UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14C INFORMATION
INFORMATION STATEMENT PURSUANT TO SECTION 14(c) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Check the appropriate box:
þ Preliminary
Information Statement
o Confidential,
for Use of the Commission Only (as permitted by
Rule 14c-5(d)(2))
o Definitive
Information Statement
BankAtlantic Bancorp, Inc.
(Name of Registrant As Specified In
Charter)
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BANKATLANTIC BANCORP, INC.
2100 West Cypress Creek Road
Fort Lauderdale, Florida 33309
2100 West Cypress Creek Road
Fort Lauderdale, Florida 33309
,
2010
Dear Shareholder:
The attached Information Statement is being delivered by
BankAtlantic Bancorp, Inc. (the “Company”) to its
shareholders in connection with a recently approved amendment to
the Company’s Restated Articles of Incorporation, as
amended (the “Articles of Incorporation”), to increase
the number of authorized shares of the Company’s
Class A Common Stock from 125,000,000 shares
to shares
(the “Amendment”). The Amendment was approved by the
Company’s Board of Directors and by the written consent of
BFC Financial Corporation (“BFC”) with respect to
shares of the Company’s Class A Common Stock and
Class B Common Stock representing a majority of the votes
entitled to be cast by all shareholders on the Amendment. As BFC
is the sole holder of the Company’s Class B Common
Stock, the written consent of BFC relating to the Amendment also
constituted the separate approval of the Amendment by the
holders of the Class B Common Stock as required by Articles
of Incorporation.
We Are Not Asking You For A Proxy And You Are Requested Not
To Send Us A Proxy.
The Company’s Board of Directors has unanimously approved
the Amendment and, as a result of BFC’s approval of the
Amendment, has authorized the Company to take all actions
necessary to cause the Amendment to become effective, including
the filing of the Amendment with the Florida Department of
State. The Board of Directors believes that the Amendment will
provide the Company with greater flexibility to pursue stock
offerings, including a contemplated underwritten public offering
of up to $125,000,000 of the Company’s Class A Common
Stock, and other actions involving the issuance of shares of the
Company’s Class A Common Stock. The Board of Directors
determined that it was advisable to obtain shareholder approval
of the Amendment by written consent in lieu of a shareholder
meeting to save the Company the time and expense that would have
been involved in convening a special meeting of shareholders and
soliciting proxies in connection with that meeting.
The Information Statement which is contained in the following
pages contains a description of the Amendment. You are urged to
read the Information Statement in its entirety. The Amendment
will become effective 20 calendar days after this Information
Statement is first mailed to the Company’s shareholders.
On behalf of the Company’s Board of Directors and the
employees of the Company and its subsidiaries, I would like to
express our appreciation for your continued support.
Sincerely,
Alan B. Levan
Chairman of the Board and Chief Executive Officer
BANKATLANTIC BANCORP, INC.
2100 West Cypress Creek Road
Fort Lauderdale, Florida 33309
2100 West Cypress Creek Road
Fort Lauderdale, Florida 33309
Information Statement
This Information Statement is being furnished to all holders of
the Class A Common Stock and Class B Common Stock of
BankAtlantic Bancorp, Inc. (the “Company”) in
connection with the adoption of an Amendment to the
Company’s Restated Articles of Incorporation, as amended
(the “Articles of Incorporation”), to increase the
number of authorized shares of the Company’s Class A
Common Stock from 125,000,000 shares
to shares
(the “Amendment”).
General
On ,
2010, the Amendment was approved by the Company’s Board of
Directors.
On ,
2010, the Amendment was approved by the written consent of BFC
Financial Corporation (“BFC”) with respect to shares
of the Company’s Class A Common Stock and Class B
Common Stock representing a majority of the votes entitled to be
cast by all shareholders on the Amendment. Accordingly, there
will be no meeting of shareholders to approve the Amendment
This Information Statement is first being mailed on or
about ,
2010 to all holders of record of the Company’s Class A
Common Stock and Class B Common Stock as of
September 27, 2010. The Company anticipates that the
Amendment will be filed with the Florida Department of State and
become effective on or
about ,
2010.
