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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 15, 1997
REGISTRATION NO. 333-______
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
--------------------------
BF ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3038456
(State or other 100 Bush Street, Suite 1250 (I.R.S. Employer)
jurisdiction of San Francisco, CA 94104
incorporation or
organization)
Identification Number)
(Address of principal executive offices)
____________________
BF ENTERPRISES, INC. AMENDED AND RESTATED
MANAGEMENT INCENTIVE COMPENSATION PLAN
BF ENTERPRISES, INC. 1993 LONG-TERM
EQUITY INCENTIVE PLAN and
BF ENTERPRISES, INC. 1994 STOCK OPTION
PLAN FOR OUTSIDE DIRECTORS
(Full title of the plan)
____________________
John M. Price, Esq.
Senior Vice President, General Counsel, Secretary and Treasurer
100 Bush Street, Suite 1250
San Francisco, CA 94104
(415) 989-6580
(Name, address and telephone number, including area code, of agent for service)
Copies to:
Christopher Kaufman, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, CA 94111-2586
(415) 391-0600
____________________
Calculation of Registration Fee
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Proposed
Proposed Maximum
Title of Amount Maximum Aggregate Amount of
Securities to to be Offering Price Offering Registration
be Registered Registered Per Share (1) Price (1) Fee (1)
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Common Stock, $ $ $
$0.10 par value 1,099,413 $5.4207 $5,959,676.3 $1,806
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(1) Estimated for the purpose of calculating the registration fee (i) pursuant
to Rule 457(h) on the basis of the exercise price per share of outstanding
options for 263,000 shares at $2.50 per share, outstanding options for
218,500 shares at $2.875 per share, outstanding options for 100,000 shares
at $4.75 per share, outstanding options for 100,000 shares at $6.25 per
share, outstanding options for 10,000 shares at $3.875 per share,
outstanding options for 4,000 shares at $5.875 per share, outstanding
options for 4,000 shares at $6.00 per share, outstanding options for 5,000
shares at $6.25 per share, outstanding options for 4,000 shares at $9.00
per share, and (ii) pursuant to Rule 457(c) for the remaining 390,913
shares registered hereunder (the average ($8.75) of the high ($9.25)
and low ($8.25) prices for the Registrant's Common Stock on the Nasdaq
National Market System on July 14, 1997
Total Pages 19
Exhibit Index on Page II-6
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PART I
EXPLANATORY NOTE
In accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission"), the information called for in Part I of Form S-8
is not being filed with or included in this Form S-8 (by incorporation by
reference or otherwise).
In addition, this Registration Statement covers the reoffer and resale of
the shares of Common Stock (as defined below) issued under the BF Enterprises,
Inc. Amended and Restated Management Incentive Compensation Plan and the BF
Enterprises, Inc. 1993 Long-Term Equity Incentive Plan by the Selling
Stockholders, as identified below. The reoffer prospectus has been prepared in
accordance with the requirements of Part I of Form S-3, and pursuant to General
Instruction C of Form S-8, may be used for reoffers or resales of such shares
held by the Selling Shareholders.
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REOFFER PROSPECTUS
BF ENTERPRISES, INC.
277,413 Shares of Common Stock
(par value, $.10 per share)
This Prospectus of BF Enterprise, Inc., a Delaware corporation (the
"Registrant" or the "Company"), relates to the offer and sale of 277,413
shares of common stock, par value $.10 per share (the "Common Stock"), issued
to the Selling Stockholders pursuant to the BF Enterprises, Inc. Amended and
Restated Management Incentive Compensation Plan (the "Management Plan")(1),
and BF Enterprises, Inc. 1993 Long-Term Equity Incentive Plan (the "Incentive
Plan")(2). These shares may be offered hereby from time to time by the
Selling Stockholders for their own benefit. The Company will receive no part
of the proceeds of sales made hereunder. All expenses of registration
incurred in connection with this offering are being borne by the Company, but
all selling and other expenses incurred by the Selling Stockholders will be
borne by such Selling Stockholders. None of the shares of Common Stock
offered pursuant to this Prospectus have been registered prior to the filing
of the Registration Statement of which this Prospectus is a part.
All or a portion of the shares of Common Stock offered hereby may be
offered for sale, from time to time, on the Nasdaq National Market System
("Nasdaq") or otherwise, at prices and terms then obtainable. All brokers'
commissions, concessions or discounts will be paid by the Selling Stockholders.
One or more of the Selling Stockholders and any broker executing selling orders
on behalf of the Selling Stockholders may be deemed to be an "underwriter"
within the meaning of the Securities Act of 1933, as amended (the "Securities
Act"), in which event commissions received by such broker may be deemed to be
underwriting commissions under the Securities Act.
The Common Stock of the Company is listed on Nasdaq under the symbol
"BFEN." On July 10, 1997, the last reported sale price of the Company's Common
Stock on Nasdaq was $8.3125.
SEE "RISK FACTORS" BEGINNING ON PAGE 5 FOR A DISCUSSION OF CERTAIN RISKS
THAT SHOULD BE CONSIDERED IN CONNECTION WITH AN INVESTMENT IN THE SECURITIES
OFFERED HEREBY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY SUCH STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is July 15, 1997.
- --------------------
1. The Selling Stockholders were granted the following options to purchase
shares of Common Stock under the Management Plan: Brian P. Burns, 150,000
shares; Paul Woodberry, 51,088 shares; Stuart B. Aronoff, 17,325 shares;
John M. Price, 12,000 shares and S. Douglas Post, 6,000 shares. All of the
Selling Stockholders exercised their respective options on July 9, 1987.
2. The Selling Stockholders were granted the following shares of restricted
Common Stock under the Incentive Plan on January 3, 1995: Brian P. Burns,
15,000 shares; Paul Woodberry, 7,000 shares; Stuart B. Aronoff, 6,500
shares; John M. Price, 6,500 shares and S. Douglas Post, 6,000 shares.
2
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission. Such reports, proxy statements and other
information can be inspected and copied at the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the
Commission's regional offices at Seven World Trade Center, 13th Floor, New York,
New York 10048 and Northwest Atrium Center, 500 Madison Street, Suite 1400,
Chicago, Illinois 60661. Copies of such material can also be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission also maintains a World Wide Web site at http://www.sec.gov that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. In
addition, the Company's Common Stock is listed on Nasdaq and similar information
concerning the Company can be inspected and copied at the offices of Nasdaq.
This Prospectus does not contain all of the information set forth in the
Registration Statement of which this Prospectus is a part and which the Company
has filed with the Commission. For further information with respect to the
Company and the securities offered hereby, reference is made to the Registration
Statement, including the exhibits filed as a part thereof and otherwise
incorporated by reference therein, copies of which can be inspected at, or
obtained at prescribed rates from, the Public Reference Section of the
Commission at the address set forth above. Additional updating information with
respect to the Company may be provided in the future by means of appendices or
supplements to this Prospectus.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The documents listed below have been filed by the Company with the
Commission and are incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996, (ii) the
Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997; and (iii) all reports filed pursuant to Sections 13(a), 13(c), 14 and
15(d) after the filing of this Prospectus and before the filing of a post-
effective amendment which indicates that all securities offered in connection
with this Prospectus have been sold or which deregisters all securities then
remaining unsold, and (iv) the description of Common Stock contained in the
Company's Form 10 filed with the Commission on June 23, 1987, respectively,
shall be deemed to be incorporated by reference in this Prospectus and to be
part hereof from the date of filing such documents (such documents and the
documents enumerated above being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein,
or in any other subsequently filed document that also is or is deemed to be
incorporated by reference herein, modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus. All information
appearing in this Prospectus is qualified in its entirety by the information and
financial statements (including notes thereto) appearing in the documents
incorporated herein by reference, except to the extent set forth in the
immediately preceding statement.
The Company hereby undertakes to provide without charge to each person to
whom a copy of this Prospectus is delivered, upon written or oral request of
such person, a copy of any and all of the information that has been or may be
incorporated herein by reference (other than exhibits to such documents unless
such exhibits are specifically incorporated by reference into such documents).
Requests should be directed to BF Enterprises, Inc., 100 Bush Street, Suite
1250, San Francisco, California 94104, Attention: Corporate Secretary,
telephone number (415) 989-6580.
THE COMPANY
The Company was incorporated in the State of Delaware in 1987. The Company
is currently engaged primarily in the real estate business, including the
development of a large tract of land, known as Meadow Pointe, in suburban Tampa,
Florida. Additionally, the Company owns and leases a 220,000 square foot
building on 16 acres in Tempe, Arizona and owns 22 acres of undeveloped land in
suburban Nashville, Tennessee.
The Company's principal executive offices are located at 100 Bush Street,
Suite 1250, San Francisco, California 94104, and its telephone number is
(415)989-6580.
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RISK FACTORS
PROSPECTIVE INVESTORS IN THE COMMON STOCK SHOULD CONSIDER CAREFULLY THE
FOLLOWING FACTORS IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS
PROSPECTUS. INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS CONTAINS "FORWARD-LOOKING STATEMENTS" WITHIN THE MEANING OF THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995, WHICH CAN BE IDENTIFIED BY THE
USE OF FORWARD-LOOKING TERMINOLOGY SUCH AS "MAY," "WILL," "PLANS," "EXPECTS,"
"ANTICIPATES," "ESTIMATES," "SHOULD" OR "CONTINUE" OR THE NEGATIVE THEREOF OR
OTHER VARIATIONS THEREON OR COMPARABLE TERMINOLOGY. THE MATTERS SET FORTH BELOW
CONSTITUTE CAUTIONARY STATEMENTS IDENTIFYING IMPORTANT FACTORS WITH RESPECT TO
SUCH FORWARD-LOOKING STATEMENTS, INCLUDING CERTAIN RISKS AND UNCERTAINTIES, THAT
COULD CAUSE ACTUAL RESULTS TO DIFFER MATERIALLY FROM THOSE CONTEMPLATED BY ANY
SUCH FORWARD-LOOKING STATEMENTS. THESE FACTORS MAY BE UPDATED FROM TIME TO TIME
IN DOCUMENTS FILED WITH THE COMMISSION AND INCORPORATED BY REFERENCE IN THIS
PROSPECTUS.
REAL ESTATE RISKS GENERALLY
Real estate investments are relatively illiquid, and the related market
values may be adversely affected by changes in the local economies in which the
properties are located, including oversupply of property, a reduction in demand
for rental space, the attractiveness of certain sites to purchasers or tenants
and competition from other available property. Income and real estate values
may also be adversely affected by such factors as applicable laws (e.g., the
Americans with Disabilities Act, environmental regulations and tax laws),
interest rate levels and the availability of financing.
The real estate industry is highly competitive. The Company competes with
many other firms and individuals who develop real estate or hold undeveloped
property for lease or sale or developed property for lease or sale, some of whom
are better capitalized than the Company. While competitive conditions vary
substantially, depending upon the geographical area and the type of real estate
asset, within a particular market, the most significant competitive factors
generally are location, price and zoning.
DEVELOPMENT OF MEADOW POINTE
Development of the Company's Meadow Pointe project will take a number of
years and is dependent upon, among other things, the availability of future
financing on terms satisfactory to the Company, the strength of the general
economy in the Tampa area and nationally, residential mortgage interest rates,
competitive residential developments serving the same group of home buyers and
other factors related to the local Tampa real estate market. Development of the
Meadow Pointe project may also be affected by unforeseen environmental or
hazardous waste conditions, general national economic conditions, and the
financial strength of the homebuilders who purchase lots within Meadow Pointe
and their continued ability to obtain construction financing and to provide
acceptable housing products. During 1996, construction began at several other
residential projects in the same market area as Meadow Pointe, along or near
County Road 581. These new projects may have an adverse impact on the rate of
lot sales at Meadow Pointe or lot price, or both.
NEED FOR SUBSTANTIAL FUTURE EXPENDITURE AT MEADOW POINTE
The Company's business plan calls for substantial expenditures during the
next several years relating to the planned development of Meadow Pointe. During
the period February 1992 through March 1997, two community development districts
encompassing the Meadow Pointe project issued approximately $60.7 million of
capital improvement revenue bonds. The Company currently anticipates the future
issuance of approximately $18.5 million of additional bonds by one of those
community development districts. The proceeds of such bonds have been and are
expected to be used to construct infrastructure improvements necessary for the
development and sale of residential lots and multifamily and commercial parcels
in Meadow Pointe. There can be no assurance that any additional bonds will be
issued.
The Company intends to pay for its future expenditures at Meadow Pointe and
its other operating expenses with (i) cash generated from sales of property with
Meadow Pointe and its other operations, and (ii) cash and cash equivalents on
hand. There can be no assurance that the Company will generate sufficient cash
or have sufficient
5
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cash and cash equivalents on hand to cover such expenditures. Moreover, there
can be no assurance that the amounts currently projected will be sufficient to
develop the long-term Meadow Pointe project.
ASSESSMENTS ON MEADOW POINTE PROPERTY
Approximately $22 million of the capital improvement revenue bonds issued
by the districts are payable in equal annual installments of principal and
interest over 20 years. The balance of the bonds are payable over a fixed term,
but must be prepaid in part each time a developed lot or other land is sold.
Annual bond installments are paid by special assessments levied against
individual parcels of land within Meadow Pointe. Under existing Florida law,
any such bonds issued by a future district will be paid in a similar manner.
These special assessments will be collected in the same manner as county
property taxes. The outstanding bonds are secured by a first lien upon and
pledge of such special assessments. If any parcel owner, including the Company
(until such time as its land has been developed and sold or otherwise
transferred), but excluding the districts and the county, fails to make payment
of an assessment, then such owner's parcel will become subject to a lien which
may be ultimately foreclosed for nonpayment. As long as the Company continues
to own property within Meadow Pointe, it will remain obligated to pay such
assessments and real estate taxes with respect to that property. There can be
no assurance that the Company will be able to sell all of the property within
Meadow Pointe and could thus remain obligated to pay assessments and real estate
taxes attributable to unsold property. As of March 31, 1997, parcels of land
owned by the Company were subject to bonds in the principal amount of
approximately $28 million.
DEVELOPMENT AGREEMENT WITH DEVCO.
In March 1991, the Company entered into a Development and Management
Agreement (the "Development Agreement") with Devco II Corporation ("Devco"), a
Florida corporation whose principals are experienced Tampa-area real estate
developers. Under the Development Agreement, Devco is responsible for planning
and managing, and advising the Company with respect to, the development of
Meadow Pointe, including the sale of single family lots and multifamily and
commercial parcels. The Development Agreement may be terminated by either party
with or without cause. If the Development Agreement were terminated, the
development of Meadow Pointe would be disrupted for some period of time and it
would be necessary for the Company to retain another developer or undertake the
remaining development activities on its own. While the Company has been engaged
in the ownership of real estate in Florida and elsewhere, the Company has no
direct experience in the development of projects such as Meadow Pointe.
GOVERNMENTAL REGULATION.
The Company has received the primary governmental approvals and permits
necessary to complete development of Meadow Pointe. As with all large real
estate projects in Florida, however: (i) additional governmental approvals and
permits will be required during the development process; (ii) no assurance can
be given as to the receipt (or timing of receipt) of these approvals and
permits; (iii) environmental rules and regulations are subject to change; and
(iv) in certain circumstances third parties can file lawsuits challenging
governmental approvals or permits received, which lawsuits could cause
substantial uncertainties and delays for the project. These extensive federal,
state and local regulatory requirements, and "no growth" or "slow growth"
political activities, could prevent, delay or significantly increase the cost of
the development of Meadow Pointe.
RENTAL PROPERTY
The Company owns a 220,000 square foot office building on 16 acres in
Tempe, Arizona. In 1995, the Company entered into a 10-year triple net lease of
the property to Bank One, Arizona, NA, a subsidiary of Banc One Corporation.
The initial term of the lease expires February 28, 2005, and the tenant has two
five-year renewal options, with base rents equal to the market rental rates then
in effect in the metropolitan Phoenix area. The lease provides for base rents
during the last nine years of the initial term of: $1,452,000 in 1996;
$1,628,000 in 1997; $1,707,000 in 1998; $1,826,000 in 1999; $1,848,000 in 2000;
$1,936,000 in 2001; $1,953,600 in 2002; $1,975,600 in 2003; $1,980,000 in 2004;
and $330,000 for the two months ending February 28, 2005. In 1996 the Company
reported, and in each of the remaining eight years of the original lease term
will report, in accordance with
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generally accepted accounting principles, rental income from the lease of
$1,815,000, the average rental during the period January 1, 1996 through
February 28, 2005. The Tempe building is large and leased to a single tenant.
If the tenant elects not to extend the lease at the expiration of the initial
term in 2005, the Company may have difficulty finding a new tenant or tenants
and, whether or not Bank One extends the initial term of the lease, the
prevailing rental rate in the area may then be much lower than is currently
provided by the lease.
