UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d) of The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): October 20,
2016
BFC FINANCIAL CORPORATION
(Exact name of registrant as specified in its charter)
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Florida
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001-09071
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59-2022148
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(State or other jurisdiction
of incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida
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33301
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code: 954-940-4900
Not applicable
(Former
name or former address, if changed since last report.)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01
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Entry into a Material Definitive Agreement.
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On October 20, 2016, BFC Financial Corporation
(“BFC”), BBX Merger Subsidiary LLC, a wholly owned subsidiary of BFC (“Merger Sub”), and BBX Capital Corporation (“BBX Capital”) entered into a letter agreement relating to the previously disclosed Agreement and Plan of
Merger, dated as of July 27, 2016, between BFC, Merger Sub and BBX Capital (the “Merger Agreement”). The letter agreement (the “Amendment”), a copy of which is attached hereto as Exhibit 2.1, amends the Merger Agreement to
add as a condition to closing the merger that, unless waived by the companies, (i) any litigation or threatened litigation against the companies or their affiliates relating to the merger shall be resolved to the satisfaction of BFC and BBX
Capital or (ii) the holders of at least 2,250,000 shares of BBX Capital’s Class A Common Stock shall execute and deliver to BBX Capital a waiver and release in form and substance acceptable to BFC and BBX Capital irrevocably
(a) waiving their right to participate in, or receive any proceeds from, any shareholder class action lawsuit relating to the merger and (b) releasing and discharging BFC, BBX Capital, Merger Sub, the Surviving Company (as defined in the
Merger Agreement) and each of their respective officers, directors, employees, members, managers and other affiliates from any and all claims, demands, controversies, causes of action, obligations, liabilities, costs, expenses, fees and damages
arising out of the Merger Agreement other than in connection with the exercise of appraisal rights in respect of the merger or any failure to pay or issue to the shareholder the stock and/or cash consideration to which the shareholder is entitled
pursuant to the terms of the Merger Agreement. The Amendment was approved by the special committee of BBX Capital’s board of directors and the respective boards of directors of BFC and BBX Capital based on their consideration of, among other
things, the costs and uncertainty involved in litigation and the potential negative impact that an adverse judgment in any class action lawsuit challenging the merger could have on the combined company. As previously disclosed, consummation of the
merger is also subject to other closing conditions set forth in the Merger Agreement.
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Item 9.01
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Financial Statements and Exhibits.
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2.1
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Letter agreement, dated October 20, 2016, amending the Agreement and Plan of Merger, dated as of July 27, 2016, by and among BFC Financial Corporation, BBX Merger Subsidiary LLC and BBX Capital Corporation
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Additional Information and Where to Find it
The Merger Agreement will be submitted to BBX Capital’s shareholders for their approval. BFC has filed with the Securities and Exchange Commission (the
“SEC”) a Registration Statement on Form S-4 (which has not yet been declared effective) that includes a preliminary prospectus of BFC and a preliminary proxy statement of BBX Capital. BFC and BBX Capital will also file other documents with
the SEC regarding the merger, including a definitive prospectus of BFC and a definitive proxy statement of BBX Capital.
Investors and shareholders are advised to read the definitive proxy statement/prospectus and any other relevant documents that
will be filed with the SEC when they become available because they will contain important information.
The definitive proxy statement/prospectus will be sent to the shareholders of BBX Capital after the Registration Statement is declared
effective. Investors and shareholders will be able to obtain a copy of the definitive proxy statement/prospectus and other documents filed with the SEC
containing information about the merger, BFC and BBX Capital free-of-charge from the SEC’s website at
www.sec.gov
. Copies of documents filed with the SEC by BFC are available
free-of-charge on BFC’s website at
www.bfcfinancial.com
, under the “Investor Relations” tab, or by written request to BFC Financial Corporation, 401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida 33301, Attention:
Investor Relations, or by phone at 954-940-4900. Copies of documents filed with the SEC by BBX Capital are available free-of-charge on BBX Capital’s website at
www.bbxcapital.com
, under the “Investor Relations” tab, or by
written request to BBX Capital Corporation, 401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida 33301, Attention: Investor Relations, or by phone at 954-940-4000.
Participants in the Solicitation
BFC, BBX and
certain of their respective directors and executive officers may, under the rules of the SEC, be deemed to be “participants” in the solicitation of proxies from BBX’s shareholders in connection with the merger. Information about the
directors and executive officers of BFC is set forth in BFC’s Proxy Statement on Schedule 14A for its 2016 Annual Meeting of Shareholders, which was filed with the SEC on April 28, 2016. Information about the directors and executive
officers of BBX Capital is set forth in BBX Capital’s Proxy Statement on Schedule 14A for its 2016 Annual Meeting of Shareholders, which was filed with the SEC on April 25, 2016. These documents can be obtained free-of-charge from the
sources indicated above. Information concerning the interests of the persons who may be considered “participants” in the solicitation will be set forth in the definitive proxy statement/prospectus relating to the merger when it becomes
available.
