UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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☒
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material Pursuant to Section 240.14a-12
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BBX
Capital, Inc.
(Name
of Registrant as Specified In Its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which
the filing fee is calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of
its filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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BBX
Capital, Inc.
401
East Las Olas Blvd., Suite 800
Fort
Lauderdale, Florida 33301
April
16, 2021
Dear
Shareholder:
You
are cordially invited to attend the Annual Meeting of Shareholders of BBX Capital, Inc., which will be held on May 17, 2021 at
11:00 a.m., Eastern time, for the purposes described in the attached Notice of Meeting and Proxy Statement.
In
light of public health concerns regarding the Coronavirus (COVID-19) pandemic, the Annual Meeting will be held in a virtual format
only, via webcast at www.virtualshareholdermeeting.com/BBXIA2021. While there will not be a physical meeting location and
shareholders will not be able to attend the Annual Meeting in person, shareholders may attend the Annual Meeting virtually via
the Internet. In order to attend the virtual meeting, please email BBX@laurelhill.com prior to 11:59 p.m., Eastern time,
on May 10, 2021 to request a control number. You will be required to enter your control number in order to access the virtual
Annual Meeting and, if you are a shareholder of record or have a valid proxy to vote your shares, vote online. If you attend the
virtual Annual Meeting, you will be able to submit questions on the meeting site. Shareholders who hold their shares in “street
name” through a broker, bank or other nominee may, instead of requesting a control number by email, use the control number
set forth on the voting instruction form received from their broker, bank or other nominee in order to access the meeting.
Whether
or not you plan to attend the virtual Annual Meeting, we encourage you to promptly vote your shares by Internet or telephone or
by completing, signing, dating and returning your proxy card or, if your shares are held in “street name,” your voting
instruction form. This way, your shares will be voted as you direct even if you cannot attend the virtual Annual Meeting.
On
behalf of your Board of Directors, I would like to express our appreciation for your continued support.
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Sincerely,
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Alan B. Levan
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Chairman of the Board of Directors
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BBX
Capital, Inc.
401
East Las Olas Blvd., Suite 800
Fort
Lauderdale, Florida 33301
NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS
To
Be Held on May 17, 2021
Notice
is hereby given that the Annual Meeting of Shareholders of BBX Capital, Inc. (the “Company”) will be held on May 17,
2021, commencing at 11:00 a.m., Eastern time, for the following purposes:
1. To
elect eleven directors to the Company’s Board of Directors for a term expiring at the Company’s 2022 Annual Meeting
of Shareholders.
2. To
approve the BBX Capital, Inc. 2021 Incentive Plan.
3. To
transact such other business as may properly be brought before the Annual Meeting or any adjournment or postponement thereof.
The
matters listed above are more fully described in the Proxy Statement that forms a part of this Notice of Meeting.
In
light of public health concerns regarding the Coronavirus (COVID-19) pandemic, the Annual Meeting will be held in a virtual format
only, via webcast at www.virtualshareholdermeeting.com/BBXIA2021. While there will not be a physical meeting location and
shareholders will not be able to attend the Annual Meeting in person, shareholders may attend the Annual Meeting virtually via
the Internet. In order to attend the virtual meeting, please email BBX@laurelhill.com prior to 11:59 p.m., Eastern time,
on May 10, 2021 to request a control number. You will be required to enter your control number in order to access the virtual
Annual Meeting and, if you are a shareholder of record or have a valid proxy to vote your shares, vote online. If you attend the
virtual Annual Meeting, you will be able to submit questions on the meeting site. Shareholders who hold their shares in “street
name” through a broker, bank or other nominee may, instead of requesting a control number by email, use the control number
set forth on the voting instruction form received from their broker, bank or other nominee in order to access the meeting.
Only
record holders of the Company’s Class A Common Stock or Class B Common Stock at the close of business on April 9, 2021 are
entitled to notice of, and to vote at, the Annual Meeting.
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Sincerely yours,
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Alan B. Levan
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Chairman of the Board of Directors
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Fort
Lauderdale, Florida
April
16, 2021
IMPORTANT:
EVEN IF YOU PLAN TO ATTEND THE VIRTUAL ANNUAL MEETING, YOU ARE ENCOURAGED TO VOTE YOUR SHARES BY INTERNET OR TELEPHONE OR BY COMPLETING,
SIGNING, DATING AND RETURNING THE ENCLOSED PROXY CARD OR, IF YOUR SHARES ARE HELD IN “STREET NAME,” YOUR VOTING INSTRUCTION
FORM. This way, your shares will be voted as you direct even if you cannot attend the
virtual Annual Meeting. NO POSTAGE IS REQUIRED FOR THE PROXY CARD IF MAILED IN THE UNITED STATES USING THE ENCLOSED ENVELOPE.