UNINSURED LOSSES
The Company carries commercial general liability, all risk (including
[earthquake] and flood coverage and rental loss coverages) insurance with
customary policy specifications, limits and deductibles customarily carried for
similar properties. There are, however, certain types of extraordinary losses
which may be either uninsurable, or not economically insurable. Should an
uninsured loss occur, the Company could lose its investment in, and anticipated
profits and cash flows from, a property. The Company's management believes that
its properties are adequately covered by insurance.
ENVIRONMENTAL CONCERNS
Under various federal, state, and local environmental laws, ordinances and
regulations, a current or previous owner or operator of real property may be
liable for the costs of removal or remediation of hazardous or toxic substances
on, under or in such property. Such laws often impose liability whether or not
the owner or operator knew of, or was responsible for, the presence of such
hazardous or toxic substances. For example, liability may arise as a result of
the historical use of a site or from the migration of contamination from
adjacent or nearby properties. Any such contamination or liability may also
reduce the value of the property. In addition, certain environmental laws and
common law principles could be used to impose liability for release of asbestos-
containing materials ("ACMs") into the air, and third parties may seek recovery
from owners or operators of real properties for personal injury associated with
exposure to released ACMs. Environmental laws also may impose restrictions on
the manner in which property may be used or businesses may be operated, and
these restrictions may require expenditures. In connection with the ownership
(direct or indirect) and development of real properties, the Company may be
considered an owner or operator of such properties or as having arranged for the
disposal or treatment of hazardous or toxic substances and therefore may be
potentially liable for removal or remediation costs, as well as certain other
costs, including governmental fines and injuries to persons and property.
The Company is not aware of any environmental liability with respect to the
real properties owned or leased by the Company that would have a material
adverse effect on the Company's business, assets or results of operations.
There can be no assurance that such a material environmental liability does not
exist. The existence of any such material environmental liability would have an
adverse effect on the Company's results of operations and cash flow.
CONTROLLING STOCKHOLDERS
As of June 30, 1997, Brian P. Burns, the Company's Chairman of the Board,
President and Chief Executive Officer, beneficially owned approximately 44% of
the outstanding Common Stock, and the directors and executive officers of the
Company as a group, including Mr. Burns, beneficially owned approximately 55% of
the Common Stock. Therefore, these stockholders will exercise a controlling
influence over the business and affairs of the Company, including, but not
limited to, having sufficient voting power to control the election of the entire
Board of Directors of the Company and, in general, to determine the outcome of
any corporate transaction or other matter submitted to the stockholders for
approval, including mergers, consolidations, or the sale of substantially all of
the Company's assets or preventing or causing a change in the control of the
Company.
ABSENCE OF DIVIDENDS
No cash dividends were paid in 1996 or 1995, and the Board of Directors of
the Company currently does not expect to declare cash dividends, in an effort to
conserve the Company's cash resources for payment of subordinated debentures,
real estate development activities and other corporate purposes.
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SHARES AVAILABLE FOR FUTURE SALE
No prediction can be made as to the effect, if any, that future sales of
shares, or the availability of shares for future sale, will have on the
prevailing market price of the Common Stock from time to time. Sales of
substantial amounts of the Common Stock (including shares issued upon the
exercise of stock options), or the perception that such sales could occur, could
adversely affect prevailing market prices for the Common Stock.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares of
Common Stock offered hereby. All of the proceeds will be received by the
Selling Stockholders. See "Selling Stockholders."
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SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder, the
nature of his position, office, or other material relationship with the Company
within the past three years, the number of shares of Common Stock beneficially
owned by each Selling Stockholder as of June 30, 1997, and the number of shares
and (if one percent or more) the percentage of Common Stock to be beneficially
owned by such Selling Stockholder after the offering.
<TABLE>
<CAPTION>
Name Relationship Shares Owned Shares
- ---- with the Company Prior to Offered Shares Owned After Offering
---------------- Offering(1) ------- ---------------------------
--------
Number(1) Percent(1)
------ -------
<S> <C> <C> <C> <C> <C>
Brian P. Burns(2)(3) Chairman of the Board, 1,769,338 165,000 1,604,338 42.6
President and Chief Executive
Officer
Paul Woodberry(2) Executive Vice President, 175,588 58,088 117,500 3.3
Chief Financial Officer
and Director
Stuart B. Aronoff(2) Senior Vice President- 177,400 23,825 153,575 4.3
Operations and
Assistant Secretary
John M. Price(2) Senior Vice President, 125,269 18,500 106,769 3.0
General Counsel,
Secretary and Treasurer
S. Douglas Post(2) Vice President and 74,000 12,000 62,000 1.8
Controller
</TABLE>
_______________________________
(1) Applicable percentage of ownership is based on 3,703,893 shares of Common
Stock outstanding as of June 30, 1997 and 3,467,480 shares of Common Stock
after completion of this offering. The number of shares of Common Stock
beneficially owned and calculation of percent ownership, in each case, take
into account those shares of Common Stock underlying stock options that are
currently exercisable or may be exercisable within 60 days from the date of
this Prospectus.
(2) Includes shares subject to options to purchase shares of Common Stock that
are currently exercisable or that may be exercisable within 60 days from
the date of this Prospectus, as follows: Mr. Burns, 302,000 shares; Mr.
Woodberry, 67,500 shares; Mr. Aronoff, 83,500 shares; Mr. Price, 83,500
shares and Mr. Post, 62,000 shares.
(3) Includes 678,200 shares owned by Frederick P. Furth, as to which Mr. Burns
holds an irrevocable proxy until May 31, 2001 and as to which Mr. Burns
disclaims beneficial ownership.
PLAN OF DISTRIBUTION
The Selling Stockholders or their pledgees, donees, transferees or other
successors in interest may sell shares of Common Stock in any of the following
ways: (i) through dealers; (ii) through agents; or (iii) directly to one or more
purchasers. The distribution of the shares of Common Stock may be effected from
time to time in one or more transactions (which may involve crosses or block
transactions) (A) on Nasdaq or other over-the-counter market, (B) on a national
stock exchange (on which the shares of Common Stock may be traded from time to
time) in transactions which may include special offerings, exchange
distributions and/or secondary distributions pursuant to and in accordance with
the rules of such exchanges, or (C) in transactions other than on such exchanges
or in the over-the-counter market, or a combination of such transactions. Any
such transaction may be effected at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, at negotiated prices
or at fixed prices. The transferors may effect such transactions by selling
shares of Common Stock to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the transferors and/or commissions from purchasers of shares of Common Stock for
whom they may act as
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agent. The transferors and any broker-dealers or agents that participate in the
distribution of shares of Common Stock by them might be deemed to be
underwriters, and any discounts, commissions or concessions received by any such
broker-dealers or agents might be deemed to be underwriting discounts and
commissions, under the Securities Act.
Under the securities laws of certain states, the Common Stock may be sold
in such states only through registered or licensed brokers or dealers. In
addition, in certain states, the Common Stock may not be sold unless the Common
Stock has been registered or qualified for sale in such state or an exemption
from registration or qualification is available and is complied with.
The Company has informed each of the Selling Stockholders that (i) the
antimanipulation provisions of Regulation M under the Exchange Act may apply to
purchase and sales of the Common Stock by the Selling Stockholders, and that
there are restrictions on market-making activities by persons engaged in the
distribution of the Common Stock and (ii) if a particular offer of Common Stock
is to be made on terms constituting a material change from the information set
forth above with respect to the Plan of Distribution, then to the extent
required, a Prospectus Supplement must be distributed setting forth such terms
and related information as required.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Restated Certificate of Incorporation (the "Certificate") of the
Company mandates indemnification of all persons party to any action or
threatened to be made party to an action, suit or proceeding (whether civil,
criminal, administrative or legislative) by reason of the fact that he or she or
a person of whom he or she is a legal representative, is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
or of a partnership, joint venture, trust or other enterprise, whether the basis
of such proceeding is alleged in the person's official capacity or in any other
capacity including service with respect to employee benefit plans (hereinafter
"indemnitee"), to the fullest extent of and in accordance with the Delaware
General Corporation Law (the "DGCL") against all expense liability or loss.
However, the Company is obligated to indemnify a person seeking indemnity in
connection with an action, suit or proceeding initiated by such person only if
such action, suit or proceeding was authorized by the board of directors.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
of any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the indemnitee in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation and, except that no
indemnification may be made in respect of any claims, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
10
<PAGE>
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Under the Certificate, the right of indemnification is a contract right and
includes the right to be reimbursed by the Company for expenses incurred in
defending any such proceeding in advance of its final disposition. However, the
payment of such expenses incurred by a director or officer of the Company in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by an indemnitee) in advance of the final disposition
of such proceeding will be made only upon delivery to the Company of an
undertaking, by or on behalf of such indemnitee, to repay all amounts so
advanced if it should be determined ultimately that such director or officer is
not entitled to be indemnified under the Certificate.
Furthermore, if a claim brought under the Certificate as described above is
not paid in full by the Company within 60 days (or 20 days in the case of a
claim for expenses) after a written claim has been received by the Company, the
person seeking indemnity may bring suit against the Company to recover the
unpaid part of the claim and, if successful in whole or part, is also entitled
to be paid the expense of prosecuting such claim. In (i) any suit brought by
the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of
expenses), and (ii) any suit by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking, the Company shall be entitled
to recover such expenses upon a final adjudication that the indemnitee has not
met the applicable standard of conduct set forth in the DGCL. Neither the
failure of the Company (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Company (including its
Board of Directors, independent legal counsel or stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard conduct or,
in the case of such a suit brought by the indemnitee, be a defense to such suit.
In any suit brought by the indemnitee to enforce a right hereunder, or by the
Company to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified or to such advancement of expenses under the Certificate or
otherwise shall be on the Company.
The right of indemnification shall not be exclusive of any other right the
indemnitee may have.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
LEGAL MATTERS
The legality of the shares of Common Stock offered hereby will be passed
upon for the Company by John M. Price, Senior Vice President, General Counsel,
Secretary and Treasurer.
EXPERTS
The Company's consolidated financial statements and the related
supplemental schedules, incorporated herein by reference to the Company's Annual
Report on Form 10-K, have been audited by Arthur Andersen LLP,
11
<PAGE>
independent auditors, as stated in their reports incorporated herein by
reference and have been so incorporated by reference in reliance upon such
reports given upon the authority of that firm as experts in accounting and
auditing.
12
<PAGE>
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, IN CONNECTION
WITH THE OFFERING DESCRIBED HEREIN, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES BY ANY PERSON IN ANY JURISDICTION IN WHICH IT IS UNLAWFUL FOR SUCH
PERSON TO MAKE SUCH OFFER, SOLICITATION OR SALE. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY CIRCUMSTANCES CREATE AN
IMPLICATION THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME
SUBSEQUENT TO THE DATE HEREOF.
---------------------------------------
277,413 SHARES
BF ENTERPRISES, INC.
COMMON STOCK
---------------------------------------
PROSPECTUS
---------------------------------------
JULY 15, 1997
---------------------------------------
13
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated herein
by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1997; and
(c) The description of Common Stock contained in the Registrant's
Form 10 filed with the Commission on June 23, 1987.
In addition to the foregoing documents, all documents subsequently filed by
the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part hereof from the date of the filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the issuance of the shares of Common Stock described herein
has been passed upon for the Registrant by John M. Price, Senior Vice President,
General Counsel, Secretary and Treasurer.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation (the "Certificate") of the
Company mandates indemnification of all persons party to any action or
threatened to be made party to an action, suit or proceeding (whether civil,
criminal, administrative or legislative) by reason of the fact that he or she or
a person of whom he or she is a legal representative, is or was a director,
officer, employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another corporation,
or of a partnership, joint venture, trust or other enterprise, whether the basis
of such proceeding is alleged in the person's official capacity or in any other
capacity including service with respect to employee benefit plans (hereinafter
"indemnitee"), to the fullest extent of and in accordance with the Delaware
General Corporation Law (the "DGCL") against all expense liability or loss.
However, the Company is obligated to indemnify a person seeking indemnity in
connection with an action, suit or proceeding initiated by such person only if
such action, suit or proceeding was authorized by the board of directors.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any person who was or is a party or is threatened to be made a party
of any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or in
the right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
II-1
<PAGE>
in settlement actually and reasonably incurred by the indemnitee in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation and, except that no
indemnification may be made in respect of any claims, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the court in which
action or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
Section 145 further provides that to the extent a director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of Section 145
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith; that indemnification provided for by Section 145
shall not be deemed exclusive of any other rights to which the indemnified party
may be entitled; and that the corporation is empowered to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liabilities under Section 145.
Under the Certificate, the right of indemnification is a contract right and
includes the right to be reimbursed by the Company for expenses incurred in
defending any such proceeding in advance of its final disposition. However, the
payment of such expenses incurred by a director or officer of the Company in his
or her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by an indemnitee) in advance of the final disposition
of such proceeding will be made only upon delivery to the Company of an
undertaking, by or on behalf of such indemnitee, to repay all amounts so
advanced if it should be determined ultimately that such director or officer is
not entitled to be indemnified under the Certificate.
Furthermore, if a claim brought under the Certificate as described above is
not paid in full by the Company within 60 days (or 20 days in the case of a
claim for expenses) after a written claim has been received by the Company, the
person seeking indemnity may bring suit against the Company to recover the
unpaid part of the claim and, if successful in whole or part, is also entitled
to be paid the expense of prosecuting such claim. In (i) any suit brought by
the indemnitee to enforce a right to indemnification hereunder (but not in a
suit brought by the indemnitee to enforce a right to an advancement of
expenses), and (ii) any suit by the Company to recover an advancement of
expenses pursuant to the terms of an undertaking, the Company shall be entitled
to recover such expenses upon a final adjudication that the indemnitee has not
met the applicable standard of conduct set forth in the DGCL. Neither the
failure of the Company (including its Board of Directors, independent legal
counsel or stockholders) to have made a determination prior to the commencement
of such suit that indemnification of the indemnitee is proper in the
circumstances because the indemnitee has met the applicable standard of conduct
set forth in the DGCL, nor an actual determination by the Company (including its
Board of Directors, independent legal counsel or stockholders) that the
indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard conduct or,
in the case of such a suit brought by the indemnitee, be a defense to such suit.
In any suit brought by the indemnitee to enforce a right hereunder, or by the
Company to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified or to such advancement of expenses under the Certificate or
otherwise shall be on the Company.
The right of indemnification shall not be exclusive of any other right the
indemnitee may have.
II-2
<PAGE>
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the Company has been informed that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
With respect to the restricted securities to be reoffered or resold
pursuant to this Registration Statement, the sales and issuances of such
restricted securities were deemed to be exempt from registration under the
Securities Act in reliance upon Section 4(2) thereof and Rule 701 thereunder as
transactions not involving a public offering. The purchasers in such private
offerings represented their intention to acquire the securities for investment
only and not with a view to the distribution thereof and appropriate legends
were affixed to the stock certificates issued in such transactions. All
purchasers had adequate access, through their employment or other relationships,
to sufficient information about the Company to make an informed investment
decision. No underwriter was employed with respect to any such sales.
ITEM 8. EXHIBITS.
--------
4.1(1) Restated Certificate of Incorporation of the Registrant.
4.2(2) Bylaws of the Registrant.
5.1 Opinion of John M. Price, Senior Vice President, General Counsel,
Secretary and Treasurer.
10.1 BF Enterprises, Inc. Amended and Restated Management Incentive
Compensation Plan
10.2 BF Enterprises, Inc. 1993 Long-Term Equity Incentive Plan
10.3 BF Enterprises, Inc. 1994 Stock Option Plan for Outside Directors
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on page II-5 of this Registration
Statement).
- ---------------
(1) Filed as Exhibit 3(a) to Amendment No. 1 on Form 8 to the Registrant's
Form 10 registration statement and incorporated herein by reference.
(2) Filed as Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1989 and incorporated herein by
reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement;
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
II-3
<PAGE>
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new Registration Statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Francisco, State of California on this 15 day
of July, 1997.
BF ENTERPRISES, INC.
By: /s/ JOHN M. PRICE
---------------------------------------
John M. Price
Senior Vice President, General Counsel,
Secretary and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint John M. Price with full power
of substitution and full power to act without the other, his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises in order to
effectuate the same as fully, to all intents and purposes, as they or he might
or could do in person, hereby ratifying and confirming all that said attorney-
in-fact and agent, or any of them, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of July 15, 1997.
Signature Title
--------- -----
/s/ BRIAN P. BURNS Chairman of the Board of Directors, President
- ------------------------- and Chief Executive Officer (Principal
Brian P. Burns Executive Officer)
/s/ PAUL WOODBERRY Executive Vice President, Chief Financial Officer
- ------------------------- and Director (Principal Financial Officer)
Paul Woodberry
/s/ S. DOUGLAS POST Vice President and Controller (Principal
- ------------------------- Accounting Officer)
S. Douglas Post
/s/ DANIEL S. MASON Director
- -------------------------
Daniel S. Mason
/s/ RALPH T. MCELVENNY, JR. Director
- -------------------------
Ralph T. McElvenny, Jr.