Vote
Required for Approval
In addition to the approval of the Company’s Board of
Directors, the Amendment required the approval of shareholders
representing a majority of the votes entitled to be cast by all
shareholders, with holders of the Class A Common Stock and
Class B Common Stock voting together as a group. As of
September 27, 2010, there
were shares
of the Company’s Class A Common Stock and
975,225 shares of the Company’s Class B Common
Stock outstanding. Holders of the Company’s Class A
Common Stock and Class B Common Stock were entitled to vote
as a single voting group on the Amendment, with the holders of
the Class A Common Stock being entitled to one vote per
share and possessing in the aggregate 53% of the general voting
power of the Company. The number of votes represented by each
share of Class B Common Stock, which represent in the
aggregate 47% of the general voting power of the Company, is
calculated in accordance with the Articles of Incorporation.
Under the Articles of Incorporation, based on the number of
outstanding shares of the Company’s Class A Common
Stock and Class B Common Stock as of September 27,
2010, each outstanding share of Class B Common Stock was
entitled
to
votes on the Amendment. The Articles of Incorporation also
require the holders of the Company’s Class B Common
Stock to separately approve the Amendment.
On ,
2010, the Company received the written consent approving the
Amendment by BFC with respect
to shares
of the Company’s Class A Common Stock and all
975,225 shares of the Company’s Class B Common
Stock, representing in the
aggregate % of the total votes
entitled to be cast on the Amendment. The written consent of BFC
constituted the required approval of the Amendment by the
Company’s shareholders generally and the separate approval
by the holders of the Company’s Class B Common Stock.
Dissenters’
Rights
The Company is a Florida corporation. Under Florida law, the
Company’s shareholders have no dissenters’ rights as a
result of the approval and filing of the Amendment.
Notice to
Shareholders
The distribution of this Information Statement to the
Company’s shareholders satisfies the notice requirements of
Florida law.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Principal
Shareholders of the Company
The following table sets forth, as of September 17, 2010,
certain information as to the Company’s Class A Common
Stock and Class B Common Stock beneficially owned by
persons owning in excess of 5% of the outstanding shares of such
stock. Management knows of no person, except as listed below,
who beneficially owned more than 5% of the outstanding shares of
Class A Common Stock or Class B Common Stock as of
September 17, 2010. Except as otherwise indicated, the
information provided in the following table was obtained from
filings with the Securities and Exchange Act (the
“SEC”) and with the Company pursuant to the Securities
Exchange Act of 1934, as amended (the “Exchange Act”).
Addresses provided are those listed in the filings as the
address of the person authorized to receive notices and
communications. For purposes of the table below and the table
set forth under “Security Ownership of Management,” in
accordance with
Rule 13d-3
under the Exchange Act, a person is deemed to be the beneficial
owner of any shares of Class A Common Stock or Class B
Common Stock (i) over which he or she has or shares,
directly or indirectly, voting or investment power or
(ii) of which he or she has the right to acquire beneficial
ownership at any time within 60 days after
September 17, 2010. As used herein, “voting
power” is the power to vote, or direct the voting of,
shares, and “investment power” includes the power to
dispose, or direct the disposition of, such shares. Unless
otherwise noted, each beneficial owner has sole voting and sole
investment power over the shares beneficially owned.