BBX
Capital, Inc.
401
East Las Olas Blvd., Suite 800
Fort
Lauderdale, Florida 33301
PROXY
STATEMENT
The
Board of Directors of BBX Capital, Inc. (the “Company”) is soliciting proxies to be used at the Annual Meeting of
Shareholders of the Company (the “Annual Meeting”) to be held on May 17, 2021 at 11:00 a.m., Eastern time, and at
any and all postponements or adjournments of the Annual Meeting, for the purposes set forth in the accompanying Notice of Meeting.
As described in further detail below, in light of public health concerns regarding the Coronavirus (COVID-19) pandemic, the Annual
Meeting will be held in virtual format only, via webcast, with no physical in-person meeting.
This
Proxy Statement and the accompanying Notice of Meeting and proxy card are first being mailed to shareholders on or about April
16, 2021.
QUESTIONS
AND ANSWERS ABOUT THE PROXY MATERIALS
AND THE ANNUAL MEETING
What
is the purpose of the Annual Meeting?
At
the Annual Meeting, shareholders will be asked to consider and vote upon the election of eleven directors to the Company’s
Board of Directors, each for a term expiring at the Company’s 2022 Annual Meeting of Shareholders, and to approve the BBX
Capital, Inc. 2021 Incentive Plan (the “Plan”). Although the Board of Directors is not aware of any other matters
to be presented at the Annual Meeting, if any other matters are properly brought before the Annual Meeting, shareholders will
be asked to consider and vote upon such matters. Also, management will report on the Company’s business and performance
and respond to appropriate questions from shareholders, as described in further detail below.
Who
is entitled to vote at the meeting?
Record
holders of the Company’s Class A Common Stock and record holders of the Company’s Class B Common Stock as of the close
of business on April 9, 2021 (the “Record Date”) may vote at the Annual Meeting. As of the close of business on the
Record Date, 15,264,604 shares of the Company’s Class A Common Stock and 3,693,596 shares of the Company’s Class B
Common Stock were outstanding and, thus, will be eligible to vote at the Annual Meeting.
Why
is the Annual Meeting being held in virtual format only?
In
light of public health concerns regarding the coronavirus (COVID-19) pandemic and with a view towards the health and well-being
of the Company’s shareholders and providing access to the Company’s shareholders regardless of geographic location,
the Annual Meeting will only be conducted in virtual format live via webcast. While there will not be a physical, in-person meeting
for you to attend, the format of the virtual Annual Meeting has been designed in an attempt to provide shareholders the rights
and opportunities to participate in the meeting, including the right to vote and the ability to ask questions through the virtual
meeting platform.
How
can I attend the Annual Meeting?
In
order to attend the virtual meeting, please email BBX@laurelhill.com prior to 11:59 p.m., Eastern time, on May 10, 2021
to request a control number. You will be required to enter your control number in order to access the virtual Annual Meeting and,
if you are a shareholder of record or have a valid proxy to vote your shares, vote online. If you attend the virtual Annual Meeting,
you will be able to submit questions on the meeting site. Shareholders who hold their shares in “street name” through
a broker, bank or other nominee may, instead of requesting a control number by email, use the control number set forth on the
voting instruction form received from their broker, bank or other nominee in order to access the meeting.
We
recommend that you log on to the virtual meeting site at: www.virtualshareholdermeeting.com/BBXIA2021 beginning 15 minutes
prior to the start of the meeting. As described above, in order to access the meeting, you will need to use the control number
emailed to you following your request or, for “street name” holders, the control number set forth on your voting instruction
form.
How
do I submit questions for the Annual Meeting?
If
you attend the virtual Annual Meeting, you will be able to submit questions for the meeting on the meeting site. Any questions
must be confined to the specific matters to be considered at the Annual Meeting or otherwise relate to the business or performance
of the Company. The question and answer session will follow the formal portion of the Annual Meeting and will be subject to time
constraints. Questions may be grouped by topic, and substantially similar questions may be grouped and answered once.
What
are the voting rights of the holders of Class A Common Stock and Class B Common Stock?