/s/ CHARLES E.F. MILLARD Director
- -------------------------
Charles E.F. Millard
II-5
<PAGE>
INDEX TO EXHIBITS
4.1(1) Restated Certificate of Incorporation of the Registrant.
4.2(2) Bylaws of the Registrant.
5.1 Opinion of John M. Price, Senior Vice President, General Counsel,
Secretary and Treasurer.
10.1 BF Enterprises, Inc. Amended and Restated Management Incentive
Compensation Plan
10.2 BF Enterprises, Inc. 1993 Long-Term Equity Incentive Plan
10.3 BF Enterprises, Inc. 1994 Stock Option Plan for Outside Directors
23.1 Consent of Counsel (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on page II-5 of this Registration
Statement).
- ---------------
(1) Filed as Exhibit 3(a) to Amendment No. 1 on Form 8 to the Registrant's
Form 10 registration statement and incorporated herein by reference.
(2) Filed as Exhibit 3(b) to the Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1989 and incorporated herein by
reference.
II-6
<PAGE>
[BF Enterprises, Inc. Letterhead]
Exhibit 5.1
July 15, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549
Re: BF Enterprises, Inc.
1,099,413 shares of Common Stock, par value $0.10 per share
-------------------------------------------------------------
Ladies/Gentlemen:
The undersigned is the Senior Vice President and General Counsel of BF
Enterprises, Inc., a Delaware corporation (the "Company"). This legal opinion
is being provided in connection with the registration under the Securities Act
of 1933, as amended (the "Act"), by the Company on Form S-8 filed with the
Securities and Exchange Commission (the "Commission") on July 15, 1997 (the
"Registration Statement") of an aggregate of 1,099,413 shares (the "Total
Shares") of common stock, par value $0.10 per share, of the Company. Of the
Total Shares, 277,413 shares (the "Outstanding Shares") have been issued under
the BF Enterprises, Inc. Amended and Restated Management Incentive Compensation
Plan and the BF Enterprises, Inc. 1993 Long-Term Equity Incentive Plan (the
"1993 Plan"), and the remaining 822,000 shares (the "Issuable Shares") are
issuable under the 1993 Plan and the BF Enterprises, Inc. 1994 Stock Option Plan
for Outside Directors (the "Director Plan").
In connection with this opinion, the undersigned is familiar with the
corporate proceedings taken by the Company in connection with the issuance of
the Total Shares, and has made such other examinations of law and fact as
considered necessary in order to form a basis for the opinion hereafter
expressed.
The undersigned is opining herein as to the effect on the subject
transaction only of the General Corporation Law of the State of Delaware and the
internal laws of the State of California, and expresses no opinion with respect
to the applicability thereto, or the effect thereon, of the laws of any other
jurisdiction or, in the case of Delaware, any other laws, or as to any matters
of municipal law or the laws of any other local agencies within any state.
Based on the foregoing, the undersigned is of the opinion that:
1. The Outstanding Shares have been duly authorized, and are validly
issued, fully paid and non-assessable.
2. The Issuable Shares have been duly authorized, upon issuance and
delivery in the manner contemplated by the 1993 Plan and the Director Plan, and
upon the completion of all actions and proceedings required on the Company's
part to be taken prior to the issuance and delivery of the Issuable Shares
pursuant to the terms of the 1993 Plan and the Director Plan, the Issuable
Shares will be validly issued, fully paid and non-assessable.
<PAGE>
The undersigned consents to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ John M. Price
General Counsel of the Company
<PAGE>
EXHIBIT 10.1
BF Enterprises, Inc.
Amended and Restated
Management Incentive Compensation Plan
1. Purposes of the Plan.
The purposes of the BF Enterprises, Inc. Management Incentive
Compensation Plan (the "Plan") are to further the long-term growth of BF
Enterprises, Inc. (the "Corporation), to the benefit of its stockholders, by
providing incentives to the officers and employees of the Corporation and its
subsidiaries who will be largely responsible for such growth, and to assist the
Corporation in attracting and retaining executives of experience and ability on
a basis competitive with industry practices. The Plan permits the Corporation
to provide incentive compensation of the types commonly known as restricted
stock, stock options, stock appreciation rights, performance shares,
performance units and phantom stock, as well as other types of incentive
compensation.
2. Administration of the Plan.
The Plan shall be administered by a committee (the "Committee")
composed of such members (not less than two) of the Board of Directors of the
Corporation as shall be appointed from time to time by the Board, each of which
members shall be a "disinterested person" as defined by Rule 16b-3 issued under
the Securities Exchange Act of 1934, as amended. Subject to the provisions of
the Plan, the Committee shall have exclusive power to select the employees to
participate in the Plan, to determine the type, size and terms of awards to be
made to each participant selected, and to determine the time or times when
awards will be granted. The Committee's interpretation of the Plan or of any
awards granted thereunder shall be final and binding on all parties concerned,
including the Corporation and any participant. The Committee shall have
authority, subject to the provisions of the Plan, to establish, adopt and revise
such rules, regulations, guidelines, forms of agreements and instruments
relating to the Plan as it may deem necessary or advisable for the
administration of the Plan. The Board of Directors of the Corporation shall have
no right to exercise any of the rights or duties of the Committee under the
Plan.
3. Participation.
Participants in the Plan shall be selected by the Committee from
among the employees of the Corporation and its subsidiaries. The term "employee"
shall mean any person (including any officer or director) employed
by the Corporation or a subsidiary on a salaried basis. The term "subsidiary"
shall mean any corporation a majority of whose outstanding voting securities
is beneficially owned, directly or indirectly, by the Corporation.
Participants may receive multiple awards under the Plan.
<PAGE>
4. Awards.
(a) Types. Awards under the Plan may include, but need not be
limited to, cash and/or shares of the Corporation's common stock, $.10 par
value ("Common Stock"), rights to receive cash and/or shares of Common Stock,
and options ("Options") to purchase shares of Common Stock. Options may also
be awarded in connection with the assumption, by substitution, of options to
purchase shares of Common Stock issued by Boothe Financial Corporation, the
parent of the Corporation as of the effective date of the Plan, to employees
of the Corporation. The Committee may also make any other type of award
deemed by it to be consistent with the purposes of the Plan; provided,
however, that awards may not include options intended to qualify as incentive
stock options under section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
(b) Deferred Payments. In awarding any right to receive cash
and/or shares of Common Stock, the Committee may specify that the payment of
all or any portion of such cash and/or shares of Common Stock shall be
deferred until a later date. Deferrals shall be for such periods and upon
such other terms as the Committee may determine.
(c) Vesting, Performance Requirements and Forfeiture. In
awarding any Options or any rights to receive cash and/or shares of Common
Stock, the Committee (i) may specify that the right to exercise such Options
or the right to receive payment of such cash and/or shares of Common Stock
shall be conditional upon the fulfillment of specified conditions, including,
without limitation, completion of specified periods of service in the employ
of the Corporation or its subsidiaries, and the achievement of specified
business and/or personal performance goals, and (ii) may provide for the
forfeiture of all or any portion of any such Options or rights in specified
circumstances. The Committee may also specify by whom and/or in what manner
the accomplishment of any such performance goals shall be determined.
(d) Agreements. Any award under the Plan may, in the
Committee's discretion, be evidenced by an agreement, which, subject to the
provisions of the Plan, may contain such terms and conditions as may be
approved by the Committee, and shall be executed by an officer on behalf of the
Corporation and by the recipient of the award.
(e) Six Month Holding Period. Each award of an Option shall
provide that at least six months must elapse from the date of
grant of the Option to the date of disposition of the Option (other than
by exercise of the Option) or of the Common Stock acquired upon exercise
of the Option. Each award of Common Stock shall provide that at least six
months must elapse from the date the award is granted to the date of the
recipient's disposition of such Common Stock.
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<PAGE>
5. Shares of Stock Subject to the Plan.
Subject to adjustments as provided in section 7 (a) hereof, the
shares of Common Stock paid to participants under the Plan and/or purchased
pursuant to Options granted under the Plan shall not exceed an aggregate of
650,000 shares. Shares to be delivered or purchased under the Plan may be
either authorized but unissued shares of Common Stock or shares of Common
Stock held by the Corporation as treasury shares. Shares that are
surrendered upon exercise of options and shares underlying options which
expire without being exercised may be re-issued under the Plan.
6. Options.
(a) Term of Options. The term of any Option shall be
determined by the Committee, but in no event shall any Option be exercisable
more than ten years and two days after the date on which it was granted.
(b) Option Price. The price ("Option Price") at which shares
of Common Stock may be purchased pursuant to any Option shall be at least 50%
and not more than 100% of the Fair Market Value of such shares on the date
of grant as determined by the Committee at the time the Option is granted.
(c) Payment Upon Exercise. Upon exercise of an Option, the
Option Price shall be payable to the Corporation in cash or, at the
discretion of the Committee, by acceptance of the optionee's full recourse
promissory note for a portion of the aggregate exercise price of the shares
(except for the aggregate par value of the shares being acquired, which must
be paid in cash), or in shares of previously owned Common Stock valued at
the Fair Market Value thereof on the date of payment, or, subject to the
timing requirements of Rule 16b-3(e), shares of Common Stock issuable upon
exercise of the Option, or in a combination of cash, promissory notes and
shares of Common Stock. For purposes of the Plan, Fair Market Value is the
mean of the high and low sales prices of the Corporation's Common Stock on
the relevant date as reported on the National Association of Securities
Dealers, Inc. Automated Quotation System, or, if no sale is made on such
date, then on the next preceding day on which such a sale was made.
(d) Stock Appreciation Rights; Surrender of Options.
Subject to the timing requirements and holding period requirements of
Rule 16b-3(e), the Corporation may, if the Committee so determines, accept the
surrender by a participant, or the personal representative of a participant,
of an Option, in consideration of a payment by the Corporation equal to the
difference obtained by subtracting the aggregate Option Price from the
aggregate Fair Market Value of the Common Stock covered by the Option on
the date of such surrender, such payment to be in cash, or, if the
Committee so provides, in shares of Common Stock valued at Fair Market
Value on the date of such surrender, or partly in shares of Common Stock
and partly in cash.
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<PAGE>
(e) Effect of Expiration, Termination or Surrender of
Options. If an Option shall expire or terminate unexercised as to any shares of
Common Stock covered thereby, such shares of Common Stock shall not be deducted
from the number available under section 5 hereof. If an Option shall be
surrendered as provided in section 6(d) hereof, the shares of Common Stock
(if any) paid in consideration of such surrender, but not the shares which
had been covered by the Option, shall be deducted from the number available
under section 5 hereof.
7. Dilution and Other Adjustments.
(a) Changes in Capital Structure. In the event of any
subdivision or combination of the outstanding shares of Common Stock, stock
dividend, capital reorganization, liquidation, reclassification of shares,
merger, consolidation, or sale, lease or transfer of substantially all of the
assets of the Corporation, the Committee shall make such equitable
adjustments as it may deem appropriate in the Plan and the awards thereunder,
including, without limitation, any adjustment in the total number of shares
of Common Stock which may thereafter be delivered or purchased under the
Plan. Agreements evidencing Options may include such provisions as the
Committee may deem appropriate with respect to the adjustments to be made to
the terms of such Options upon the occurrence of any of the foregoing events.
(b) Tender Offers and Exchange Offers. In the event of any
tender offer or exchange offer, by any person other than the Corporation, for
shares of Common Stock, the Committee may make such adjustments in
outstanding awards and authorize such further action as it may deem
appropriate to enable the recipients of outstanding awards to avail
themselves of the benefits of such offer, including, without limitation,
acceleration of the exercise date of outstanding Options so that they become
immediately exercisable in whole or in part, or offering to acquire all of
any portion of specified categories of Options for a price determined
pursuant to section 6(d) hereof, or acceleration of the payment of
outstanding awards payable, in whole or in part, in shares of Common Stock.
(c) Separation. In the event that the Corporation is involved
in a separation into two or more corporations the result of which is that
stock of a subsidiary of the Corporation is distributed to stockholders of
the Corporation, by any means whatsoever, at the discretion of the
Committee the Options issued hereunder and then outstanding shall be
deemed also to represent Options to acquire shares of common stock of such
subsidiary upon such distribution, and adjustments to outstanding Options
hereunder, including, without limitation, in the exercise price thereof,
may be made in the discretion of the Committee.
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<PAGE>
8. Miscellaneous Provisions.
(a) Right to Awards. No employee or other person shall have
any claim or right to be granted any award under the Plan.
(b) No Assurance of Employment. Neither the Plan nor any
action taken hereunder shall be construed as giving any employee any right to be
retained in the employ of the Corporation or any subsidiary.
(c) Costs and Expenses. All costs and expenses incurred in
administering the Plan shall be borne by the Corporation.
(d) Unfunded Plan. The Plan shall be unfunded. The
Corporation shall not be required to establish any special or separate fund nor
to make any other segregation of assets to assure the payment of any award
under the Plan.
(e) Withholding Taxes. The Corporation shall have the right
to deduct from all awards hereunder paid in cash any federal, state, local or
foreign taxes required by law to be withheld with respect to such payments
and, with respect to awards paid in stock, to require the payment (through
withholding from the participant's salary or otherwise) of any such taxes.
The Corporation shall have the right upon exercise of any Option to require
the payment (at the participant's election, through withholding from the
participant's salary or, at the discretion of the Committee and subject to
the timing requirements of Rule 16b-3(e), from the shares to be issued upon
such exercise, or otherwise) of any taxes described herein. The Committee
may, in the exercise of its sole discretion, permit a participant to pay some
or all of such taxes by means of a promissory note on such terms as the
Committee deems appropriate,
(f) Assignment or Transfer. No awards under the Plan nor any
rights or interests therein shall be assignable or transferable by the
recipient thereof except (i) in the event of a participant's death, to his
designated beneficiary as hereinafter provided, or by will or the laws of
descent and distribution, or (ii) pursuant to a "qualified domestic relations
order" as defined by the Code or the Employee Retirement Income Security Act
of 1974, as amended. During the lifetime of the recipient, awards under the
Plan requiring exercise shall be exercisable only by such holder or
the guardian or legal representative of such holder, or by the assignee or
transferee pursuant to a qualified domestic relations order as described
above.
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<PAGE>
(g) Beneficiary. Any payments on account of awards under the
Plan to a deceased participant shall be paid to such beneficiary as has been
designated by the participant in writing to the Secretary of the Corporation
or, in the absence of such designation, according to the laws of descent and
distribution.
(h) Nature of Benefits. Awards under the Plan, and payments
made pursuant thereto, are not part of salary or base compensation.
(i) Compliance with Legal Requirements. The obligation of the
Corporation to issue or deliver shares of Common Stock upon exercise of
Options or otherwise shall be subject to satisfaction of all applicable legal
and securities exchange requirements, including, without limitation, the
provisions of the Securities Act of 1933, as amended, and the Securities
Exchange Act of 1934 , as amended. The Corporation shall endeavor to satisfy
all such requirements in such a manner as to permit at all times the exercise
of all outstanding Options in accordance with their terms, and to permit the
issuance and delivery of shares of Common Stock whenever provided for by the
terms of any award made under the Plan.
9. Amendment or Termination of the Plan.
The Committee may at any time terminate or from time to time
amend the Plan in whole or in part, provided, however, that no such action
shall adversely affect any rights or obligations with respect to any awards
theretofore made under the Plan, and provided further, that no amendment,
without approval of the holders of Common Stock by an affirmative vote of a
majority of the shares of Common Stock voted thereon in person or by proxy,
shall (i) increase the aggregate number of shares subject to the Plan (other
than increases pursuant to section 7 hereof), (ii) extend the period during
which awards may be granted under the Plan, (iii) increase the maximum term
for which Options may be issued under the Plan, (iv) materially modify the
requirements for eligibility to participate in the Plan, or (v) amend or
modify the Plan in a manner requiring shareholder approval under Rule 16b-3.
With the consent of the participants affected, the Committee may amend
outstanding agreements evidencing awards under the Plan, and may amend the
terms of awards not evidenced by such agreements, in any manner not
inconsistent with the terms of the Plan.
10. Effective Date and Term of Plan.
The Plan shall be effective as of June 1, 1987, subject to the
approval of the Plan by the holder of all of the Common Stock of the
Corporation. The Plan shall terminate at the close of business on June 1,
1997, unless sooner terminated by action of the Committee. No award may be
granted hereunder after termination of the Plan, but such termination
shall not affect the validity of any award then outstanding.
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<PAGE>
11. Law Governing.
The validity and construction of the Plan and any agreements
entered into hereunder shall be governed by the laws of the State of
Delaware, but without regard to the conflict laws of the State of Delaware.
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<PAGE>
EXHIBIT A
BF ENTERPRISES, INC.
MANAGEMENT INCENTIVE COMPENSATION PLAN
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered
into as of , 19 _ , between BF ENTERPRISES, INC., a Delaware corporation
(the "Company"), and ("Purchaser").
