plan, and provided, further,
that all members of the Committee must be "disinterested persons" as defined in
Rule 16b-3 <and an "outside director" as defined for purposes of Section 162(m)
of the Code>.
(b) Powers of the Committee. Subject to the provisions of the Plan,
including, without limitation, Section 6 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 [Internal Revenue] Code [of 1986, as
amended], or to grant Nonqualified Stock Options;(ii) to determine, upon review
of relevant information and in accordance with Section 9(b) of the Plan, the
fair market value of the Common Stock; (iii) to determine the exercise price per
share of Options to be granted which exercise price shall be determined in
accordance with section 9(a) of the Plan; (iv) to determine the persons whom,
and the time or times at which, Options shall be granted and the number of
shares to be represented by each Option; (v) to interpret the Plan; (vi) to
prescribe, amend and rescind rules and regulations relating to the Plan; (vii)
to determine the terms and provisions of each Option granted (which need not be
identical) and, with the consent of the holder thereof, modify or amend each
Option; (viii) to accelerate or defer (with the consent of the Optionee) the
exercise date of any Option; (ix) to authorize any person to execute on behalf
of the Company any instrument required to effectuate the grant of an Option
previously granted by the Committee; and (x) 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 and
any other holders of any Options granted under the Plan.
5. ELIGIBILITY. Incentive Stock Options may be granted only to Employees.
Nonqualified Stock Options may be granted to Employees as well as Directors (in
accordance with the provisions of Section 6 of the Plan), independent
contractors and agents, as determined by the Committee. Any person who has been
granted an Option may, if he is otherwise eligible, be granted an additional
Option or Options. <Subject to the provisions of Section 12 of the Plan, the
maximum number of shares with respect to which options may be granted under the
Plan to any employee in any calendar year is 100,000 shares.>
No Incentive Stock Option may be granted to an Employee if, as the result of
such grant, the aggregate fair market value (determined at the time each option
was granted) of the Shares with respect to which such Incentive Stock Options
are exercisable for the first time by such Employee during any calendar year
(under all such plans of the Company and any Parent and Subsidiary) shall exceed
one hundred thousand dollars ($100,000).
The plan shall not confer upon any Optionee any right with respect to
continuation of employment by the Company, nor shall it interfere in any way
with his right or the Company's right to terminate his employment at any time.
6. AUTOMATIC GRANT OF OPTION TO NON-EMPLOYEE DIRECTORS. Each person who is a non
Employee director of the Company on the day following the 1993 Annual Meeting of
Stockholders of the Company shall automatically receive on such date an Option
to acquire 5,000 Shares of the Company's Common Stock. The number of Shares
subject to the Options to be granted under this Section 6, shall be adjusted in
the event of a stock split or payment of a stock dividend in accordance with the
provisions of Section 12 of the Plan as if such Options were outstanding on the
record date with respect to such events, provided, however, that such adjustment
shall not be applicable to any stock split or stock dividend declared or
recommended by the Board of Directors of the Company at or prior to the 1993
Annual Meeting of Stockholders of the Company. The per Share exercise price for
the Shares to be issued pursuant to options granted under this Section 6 shall
be as set forth in Section 9 (a)(ii) of the Plan. The foregoing formula may not
be amended more than once every six months other than to comport with changes in
the [Internal Revenue] Code [of 1986, as amended], or the rules thereunder. Non
Employee directors shall have the right, if they so wish, to decline receipt of
any options to be granted under this Section 6 of the Plan.
7. TERM OF PLAN. The Plan shall become effective upon the earlier to occur of
(i) its adoption by the Board of Directors, or (ii) its approval by shareholders
as per Section 18 of the Plan. The Plan shall continue in effect until December
31, 2004 unless sooner terminated under Section 14 of the Plan.
8. TERM OF OPTION. The term of each Option shall be ten (10) years from the date
of grant thereof or such shorter term 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.
9. 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 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.
(ii) 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 and, with respect to Options granted to non-
Employee directors as provided in Section 6 of the Plan, shall be equal to one
hundred percent (100%) of the fair market value per Share on the date of the
grant.
(b) Determination of Fair Market Value. The fair market value shall be
determined by the Committee in its discretion; provided, however, that where
there is a public market for the Common Stock, the fair market value per Share
shall be the mean of the bid and asked prices or, if applicable, the closing
price of the Common Stock for the date of grant, as reported in the Wall Street
Journal (or, if not so reported, as otherwise reported by the National
Association of Securities Dealers Automated Quotation [NASDAQ] System) or, in
the event the Common Stock is listed on a stock exchange, the fair market value
per Share shall be the closing price on such exchange on the date of grant of
the Option, as reported in the Wall Street Journal.