Holders
of the Company’s Class A Common Stock and Class B Common Stock will vote as one class on each of the election of directors
and the proposal to approve the Plan. Additionally, in most cases, holders of the Company’s Class A Common Stock and Class
B Common Stock will vote as one class on any other matters properly brought before the Annual Meeting. Holders of the Company’s
Class A Common Stock are entitled to one vote per share on each matter, with all holders of the Company’s Class A Common
Stock having in the aggregate 22% of the general voting power. The number of votes represented by each share of the Company’s
Class B Common Stock, which represents in the aggregate 78% of the general voting power, is calculated in accordance with the
Company’s Articles of Incorporation. At this year’s Annual Meeting, each outstanding share of the Company’s
Class B Common Stock will be entitled to 14.65 votes on each matter.
As
described in further detail below, in addition to the approval of the holders of the Company’s Class A Common Stock and
Class B Common Stock as one class, to be approved, the Plan must also receive the approval of the holders of the Company’s
Class B Common Stock, voting as a separate class. Approval of the Plan by the holders of the Company’s Class B Common Stock
will constitute the approval required by the Company’s Articles of Incorporation of the issuance of the shares of the Company’s
Class B Common Stock pursuant to options and restricted stock awards which may be granted under the Plan.
What
constitutes a quorum?
The
presence at the Annual Meeting, virtually in person or by proxy, of the holders of shares representing a majority of the aggregate
voting power (as described above) of the Company’s Class A Common Stock and Class B Common Stock outstanding as of the close
of business on the Record Date will constitute a quorum.
What
is the difference between a shareholder of record and a “street name” holder?
If
your shares are registered directly in your name with American Stock Transfer & Trust Company, LLC (“AST”), the
Company’s stock transfer agent, you are considered the shareholder of record with respect to those shares. If your shares
are held in a stock brokerage account or by a bank or other nominee, you are considered the beneficial owner of the shares but
not the shareholder of record, and your shares are held in “street name.”
How
do I vote my shares?
Record
shareholders. If you are a shareholder of record, you can give a proxy to be voted at the Annual Meeting by mailing the enclosed
proxy card. If you return your proxy card by mail, please ensure you leave enough time for your proxy card to be mailed and received.
Shareholders of record may also vote by telephone or the Internet as described on the enclosed proxy card. In addition, shareholders
of record may attend the virtual Annual Meeting (as described above) and vote their shares electronically during the virtual Annual
Meeting up until the closing of the polls. Even if you plan to attend the virtual Annual Meeting, you are encouraged to vote in
advance by telephone or the Internet, or by signing, dating and returning the enclosed proxy card, so that your vote will be counted
if you later decide not to, or are otherwise unable to, attend the virtual Annual Meeting.
“Street
name” holders. If you hold your shares in “street name,” you will receive instructions from your broker,
bank or other nominee as to how to vote your shares or submit instructions to vote your shares. You should instruct your broker,
bank or other nominee how to vote your shares by following the directions provided by your broker, bank or other nominee. If you
return your voting instruction form by mail, please ensure you leave enough time for your voting instruction form to be received
by the deadline provided by your broker, bank or other nominee. If you are a “street name” holder, you may vote the
shares beneficially held by you through your broker, bank or other nominee electronically at the virtual Annual Meeting only if
you attend the virtual Annual Meeting (as described above) and obtain a legal proxy from your broker, bank or other nominee giving
you the legal right to vote the shares at the virtual Annual Meeting.
What
are my choices when voting?
With
respect to the election of directors, you may vote for all of the director nominees,
or your vote may be withheld with respect to one or more of the director nominees. The
proposal related to the election of directors is described in this Proxy Statement beginning
on page 10.
In
addition, you may vote for or against, or abstain from voting on, the proposal to approve the Plan. The proposal to approve the
Plan is described in this Proxy Statement beginning on page 21.
What
are the Board’s voting recommendations?
The
Board of Directors recommends that you vote your shares FOR ALL of the director nominees and FOR the proposal to
approve the Plan.
What
if I do not specify on my proxy card how I want my shares voted?
If
you execute and mail in your proxy card but do not specify on your proxy card how you want to vote your shares, your shares will
be voted FOR ALL of the director nominees and FOR the proposal to approve the Plan. Although the Board of Directors
is not aware of any other matters to be presented at the Annual Meeting, if any other matters are properly brought before the
Annual Meeting, the individuals named in the enclosed proxy card (or their substitutes if they are unavailable) will vote the
proxies in accordance with their judgment on those matters.
Can
I change my vote or revoke my proxy?
Yes.