THE PARTIES AGREE AS FOLLOWS:
1. Purchase of Shares. Pursuant to the Company's Management
Incentive Compensation Plan (the "Plan"), a copy of which Purchaser
acknowledges having received, and a stock option agreement ("option
Agreement") previously executed by Purchaser and the Company, the Company
hereby sells to Purchaser, and Purchaser hereby purchases from the Company,
_____ shares (the "Plan Shares") of the Company's Common Stock, $.10 par value
("Common Stock") on the terms and conditions set forth herein and in the
Plan and the Option Agreement, the terms and conditions of the Plan and the
Option Agreement being hereby incorporated into this Agreement by reference.
2. Purchase Price. Purchaser is purchasing the Plan Shares from
the Company, and the Company is selling the Plan Shares to Purchaser, at a
price of $____ per share (the "Exercise Price"), for a total purchase price of
$______ (the "Purchase Price").
3. Manner of Payment. Purchaser is hereby tendering payment of
the Purchase Price for the Plan Shares in accordance with the Option
Agreement.
4. Binding Effect. Subject to the limitations set forth in this
Agreement, this Agreement shall be binding upon, and inure to the benefit
of, the executors, administrators, heirs, legal representatives, successors,
and assigns of the parties hereto.
5. Taxes. The Company may withhold from Purchaser's wages, or
require Purchaser to pay to the Company, any applicable withholding and
employment taxes resulting from the purchase of Plan Shares hereunder.
6. Damages. Purchaser shall be liable to the Company for all
costs and damages, including incidental and consequential damages and
attorneys' fees, resulting from Purchaser's breach of this Agreement. If any
party to this Agreement seeks to enforce its rights under this Agreement by
<PAGE>
legal proceedings, the nonprevailing party shall pay costs and expenses
incurred by the prevailing party, including, without limitation, all reasonable
attorneys' fees.
7. Stock Certificate Restrictive Legends. Stock certificates
evidencing Plan Shares may bear such restrictive legends as the Company and
the Company's counsel deem necessary or advisable under applicable law or
pursuant to this Agreement including, without limitation, the following
legends:
"The offering and sale of the securities represented
hereby has not been registered under the Securities Act of 1933 ('Act'). Any
transfer of such securities will be invalid unless a Registration Statement
under the Act is in effect as to such transfer or in the opinion of counsel
for the Company such registration is unnecessary in order for such transfer
to comply with the Act."
"It is unlawful to consummate a sale or transfer of these
securities, or any interest therein, or to receive any consideration
therefor, without the prior written consent of the Commissioner of
Corporations of the State of California, except as permitted in the
Commissioner's rules."
8. Representations, Warranties, Covenants, and Acknowledgments
of Purchaser. Purchaser hereby represents, warrants, covenants, acknowledges,
and agrees that:
8.1 Investment. Purchaser is acquiring the Plan Shares for
Purchaser's own account, and not for the account of any other person.
Purchaser is acquiring the Plan Shares for investment and not with a view to
distribution or resale thereof except in compliance with applicable federal
and state securities laws.
8.2 Relationship with Company. Purchaser is presently, or
within the past six months has been, an officer or employee of the Company
and in such capacity has become personally familiar with the business of the
Company.
8.3 Access to Information. Purchaser has had the
opportunity to ask questions of, and to receive answers from, appropriate
executive officers of the Company with respect to the terms and conditions
of the transactions contemplated hereby and with respect to the business,
affairs, financial conditions, and results of operations of the Company.
Purchaser has had access to such financial and other information as is
necessary in order for Purchaser to make a fully-informed decision as to
investment in the Company by way of purchase of the Plan Shares, and has had
the opportunity to obtain any additional information necessary to verify any
of such information to which Purchaser has had access.
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<PAGE>
8.4 Speculative Investment. Purchaser's investment in the
Company represented by the Plan Shares is speculative in nature and is
subject to a risk of loss in whole or in part. The amount of such investment
is within Purchaser's risk capital means and is not so great in relation to
Purchaser's total financial resources as would jeopardize the personal
financial needs of Purchaser or Purchaser's family in the event such
investment were lost in whole or in part.
8.5 Registration. Purchaser may bear the economic risk of
investment for an indefinite period of time because the sale to Purchaser of
the Plan Shares has not been registered under the Securities Act of 1933 (the
"Act") and the Plan Shares cannot be transferred by Purchaser unless such
transfer is registered under the Act or an exemption from such registration
is available. The Company has made no representations, warranties, or
covenants whatsoever as to whether any exemption from the Act, including
without limitation any exemption for limited sales in routine brokers'
transactions pursuant to Rule 144, will be available; if the exemption under
Rule 144 is available at all, it will not be available until at least two
years after payment of cash for the Plan Shares and not then unless: (i) a
public trading market then exists in the Common Stock; (ii) adequate
information as to the Company's financial and other affairs and operations
is then available to the public; and (iii) all other terms and conditions of
Rule 144 have been satisfied.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California applicable
to contracts entered into and wholly to be performed within the State of
California by California residents. The parties agree that the exclusive
jurisdiction and venue of any action with respect to this Agreement shall be
in the Superior Court of California for the County of San Francisco or the
United States District Court for the Northern District of California, and
each of the parties hereby submits itself to the exclusive jurisdiction and
venue of such courts for the purpose of such action. The parties agree that
service of process in any such action may be effected by delivery of the
summons and complaint in a manner provided for delivery of notices set forth
in Section 10.
10. Notices. All notices and other communications under this
Agreement shall be in writing. Unless and until Purchaser is notified in
writing to the contrary, all notices, communications and documents directed
to the Company and related to the Agreement, if not delivered by hand, shall
be mailed, addressed as follows:
BF Enterprises, Inc.
100 Bush Street, Suite 1700
San Francisco, California 94104
Attention: Secretary
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<PAGE>
Unless and until the Company is notified in writing to the contrary, all
notices, communications and documents intended for Purchaser and related to
this Agreement, if not delivered by hand, shall be mailed to Purchaser's last
known address as shown on the Company's books. Notices, communications and
documents shall be mailed by registered or certified mail, return receipt
requested, postage prepaid. All mailings and deliveries related to this
Agreement shall be deemed received only when actually received.
11. Tax Advice. The Company has made no warranties or
representations to Purchaser with respect to the income tax consequences of
the transactions contemplated by this Agreement, and Purchaser is in no
manner relying on the Company or the Company's representatives for an
assessment of such tax consequences.
12. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature to each such
counterpart were upon a single instrument, and each counterpart shall be
deemed an original of this Agreement.
13. Severability. If any provision of this Agreement is held to
be unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent
possible. In any event, all other provisions of this Agreement shall be
deemed valid and enforceable to the full extent possible.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
BF ENTERPRISES, INC.
By:______________________
Purchaser hereby accepts and agrees to be bound by all of the
terms and conditions of this Agreement, the Option Agreement and the Plan.
PURCHASER;
__________________________
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<PAGE>
EXHIBIT 10.2
BF ENTERPRISES, INC.
1993 LONG-TERM EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS.
(a) Purpose. The purpose of the Plan is to provide selected eligible
employees of, and consultants to, BF Enterprises, Inc., a Delaware corporation
(the "Company"), and its subsidiaries and affiliates, an opportunity to
participate in the Company's future by offering them long-term
performance-based and other incentives and equity interests in the Company so
as to retain, attract and motivate management personnel.
(b) Definitions. For purposes of the Plan, the following terms have the
following meanings:
(i) "Affiliate" means a parent or subsidiary corporation, as
defined in the applicable provisions (currently Section 424) of the Code.
(ii) "Award" means any award under the Plan, including any Option,
Stock Appreciation Right, Restricted Stock, Stock Purchase Right, or
Performance Share Award.
(iii) "Award Agreement" means, with respect to each Award, the signed
written agreement between the Company and the Plan participant setting forth
the terms and conditions of the Award.
(iv) "Board" means the Board of Directors of the Company.
(v) "Change in Control" has the meaning set forth in Section 10(a).
(vi) "Change in Control Price" has the meaning set forth in
Section 10(c).
(vii) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor law.
(viii) "Commission" means the Securities and Exchange Commission and
any successor agency.
(ix) "Committee" means the Committee referred to in Section 2.
(x) "Company" means BF Enterprises, Inc., a Delaware corporation.
(xi) "Disability" means permanent and total disability as determined
by the Committee for purposes of the Plan.
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(xii) "Disinterested Person" has the meaning set forth in
Rule 16b-3(c)(2)(i) under the Exchange Act, and any successor definition
adopted by the Commission.
(xiii) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor law.
(xiv) "Fair Market Value" means as of any given date:
(A) If the Stock is listed on any established stock exchange
or a national market system, including without limitation the National Market
System of the National Association of Securities Dealers, Inc. Automated
Quotation System, the closing sales price for the Stock, as reported on such
system or exchange (or the largest such exchange) for the date the value
is to be determined (or if there is no sale for such date, then for the last
preceding business day on which there was a sale), as reported in the Wall
Street Journal or similar publication.
(B) If the Stock is regularly quoted by a recognized
securities dealer but selling prices are not reported, the mean between the
high bid and low asked prices for the Stock on the date the value is to be
determined (or if there are no quoted prices for the date of grant, then
for the last preceding business day on which there were quoted prices).
(C) In the absence of an established market for the Stock, as
determined in good faith by the Committee, with reference to the Company's net
worth, prospective earning power, dividend-paying capacity, and other relevant
factors, including the goodwill of the Company, the economic outlook in the
Company's industry, the Company's position in the industry and its management,
and the values of stock of other corporations in the same or a similar line of
business.
(xv) "Incentive Stock Option" means any Option intended to be and
designated as an "incentive stock option" within the meaning of Section 422 of
the Code.
(xvi) "Non-Qualified Stock Option" means any Option that is not an
Incentive Stock Option.
(xvii) "Option" means an option granted under Section 5.
(xviii) "Performance Share" means the equivalent, as of any time such
assessment is made, of the Fair Market Value of one share of Stock.
(xix) "Performance Share Award" means an Award under Section 9.
(xx) "Plan" means this BF Enterprises, Inc. 1993 Long-Term Equity
Incentive Plan, as amended from time to time.
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(xxi) "Restricted Stock" means an Award of Stock subject to
restrictions, as more fully described in Section 7.
(xxii) "Rule 16b-3" means Rule 16b-3 under Section 16(b) of the
Exchange Act, as amended from time to time, and any successor rule.
(xxiii) "Stock" means the Common Stock, $.10 par value, of the
Company, and any successor security.
(xxiv) "Stock Appreciation Right" means an Award granted under
Section 6.
(xxv) "Stock Purchase Right" means an Award granted under Section 8.
(xxvi) "Subsidiary" has the meaning set forth in Section 424 of
the Code.
(xxvii) "Termination" means, for purposes of the Plan, with respect
to a participant, that the participant has ceased to be, for any reason, an
employee of, or a consultant to, the Company, a Subsidiary or an Affiliate.
SECTION 2. ADMINISTRATION.
(a) Committee. The Plan shall be administered by the Committee which
shall be a committee of the Board, composed, to the extent required to comply
with Rule 16b-3 (unless the Committee determines that Rule 16b-3 is not
applicable to the Plan), of not less than two Disinterested Persons appointed
by the Board. Appointment of Committee members shall be effective upon
acceptance of appointment. Committee members may resign at any time by
delivering written notice to the Board. Vacancies in the Committee shall be
filled by the Board. The Committee may act only by a majority of its members,
except that the Committee (i) may authorize any one or more of its members or
any officer of the Company to execute and deliver documents on behalf of the
Committee and (ii) so long as not otherwise required for the Plan to comply with
Rule 16b-3 (unless the Committee determines that Rule 16b-3 is not applicable
to the Plan), may delegate to one or more officers or directors of the Company
authority to grant Awards to persons who are not subject to Section 16 of the
Exchange Act with respect to Stock. Unless each member of the Board is a
Disinterested Person or the Committee determines that Rule 16b-3 is not
applicable to the Plan, the Board shall have no right to exercise any of the
rights or duties of the Committee under the Plan.
(b) Authority. The Committee shall grant Awards to eligible employees
and consultants. In particular and without limitation, the Committee, subject
to the terms of the Plan, shall:
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(i) select the officers, other employees and consultants to whom
Awards may be granted;
(ii) determine whether and to what extent Awards are to be granted
under the Plan;
(iii) determine the number of shares to be covered by each Award
granted under the Plan;
(iv) determine the terms and conditions of any Award granted under
the Plan and any related loans to be made by the Company, based upon factors
determined by the Committee; and
(v) determine to what extent and under what circumstances any
Award payments may be deferred by a participant.
(c) Committee Determinations Binding. The Committee may adopt, alter
and repeal administrative rules, guidelines and practices governing the Plan as
it from time to time shall deem advisable, interpret the terms and provisions
of the Plan, any Award and any Award Agreement, and otherwise supervise the
administration of the Plan. Any determination made by the Committee pursuant
to the provisions of the Plan with respect to any Award shall be made in its
sole discretion at the time of the grant of the Award or, unless in
contravention of any express term of the Plan or Award, at any later time.
All decisions made by the Committee under the Plan shall be binding on all
persons, including the Company and Plan participants.
SECTION 3. STOCK SUBJECT TO PLAN.
(a) Number of Shares. The total number of shares of Stock reserved and
available for issuance pursuant to Awards under the Plan shall be 500,000
shares. Such shares may consist, in whole or in part, of authorized and
unissued shares or shares reacquired in private transactions or open market
purchases, but all shares issued under the Plan regardless of source shall be
counted against the 500,000 share limitation. If any Option terminates or
expires without being exercised in full or if any shares of Stock subject to
an Award are forfeited, or if an Award otherwise terminates without a payment
being made to the participant in the form of Stock, the shares issuable
under such Option or Award shall again be available for issuance in connection
with Awards. If any shares of Stock subject to an Award are repurchased by the
Company, the shares issuable under such Award shall again be available for
issuance in connection with Awards other than Options and Stock Appreciation
Rights. To the extent an Award is paid in cash, the number of shares of Stock
representing, at Fair Market Value on the date of the payment, the value of the
cash payment shall not be available for later grant under the Plan.
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<PAGE>
(b) Adjustments. In the event of any merger, reorganization,
consolidation, recapitalization, stock dividend, stock split, spin-off, sale
of substantial assets, or other change in corporate structure affecting the
Stock, such substitution or adjustments shall be made in the aggregate number
of shares of Stock reserved for issuance under the Plan, in the number and
exercise price of shares subject to outstanding Options, in the number and
purchase price of shares subject to outstanding Stock Purchase Rights and in
the number of shares subject to other outstanding Awards, as may be determined
to be appropriate by the Committee, in its sole discretion; provided, that the
number of shares subject to any Award shall always be rounded down to the
nearest whole number. Such adjusted exercise price shall also be used to
determine the amount payable by the Company upon the exercise of any Stock
Appreciation Right associated with any Option.
SECTION 4. ELIGIBILITY.
Awards may be granted to officers and other employees of, and
consultants to, the Company and its Affiliates (excluding any person who serves
only as a director).
SECTION 5. STOCK OPTION.
(a) Types. Any Option granted under the Plan shall be in such form as
the Committee may from time to time approve. The grant shall automatically
terminate without any action by the Company in the event that any stock option
agreement is not executed by the participant within 30 days after delivery of
the Option to the participant. The Committee shall have the authority to grant
to any participant Incentive Stock Options, Non-Qualified Stock Options or any
type of Option (in each case with or without Stock Appreciation Rights).
Incentive Stock Options may be granted only to employees of the Company, its
parent (within the meaning of Section 424 of the Code) or Subsidiaries. Any
portion of an Option that does not qualify as an Incentive Stock Option shall
constitute a Non-Qualified Stock Option.
(b) Terms and Conditions. Options granted under the Plan shall be
subject to the following terms and conditions:
(i) Option Term. The term of each Option shall be fixed by the
Committee, but no Incentive Stock Option shall be exercisable more than 10
years after the date the Option is granted and no Non-Qualified Stock Option
shall be exercisable more than 11 years after the date the Option is granted.
If, at the time the Company grants an Incentive Stock Option, the optionee owns
directly, or by attribution, stock possessing more than 10% of the total
combined voting power of all classes of stock of the Company, or any Affiliate
of the Company, the Incentive Stock Option shall not be exercisable more than
five years after the date of grant.
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(ii) Grant Date. The Company may grant Options under the Plan at
any time and from time to time before the Plan terminates. The Committee shall
specify the date of grant or, if it fails to, the date of grant shall be the
date of action taken by the Committee to grant the Option; provided, that no
Option may be exercised prior to execution of the applicable Award Agreement.
However, if an Option is approved in anticipation of employment, the date of
grant shall be the date the intended optionee is first treated as an employee
for payroll purposes.