(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 Common 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 Florida Law.
10. 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 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 9 (c) of the Plan. Until the issuance, which in
no event will be delayed more than thirty (30) days from the date of the
exercise of the Option, (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company) of the stock
certificate evidencing such Shares, 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. If any Employee ceases to serve
as an Employee, he may, but only within thirty (30) days (or such other period
of time not exceeding three(3) months as is determined by the Committee) after
the date he ceases to be an Employee of the Company, exercise his Option to the
extent that he was entitled to exercise it as of the date of such termination.
To the extent that he was not entitled to exercise the Option at the date of
such termination, or if he does not exercise such Option (which he was entitled
to exercise) within the time specified herein, the Option shall terminate.
(c) Disability of Optionee. Notwithstanding the provisions of Section
10(b) above, in the event an Employee is unable to continue his employment with
the Company as a result of his total and permanent disability (as defined in
Section 22(e)(3) of the [Internal Revenue] Code [of 1986, as amended]), he may,
but only within three (3) months (or such other period of time not exceeding
twelve (12) months as is determined by the Committee) from the date of
disability, exercise his Option to the extent he was entitled to exercise it at
the date of such disability. To the extent that he was not entitled to exercise
the Option at the date of disability, or if he does not exercise such Option
(which he 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 who is at the time of his death an
Employee of the Company 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 following the date of death, by the
Optionee's estate or by a person who acquired the right to exercise the Option
by bequest or inheritance, 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) 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 or
by a person who acquired the right to exercise the Option by bequest of
inheritance, but only to the extent of the right to exercise that had accrued at
the date of termination.
11. NON-TRANSFERABILITY OF OPTIONS. The Option may not be sold, pledged,
assigned, hypothecated, transferred, or disposed of in any manner other than by
will or by the laws of descent or distribution may be exercised, during the
lifetime of the Optionee, only by the Optionee.
12. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any
required action by the shareholders of the Company, the number of shares of
Common Stock covered by each outstanding Option, and the number of shares of
Common Stock which have been authorized for issuance under the Plan but as to
which no Options have yet been granted or which have been returned to the Plan
upon cancellation or expiration of an Option, as well as the price per share of
Common Stock covered by each such outstanding Option, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split or the payment of a stock dividend with
respect to the Common Stock or any other increase or decrease in the number of
issued shares of Common Stock effected without receipt of consideration by the
Company; provided, however, that conversion of any convertible securities of the
Company shall not be deemed to have been "effected without receipt of
consideration." Such adjustment shall be made by the Committee or the Board of
Directors of the Company, whose determination in that respect shall be final,
binding and conclusive. Except as expressly provided herein, no issuance by the
Company of shares of stock of any class, or securities convertible into shares
of stock of any class, shall affect, and no adjustment by reason thereof shall
be made with respect to, the number or price of shares of Common Stock subject
to an Option.
In the event of the proposed dissolution or liquidation of the Company, or in
the event of a proposed sale of all or substantially all of the assets of the
Company, or the merger of the Company with or into another corporation, the
Option will terminate immediately prior to the consummation of such proposed
action, unless otherwise provided by the Committee or the Board of Directors of
the Company. The Committee or the Board of Directors of the Company may, in the
exercise of its sole discretion in such instances, declare that any Option shall
terminate as of a date fixed by the Committee or the Board of Directors of the
Company and give each Optionee the right to exercise his Option as to all or any
part of the Optioned Stock, including Shares as to which the Option would not
otherwise be exercisable.
13. TIME FOR GRANTING OPTIONS. The date of grant of an Option shall, for all
purposes, be the date on which the Committee makes the determination granting
such Option. Notice of the determination shall be given to each Employee to
whom an Option is so granted within a reasonable time after the date of such
grant.
14. AMENDMENT AND TERMINATION OF THE PLAN.
(a) Committee Action; Stockholders' Approval. Subject to the limitations
set forth in Section 6 of the Plan, the Committee may amend or terminate the
Plan from time to time in such respects as the Committee may deem advisable;
provided that, the following revisions or amendments shall require approval of
the holders of a majority of the outstanding shares of the Company entitled to
vote: (i) any increase in the number of Shares subject to the Plan, other than
in connection with an adjustment under Section 12 of the Plan; (ii) any change
in the designation of the class of persons eligible to be granted options;
<(iii) any increase in the maximum number of shares with respect to which
options may be granted to an Employee;> or (iv) any material increase in the
benefits accruing to participants under the Plan.
(b) Shareholder Approval. If any amendment requiring shareholder approval
under Section 14(a) of the Plan is made, such shareholder approval shall be
solicited as described in Section 18 of the Plan.