You can change your vote or revoke your proxy at any time before your proxy is voted at the Annual Meeting. If you are the record
owner of your shares, you can revoke your proxy by sending a signed written notice to the Company’s Secretary stating that
you would like to revoke your proxy. Record holders can change their vote by submitting a new valid proxy bearing a later date,
transmitting new voting instructions by telephone or the Internet, or by attending and voting their shares electronically at the
virtual Annual Meeting as described above. See “How do I vote my shares? – Record Shareholders.” However, attendance
at the virtual Annual Meeting will not, in and of itself, constitute revocation of a previously executed proxy.
If
you are not the record owner of your shares and your shares are held in “street name,” you must contact your broker,
bank or other nominee to find out how to change your vote.
What
vote is required for a proposal to be approved?
The
Company’s directors are elected by plurality vote, meaning that the eleven director nominees receiving the greatest number
of votes for election will be elected. A properly executed proxy marked to withhold a vote with respect to the election of one
or more director nominees will not be voted with respect to the nominee or nominees indicated, although it will be counted for
purposes of determining whether or not a quorum exists.
With
respect to the proposal to approve the Plan, the affirmative vote of a majority of the votes cast on the proposal by holders of
the Company’s Class A Common Stock and Class B Common Stock as one class will be required for approval. Since abstentions
are treated for these purposes as votes cast on the proposal, abstentions will effectively count as votes against the proposal.
Under the Company’s Articles of Incorporation, approval of the holders of the Company’s Class B Common Stock is required
in order to issue the shares of the Company’s Class B Common Stock authorized for grant under the Plan. A vote in favor
of the Plan by the holders of the Company’s Class B Common Stock will also be deemed to constitute a vote in favor of the
approval required by the Company’s Articles of Incorporation of the issuance of the shares of the Company’s Class
B Common Stock pursuant to options and restricted stock awards which may be granted under the Plan. Accordingly, a holder of the
Company’s Class B Common Stock should only vote in favor of the Plan if the holder wishes to approve both the Plan and the
issuance of the shares of the Company’s Class B Common Stock pursuant to options and restricted stock awards which may be
granted under the Plan.
If
my shares are held in street name, will my broker, bank or other nominee vote my shares for me?
No.
If you hold your shares in “street name” through a broker, bank or other nominee, whether your broker, bank or other
nominee may vote your shares in its discretion depends on the proposals before the Annual Meeting. Neither of the proposals expected
to be considered at the Annual Meeting is a proposal on which your broker, bank or other nominee will have discretion to vote
your shares at the Annual Meeting if you do not provide voting instructions.
What
are broker non-votes?
When
a broker, bank or other nominee has discretion to vote on one or more proposals at a meeting, or a “routine matter,”
but does not have discretion to vote on other matters at the meeting, or “non-routine matters,” the broker, bank or
other nominee will inform the inspector of election that it does not have the authority to vote on the “non-routine matters”
with respect to shares held for beneficial owners which did not provide voting instructions with respect to the “non-routine
matters.” This is generally referred to as a “broker non-vote.” Because brokers, banks and other nominees will
not have discretion to vote on any items of business at the Annual Meeting if they have not received voting instructions from
their clients, there will not be broker non-votes on any matter presented at the Annual Meeting.
Are
there any other matters to be acted upon at the Annual Meeting?
The
Company does not know of any other matters to be presented or acted upon at the Annual Meeting. If any other matter is presented
at the Annual Meeting on which a vote may properly be taken, the shares represented by proxies will be voted in accordance with
the judgment of the person or persons voting those shares.
CORPORATE
GOVERNANCE
Pursuant
to the Company’s Bylaws and Florida law, the Company’s business and affairs are managed under the direction of the
Company’s Board of Directors. Directors are kept informed of the Company’s business through discussions with management,
including the Company’s Chairman, the Company’s Chief Executive Officer and other senior officers of the Company,
by reviewing materials provided to them and by participating in meetings of the Board of Directors and its committees.
Prior
to September 30, 2020, the Company was a wholly owned subsidiary of Bluegreen Vacations Holding Corporation (formerly BBX Capital
Corporation) (“BVH”). On September 30, 2020, BVH spun-off the Company (the “Spin-Off”), resulting in the
Company becoming a separate public company. Other than BVH’s investment in Bluegreen Vacations Corporation (“Bluegreen”),
the Company holds all of BVH’s historical investments and businesses, including BBX Capital Real Estate LLC (“BBX
Capital Real Estate” or “BBXRE”), BBX Sweet Holdings, LLC (“BBX Sweet Holdings”), and Renin Holdings,
LLC (“Renin”). The Spin-Off was effected through the distribution by BVH to its shareholders as of the close of business
on September 22, 2020, the record date for the distribution, of all of the outstanding shares of the Company’s Class A Common
Stock and Class B Common Stock, with BVH’s shareholders receiving one share of the Company’s Class A Common Stock
for each share of BVH’s Class A Common Stock held on the record date for the distribution and one share of the Company’s
Class B Common Stock for each share of BVH’s Class B Common Stock held on the record date for the distribution. Accordingly,
as of the close of business on September 30, 2020, BVH ceased to have an ownership interest in the Company, and BVH’s shareholders
who received shares of BBX Capital’s Class A Common Stock and/or Class B Common Stock in the distribution became the initial
shareholders of the Company following the Spin-Off. See “Certain Relationships and Related Transactions” below for
additional information regarding the Spin-Off, including the $75.0 million note issued by BVH in favor of the Company in connection
with the Spin-Off.