(iii) Exercise Price. The exercise price per share of Stock
purchasable under a Non-Qualified Stock Option shall be equal to at least 10%
(or such other minimum price as may be established by the Internal Revenue
Service as a "safe harbor" against constructive receipt of income upon grant
of the Option by the recipient of the Option), and not more than 100%, of the
Fair Market Value on the date of grant. The exercise price per share of Stock
purchasable under an Incentive Stock Option shall be equal to at least the Fair
Market Value on the date of grant; provided, that if at the time the Company
grants an Incentive Stock Option, the optionee owns directly or by attribution
stock possessing more than 10% of the total combined voting power of all
classes of stock of the Company, or any Affiliate of the Company, the exercise
price shall be not less than 110% of the Fair Market Value on the date the
Incentive Stock Option is granted.
(iv) Exercisability. Subject to the other provisions of the Plan,
an Option shall be exercisable in its entirety at grant or at such times and in
such amounts as are specified in the Award Agreement evidencing the Option. The
Committee, in its absolute discretion, at any time may waive any limitations
respecting the time at which an Option first becomes exercisable in whole or in
part.
(v) Method of Exercise; Payment. To the extent the right to
purchase shares has accrued, Options may be exercised, in whole or in part,
from time to time, by written notice from the optionee to the Company stating
the number of shares being purchased, accompanied by payment of the exercise
price for the shares. The Committee, in its discretion, may elect at the time
of Option exercise that any Non-Qualified Stock Option be settled in cash
rather than Stock.
(vi) No Disqualification. Notwithstanding any other provision
in the Plan, no term of the Plan relating to Incentive Stock Options shall be
interpreted, amended or altered, nor shall any discretion or authority granted
under the Plan be exercised, so as to disqualify the Plan under Section 422 of
the Code or, without the consent of the optionee affected, to disqualify any
Incentive Stock Option under such Section 422 of the Code.
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SECTION 6. STOCK APPRECIATION RIGHTS.
(a) Relationship to Options; No Payment by Participant. A Stock
Appreciation Right may be awarded either (i) with respect to Stock subject to
an Option held by a participant, or (ii) without reference to an Option. If an
Option is an Incentive Stock Option, a Stock Appreciation Right granted with
respect to such Option may be granted only at the time of grant of the related
Incentive Stock Option, but if the Option is a Non-Qualified Stock Option, the
Stock Appreciation Right may be granted either simultaneously with the grant of
the related Non-Qualified Stock Option or at any time during the term of such
related Non-Qualified Stock Option. No consideration shall be paid by a
participant with respect to a Stock Appreciation Right.
(b) When Exercisable. A Stock Appreciation Right shall be
exercisable at such times and in whole or in part, each as determined by the
Committee, subject, with respect to participants subject to Section 16(b) of
the Exchange Act, to Rule 16b-3. Unless the Committee determines that Rule
16b-3 is not applicable to the Plan, any exercise by the participant of a
Stock Appreciation Right for cash shall be made only (i) during the window
period specified in Rule 16b-3(e)(3) and any successor rule (the "Window
Period") or (ii) pursuant to an irrevocable written election by the
participant to receive cash, in whole or in part, upon exercise of his Stock
Appreciation Right(subject to the approval of the Committee) made at least 6
months prior to the exercise of the Stock Appreciation Right. If a Stock
Appreciation Right is granted with respect to an Option, unless the Award
Agreement otherwise provides, the Stock Appreciation Right may be exercised
only to the extent to which shares covered by the Option are not at the time
of exercise subject to repurchase by the Company.
(c) Effect on Related Right; Termination of Stock Appreciation Right.
If a Stock Appreciation Right granted with respect to an Option is exercised,
the Option shall cease to be exercisable and shall be cancelled to the extent
of the number of shares with respect to which the Stock Appreciation Right was
exercised. Upon the exercise or termination of an Option, related Stock
Appreciation Rights shall terminate to the extent of the number of shares as to
which the Option was exercised or terminated, except that, unless otherwise
determined by the Committee at the time of grant, a Stock Appreciation Right
granted with respect to less than the full number of shares covered by a
related Option shall not be reduced until the number of shares covered by
exercise or termination of the related Option exceeds the number of shares not
covered by the Stock Appreciation Right. A Stock Appreciation Right granted
independently from an Option shall terminate and shall be no longer exercisable
at the time determined by the Committee at the time of grant, but not later
than 10 years from the date of grant. Upon the Termination of the participant,
a Stock Appreciation Right granted with respect to an Option shall be
exercisable only to the extent which the Option is then exercisable.
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(d) Form of Payment Upon Exercise. Despite any attempt by a participant
to elect payment in a particular form upon exercise of a Stock Appreciation
Right, the Committee, in its discretion, may elect to cause the Company to pay
cash, Stock, or a combination of cash and Stock upon exercise of the Stock
Appreciation Right.
(e) Amount of Payment Upon Exercise. Upon the exercise of a Stock
Appreciation Right, the participant shall be entitled to receive one of the
following payments, as determined by the Committee under Section 6(d):
(i) Stock. That number of whole shares of Stock equal to the number
computed by dividing (A) an amount (the "Stock Appreciation Right Spread"),
rounded to the nearest whole dollar, equal to the product computed by
multiplying (x) the excess of (1) if the Stock Appreciation Right may only be
exercised during the Window Period, the highest Fair Market Value on any day
during the Window Period, and otherwise, the Fair Market Value on the date the
Stock Appreciation Right is exercised, over (2) the exercise price per share of
Stock of the related Option, or in the case of a Stock Appreciation Right
granted without reference to an Option, such other price as the Committee
establishes at the time the Stock Appreciation Right is granted, by (y) the
number of shares of Stock with respect to which a Stock Appreciation Right is
being exercised by (B) (1) if the Stock Appreciation Right may only be
exercised during the Window Period, the highest Fair Market Value during the
Window Period in which the Stock Appreciation Right was exercised, and
(2) otherwise, the Fair Market Value on the date the Stock Appreciation Right
is exercised; plus, if the foregoing calculation yields a fractional share, an
amount of cash equal to the applicable Fair Market Value multiplied by such
fraction (such payment to be the difference of the fractional share); or
(ii) Cash. An amount in cash equal to the Stock Appreciation Right
Spread; or
(iii) Cash and Stock. A combination of cash and Stock, the combined
value of which shall equal the Stock Appreciation Right Spread.
SECTION 7. RESTRICTED STOCK.
Shares of Restricted Stock shall be subject to the following terms and
conditions:
(a) Price. Participants awarded Restricted Stock, within 45 days of
receipt of the applicable Award Agreement, which in no event shall be later
than 10 days after the Award grant date, shall pay to the Company, if required
by applicable law, an amount at least equal to the par value of the Stock
subject to the Award. If such payment is not made and received by the Company
by such date, the Award of Restricted Stock shall lapse.
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(b) Restrictions. Subject to the provisions of the Plan and the Award
Agreement, during a period set by the Committee, commencing with, and not
exceeding 10 years from, the date of such award (the "Restriction Period"),
the participant shall not be permitted to sell, assign, transfer, pledge or
otherwise encumber shares of Restricted Stock. Within these limits, the
Committee may in its discretion provide for the lapse of such restrictions in
installments and may accelerate or waive such restrictions, in whole or in part,
based on service, performance or such other factors or criteria as the
Committee may determine.
(c) Dividends. Unless otherwise determined by the Committee, cash
dividends with respect to shares of Restricted Stock shall be automatically
reinvested in additional Restricted Stock, and dividends payable in Stock shall
be paid in the form of Restricted Stock, and in each case such additional
shares of Restricted Stock will be deemed vested pursuant to the terms of the
Award Agreement applicable to such Restricted Stock on a pro rata basis.
(d) Termination. Except to the extent otherwise provided in the Award
Agreement and pursuant to Section 7(b), upon termination of a participant's
employment for any reason during the Restriction Period, all shares still
subject to restriction shall be forfeited by the participant.
SECT ION 8. STOCK PURCHASE RIGHTS.
(a) Price. The Committee may grant Stock Purchase Rights which shall
enable the recipients to purchase Stock at a price equal to not less than 50%,
and not more than 100% of its Fair Market Value on the date of grant.
(b) Exercisability. Stock Purchase Rights shall be exercisable for a
period determined by the Committee not exceeding 30 days from the date of grant.
SECTION 9. PERFORMANCE SHARES.
(a) Awards. The Committee shall determine the nature, length (which
shall in no event exceed 10 years) and starting date of the performance period
(the "Performance Period") for each Performance Share Award. The consideration
payable by a participant with respect to a Performance Share Award shall be an
amount determined by the Committee in the exercise of the Committee's
discretion at the time of the Award; provided, that the amount of consideration
may be zero and may in no event exceed 50% of the Fair Market Value at the time
of grant. The Committee shall determine the performance objectives to be used
in awarding Performance Shares and the extent to which such Performance Shares
have been earned. Performance Periods may overlap and participants may
participate simultaneously with respect to Performance Share Awards
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that are subject to different Performance Periods and different performance
factors and criteria. At the beginning of each Performance Period, the
Committee shall determine for each Performance Share Award subject to such
Performance Period the number of shares of Stock (which may constitute
Restricted Stock) to be awarded to the participant at the end of the
Performance Period if and to the extent that the relevant measures of
performance for such Performance Share Award are met. Such number of shares of
Stock may be fixed or may vary in accordance with such performance or other
criteria as may be determined by the Committee. The Committee may provide
that amounts equivalent to interest at such rates as the Committee may
determine or amounts equivalent to dividends paid shall be payable with respect
to Performance Share Awards. In addition to the provisions set forth in
Section 11(j), the Committee, in its discretion, may modify the terms of any
Performance Share Award, including the specification and measurement of
performance goals.
(b) Termination of Employment. Except as otherwise provided in the
Award Agreement or determined by the Committee, in the event of Termination,
then the participant shall not be entitled to any payment subsequent to such
Termination with respect to the Performance Shares subject to the Performance
Period.
(c) Form of Payment. Payment shall be made in the form of cash or
whole shares of Stock, as the Committee, in its discretion, shall determine.
SECTION 10. CHANGE IN CONTROL
(a) Definition of "Change in Control". For purposes of Section 10(b),
a "Change in Control" means the occurrence of either of the following:
(i) any "person", as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, a Subsidiary, an Affiliate,
or a Company employee benefit plan, including any trustee of such plan acting
as trustee), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company
(or a successor to the Company) representing 35% or more of the combined voting
power of the then-outstanding securities of the Company or such successor;
(ii) at any time that the Company has registered shares under the
Exchange Act, at least 40% of the directors of the Company constitute persons
who were not, at the time of their first election to the Board, candidates
proposed by a majority of the Board in office prior to the time of such first
election; or
(iii) (A) the dissolution of the Company or liquidation of more than
50% in value of the Company or a sale of assets involving 50% or more in value
of the assets of the Company, (B) any merger or reorganization of the Company
whether or not another entity is the survivor, (C) a transaction pursuant
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to which the holders, as a group, of all of the shares of the Company
outstanding prior to the transaction hold, as a group, less than 50% of the
combined voting power of the Company or any successor company outstanding after
the transaction, or (D) any other event which the Board, in its discretion,
determines would materially alter the structure of the Company or its ownership.
(b) Impact of Event. In the event of a "Change in Control" as defined
in Section 10(a), the following provisions shall apply:
(i) any Stock Appreciation Rights and Options outstanding as of
the date such Change in Control is determined to have occurred and not then
exercisable and vested shall become fully exercisable and vested; provided,
that in the case of a holder of Stock Appreciation Rights who is actually
subject to Section 16(b) of the Exchange Act, such Stock Appreciation Rights
shall have been outstanding for at least six months at the date such Change in
Control is determined to have occurred;
(ii) the restrictions and limitations applicable to any Restricted
Stock and Stock Purchase Rights shall lapse, and such Restricted Stock shall
become fully vested;
(iii) the value (net of any exercise price and required tax
withholdings) of all outstanding Options, Stock Appreciation Rights, Restricted
Stock, and Stock Purchase Rights, unless otherwise determined by the Committee
at or after grant and subject to Rule 16b-3, shall be cashed out on the basis
of the "Change in Control Price", as defined in Section 10(c), as of the date
such Change in Control is determined to have occurred or such other date as the
Board may determine prior to the Change in Control; and
(iv) any outstanding Performance Share Awards shall be vested and
paid in full as if all performance criteria had been met; provided, however,
that the foregoing provisions shall only apply, with respect to the events
described Section 10(a)(i), 10(a)(iii)(B), and 10(a)(iii)(D), if and to the
extent so specifically determined by the Board in the exercise of the Board's
discretion, which determination may be amended or reversed only by the
affirmative vote of a majority of the persons who were directors at the time
such determination was made.
(c) Change in Control Price. For purposes of this Section 10, "Change
in Control Price" means the highest price per share paid in any transaction
reported on any established stock exchange, national market system or other
established market for the Stock, or paid or offered in any bona fide
transaction, in each case related to a potential or actual Change in Control
of the Company, at any time during the 60-day period preceding the Change in
Control, as determined by the Board, except that, in the case of Incentive
Stock Options and Stock Appreciation Rights relating to Incentive Stock
Options, such price shall be based only on transactions reported for the
date on which the Board decides to cash out such Options.
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SECTION 11. GENERAL PROVISIONS.
(a) Award Grants. Any Award may be granted either alone or in addition
to other Awards granted under the Plan. Subject to the terms and restrictions
set forth elsewhere in the Plan, the Committee shall determine the
consideration, if any, payable by the participant for any Award and, in
addition to those set forth in the Plan, any other terms and conditions of the
Awards. The Committee may condition the grant or payment of any Award upon the
attainment of specified performance goals or such other factors or criteria,
including vesting based on continued employment or consulting, as the Committee
shall determine. Performance objectives may vary from participant to participant
and among groups of participants and shall be based upon such Company,
Subsidiary, group or division factors or criteria as the Committee may deem
appropriate, including, but not limited to, earnings per share or return on
equity. The other provisions of Awards also need not be the same with respect
to each recipient. Unless specified otherwise in the Plan or by the Committee,
the date of grant of an Award shall be the date of action by the Committee to
grant the Award. The Committee may also substitute new Options for previously
granted Options, including previously granted Options having higher exercise
prices.
(b) Types of Shares. The Committee, in its discretion, may determine
at the time of an Award that in lieu of Stock there shall be issuable under, or
applicable to the measurement of, any Award of (i) Restricted Stock,
(ii) shares of any series of common stock of the Company, other than Stock,
and shares of any series of common stock of any Subsidiary or Affiliate of the
Company ("Common Shares"), or (iii) shares of any series of preferred stock of
the Company ("Preferred Shares"); provided, that (A) with respect to shares
issuable upon exercise of Incentive Stock Options, Common Shares and Preferred
Shares shall be limited to shares of any Subsidiary authorized as of the date
the Plan is approved by the Board, and (B) with respect to shares issuable
upon exercise of Non-Qualified Stock Options and Stock Appreciation Rights,
Common Shares and Preferred Shares shall be limited to shares of any Subsidiary
or Affiliate of the Company. In such event, the Committee shall determine the
number of shares of Stock equivalent to such Restricted Stock, Common Shares
or Preferred Shares for the purpose of calculating the shares of Stock issued
under the Plan; provided, that a Common Share or a Preferred Share in no event
shall be deemed equal to less than one share of Stock.
(c) Award Agreement. As soon as practicable after the date of an
Award grant, the Company and the participant shall enter into a written Award
Agreement specifying the date of grant, and the terms and conditions of the
Award.
(d) Certificates. All certificates for shares of Stock or other
securities delivered under the Plan shall be subject to such stock transfer
orders, legends and other restrictions as the Committee may deem advisable
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under the rules, regulations and other requirements of the Commission, any
stock exchange upon which the Stock is then listed and any applicable federal,
state or foreign securities law.
(e) Termination. In the event of Termination for any reason other than
death or Disability, Awards held at the date of Termination (and only to the
extent then exercisable or payable, as the case may be) may be exercised in
whole or in part at any time within three months after the date of Termination,
or such lesser period specified in the Award Agreement (but in no event after
the expiration date of the Award), but not thereafter. If Termination is due to
death or Disability, or a participant dies or becomes disabled within the
period that the Award remains exercisable or payable, as the case may be,
after Termination, only Awards held at the date of death or Disability
(and only to the extent then exercisable or payable, as the case may be) may be
exercised in whole or in part by the participant in the case of Disability, by
the participant's personal representative or by the person to whom the Award is
transferred by will or the laws of descent and distribution, at any time within
18 months after the death or one year after the Disability, as the case may be,
of the participant, or any lesser period specified in the Award Agreement
(but in no event after the expiration of the Award). In the event of
Termination by reason of the participant's retirement (as determined in the
exercise of the Committee's sole discretion), Awards may be exercised in whole
or in part at any time within two years after the date of Termination, or such
lesser period specified in the Award Agreement; provided, however, that in no
event shall an Award be exercisable after the expiration date of the Award.