No Offer or Solicitation
This
Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval in any jurisdiction where such an offer or solicitation is unlawful. Any such offer will
be made only by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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BFC FINANCIAL CORPORATION
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Date: October 20, 2016
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By:
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/s/ Raymond S. Lopez
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Raymond S. Lopez,
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Executive Vice President,
Chief Financial
Officer and
Chief Accounting Officer
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EXHIBIT INDEX
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Exhibit
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Description
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2.1
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Letter agreement, dated October 20, 2016, amending the Agreement and Plan of Merger, dated as of July 27, 2016, by and among BFC Financial Corporation, BBX Merger Subsidiary LLC and BBX Capital Corporation
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Exhibit 2.1
401 East Las Olas Boulevard, Suite 800
Fort Lauderdale, Florida 33301
October 20, 2016
BBX Capital Corporation
401 East Las Olas Boulevard, Suite 800
Fort Lauderdale,
Florida 33301
Attn: Raymond S. Lopez, Executive Vice President and Chief Financial Officer
Steven M. Coldren, Chairman of the Special Committee
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Re:
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Agreement and Plan of Merger, dated as of July 27, 2016 (the “Merger Agreement”), by and among BFC Financial Corporation (“BFC”), BBX Merger Subsidiary LLC (“Merger Sub”) and BBX
Capital Corporation (“BBX Capital”)
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Gentlemen:
I have been authorized by the board of directors of BFC and the board of managers of Merger Sub to deliver to you this proposed letter agreement relating to
the Merger Agreement.
As you are aware, consummation of the merger contemplated by the Merger Agreement (the “Merger”) is
subject to a number of closing conditions set forth in Article VIII of the Merger Agreement. A lawsuit has been filed challenging the consideration provided to BBX Capital’s shareholders but not pursuant to Florida’s appraisal rights
statutes. If the past is a guide, the objective of the lawyers who brought the case will be to take advantage of the consideration provided for in the Merger and then, regardless of how shareholders voted or not voted, and regardless of which form
of consideration is taken, seek to form a class of all shareholders of BBX Capital other than BFC and its affiliates, to gain more having little to do with the valuation of the business or the stock. While we believe that such suits violate Florida
law and lack merit, this kind of shareholder litigation has perplexed the overwhelming majority of corporate mergers and acquisitions.
Due to the cost of litigation and the overhang of a claimed adverse judgment in a class action lawsuit challenging the Merger, BFC’s
board of directors and Merger Sub’s board of managers have determined and resolved that, subject to the approval of BBX Capital required by the Merger Agreement, including the approval of the special committee of BBX Capital’s board of
directors, it would be advisable to add as a condition to closing the Merger that, unless waived by the companies, (i) any litigation or threatened litigation against the companies or their affiliates relating to the Merger shall be resolved to
the satisfaction of BFC and BBX Capital or (ii) the holders of at least 2,250,000 shares of BBX Capital’s Class A Common Stock shall have executed and delivered to BBX Capital a waiver and release in form and substance acceptable to
BFC and BBX Capital irrevocably (a) waiving their right to participate in, or receive any proceeds from, any shareholder class action lawsuit relating to the Merger and (b) releasing and
discharging BFC, BBX Capital, Merger Sub, the Surviving Company (as defined in the Merger Agreement) and each of their respective officers, directors, employees, members, managers and other
affiliates from any and all claims, demands, controversies, causes of action, obligations, liabilities, costs, expenses, fees and damages arising out of the Merger Agreement other than in connection with the exercise of appraisal rights in respect
of the Merger under the Florida Business Corporation Act or the failure to pay or issue to the shareholder the stock and/or cash consideration to which the shareholder is entitled pursuant to the terms of the Merger Agreement.
If BBX Capital agrees to the foregoing, please acknowledge the same by executing and returning this letter agreement to me. Upon full
execution and delivery of this letter agreement in accordance with the terms of the Merger Agreement, this letter agreement shall constitute an amendment to the Merger Agreement to add as new
Section 8.1(g)
thereto the closing condition
described above.
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On behalf of BFC Financial Corporation and
BBX
Merger Subsidiary LLC,
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/s/ Jarett S. Levan,
Acting Chairman, Chief
Executive Officer
and President of BFC Financial Corporation;
Chief Executive Officer of BBX Merger
Subsidiary
LLC
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ACCEPTED and AGREED to
as
of the date first above written:
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BBX CAPITAL CORPORATION
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By:
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/s/ Raymond S. Lopez
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Raymond S. Lopez,
Executive Vice President
and Chief Financial Officer
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By:
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/s/ Steven M. Coldren
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Steven M. Coldren,
Chairman of the Special
Committee
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