(c) Effect of Amendment or Termination. Any such amendment or termination
of the Plan shall not affect Options already granted and such Options shall
remain in full force and effect as if this Plan had not been amended or
terminated, unless mutually agreed otherwise between the Optionee and the
Committee, which agreement must be in writing and signed by the Optionee and the
Company.
15. CONDITIONS UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to
the exercise of an Option unless the exercise of such Option and the issuance
and delivery of such Shares pursuant thereto shall comply with all relevant
provisions of law, including, without limitation, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the Shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an Option, the Company may require the person
exercising such Option to represent and warrant at the time of any such exercise
that the Shares are being purchased only for investment and without any present
intention to sell or distribute such Shares if, in the opinion of counsel for
the Company, such a representation is required by any of the aforementioned
relevant provisions of law.
16. RESERVATION OF SHARES. The Company, during the term of this Plan, will at
all times reserve and keep available such number of Shares as shall be
sufficient to satisfy the requirements of the Plan. Inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite
authority shall not have been obtained.
17. OPTION AGREEMENT. Options shall be evidenced by written option agreements
in such form as the Board of Directors of the Company or the Committee shall
approve.
18. SHAREHOLDER APPROVAL. Continuance of the Plan shall be subject to approval
by the shareholders of the Company within twelve months before or after the date
the Plan is adopted. If such shareholder approval is obtained at a duly held
shareholders' meeting, it may be obtained by the affirmative vote of the holders
of a majority of the outstanding shares of the Company present or represented
and entitled to vote thereon. The approval of such shareholders of the Company
shall be; (1) solicited substantially in accordance with Section 14(a) of the
Exchange Act and the rules and regulations promulgated thereunder, or (2)
solicited after the Company has furnished in writing to the holders entitled to
vote substantially the same information concerning the Plan as that which would
be required by the rules and regulations in effect under Section 14(a) of the
Exchange Act at the time such information is furnished. If such shareholder
approval is obtained by written consent in the absence of a Shareholders'
Meeting, it must be obtained by the written consent of all shareholders of the
Company who would have been entitled to cast the minimum number of votes which
would be necessary to authorize such action at a meeting at which all
shareholders entitled to vote thereon were present and voting.
19. MISCELLANEOUS PROVISIONS. An Optionee shall have no rights as a shareholder
with respect to any Shares covered by his Option until the date of the issuance
of a stock certificate to him for such shares.
20. OTHER PROVISIONS. The Stock Option Agreement authorized under the Plan may
contain such other provisions, including, without limitation, restrictions upon
the exercise of the Option, as the Board of Directors of the Company or the
Committee shall deem advisable. Any Incentive Stock Option Agreement shall
contain such limitations and restrictions upon the exercise of the Incentive
Stock Option as shall be necessary in order that such option will be an
Incentive Stock Option as defined in Section 422 of the [Internal Revenue] Code
[of 1986, as amended].
21. INDEMNIFICATION OF COMMITTEE MEMBERS. In addition to such other rights of
indemnification they may have as Directors, the members of the Committee shall
be indemnified by the Company against the reasonable expenses, including
attorneys' fees actually and necessarily incurred in connection with the defense
of any action, suit or proceeding, or in connection with any appeal therein, to
which they or any of them may be a party by reason of any action taken or
failure to act under or in connection with the Plan or any Option granted
thereunder, and against all amounts paid by them in settlement thereof (provided
such settlement is approved by independent legal counsel selected by the
Company) or paid by them in satisfaction of a judgment in any such action, suit
or proceeding, except in relation to matters as to which it shall be adjudged in
such action, suit or proceeding that such Committee member is liable for
negligence or misconduct in the performance of his duties; provided that within
60 days after institution of any such action, suit or proceeding a Committee
member shall in writing offer the Company the opportunity, at its own expense,
to handle and defend the same.
22. APPLICATION OF FUNDS. The proceeds received by the Company from the sale of
Common Stock pursuant to the exercise of Options will be used for general
corporate purposes.
23. NO OBLIGATION TO EXERCISE OPTION. The granting of an Option shall impose no
obligation upon the Optionee to exercise such Option.
24. OTHER COMPENSATION PLANS. The adoption of the Plan shall not affect any
other stock option or incentive or other compensation plans in effect for the
Company or any Subsidiary, nor shall the Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees
and directors of the Company or any Subsidiary.
25. SINGULAR, PLURAL; GENDER. Whenever used herein, nouns in the singular shall
include the plural, and the masculine pronoun shall include the feminine gender.
26. HEADINGS, ETC. NO PART OF PLAN. Headings of Articles and Sections hereof
are inserted for convenience and reference; they constitute no part of the Plan.
<Dated: September 28, 1994>