(f) Delivery of Purchase Price. Participants shall make all or any
portion of any payment due to the Company with respect to the consideration
payable for, upon exercise of, or for any federal, state, local or foreign tax
payable in connection with, an Award by delivery of cash; and if and only to
the extent authorized by the Committee, all or any portion of such payment may
be made by delivery of any property (including, without limitation, a
promissory note of the participant or shares of Stock or other securities and,
in the case of an option, surrender of shares issuable upon exercise of that
option) other than cash, so long as, if applicable, such property constitutes
valid consideration for the Stock under applicable law. To the extent
participants may make payments due to the Company upon grant or exercise of
Awards by the delivery of shares of Stock or other securities, the Committee,
in its discretion, may permit participants constructively to deliver for any
such payment (A) securities of the Company held by the participant for at least
6 months or (B) subject to the timing requirements of Section 11(y), securities
of the Company issuable to the participant upon exercise of the Award.
Constructive delivery shall be effected by (i) identification by the participant
of shares intended to be delivered constructively, (ii) confirmation by the
Company of participant's ownership of such shares (for example, by reference to
the Company's stock records, or by some other means of verification), and
(iii) if applicable, upon exercise, delivery to the participant of a
certificate for that number of shares equal to the number of shares for which
the Award is exercised less the number of shares constructively delivered.
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(g) Tax Withholding. If and to the extent authorized by the Committee
in its discretion, a person who has received an Award or payment under an Award
may, to pay the amount of tax that the Committee in its discretion determines
to be required to be withheld by the Company, make an election to deliver to
the Company or have withheld either (i) a promissory note of the participant
on the terms set forth in Section 11(f) or (ii) (A) securities of the Company
held by the participant for at least 6 months or (B), subject to the timing
requirements of Section 11(y), securities of the Company issuable to the
participant upon exercise of the Award. Any shares or other securities so
withheld or tendered will be valued by the Committee as of the date they are
withheld or tendered; provided, that Stock shall be valued at the Fair Market
Value on such date. The value of the shares withheld or tendered may not exceed
the required federal, state, local and foreign withholding tax obligations as
computed by the Company. Unless the Committee permits otherwise, the participant
shall pay to the Company in cash, promptly when the amount of such obligations
becomes determinable, all applicable federal, state, local and foreign
withholding taxes that the Committee in its discretion determines to result
from the lapse of restrictions imposed upon an Award or upon exercise of an
Award or from a transfer or other disposition of shares acquired upon exercise
or payment of an Award or otherwise related to the Award or the shares acquired
in connection with an Award.
(h) No Transferability. No Award shall be assignable or otherwise
transferable by the participant other than by will or by the laws of descent
and distribution, and during the life of a participant, an Award shall be
exercisable, and any elections with respect to an Award may be made, only by
the participant or participant's guardian or legal representative. Unless
otherwise approved in writing by the Committee, no shares acquired upon
exercise of any Award by any officer of the Company, as defined in
Rule 16a-l(f) under the Exchange Act, may be sold, assigned, pledged,
encumbered or otherwise transferred until at least 6 months have elapsed from
(but excluding) the date that such Award was granted. The Committee may require
the participant to give the Company prompt notice of any disposition of shares
of Stock, acquired by exercise of an Incentive Stock Option within two years
from the date of granting such option or one year after the transfer of such
shares to such participant. The Committee may direct that the certificates
evidencing shares acquired by exercise of an option refer to such requirement
to give prompt notice of disposition.
(i) Right of First Refusal. At the time of grant, the Committee may
provide in connection with any Award that the shares of Stock received as a
result of such Award shall be subject to a right of first refusal pursuant to
which the participant shall be required to offer to the Company any shares that
the participant wishes to sell at the then Fair Market Value of the Stock or
at such other price as may be set forth in the applicable Award Agreement,
subject to such other terms and conditions as the Committee may specify at the
time of grant.
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(j) Adjustment of Awards: Waivers. The Committee may adjust the
performance goals and measurements applicable to Awards (i) to take into
account changes in law and accounting and tax rules, (ii) to make such
adjustments as the Committee deems necessary or appropriate to reflect the
inclusion or exclusion of the impact of extraordinary or unusual items, events
or circumstances in order to avoid windfalls or hardships, (iii) to make such
adjustments as the Committee deems necessary or appropriate to reflect any
material changes in business conditions, and (iv) in any other manner
determined in the Committee's discretion. In the event of hardship or other
special circumstances of a participant and otherwise in its discretion, the
Committee may waive in whole or in part any or all restrictions, conditions,
vesting, or forfeiture with respect to any Award granted to such participant.
(k) Election to Defer Payment. To the extent, if any, permitted by the
Committee, a participant may elect, at such time as the Committee may in its
discretion specify, to defer payment of all or a portion of an Award.
(l) Non-Competition. The Committee may condition the Committee's
discretionary waiver of a forfeiture or vesting acceleration at the time of
Termination of a participant holding any unexercised or unearned Award or the
waiver of restrictions upon any Award upon a requirement that such participant
agree to and actually (i) not engage in any business or activity competitive
with any business or activity conducted by the Company and (ii) be available,
unless such participant shall have died, for consultations at the request of
the Company's management, all on such terms and conditions (including
conditions in addition to (i) and (ii)) as the Committee may determine.
(m) Dividends. The reinvestment of dividends in additional Stock or
Restricted Stock at the time of any dividend payment shall only be permissible
if sufficient shares of Stock are available under Section 3 for such
reinvestment (taking into account then outstanding Awards).
(n) Regulatory Compliance. Each Award under the Plan shall be subject
to the condition that, if at any time the Committee shall determine that
(i) the listing, registration or qualification of the shares of Stock,
Common Shares or Preferred Shares upon any securities exchange or under
any state or federal law, (ii) the consent or approval of any government or
regulatory body or (iii) an agreement or representations by the participant
with respect thereto is necessary or desirable, then such Award shall not be
consummated in whole or in part unless such listing, registration,
qualification, consent, approval, agreement or representations shall have been
effected or obtained free of any conditions not acceptable to the Committee.
(o) Rights as Shareholder. Unless the Plan or the Committee expressly
specifies otherwise, a participant shall have no rights as a shareholder with
respect to any shares covered by an Award until the participant is entitled,
under the terms of the Award, to receive such shares. Subject to Sections 3(b)
and 7(c), no adjustment shall be made for dividends or other rights for which
the record date is prior to the date the certificates are delivered.
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(p) Beneficiary Designation. The Committee, in its discretion, may
establish procedures for a participant to designate a beneficiary to whom any
amounts payable in the event of the participant's death are to be paid.
(q) Additional Plans. Nothing contained in the Plan shall prevent the
Company, a Subsidiary or Affiliate from adopting other or additional
compensation arrangements for its employees.
(r) No Employment Rights. The adoption of the Plan shall not confer
upon any employee any right to continued employment nor shall it interfere in
any way with the right of the Company, a Subsidiary or Affiliate to terminate
the employment of any employee at any time.
(s) Rule 16b-3. Notwithstanding any provision of the Plan, the Plan
shall always be administered, and Awards shall always be granted and exercised,
in such a manner as to conform to the provisions of Rule 16b-3, unless the
Committee determines that Rule 16b-3 is not applicable to the Plan.
(t) Governing Law. The Plan and all Awards shall be governed by and
construed in accordance with the laws of the State of California.
(u) Use of Proceeds. All cash proceeds to the Company under the Plan
shall constitute general funds of the Company.
(v) Unfunded Status of Plan. The Plan shall constitute an "unfunded"
plan for incentive and deferred compensation. The Committee may authorize the
creation of trusts or arrangements to meet the obligations created under the
Plan to deliver Stock or make payments; provided, that unless the Committee
otherwise determines, the existence of such trusts or other arrangements shall
be consistent with the "unfunded" status of the Plan.
(w) Assumption by Successor. The obligations of the Company under the
Plan and under any outstanding Award may be assumed by any successor
corporation, which for purposes of the Plan shall be included within the
meaning of "Company".
(x) Plan Designation and Status. Notwithstanding the designation of
this document as a plan for ease of reference and to standardize certain
provisions applicable to all types of Awards, each type of Award shall be
deemed to be a separate "plan" for purposes of Section 16 of the Exchange
Act and any applicable state securities laws.
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(y) Certain Timing Requirements. Securities of the Company issuable to
the participant upon exercise of an Award may be used to satisfy the exercise
price or the tax withholding consequences of such exercise only (i) during the
period beginning on the third business day following the date of release of the
quarterly or annual summary statement of sales and earnings of the Company and
ending on the twelfth business day following such date or (ii) pursuant to an
irrevocable written election by the participant to use securities of the
Company issuable to the participant upon exercise of the Award to pay all or
part of the exercise price or the withholding taxes (subject to the approval of
the Committee) made at least 6 months prior to the payment of such exercise
price or withholding taxes.
SECTION 12. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue the Plan, but no amendment,
alteration or discontinuance shall be made which would impair the rights of a
participant under an outstanding Award without the participant's consent. In
addition, to the extent required for the Plan to comply with Rule 16b-3 or,
with respect to provisions solely as they relate to Incentive Stock Options, to
the extent required for the Plan to comply with Section 422 of the Code, the
Board may not amend or alter the Plan without the approval of a majority of the
votes cast at a duly held meeting of shareholders at which a quorum of the
voting power of the Company is represented in person or by proxy, where such
amendment or alteration would:
(a) except as expressly provided in the Plan, increase the total number
of shares reserved for issuance pursuant to Awards under the Plan;
(b) except as expressly provided in the Plan, change the minimum price
terms of Sections 5(b)(iii), 7(a) or 8(a);
(c) change the class of employees and consultants eligible to
participate in the Plan;
(d) extend the maximum Option term under Section 5(b) or the maximum
Stock Purchase Right exercise period under Section 8(b); or
(e) materially increase the benefits accruing to participants under
the Plan.
The Board of Directors may, at any time without shareholder approval,
amend the Plan and the terms of any Award outstanding under the Plan, provided
that such amendment is designed to maximize federal income tax benefits
accorded to Awards or, if the Committee determines that Rule 16b-3 is
applicable to the Plan, to comply with Rule 16b-3 and provided further, that
with respect to outstanding Awards, the participant consents to such amendment.
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SECTION 13. EFFECTIVE DATE OF PLAN.
The Plan shall be effective on the date it is adopted by the Board but
all Awards shall be conditioned upon approval of the Plan at a duly held
meeting of shareholders by the affirmative vote of the holders of a majority
of the voting power of the shares of the Company represented in person or by
proxy and entitled to vote at the meeting.
SECTION 14. TERM OF PLAN.
No Award shall be granted on or after February 12, 2003, but Awards
granted prior to February 12, 2003 (including, without limitation, Performance
Share Awards for Performance Periods commencing prior to February 12, 2003) may
extend beyond that date.
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SECRETARY'S CERTIFICATE
I, John M. Price, the duly elected Secretary of
BF Enterprises, Inc. (the "Company") do hereby certify that the attached
1993 Long-Term Equity Incentive Plan was duly adopted by the Board of Directors
of the Company on February 13, 1993.
__________________________
John M. Price
Secretary
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EXHIBIT 5.3
BF ENTERPRISES, INC.
1993 LONG-TERM EQUITY INCENTIVE PLAN
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is made and entered into
as of _______, 19 , between BF ENTERPRISES, INC., a Delaware corporation
(the "Company"), and _______ ("Purchaser").
THE PARTIES AGREE AS FOLLOWS:
1. Purchase of Shares. Pursuant to the Company's 1993 Long-Term Equity
Incentive Plan (the "Plan"), a copy of which Purchaser acknowledges having
received, and a Non-Qualified Stock Option Agreement ("Option Agreement")
previously executed by Purchaser and the Company, the Company hereby sells to
Purchaser, and Purchaser hereby purchases from the Company, ________ shares
(the "NQO Shares") of the Company's $.10 par value common stock ("Common
Stock") on the terms and conditions set forth herein and in the Plan and the
Option Agreement, the terms and conditions of the Plan and Option Agreement
being hereby incorporated into this Agreement by reference.
2. Purchase Price. Purchaser is purchasing the NQO Shares from the
Company, and the Company is selling the NQO Shares to Purchaser, at a price of
$ ______ per share (the "Exercise Price"), for a total purchase price of
$___________ (the "Purchase Price").
3. Manner of Payment. Purchaser is hereby tendering payment of the
Purchase Price for the NQO Shares in accordance with the Option Agreement.
4. Binding Effect. Subject to the limitations set forth in this
Agreement, this Agreement shall be binding upon, and inure to the benefit of,
the executors, administrators, heirs, legal representatives, successors, and
assigns of the parties hereto.
5. Taxes. The Company may withhold from Purchaser's wages, or require
Purchaser to pay to the Company, any applicable withholding and employment
taxes resulting from the purchase of NQO Shares hereunder.
6. Damages. Purchaser shall be liable to the Company for all costs and
damages, including incidental and consequential damages and attorneys' fees,
resulting from Purchaser's breach of this Agreement. If any party to this
Agreement seeks to enforce its rights under this Agreement by legal proceedings,
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the non-prevailing party shall pay costs and expenses incurred by the
prevailing party, including, without limitation, all reasonable attorneys' fees.
7. Stock Certificate Restrictive Legends. Stock certificates
evidencing NQO Shares may bear such restrictive legends as the Company and the
Company's counsel deem necessary or advisable under applicable law or pursuant
to this Agreement including, without limitation, the following legend:
"The offering and sale of the securities represented hereby has not
been registered under the Securities Act of 1933 ("Act"). Any transfer of such
securities will be invalid unless a Registration Statement under the Act is in
effect as to such transfer or in the opinion of counsel for the Company such
registration is unnecessary in order for such transfer to comply with the
Act."
8. Representations, Warranties, Covenants, and Acknowledgments of
Purchaser. Purchaser hereby represents, warrants, covenants, acknowledges, and
agrees that:
8.1 Investment. Purchaser is acquiring the NQO Shares for Purchaser's
own account, and not for the account of any other person. Purchaser is
acquiring the NQO Shares for investment and not with a view to distribution or
resale thereof except in compliance with applicable laws regulating securities.
8.2 Business Experience. Purchaser is capable of evaluating the merits
and risks of Purchaser's investment in the Company evidenced by purchase of the
NQO Shares.
8.3 Relation to Company. Purchaser is presently an officer, director
or other employee of, or consultant to, the Company and in such capacity has
become personally familiar with the business, affairs, financial condition and
results of operations of the Company.
8.4 Access to Information. Purchaser has had the opportunity to ask
questions of, and to receive answers from, appropriate officers of the Company
with respect to the terms and conditions of the transaction contemplated hereby
and with respect to the business, affairs, financial condition and results of
operations of the Company. Purchaser has had access to such financial and other
information as is necessary in order for Purchaser to make a fully-informed
decision as to investment in the Company by way of purchase of the NQO Shares,
and has had the opportunity to obtain any additional information necessary to
verify any of such information to which Purchaser has had access.
8.5 Speculative Investment. Purchaser's investment in the Company
represented by the NQO Shares is highly speculative in nature and is subject
to a high degree of risk of loss in whole or in part. The amount of such
investment is within Purchaser's risk capital means and is not so great in
relation to Purchaser's total financial resources as would jeopardize the
personal financial needs of Purchaser or Purchaser's family in the event such
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investment were lost in whole or in part.
8.6 Registration. Purchaser must bear the economic risk of investment
for an indefinite period of time because the sale to Purchaser of the NQO
Shares has not been registered under the Act and the NQO Shares cannot be
transferred by Purchaser unless such transfer is registered under the Act or
an exemption from such registration is available. The Company has made no
representations, warranties or covenants whatsoever as to whether any exemption
from the Act, including without limitation any exemption for limited sales in
routine brokers' transactions pursuant to Rule 144, will be available; if the
exemption under Rule 144 is available at all, it may not be available until at
least two years after payment of cash for the NQO Shares and not then unless:
(a) a public trading market then exists in the Common Stock; (b) adequate
information as to the Company's financial and other affairs and operations is
then available to the public; and (c) all other terms and conditions of
Rule 144 have been satisfied.
8.7 Tax Advice. The Company has made no warranties or representations
to Purchaser with respect to the income tax consequences of the transactions
contemplated by the option agreement pursuant to which the NQO Shares will be
purchased, and Purchaser is in no manner relying on the Company or the
Company's representatives for an assessment of such tax consequences.
9. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents. The parties agree that the exclusive jurisdiction and
venue of any action with respect to this Agreement shall be in the Superior
Court of California for the County of San Francisco or the United States
District Court for the Northern District of California, and each of the parties
hereby submits to the exclusive jurisdiction and venue of such courts for the
purpose of such action. The parties agree that service of process in any such
action may be effected by delivery of the summons and complaint in a manner
provided for delivery of notices set forth in Section 10.
10. Notices. All notices and other communications under this Agreement
shall be in writing. Unless and until Purchaser is notified in writing to the
contrary, all notices, communications and documents directed to the Company and
related to the Agreement, if not delivered by hand, shall be mailed, addressed
as follows:
BF Enterprises, Inc.