Composition
of the Board of Directors
The
Company’s Bylaws provide that its Board of Directors will consist of no less than three or more than sixteen directors,
and for each director to serve for a term expiring at the Company’s next annual meeting of shareholders. The specific number
of directors is set from time to time by resolution of the Board. In connection with the Spin-Off, the Company’s Board of
Directors set the number of directors comprising the Board at eleven directors and the following directors were appointed to the
Company’s Board of Directors: Alan B. Levan, Chairman, John E. Abdo, Vice Chairman, Jarett S. Levan, Seth M. Wise, Norman
H. Becker, Andrew R. Cagnetta, Jr., Steven M. Coldren, Gregory A. Haile, Willis N. Holcombe, Anthony P. Segreto, and Neil Sterling.
The Company’s directors are elected for one-year terms expiring at the Company’s next annual meeting of shareholders
and will hold office until their successors have been duly elected and qualified or until the earlier of their death, resignation
or removal.
Determination
of Director Independence
The
Company’s Board of Directors has determined that Norman H. Becker, Andrew R. Cagnetta, Jr., Steven M. Coldren, Gregory A.
Haile, Willis N. Holcombe, Anthony P. Segreto and Neil Sterling, who together comprise a majority of the Board, are independent
under applicable rules and regulations of the SEC. The Board made such independence determinations using the definition of independence
set forth in the listing standards of the New York Stock Exchange and based on a review of transactions and relationships between
each director or any member of his or her immediate family, on the one hand, and the Company and its subsidiaries and affiliates,
on the other hand, as well as transactions and relationships between each director or his affiliates, on the one hand, and members
of the Company’s senior management or their affiliates, on the other hand. To assist the Board in making its independence
determinations, the Board adopted the following categorical standards of relationships that, in the Board’s opinion, do
not constitute material relationships that impair a director’s independence: (i) serving on third party boards of directors
with other members of the Board; (ii) payments or charitable gifts by the Company to entities with which a director is an executive
officer or employee where such payments do not exceed the greater of $1 million annually or 2% of such entity’s consolidated
gross revenues for the applicable year; and (iii) investments by directors in common with each other or the Company. In addition,
the Board discussed and considered that Mr. Becker serves on the Board of Directors of Bluegreen. With respect to Mr. Coldren,
the Board discussed and considered that he is the President of Business Information Systems, Inc., a company which currently leases
(and, since 1985, has leased) office space from Abdo Companies, Inc., of which John E. Abdo, the Company’s Vice Chairman,
is President. Prior to its expansion in 2019, the lease covered 4,000 square feet and provided for annual rent of $84,000. During
2019, the lease was expanded to cover a total approximately 6,000 square feet, and the annual rent was increased to $140,000,
which is purported to be the current market rate. The Board also discussed and considered that Mr. Haile is the President of Broward
College and a member of the Board of Directors of the Broward College Foundation, and that, during each of 2019 and 2020, BBX
Capital Foundation made contributions of $20,000 to the Broward College Foundation. The Board determined that each such relationship
and transaction described above did not constitute a material relationship or transaction that would impair the director’s
independence.
Committees
of the Board of Directors and Meeting Attendance
The
Board of Directors has established Audit, Compensation and Nominating/Corporate Governance
Committees. The Board has adopted a written charter for each of these committees and
Corporate Governance Guidelines that address the make-up and functioning of the Board.
The Board has also adopted a Code of Business Conduct and Ethics that applies to all
of the Company’s directors, officers and employees. The committee charters, Corporate
Governance Guidelines and Code of Business Conduct and Ethics are posted in the “Investor
Relations” section of the Company’s website at www.bbxcapital.com,
and each is available in print, without charge, to shareholders.