|
Amount and |
||||||||||
|
Nature of |
||||||||||
|
Name and Address of |
Beneficial |
|||||||||
|
Title of Class
|
Beneficial Owner | Ownership | Percent of Class | |||||||
|
Class A Common Stock
|
BFC Financial Corporation 2100 W. Cypress Creek Road Ft. Lauderdale, Florida 33309 | 27,333,428 | (1)(3) | 43.2 | % | |||||
|
Class A Common Stock
|
Greek Investments, Inc. Harbour House Queen Street Turk, Turks and Caicos Islands | 4,137,829 | (2) | 6.6 | % | |||||
|
Class B Common Stock
|
BFC Financial Corporation 2100 W. Cypress Creek Road Ft. Lauderdale, Florida 33309 | 975,225 | (1)(3) | 100 | % | |||||
| (1) | BFC has sole voting and dispositive power over all shares listed. BFC may be deemed to be controlled by Alan B. Levan and John E. Abdo, who collectively may be deemed to have an aggregate beneficial ownership of shares of BFC’s common stock representing approximately 72% of the total voting power of BFC. Mr. Alan Levan serves as Chairman and Chief Executive Officer of the Company and BFC and Chairman of BankAtlantic. Mr. Abdo serves as Vice Chairman of the Company, BankAtlantic and BFC. | |
| (2) | As reported on Greek Investments, Inc.’s Schedule 13G/A filed with the SEC on February 17, 2010, Greek Investments, Inc. and its applicable affiliates have shared voting and dispositive power over all 4,137,829 of such shares. | |
| (3) | Class B Common Stock is convertible on a share-for-share basis into Class A Common Stock at any time at BFC’s discretion. |
Security
Ownership of Management
Listed in the table below are the outstanding securities
beneficially owned as of September 17, 2010 by
(i) each director as of September 17, 2010,
(ii) each named executive officer (as determined in
accordance with the rules and regulations of the SEC) and
(iii) all directors and executive officers as of
September 17, 2010 as a group. The address of all parties
listed below is 2100 West Cypress Creek Road,
Fort Lauderdale, Florida 33309.
2
|
Class A |
Class B |
Percent of |
Percent of |
|||||||||||||
|
Common Stock |
Common Stock |
Class A |
Class B |
|||||||||||||
|
Name of Beneficial Owner
|
Ownership | Ownership | Common Stock | Common Stock | ||||||||||||
|
BFC Financial Corporation(1)
|
27,333,428 | (8) | 975,225 | (8) | 43.2 | % | 100 | % | ||||||||
|
Alan B. Levan(1)(6)
|
27,811,684 | (2)(3)(5)(8) | 975,225 | (2)(8) | 43.9 | % | 100 | % | ||||||||
|
John E. Abdo(1)
|
27,784,221 | (2)(3)(5)(8) | 975,225 | (2)(8) | 43.9 | % | 100 | % | ||||||||
|
D. Keith Cobb
|
58,535 | (4)(5) | 0 | * | 0 | |||||||||||
|
Steven M. Coldren
|
23,631 | (5) | 0 | * | 0 | |||||||||||
|
Bruno L. Di Giulian
|
21,595 | (5) | 0 | * | 0 | |||||||||||
|
Willis N. Holcombe
|
22,247 | (5) | 0 | * | 0 | |||||||||||
|
Jarett S. Levan(6)
|
39,088 | (5) | 0 | * | 0 | |||||||||||
|
David A. Lieberman
|
43,656 | (5) | 0 | * | 0 | |||||||||||
|
Charlie C. Winningham, II
|
47,538 | (5) | 0 | * | 0 | |||||||||||
|
All directors and executive officers of the Company as of
September 17, 2010 as a group (16 persons)
|
28,910,762 | (7)(8) | 975,225 | (8) | 45.5 | % | 100 | % | ||||||||
| * | Less than one percent of the class. | |
| (1) | BFC may be deemed to be controlled by Alan B. Levan and John E. Abdo, who collectively may be deemed to have an aggregate beneficial ownership of shares of BFC’s common stock representing approximately 72% of the total voting power of BFC. Mr. Alan Levan serves as Chairman and Chief Executive Officer of the Company and BFC and Chairman of BankAtlantic. Mr. Abdo serves as Vice Chairman of the Company, BankAtlantic and BFC. | |
| (2) | Includes, for each of Messrs. Alan Levan and Abdo, the 27,333,428 shares of Class A Common Stock and 975,225 shares of Class B Common Stock owned by BFC. Mr. Alan Levan’s Class A Common Stock ownership also includes 292,369 shares of Class A Common Stock held by various personal interests. | |
| (3) | Includes beneficial ownership of the following units of interest in shares of Class A Common Stock held by the BankAtlantic 401(k) Plan: Mr. Alan Levan — 13,553 shares; and Mr. Abdo — 48,729 shares. | |
| (4) | 254 shares of Class A Common Stock are held by Mr. Cobb’s wife, as to which Mr. Cobb disclaims having voting or investment power. | |
| (5) | Includes beneficial ownership of the following number of shares of Class A Common Stock which may be acquired within 60 days pursuant to stock options: Mr. Abdo — 36,902 shares; Mr. Cobb — 19,539 shares; Mr. Coldren — 5,007 shares; Mr. Di Giulian — 20,149 shares; Dr. Holcombe — 21,569 shares; Mr. Alan Levan — 55,352 shares; Mr. Jarett Levan — 16,453 shares; Mr. Lieberman — 19,568 shares; and Mr. Winningham — 17,535 shares. | |
| (6) | Mr. Jarett Levan is the son of Mr. Alan Levan. | |