100 Bush Street, Suite 1250
San Francisco, CA 94104
Attention: Secretary
Unless and until the Company is notified in writing to the contrary, all
notices, communications and documents intended for Purchaser and related to
this Agreement, if not delivered by hand, shall be mailed to Purchaser's
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last known address as shown on the Company's books. Notices and communications
shall be mailed by first class mail, postage prepaid; documents shall be mailed
by registered mail, return receipt requested, postage prepaid. All mailings
and deliveries related to this Agreement shall be deemed received only when
actually received.
11. Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signature to each such counterpart
were upon a single instrument, and each counterpart shall be deemed an original
of this Agreement.
12. Severability. If any provision of this Agreement is held to be
unenforceable for any reason, it shall be adjusted rather than voided, if
possible, in order to achieve the intent of the parties to the extent possible.
In any event, all other provisions of this Agreement shall be deemed valid and
enforceable to the full extent possible.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
BF ENTERPRISES, INC.
By: __________________________
Title:
Purchaser hereby accepts and agrees to be bound by all of the terms
and conditions of this Agreement, the Option Agreement and the Plan.
PURCHASER
___________________________
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BF ENTERPRISES, INC.
1993 LONG-TERM EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Agreement"), is made
and entered into as of ____________ between BF Enterprises, Inc., a Delaware
corporation (the "Company"), and __________ ("Optionee").
THE PARTIES AGREE AS FOLLOWS:
1. Grant of Option; Effective Date.
1.1 Grant. The Company hereby grants to Optionee pursuant to
the Company's 1993 Long-Term Equity Incentive Plan (the "Plan"), a copy of
which is attached to this Agreement as Exhibit 1.1, a non-qualified stock
option (the "NQO") to purchase all or any part of an aggregate of ____ shares
(the "NQO Shares") of the Company's $.10 par value common stock ("Common
Stock") on the terms and conditions set forth herein and in the Plan, the terms
and conditions of the Plan being hereby incorporated into this Agreement by
reference.
1.2 Effective Date. The effective date of the NQO is _____________ (the
"Effective Date").
2. Exercise Price. The exercise price for purchase of the shares of Common
Stock covered by the NQO shall be $_____ per share.
3. Term. The NQO shall expire ten years from the Effective Date.
4. Adjustment of the NQO. The Company shall adjust the number and kind of
shares subject to the NQO and the exercise price thereof in certain
circumstances in accordance with the provisions of the Plan.
5.Exercise of the NQO.
5.1 Vesting; Time of Exercise. Except as set forth on Exhibit 5.1
attached hereto, if any (the absence of such exhibit indicating that no such
exhibit was intended), the NQO shall be exercisable in whole or in part as of
the Effective Date upon execution of this Agreement.
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5.2 Exercise After Termination of Employment. The NQO may be exercised
after termination of Optionee's employment only in accordance with the
provisions of Section 11(e) of the Plan.
5.3 Manner of Exercise. Optionee may exercise the NQO, or any portion
of the NQO, by giving written notice to the Company at its principal executive
office, to the attention of the Secretary of the Company, accompanied by a copy
of the Long-Term Equity Incentive Plan Stock Purchase Agreement, in
substantially the form attached hereto as Exhibit 5.3, executed by Optionee
(or at the option of the Company such other form of stock purchase agreement as
shall then be acceptable to the Company), payment of the exercise price and
payment of any applicable withholding taxes. The date the Company receives
written notice of an exercise hereunder accompanied by payment will be
considered as the date the NQO was exercised.
Promptly after receipt of written notice of exercise of the NQO, the
Company shall, without stock issue or transfer taxes to Optionee or other
person entitled to exercise, deliver to Optionee or such other person a
certificate or certificates for the requisite number of shares of Common Stock.
Optionee or a transferee of Optionee shall not have any privileges as a
shareholder with respect to any NQO Shares until the date of issuance of a
stock certificate.
5.4 Payment. Except as provided in Exhibit 5.4 attached hereto, if
any (the absence of such exhibit indicating that no exhibit was intended),
payment in full, in cash, shall be made for all NQO Shares purchased at the
time written notice of exercise of the NQO is given to the Company, and
proceeds of any payment shall constitute general funds of the Company. At the
time of exercise of the NQO (or at such later time(s) as the Company may
prescribe), Optionee shall remit to the Company all United States federal and
state withholding and employment taxes determined by the Company to be
applicable.
6. Nonassignability of the NQO. The NQO is not assignable or
transferable by Optionee except by will or by the laws of descent and
distribution. During the life of Optionee, the NQO is exercisable only by
Optionee or Optionee's guardian or legal representative. Any attempt to assign,
pledge, transfer, hypothecate or otherwise dispose of the NQO in a manner
not herein permitted, and any levy of execution, attachment or similar process
on the NQO, shall be null and void.
7. Restriction of Issuance of NQO Shares.
7.1 Legality of Issuance. The Company shall not be obligated to sell or
issue any NQO Shares pursuant to this Agreement if such sale or issuance, in
the opinion of the Company and the Company's counsel, might constitute a
violation by the Company of any provision of law, including without limitation
the provisions of the Securities Act of 1933, as amended (the "Act").
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7.2 Registration or Qualification of Securities. The Company
may, but shall not be required to, register or qualify the issuance or sale of
the NQO or any NQO Shares under the Act or any other applicable law. The
Company shall not be obligated to take any affirmative action in order to cause
the grant or exercise of the NQO or the issuance or sale of any NQO Shares
pursuant hereto to comply with any law.
8. Restriction on Transfer. Regardless whether the sale of the NQO
Shares has been registered under the Act or has been registered or qualified
under the securities laws of any state, the Company may impose restrictions
upon the sale, pledge or other transfer of NQO Shares (including the placement
of appropriate legends on stock certificates) if, in the judgment of the
Company and the Company's counsel, such restrictions are necessary or desirable
in order to achieve compliance with the provisions of the Act, the securities
laws of any state, or any other law.
9. Stock Certificate Restrictive Legends. Stock certificates
evidencing NQO Shares may bear such restrictive legends as the Company and the
Company's counsel deem necessary or advisable under applicable law or pursuant
to this Agreement, including, without limitation, the following legend:
"The offering and sale of the securities represented hereby have not
been registered under the Securities Act of 1933, as amended (the "Act"). Any
transfer of such securities will be invalid unless a Registration Statement
under the Act is in effect as to such transfer or in the opinion of counsel
for the Company such registration is unnecessary in order for such transfer to
comply with the Act."
10. Representations, Warranties, Covenants and Acknowledgements of
Optionee Upon Exercise of the NQO. Optionee hereby agrees that in the event the
Company and the Company's counsel deem it necessary or advisable, in the
exercise of their discretion, the issuance of NQO Shares may be conditioned
upon certain representations, warranties and acknowledgements by the person
exercising the NQO ("Purchaser"), including, without limitation, those set
forth in Sections 10.1 through 10.7 inclusive:
10.1 Investment. Purchaser is acquiring the NQO Shares for Purchaser's
own account, and not for the account of any other person. Purchaser is
acquiring the NQO Shares for investment and not with a view to distribution or
resale thereof except in compliance with applicable laws regulating securities.
10.2 Business Experience. Purchaser is capable of evaluating the
merits and risks of Purchaser's investment in the Company evidenced by purchase
of the NQO Shares.
10.3 Relation to Company. Purchaser is presently an officer, director
or other employee of, or consultant to, the Company and in such capacity has
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become personally familiar with the business, affairs, financial condition and
results of operations of the Company.
10.4 Access to Information. Purchaser has had the opportunity to ask
questions of, and to receive answers from, appropriate officers of the Company
with respect to the terms and conditions of the transaction contemplated hereby
and with respect to the business, affairs, financial condition and results of
operations of the Company. Purchaser has had access to such financial and other
information as is necessary in order for Purchaser to make a fully-informed
decision as to investment in the Company by way of purchase of the NQO Shares,
and has had the opportunity to obtain any additional information necessary to
verify any of such information to which Purchaser has had access.
10.5 Speculative Investment. Purchaser's investment in the Company
represented by the NQO Shares is highly speculative in nature and is subject to
a high degree of risk of loss in whole or in part. The amount of such
investment is within Purchaser's risk capital means and is not so great in
relation to Purchaser's total financial resources as would jeopardize the
personal financial needs of Purchaser or Purchaser's family in the event
such investment were lost in whole or in part.
10.6 Registration. Purchaser must bear the economic risk of investment
for an indefinite period of time because the sale to Purchaser of the NQO
Shares has not been registered under the Act and the NQO Shares cannot be
transferred by Purchaser unless such transfer is registered under the Act or
an exemption from such registration is available. The Company has made no
representations, warranties or covenants whatsoever as to whether any exemption
from the Act, including without limitation any exemption for limited sales in
routine brokers' transactions pursuant to Rule 144, will be available; if the
exemption under Rule 144 is available at all, it may not be available until at
least two years after payment of cash for the NQO Shares and not then unless:
(a) a public trading market then exists in the Common Stock; (b) adequate
information as to the Company's financial and other affairs and operations is
then available to the public; and (c) all other terms and conditions of
Rule 144 have been satisfied.
10.7 Tax Advice. The Company has made no warranties or representations
to Purchaser with respect to the income tax consequences of the transactions
contemplated by the option agreement pursuant to which the NQO Shares will be
purchased and Purchaser is in no manner relying on the Company or the Company's
representatives for an assessment of such tax consequences.
11. Assignment: Binding Effect. Subject to the limitations set forth
in this Agreement, this Agreement shall be binding upon and inure to the
benefit of the executors, administrators, heirs, legal representatives and
successors of the parties hereto; provided, however, that Optionee may not
assign any of Optionee's rights under this Agreement.
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12. Damages. Optionee shall be liable to the Company for all costs
and damages, including incidental and consequential damages, resulting from a
disposition of NQO Shares which is not in conformity with the provisions of
this Agreement.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed within the State of California by
California residents. The parties agree that the exclusive jurisdiction and
venue of any action with respect to this Agreement shall be in the Superior
Court of California for the County of San Francisco or the United States
District Court for the Northern District of California, and each of the parties
hereby submits to the exclusive jurisdiction and venue of such courts for the
purpose of such action. The parties agree that service of process in any such
action may be effected by delivery of the summons to the parties in the manner
provided for delivery of notices set forth in Section 14.
14. Notices. All notices and other communications under this
Agreement shall be in writing. Unless and until Optionee is notified in writing
to the contrary, all notices, communications and documents directed to the
Company and related to the Agreement, if not delivered by hand, shall be
mailed, addressed as follows:
BF Enterprises, Inc.
100 Bush Street, Suite 1250
San Francisco, CA 94104
Attention: Secretary
Unless and until the Company is notified in writing to the contrary, all
notices, communications and documents intended for Optionee and related to this
Agreement, if not delivered by hand, shall be mailed to Optionee's last known
address as shown on the Company's books. Notices and communications shall be
mailed by first class mail, postage prepaid; documents shall be mailed by
registered mail, return receipt requested, postage prepaid. All mailings and
deliveries related to this Agreement shall be deemed received only when
actually received.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
BF ENTERPRISES, INC.
By:______________________
Brian P. Burns
Chairman and President
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Optionee hereby accepts and agrees to be bound by all of the terms and
conditions of this Agreement and the Plan.
Optionee: _________________________
Optionee's spouse indicates by the execution of this Non-Qualified Stock Option
Agreement his or her consent to be bound by the terms thereof as to his or her
interests, whether as community property or otherwise, if any, in the NQO
granted hereunder, and in any NQO Shares purchased pursuant to this Agreement.
____________________________
Optionee's Spouse
EXHIBITS
Exhibit 1.1 1993 Long-Term Equity Incentive Plan
Exhibit 5.3 1993 Long-Term Equity Incentive Plan
Stock Purchase Agreement
Exhibit 5.4 Manner of Payment
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Exhibit 10.3
BF ENTERPRISES, INC.
1994 STOCK OPTION PLAN
FOR OUTSIDE DIRECTORS
BF ENTERPRISES, INC., a Delaware corporation (the "Company"), hereby adopts
this BF Enterprises, Inc. 1994 Stock Option Plan for Outside Directors. The
purpose of this stock option plan is to obtain, motivate and retain experienced
Outside Directors by offering them an opportunity to become owners of the
Common Stock of the Company.
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this Plan, they shall have the meaning
specified below unless the context clearly indicates to the contrary. The
masculine pronoun shall include the feminine and neuter and the singular shall
include the plural, where the context so indicates.
Section 1.1 - Board
"Board" shall mean the Board of Directors of the Company.
Section 1.2 - Chief Executive Officer
"Chief Executive Officer" shall mean the chief executive officer of the Company.
Section 1.3 - Code
"Code" shall mean the Internal Revenue Code of 1986, as amended.
Section 1.4 - Common Stock
"Common Stock" shall mean the Company's common stock, $.10 par value.
Section 1.5 - Company
"Company" shall mean BF Enterprises, Inc.
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Section 1.6 - Exchange Act
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
Section 1.7 - Fair Market Value
"Fair Market Value" of a share of the Common Stock as of a given date shall be:
(i) the closing price of a share of the Common Stock on the principal exchange
on which shares of the Common Stock are then trading, if any, on such date, or,
if shares were not traded on such date, then on the next preceding trading day
during which a sale occurred; or (ii) if such stock is not traded on an
exchange but is quoted on NASDAQ or a successor quotation system, (1) the last
sales price (if the stock is then listed as a National Market Issue under the
NASDAQ National Market System) or (2) the mean between the closing
representative bid and asked prices (in all other cases) for the stock on such
date as reported by NASDAQ or such successor quotation system; or (iii) is such
stock is not publicly traded on an exchange and not quoted on NASDAQ or a
successor quotation system, the mean between the closing bid and asked prices
for the stock, on such date, as determined in good faith by the Secretary;
or (iv) if the Common Stock is not publicly traded, the fair market value
established by the Secretary acting in good faith.
Section 1.8 - Option
"Option" shall mean a non-qualified option to purchase Common Stock, granted
under the Plan.
Section 1.9 - Optionee
"Optionee" shall mean an Outside Director to whom an Option is granted under
the Plan.
Section 1.10 - Outside Director
"Outside Director" shall mean a member of the Board who is not an employee of
the Company, a Parent Corporation or a Subsidiary under Section 3401(c) of the
Code and who is not legally or contractually prohibited from receiving and
holding personally an Option.
Section 1.11 - Parent Corporation
"Parent Corporation" shall mean any corporation in an unbroken chain of
corporations ending with the Company if each of the corporations other than the
Company then owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in such chain.
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Section 1.12 - Plan
"Plan" shall mean this BF Enterprises, Inc. 1994 Stock Option Plan for Outside
Directors.
Section 1.13 - Retirement
"Retirement" shall mean acceptance by the Board of an Outside Director's
resignation from the Board by reason of retirement as determined by the Chief
Executive Officer.
Section 1.14 - Rule 16b-3
"Rule 16b-3" shall mean that certain Rule 16b-3 under the Exchange Act, as such
Rule may be amended in the future.
Section 1.15 - Secretary
"Secretary" shall mean the Secretary of the Company.
Section 1.16 - Securities Act
"Securities Act" shall mean the Securities Act of 1933, as amended.
Section 1.17 - Subsidiary
"Subsidiary" shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations other than the last
corporation in the unbroken chain then owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain. "Subsidiary" shall also mean any partnership in
which the Company and/or any Subsidiary owns more than 50% of the capital
or profits interests.
ARTICLE II
SHARES SUBJECT TO PLAN
Section 2.1 - Shares Subject to Plan
The shares of stock subject to Options shall be shares of the Common Stock.
The aggregate number of such shares which may be issued upon exercise of
Options shall not exceed 100,000.
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Section 2.2 - Unexercised Options
If any Option expires or is cancelled without having been fully exercised,
the number of shares subject to such Option but as to which such Option was not
exercised prior to its expiration or cancellation shall again be available for
issuance pursuant to Options subsequently granted hereunder, subject to the
limitations of Section 2.1.
Section 2.3 - Changes in Company's Shares
In the event that the outstanding shares of Common Stock are hereafter changed
into or exchanged for a different number or kind of shares or other securities
of the Company, or of another corporation, by reason of reorganization, merger,
consolidation, recapitalization, reclassification, or the number of shares is
increased or decreased by reason of a stock split-
up, stock dividend, combination of shares or any other increase or decrease in
the number of such 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), the Secretary acting in good faith shall
make appropriate adjustments in the number and kind of shares for the purchase
of which Options may be granted, including adjustments of the limitations in
Section 2.1 on the maximum number and kind of shares which may be issued on
exercise of Options.
ARTICLE III
GRANTING OF OPTIONS
Section 3.1 - Eligibility
Any Outside Director of the Company shall be eligible to be granted Options.