The
Board met four times during the three months ended December 31, 2020. Each member of the Board of Directors attended at least
75% of the total number of meetings of the Board and committees on which he serves. The Company has no formal policy requiring
directors to attend the Company’s annual meeting of shareholders. The Company’s 2021 Annual Meeting of Shareholders
will be the Company’s first annual meeting of shareholders following its Spin-Off from BVH on September 30, 2020.
The
members of the Audit Committee are Norman H. Becker, Chairman, Andrew R. Cagnetta, Jr., Steven M. Coldren, and Gregory A. Haile.
The Board has determined that each member of the Audit Committee is “financially literate” and “independent”
within the meaning of applicable SEC rules and regulations. The Board also determined that Mr. Becker qualifies as an “audit
committee financial expert,” as defined under Item 407 of Regulation S-K promulgated by the SEC.
The
Audit Committee is directly responsible for the appointment, compensation, retention, and oversight of the Company’s independent
auditor. Additionally, the Audit Committee assists Board oversight of: (i) the integrity of the Company’s financial statements;
(ii) the Company’s compliance with legal and regulatory requirements; (iii) the qualifications, performance, and independence
of the Company’s independent auditor; and (iv) the performance of the Company’s internal audit function. In connection
with these oversight functions, the Audit Committee receives reports from, and meets with, the Company’s internal audit
group, management, and independent auditor. The Audit Committee receives information concerning the Company’s internal control
over financial reporting and any significant deficiencies or material weaknesses in such control and has adopted a complaint monitoring
procedure that enables confidential and anonymous reporting to the Audit Committee of concerns regarding questionable accounting
or auditing matters. The Audit Committee is also responsible for reviewing and, if it determines to be advisable, approving related
party transactions involving the Company and its directors or executive officers, or their immediate family members, which present
issues regarding financial or accounting matters. A report from the Audit Committee is included in this Proxy Statement on page
27.
The
Audit Committee met two times during the three months ended December 31, 2020.
The
Compensation Committee
The
members of the Compensation Committee are Neil Sterling, Chairman, Steven M. Coldren, and Willis N. Holcombe. The Board has determined
that each member of the Compensation Committee is “independent” under applicable rules and regulations of the SEC.
The
Compensation Committee provides assistance to the Board in fulfilling its responsibilities relating to the compensation of the
Company’s executive officers. It reviews and determines the compensation of the Company’s executive officers, including
the Chief Executive Officer. Pursuant to its charter, the Compensation Committee has the authority to retain consultants to assist
the Compensation Committee in its evaluation of executive compensation, as well as the authority to approve any such consultant’s
fees and retention terms. No compensation consultants were engaged during the three months ended December 31, 2020.
The
Compensation Committee met one time during the three months ended December 31, 2020.
The
Nominating/Corporate Governance Committee
The
Nominating/Corporate Governance Committee is comprised of Steven M. Coldren, Chairman, Andrew R. Cagnetta, Jr., Gregory A. Haile,
Anthony P. Segreto, and Neil Sterling. The Board has determined that each member of the Nominating/Corporate Governance Committee
is “independent” under applicable rules and regulations of the SEC.
The
Nominating/Corporate Governance Committee is responsible for: (i) assisting the Board in identifying individuals qualified to
become directors; (ii) making recommendations of candidates for directorships; (iii) developing and recommending to the Board
a set of corporate governance principles for the Company; (iv) overseeing the evaluation of the Board and management; (v) overseeing
the selection, composition and evaluation of Board committees; and (vi) overseeing the management continuity and succession planning
process. In addition, the Nominating/Corporate Governance Committee is responsible for reviewing and, if it determines to be advisable,
approving related party transactions involving the Company and its directors or executive officers, or their immediate family
members, other than those presenting issues regarding financial or accounting matters, the review and approval of which has been
delegated to the Audit Committee.
The
Nominating/Corporate Governance Committee met two times during the three months ended December 31, 2020.