| (7) | Includes beneficial ownership of 282,450 shares of Class A Common Stock which may be acquired by executive officers and directors within 60 days pursuant to stock options, units of interest held by executive officers in 119,030 shares of Class A Common Stock held by the BankAtlantic 401(k) Plan, 3,900 shares of restricted Class A Common Stock beneficially owned by an executive officer of the Company and all of the shares of Class A Common Stock owned by BFC that may be deemed beneficially owned by Messrs. Alan Levan and Abdo. | |
| (8) | Class B Common Stock is convertible on a share-for-share basis into Class A Common Stock at any time at BFC’s discretion. |
3
AMENDMENT
TO THE COMPANY’S
ARTICLES OF INCORPORATION
ARTICLES OF INCORPORATION
Description
of the Amendment
The Amendment amends Article III of the Company’s
Articles of Incorporation to increase the number of authorized
shares of the Company’s Class A Common Stock from
125,000,000 shares
to shares.
The form of the Amendment is attached to this Information
Statement as Appendix A. The relative rights, powers and
limitations of the Class A Common Stock and Class B
Common Stock, and the number of authorized shares of
Class B Common Stock, remain unchanged by the Amendment.
Holders of Class A Common Stock and holders of Class B
Common Stock have no preemptive right to acquire or subscribe
for any of the additional shares of Class A Common Stock
authorized by the Amendment.
Reasons
for the Amendment
The Company’s Articles of Incorporation presently authorize
the issuance of a total of 125,000,000 shares of
Class A Common Stock and 9,000,000 shares of
Class B Common Stock. As of September 27,
2010, shares
of Class A Common Stock and 975,225 shares of
Class B Common Stock were issued and outstanding. Shares of
Class B Common Stock are convertible into shares of
Class A Common Stock on a share-for-share basis.
The Company’s Board of Directors has approved the Amendment
and, as a result of BFC’s approval of the Amendment, has
authorized the Company to take all actions necessary to cause
the Amendment to become effective, including the filing of the
Amendment with the Florida Department of State. The Board of
Directors approved the Amendment to give the Company greater
flexibility to pursue stock offerings, including the
contemplated underwritten public offering of up to $125,000,000
of shares of Class A Common Stock (the
“Offering”) and other potential future actions which
involve the issuance of shares of Class A Common Stock as
may be identified in the future by the Board of Directors.
The Company is currently considering alternatives for raising
capital, including the Offering. No subsequent shareholder
approval will be required prior to the issuance of shares of
Class A Common Stock (including the additional shares
authorized by the Amendment), nor is it anticipated that
shareholder approval will be sought in connection with any such
future issuances, unless such approval is otherwise required by
law or regulation.
Possible
Anti-Takeover Effects of the Amendment
The increase in the number of authorized shares of Class A
Common Stock contemplated by the Amendment is not intended to
have an anti-takeover effect. However, the issuance of
Class A Common Stock, which has relatively less voting
power than the Class B Common Stock, whether in connection
with the Offering (or another stock offering), an acquisition or
a stock dividend, could have the effect of enabling existing
management and shareholders, including BFC, to retain
substantially their current relative voting power without the
dilution which would be experienced if additional shares of
Class B Common Stock were issued. Future issuances of
additional shares of Class A Common Stock would have the
effect of diluting the voting rights of existing holders of
Class A Common Stock and could have the effect of diluting
earnings per share and book value per share of all existing
shareholders. Further, in the event that a stock dividend on the
Class B Common Stock was declared which was payable in
Class A Common Stock, BFC could dispose of shares of
Class A Common Stock without significantly affecting its
voting power. The Amendment will allow BFC, as the sole existing
holder of the Class B Common Stock, to continue to exercise
voting control over the Company even if the Company were to
raise additional capital through the issuance of Class A
Common Stock, and the Amendment will result in the authorization
of additional shares of Class A Common Stock which may be
issued without additional shareholder approval. As a
consequence, the Amendment may further limit the circumstances
in which a sale or transfer of control of the Company could be
consummated which was not acceptable to management or BFC.