Section 3.2 - Granting of Options
3.2.1 - Initial Grant
Each person who is an Outside Director at the time the Plan is approved by the
stockholders of the Company shall immediately upon such approval be granted an
Option to purchase 5,000 shares of Common Stock. Any person who is not an
Outside Director at such time, but who later becomes an Outside Director, shall
be granted on the date of his election or appointment as an Outside Director an
Option to purchase 5,000 shares of Common Stock.
3.2.2 - Yearly Grant
Each Outside Director who has received a grant pursuant to Section 3.2.1 and
who has served at least one year as an Outside Director (or in the case of
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persons who are Outside Directors at the time of approval of the Plan by the
stockholders, persons who serve until the next annual meeting of stockholders)
shall be granted on the date of each annual meeting of stockholders (so long
as he is an Outside Director at the close of business on such date) an
Option to purchase 2,000 shares of Common Stock.
Section 3.3 - No Option Grant Where Prohibited
No person shall be granted an Option under this Plan if at the time of such
grant, the grant is prohibited by applicable law or by the policies of the
employer of such person or of any other company of which such person is a
member of the board of directors or a general partner.
ARTICLE IV
TERMS OF OPTIONS
Section 4.1 - Option Agreement
As soon as practicable after an Outside Director becomes entitled to the grant
of an Option under Section 3.2 above, the Secretary shall cause to be executed
a written Stock Option Agreement, which shall be executed by the Outside
Director and an authorized officer of the Company and which shall contain such
terms and conditions as approved by the Secretary consistent with the Plan.
Section 4.2 - Option Price
The exercise price per share of Common Stock subject to each Option granted
pursuant to Section 3.2.1 and each Option granted pursuant to Section 3.2.2
shall be the Fair Market Value of a share of Common Stock on the date such
Option is granted; provided, however, that in no event shall the exercise price
per share of an Option be less than $.10.
Section 4.3 - Term
The term of each Option shall be ten years and one day from date of grant,
subject to earlier termination in accordance with Sections 4.5 or 4.6.
Section 4.4 - Exercise Schedule
An Option shall be exercisable on the following schedule: Beginning on the
first anniversary of the date of grant, for up to 25% of the shares covered by
the Option; beginning on the second anniversary of the date of grant, for up to
50% of such shares; beginning on the third anniversary of the date of grant,
for up to 75% of such shares; and beginning on the fourth anniversary of the
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date of grant, and thereafter until the earlier of expiration of the Option's
term or termination of the Option in accordance with Sections 4.5 or 4.6, for
up to 100% of such shares. Notwithstanding the foregoing, an Option held by
an Outside Director shall become immediately exercisable in full upon the death
or disability of such Outside Director, upon Retirement of such Outside
Director from the Board, upon an unsuccessful attempt by such Outside Director
to win reelection to the Board after nomination for election at the
recommendation of the Board, or upon the adoption by the Company of a plan for
a liquidation, dissolution, merger, consolidation or reorganization as
described in clause (x), (y) or (z) of Section 4.6.
Section 4.5 - Termination of Membership on the Board
Except in the case of death, disability, Retirement from the Board, or an
unsuccessful attempt to win reelection to the Board after nomination for
election at the recommendation of the Board, if an Outside Director's
membership on the Board terminates for any reason, an Option held at the date
of termination (but only to the extent exercisable at the time of such
termination in accordance with Section 4.4) may be exercised in whole or in
part at any time within one year after the date of such termination (but in no
event after the term of the Option expires) and shall thereafter terminate.
If an Outside Director's membership terminates because of death, disability,
Retirement from the Board, or an unsuccessful attempt to win reelection to the
Board after nomination for election at the recommendation of the Board, an
Option held at the date of such termination may be exercised for up to 100% of
the shares covered by such Option at any time within three years after the
date of such termination (but in no event after the term of the Option expires)
and shall thereafter terminate.
Section 4.6 - Change of Control
In the event of (x) a dissolution or liquidation of the Company, (y) a merger
or consolidation in which the Company is not the surviving corporation, or (z)
any other capital reorganization in which more than fifty percent (50%) of the
shares the Company entitled to vote are exchanged, the Company shall give to
the Outside Director, at the time of adoption of the plan for liquidation,
dissolution, merger, consolidation or reorganization, either (i) a reasonable
time thereafter within which to exercise each Option, prior to the
effectiveness of such liquidation, dissolution, merger, consolidation or
reorganization, at the end of which time such Option shall terminate, or (ii)
the right to exercise such Option as to an equivalent number of shares of stock
of the corporation succeeding the Company or acquiring its business by reason
of such liquidation, dissolution, merger, consolidation or reorganization.
Section 4.7 - Adjustments in Outstanding Options
In the event that the outstanding shares of Common Stock subject to Options are
changed into or exchanged for a different number or kind of shares of the
Company or other securities of the Company by reason of merger, consolidation,
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recapitalization, reclassification, or the number of shares is increased or
decreased by reason of a stock split-up, stock dividend, combination of shares
or any other increase or decrease in the number of such 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), the Secretary
acting in good faith shall make appropriate adjustments in the number and kind
of shares as to which all outstanding Options, or portions thereof then
unexercised, shall be exercisable, to the end that after such event the
Optionee's proportionate interest shall be maintained as before the occurrence
of such event. Such adjustment in an outstanding Option shall be made without
change in the total price applicable to the Option or the unexercised portion
of the Option (except for any change in the aggregate price resulting from
rounding-off of share quantities or prices) and with any necessary
corresponding adjustment in Option price per share. Any such adjustment made
by the Secretary shall be final and binding upon all Optionees, the Company and
all other interested persons. This Section 4.7 shall be subject to Section 4.6.
ARTICLE V
EXERCISE OF OPTIONS
Section 5.1 - Person Eligible to Exercise
During the lifetime of the Optionee, only the Optionee may exercise an Option
(or any portion thereof) granted to the Optionee. After the death of the
Optionee, any exercisable portion of an Option may, prior to the time when
such portion becomes unexercisable under the Plan or the applicable Stock
Option Agreement, be exercised by the Optionee's personal representative or by
any person empowered to do so under the deceased Optionee's will or under the
then applicable laws of descent and distribution.
Section 5.2 - Partial Exercise
At any time and from time to time prior to the time when any exercisable
Option or exercisable portion thereof becomes unexercisable under the Plan or
the applicable Stock Option Agreement, such Option or portion thereof may be
exercised in whole or in part; provided, however, that the Company shall not be
required to issue fractional shares and any partial exercise of the Option
shall be with respect to no less than 100 shares (or such lesser remaining
number of shares subject to the Option).
Section 5.3 - Manner of Exercise
An exercisable Option, or any exercisable portion thereof, may be exercised
solely by delivery to the Secretary of all of the following prior to the time
when such Option or such portion becomes unexercisable under the Plan or the
applicable Stock Option Agreement:
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5.3.1 - Notice
Notice in writing signed by the Optionee or other person then entitled to
exercise such Option or portion, stating that such Option or portion is
exercised, such notice complying with all applicable rules established by the
Secretary; and
5.3.2 - Payment
(a) Full payment (in cash or by check) for the shares with respect to which
such Option or portion is thereby exercised; or
(b) With the consent of the Chief Executive Officer, shares of the Common Stock
owned by the Optionee duly endorsed for transfer to the Company; or
(c) With consent of two Outside Directors, each of whom is a "disinterested
person" as defined in Rule 16b-3, and subject to the timing requirements of
Section 5.4, shares of the Common Stock issuable to the Optionee upon exercise
of the Option, with a Fair Market Value on the date of Option exercise equal to
the aggregate Option price of the shares with respect to which such Option or
portion is thereby exercised; or
(d) With the consent of the Chief Executive Officer, a full recourse promissory
note bearing interest (of at least such rate as shall then preclude the
imputation of interest under the Code or any successor provision) and payable
upon such terms as may be prescribed by the Chief Executive Officer. The Chief
Executive Officer may also prescribe the form of such note and the security to
be given for such note. No Option may, however, be exercised by delivery of
a promissory note or by a loan from the Company when or where such loan or
other extension of credit is prohibited by law; or
(e) With the consent of the Chief Executive Officer, any combination of the
consideration provided in the foregoing subsections (a), (b), (c) and (d).
5.3.3 - Tax Withholding
The payment to the Company of all amounts, if any, which it is required to
withhold under federal, state or local law in connection with the exercise of
the Option; with the consent of (i) the Chief Executive Officer, shares of the
Common Stock owned by the Optionee duly endorsed for transfer, or (ii) two
Outside Directors, each of whom is a "disinterested person" as defined in
Rule 16b-3, and subject to the timing requirements of Section 5.4, shares of
the Common Stock issuable to the Optionee upon exercise of the Option, valued
at Fair Market Value as of the date of Option exercise, may be used to make
all or part of such payment.
5.3.4 - Securities Representations
Such representations and documents as the Secretary deems necessary or
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advisable to effect compliance with all applicable provisions of the
Securities Act and any other federal or state securities laws or regulations.
The Secretary may also take whatever additional actions he deems appropriate
to effect such compliance including, without limitation, placing legends on
share certificates and issuing stop-transfer orders to transfer agents and
registrars; and
5.3.5 - Proof of Third Party Right to Exercise
In the event that the Option or portion thereof shall be exercised pursuant to
Section 5.1 by any person or persons other than the Optionee, appropriate proof
of the right of such person or persons to exercise the Option or portion
thereof.
Section 5.4 - Certain Timing Requirements
Shares of the Common Stock issuable to the Optionee upon exercise of the Option
may be used to satisfy the Option price or the tax withholding consequences of
such exercise only (i) during the period beginning on the third business day
following the date of release of the quarterly or annual summary statement of
sales and earnings of the Company and ending on the twelfth business day
following such date or (ii) pursuant to an irrevocable written election
by the Optionee to use shares of the Common Stock issuable to the Optionee
upon exercise of the Option to pay all or part of the Option price or the
withholding taxes (subject to the approval required under Sections 5.3.2 and
5.3.3) made at least six months prior to the payment of such Option price or
withholding taxes.
Section 5.5 - Conditions to Issuance of Stock Certificates
The shares of Common Stock issuable and deliverable upon the exercise of an
Option, or any portion thereof, may be either previously authorized but
unissued shares or issued shares which have then been reacquired by the Company.
The Company shall not be required to issue or deliver any certificate or
certificates for shares of Common Stock purchased upon the exercise of any
Option or portion thereof prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all stock exchanges on which
the Common Stock is then listed;
(b) The completion of any registration or other qualification of such shares
under any state or federal law or under the rulings or regulations of the
Securities and Exchange Commission, or any other governmental regulatory body,
which the Secretary shall deem necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal
governmental agency which the Secretary shall determine to be necessary or
advisable;
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(d) The payment to the Company (or other employer corporation) of all amounts
which it is required to withhold under federal, state or local law in
connection with the exercise of the Option; and
(e) The lapse of such reasonable period of time following the exercise of the
Option as the Secretary may establish from time to time for reasons of
administrative convenience.
Section 5.6 - Rights as Stockholders
The holders of Options shall not be, nor have any of the rights or privileges
of, stockholders of the Company in respect to any shares purchasable upon the
exercise of any part of an Option unless and until certificates representing
such shares have been issued by the Company to such holders.
Section 5.7 - Transfer Restrictions
Unless otherwise approved in writing by the Board, no shares acquired upon
exercise of any Option by any Outside Director may be sold, assigned, pledged,
encumbered or otherwise transferred until at least six months have elapsed from
(but excluding) the date that such Option was granted.
ARTICLE VI
ADMINISTRATION
Section 6.1 - Duties and Powers of the Secretary
It shall be the duty of the Secretary to conduct the general administration of
the Plan in accordance with its provisions. The Secretary shall have the
power to interpret the Plan and the Options and to adopt such rules for the
administration, interpretation and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules.
Section 6.2 - Compensation; Professional Assistance; Good Faith Actions
All expenses and liabilities incurred by the Secretary in connection with the
administration of the Plan shall be borne by the Company. The Secretary may
employ attorneys, consultants, accountants, appraisers, brokers or other
persons. The Secretary, the Company and its officers and directors shall be
entitled to rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made by the
Secretary in good faith shall be final and binding upon all Optionees, the
Company and all other interested persons. The Secretary shall not be
personally liable for any action, determination or interpretation made in good
faith with respect to the Plan or the Options, and the Secretary shall be fully
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protected by the Company in respect to any such action, determination or
interpretation.
ARTICLE VII
OTHER PROVISIONS
Section 7.1 - Options Not Transferable
No Option or interest or right therein or part thereof shall be liable for the
debts, contracts or engagements of the Optionee or his successors in interest
or shall be subject to disposition by transfer, alienation, anticipation,
pledge, encumbrance, assignment or any other means whether such disposition be
voluntary or involuntary or by operation of law by judgment, levy, attachment,
garnishment or any other legal or equitable proceedings (including bankruptcy),
and any attempted disposition thereof shall be null and void and of no effect;
provided, however, that nothing in this Section 7.1 shall prevent transfers by
will or by the applicable laws of descent and distribution.
Section 7.2 - Amendment, Suspension or Termination of the Plan
The Plan may be wholly or partially amended or otherwise modified (generally
not more frequently than once every six months), suspended or terminated at any
time or from time to time by the Board. However, without approval of the
Company's stockholders given within twelve months before or after the action
by the Board, no action of the Board may: (i) except as provided in
Section 2.3, increase any limit imposed in Section 2.1 on the maximum number
of shares which may be issued on exercise of Options; (ii) materially modify
the eligibility requirements of Section 3.1; (iii) reduce the minimum Option
price requirements of Section 4.2; (iv) extend the limit imposed in this
Section 7.2 on the period during which Options may be granted; or (v) amend or
modify the Plan in a manner requiring stockholder approval under Rule 16b-3.
Notwithstanding anything to the contrary herein, the Board, with respect to the
Plan or any Option, shall not (y) amend or modify any provision concerning the
amount, price and timing of any Option (including, without limitation, the
provisions of Sections 3.2 and 4.2 of the Plan) more than once every six
months, other than to comport with changes in the Code, the Employee Retirement
Income Security Act of 1974, as amended, or the rules thereunder, or
(z) otherwise amend or modify the Plan or any Option in any manner inconsistent
with the requirements of Rule 16b-3(c)(2)(ii). Neither the amendment,
suspension nor termination of the Plan shall, without the consent of the holder
of the Option, alter or impair any rights or obligations under any Option
theretofore granted. No Option may be granted during any period of suspension
nor after termination of the Plan, and in no event may any Option be granted
under the Plan after the expiration of ten years from the date the Plan is
adopted by the Board.
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Section 7.3 - Approval of Plan by Stockholders
The Plan will be submitted for the approval of the Company's stockholders
within twelve months after the date of the Board's initial adoption of the
Plan. Options may not be granted prior to such stockholder approval. The
Company shall take such actions with respect to the Plan as may be necessary
to satisfy the requirements of Rule 16b-3(b).
Section 7.4 - Effect of Plan Upon Other Option and Compensation Plans
The adoption of the Plan shall not affect any other compensation or incentive
plans in effect for the Company, any Parent Corporation or any Subsidiary.
Nothing in the Plan shall be construed to limit the right of the Company, any
Parent Corporation or any Subsidiary (a) to establish any other forms of
incentives or compensation for directors of the Company or (b)to grant or
assume options otherwise than under the Plan in connection with any proper
corporate purpose, including, but not by way of limitation, the grant or
assumption of options in connection with the acquisition by purchase, lease,
merger, consolidation or otherwise, of the business, stock or assets of any
corporation, firm or association.
Section 7.5 - No Right to Continued Membership on the Board
Nothing in the Plan or in any Stock Option Agreement shall confer upon any
Outside Director any right to continue as a director of the Company or shall
interfere with or restrict in any way the rights of the Company and its
stockholders, which are hereby expressly reserved, to remove any Outside
Director at any time for any reason whatsoever, with or without cause.
Section 7.6 - Titles
Titles are provided herein for convenience only and are not to serve as a basis
for interpretation or construction of the Plan.
Section 7.7 - Conformity to Securities Laws
The Plan is intended to conform to the extent necessary with all provisions of
the Securities Act and the Exchange Act and any and all regulations and rules
promulgated by the Securities and Exchange Commission thereunder, including
without limitation Rule 16b-3. Without limiting the generality of the
foregoing, the Plan is intended to comply with the formula award plan
provisions set forth in Rule 16b-3(c)(2)(ii). Notwithstanding anything herein
to the contrary, the Plan shall be administered, and Options shall be granted
and may be exercised, only in such a manner as to conform to such laws, rules
and regulations. To the extent permitted by applicable law, the Plan and
Options granted hereunder shall be deemed amended to the extent necessary to
conform to such laws, rules and regulations.
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EXHIBIT 23.2
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and to the
use of our report dated February 19, 1997, with respect to the consolidated
financial statements of BF Enterprises, Inc. and subsidiaries and related
financial statement schedules included on Form 10-K for the year ended December
31, 1996, incorporated by reference into this Registration Statement of BF
Enterprises, Inc.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
SAN FRANCISCO, CALIFORNIA
JULY 14, 1997