The
Nominating/Corporate Governance Committee will review annually the composition of the Board of Directors and the ability of its
current members to continue effectively as directors. Absent special circumstances or a change in the criteria for Board membership,
the Nominating/Corporate Governance Committee will generally re-nominate incumbent directors who continue to be qualified for
Board service and are willing to continue as directors. If the Nominating/Corporate Governance Committee thinks it is in the Company’s
best interest to nominate a new individual for director or fill a vacancy on the Board which may exist from time to time, the
Nominating/Corporate Governance Committee will seek out potential candidates for Board appointments who meet the criteria for
selection as a nominee and have the specific qualities or skills being sought as follows. Generally, the Nominating/Corporate
Governance Committee will identify candidates for directorships through the business and other organization networks of the directors
and management. Candidates for director will be selected on the basis of the contributions the Nominating/Corporate Governance
Committee believes that those candidates can make to the Board and to management and on such other qualifications and factors
as the Nominating/Corporate Governance Committee considers appropriate. Board candidates should have a reputation for honesty
and integrity, strength of character, mature judgment and experience in positions with a high degree of responsibility. In addition
to reviewing a candidate’s background and accomplishments, candidates for director are reviewed in the context of the current
composition of the Board and the evolving needs of the Company. While the Board does not have a formal diversity policy and the
Nominating/Corporate Governance Committee does not follow any ratio or formula with respect to diversity in order to determine
the appropriate composition of the Board, the Board prefers a mix of background and experience among its members. Accordingly,
pursuant to the Company’s Corporate Governance Guidelines, the Nominating/Corporate Governance Committee, when assessing
potential new directors, may seek individuals from diverse professional backgrounds who provide a broad range of skills, experience
and expertise relevant to the Company’s business. The goal of this process is to assemble a group of Board members with
deep, varied experience, sound judgment, and commitment to the Company’s success. The Company also requires that its Board
members be able to dedicate the time and resources sufficient to allow for the diligent performance of their duties on the Company’s
behalf, including attending Board and applicable committee meetings. If the Nominating/Corporate Governance Committee believes
a candidate would be a valuable addition to the Board, it will recommend the candidate’s election to the full Board. The
Nominating/Corporate Governance Committee has recommended the re-election at the Annual Meeting of all eleven of the Company’s
incumbent directors, each of whom was appointed to the Board in connection with the Company’s Spin-Off from BVH.
Under
the Company’s Bylaws, nominations for directors may be made only by or at the direction of the Board of Directors, or by
a shareholder entitled to vote who delivers written notice (along with certain additional information specified in the Company’s
Bylaws) not less than 90 nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting of
shareholders. However, if the date of the Company’s annual meeting of shareholders changes by more than 30 days from the
date of the preceding year’s annual meeting of shareholders, written notice of a director nomination must be received by
the Company within ten days after the Company first mails notice of or publicly discloses the date of the annual meeting of shareholders.
For the Company’s 2022 Annual Meeting of Shareholders, the Company must receive shareholder notice of a director nomination
(i) between January 17, 2022 and February 16, 2022 or (ii) if the Company’s 2022 Annual Meeting of Shareholders is held
more than 30 days before or after May 17, 2022, within ten days after the Company first mails notice of or publicly discloses
the date of the meeting.
Leadership
Structure
The
business of the Company is managed under the direction of the Board, which is elected by the Company’s shareholders, subject
to the right of the Board to appoint directors to fill vacancies on the Board which may exist from time to time, including due
to an increase in the size of the Board or due to director resignations. The fundamental responsibility of the Board is to lead
the Company by exercising its business judgment to act in what each director believes to be the best interests of the Company
and its shareholders.
Alan
B. Levan serves as Chairman of the Company’s Board of Directors. Jarett S. Levan, Mr. Alan Levan’s son, serves as
Chief Executive Officer and President of the Company and as a director of the Company. The Board believes that separating the
Chairman and Chief Executive Officer positions of the Company at this time provides the Company with the appropriate foundation
to pursue its strategic and operational objectives, while maintaining effective oversight and objective evaluation of the Company’s
performance.
Risk
Oversight
The
Board is responsible for overseeing management and the business and affairs of the Company, which includes the oversight of risk.
In exercising its oversight, the Board has allocated some areas of focus to its committees and has retained areas of focus for
itself. Pursuant to its charter, the Audit Committee is responsible for efforts designed to provide the Board with the information
and resources to assess management’s handling of the Company’s approach to risk management. The Audit Committee also
has oversight responsibility for the Company’s financial risk (such as accounting, finance, internal control and tax strategy),
and the Audit Committee or the full Board receives and reviews, as appropriate, the reports of the Company’s internal audit
group regarding the results of its annual Company-wide risk assessment and internal audit plan. Reports of all internal audits
are provided to the Audit Committee. The Compensation Committee oversees compliance with the Company’s executive compensation
plans and related laws and policies. The Nominating/Corporate Governance Committee oversees compliance with governance-related
laws and policies, including the Company’s Corporate Governance Guidelines. The Board as a whole has responsibility for
overseeing management’s handling of the Company’s strategic and operational risks. Senior management reports to the
Board on the risks that management believes may be material to the Company, including those disclosed in the Company’s reports
filed with the SEC. The goal of these processes is to achieve serious and thoughtful Board-level attention to the nature of the
material risks faced by the Company and the adequacy of the Company’s risk management processes and systems. While the Board
recognizes that the risks which the Company faces are not static and that it is not possible to identify or mitigate all risk
and uncertainty all of the time, the Board believes that the Company’s approach to managing its risks provides the Board
with a foundation and oversight perspective with respect to management of the material risks facing the Company.