However, it should be noted that a sale, contested merger,
assumption of control by an outside principal shareholder or the
removal of incumbent directors, would at the present time be
impossible without the concurrence of BFC, given its ownership
position in the Company.
4
The Company’s Restated Articles of Incorporation and bylaws
also presently contain other provisions which could have
anti-takeover effects. These provisions include, without
limitation, (i) the higher relative voting power of the
Class B Common Stock as compared to the Class A Common
Stock, (ii) the division of the Company’s Board of
Directors into three classes of directors with three-year
staggered terms, (iii) the authority of the Board of
Directors to issue additional shares of preferred stock and to
fix the relative rights and preferences of the preferred stock
without additional shareholder approval and (iv) certain
notice procedures to be complied with by shareholders in order
to make shareholder proposals or nominate directors.
The Company is also subject to the Florida Business Corporation
Act, including provisions related to “control share
acquisitions” and “affiliated transactions.” The
control share acquisition statute generally provides that shares
acquired within specified voting ranges (shares representing in
excess of 20%, 33% and 50% of outstanding voting power) will not
possess voting rights unless the acquisition of the shares is
approved by the Company’s Board of Directors before
acquisition of the shares or the voting rights associated with
the shares are approved by a majority vote of the Company’s
disinterested shareholders following the acquisition of the
shares. Subject to exceptions for certain transactions based on
pricing or approval by a majority of disinterested directors,
the affiliated transaction statute generally requires the
approval of the holders of
662/3%
of the Company’s outstanding voting power, other than the
shares owned by an interested shareholder, to effectuate certain
transactions involving the Company and an interested shareholder
or an affiliate of an interested shareholder, including, among
others, a merger, sale of assets or issuance of shares.
In addition, as previously announced, the Company may adopt a
shareholder rights plan aimed at preserving the Company’s
ability to utilize its available net operating losses to offset
future taxable income. As contemplated, the shareholder rights
plan would be designed with a goal of preventing an
“ownership change” for purposes of Section 382 of
the Internal Revenue Code. The shareholder rights plan, if
triggered, would cause substantial dilution to any person or
group that acquires 5% or more of the outstanding shares of the
Company’s Class A Common Stock or owns 5% or more of
the outstanding shares of the Company’s Class A Common
Stock and thereafter acquires any additional shares of the
Company’s Class A Common Stock without the
Company’s approval. Although the anticipated adoption of
the shareholder rights plan is not in response to any effort to
acquire control of the Company, the shareholder rights plan, if
adopted, would make it more difficult for a third party to
acquire a controlling position in the Company’s common
stock without the Company’s approval.
Regulatory
Limitations
Because the Company is a unitary savings and loan holding
company, the Office of Thrift Supervision (the “OTS”)
has the authority to, among other things, prevent individuals
and entities from acquiring control of the Company. Under the
applicable rules and regulations of the OTS, if, after giving
effect to the purchase of shares of the Company’s
Class A Common Stock, an individual or entity, directly or
indirectly, or through one or more subsidiaries, or acting in
concert with one or more other persons or entities, would own
(i) more than 10% of the Company’s Class A Common
Stock and one or more specified control factors exist, then the
individual or entity will be determined, subject to its right of
rebuttal, to have acquired control of the Company or
(ii) more than 25% of the Company’s Class A
Common Stock, then the individual or entity will be conclusively
determined to have acquired control of the Company, regardless
of whether any control factors exist. Accordingly, subject to
certain limited exceptions, an individual or entity which
desires to acquire shares of the Company’s Class A
Common Stock will be required to rebut such determination of
control or obtain the approval of the OTS relating to such
acquisition of control, as the case may be, prior to acquiring
the shares which would cause its ownership of the Company’s
Class A Common Stock to exceed either of the thresholds set
forth above.
As the holder of all of the issued and outstanding shares of the
Company’s Class B Common Stock and approximately 43%
of the issued and outstanding shares of the Company’s
Class A Common Stock, BFC has previously received all
required regulatory approvals, including, without limitation,
the approval of the OTS, relating to its control of the Company
and ownership of the Company’s common stock. As a result,
BFC may acquire additional shares of the Company’s
Class A Common Stock without obtaining the approval of the
OTS.
5
ADDITIONAL
INFORMATION
The Company is subject to the informational requirements of the
Exchange Act. Accordingly, the Company files quarterly, annual
and current reports, proxy and information statements and other
reports with the SEC. You can read and copy the Company’s
public documents filed with the SEC at the SEC’s Public
Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC’s
toll-free telephone number at
1-800-SEC-0330
if you need further information about the operation of the
SEC’s Public Reference Room. The Company’s public
documents filed with the SEC are also available from the
SEC’s Internet website at www.sec.gov. The
Company’s Class A Common Stock is listed on the New
York Stock Exchange under the trading symbol “BBX.”
The SEC has adopted rules that permit companies and
intermediaries, such as brokers, to satisfy delivery
requirements for proxy and information statements with respect
to two or more shareholders sharing the same address by
delivering a single proxy or information statement, as
applicable, addressed to those shareholders. This process, which
is commonly referred to as “householding,” potentially
provides extra convenience for shareholders and cost savings for
companies. The Company and some brokers household proxy and
information materials, delivering a single proxy or information
statement, as applicable, to multiple shareholders sharing an
address unless contrary instructions have been received from the
affected shareholders. Once you have received notice from your
broker or the Company’s transfer agent, American Stock
Transfer & Trust Company (“AST”), that
they or the Company will be householding materials to your
address, householding will continue until you are notified
otherwise or until you revoke your consent. However, the Company
will deliver promptly upon written or oral request a separate
copy of this Information Statement to a shareholder at a shared
address to which a single copy of this Information Statement was
delivered. If, at any time, you no longer wish to participate in
householding and would prefer to receive a separate proxy or
information statement, or if you are receiving multiple proxy or
information statements and would like to request delivery of a
single proxy or information statement, please notify your broker
if your shares are held in a brokerage account or AST if you
hold registered shares. You can notify AST by sending a written
request to American Stock Transfer &
Trust Company, 59 Maiden Lane — Plaza Level,
New York, NY 10038, attention Jennifer Donovan, Vice
President.
BY ORDER OF THE BOARD OF DIRECTORS
Alan B. Levan
Chairman of the Board and Chief Executive Officer
,
2010
6
Appendix A
FORM OF
ARTICLES OF AMENDMENT
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
BANKATLANTIC BANCORP, INC.
TO THE
RESTATED ARTICLES OF INCORPORATION
OF
BANKATLANTIC BANCORP, INC.
The Restated Articles of Incorporation, as amended, of
BANKATLANTIC BANCORP, INC., a Florida corporation (the
“Corporation”), are hereby amended pursuant to the
provisions of Section 607.1006 of the Florida Business
Corporation Act, and such amendment is set forth as follows:
1. The first sentence of the first paragraph of
Article III is hereby deleted in its entirety and replaced
with the following:
“The aggregate number of shares of capital stock which this
Corporation shall have authority to issue
is
( )
of which Ten Million (10,000,000) shall be preferred stock, par
value $.01 per share, and of
which ( )
shall be common stock, par value $.01 per share, consisting
of
( )
shares of a class designated “Class A Common
Stock” and Nine Million (9,000,000) shares of a class
designated “Class B Common Stock” (the
Class A Common Stock and the Class B Common Stock are
sometimes hereinafter referred to collectively as the
“Common Stock”).”
7