Executive
Sessions of Non-Management Directors
During
the three months ended December 31, 2020, the Company’s non-management directors
met once in an executive session of the Board in which management directors and other
members of management did not participate. Neil Sterling was the presiding director for
that executive session. Future meetings of non-management directors are scheduled to
be held at least annually, and the non-management directors may schedule additional meetings
without management present as they determine.
Communications
with the Board of Directors and Non-Management Directors
Interested
parties who wish to communicate with the Board of Directors, any individual director
or the non-management directors as a group can write to the Company at 401 East Las Olas
Blvd., Suite 800, Fort Lauderdale, Florida 33301, Attn: Secretary. If the person submitting
the letter is a shareholder, the letter should include a statement indicating such. Depending
on the subject matter, the Company will:
|
●
|
forward
the letter to the director or directors to whom it is addressed;
|
|
●
|
attempt
to handle the inquiry directly if it relates to routine or ministerial matters, including
requests for information; or
|
|
●
|
not
forward the letter if it is primarily commercial in nature or if it is determined to
relate to an improper or irrelevant topic.
|
A
member of management will, at each meeting of the Board, present a summary of all letters
received since the last meeting that were not forwarded to the Board and will make those
letters available to the Board upon request.
Code
of Ethics
The
Company has a Code of Business Conduct and Ethics that applies to all of its directors,
officers and employees, including the Company’s principal executive officer, principal
financial officer, and principal accounting officer. The Code of Business Conduct and
Ethics is posted in the “Investor Relations” section of the Company’s
website at www.bbxcapital.com. The Company will post amendments to or waivers
from the Code of Business Conduct and Ethics (to the extent applicable to the Company’s
principal executive officer, principal financial officer, or principal accounting officer)
on its website.
Compensation
Committee Interlocks and Insider Participation
None
of the members of the Company’s Compensation Committee are current or former officers or employees of the Company or any
of its subsidiaries. In addition, there are no interlocking or other relationships or transactions involving the members of the
Company’s Compensation Committee required to be disclosed under Item 407(e)(4) of Regulation S-K promulgated by the SEC.
Section
16(a) Beneficial Ownership Reporting Compliance
Based
solely upon a review of the copies of the forms furnished to the Company and written representations that no other reports were
required, the Company believes that all filing requirements under Section 16(a) of the Exchange Act applicable to its officers,
directors and greater than 10% beneficial owners were complied with on a timely basis during the three months ended December 31,
2020.
PROPOSAL
NO. 1 - ELECTION OF DIRECTORS
The
Company’s Bylaws provide that the Board of Directors shall consist of no less than three or more than sixteen directors,
and for each director to serve for a term expiring at the Company’s next annual meeting of shareholders. The specific number
of directors is set from time to time by resolution of the Board. As described above, the Board of Directors currently consists
of eleven directors.
All
eleven of the Company’s current directors have been nominated for election at the Annual Meeting to serve for a term expiring
at the Company’s 2022 Annual Meeting of Shareholders. Each of the director nominees was recommended for election by the
Nominating/Corporate Governance Committee and has consented to serve for his term. If any director nominee should become unavailable
to serve as a director, the Board may designate a substitute nominee. In that case, the persons named as proxies will vote for
the substitute nominee designated by the Board. Except as otherwise indicated, no director nominee has had any change in principal
occupation or employment during the past five years.
Directors
Standing for Election
ALAN
B. LEVAN
Mr.
Alan Levan, age 76, was appointed Chairman of the Company’s Board of Directors in connection with the Company’s Spin-Off
from BVH during September 2020. Mr. Alan Levan is also the Chairman of BVH’s Board of Directors as well as its Chief Executive
Officer and President. Mr. Alan Levan formed the I.R.E. Group (predecessor to BVH) in 1972. From 1978 until December 2015, he
served as Chairman, Chief Executive Officer and President of BVH or its predecessors. During February 2017, Mr. Alan Levan was
reappointed as BVH’s Chairman and Chief Executive Officer, and he was appointed President of BVH in connection with BVH’s
Spin-Off of the Company during September 2020. From December 2015 until his reappointment as BVH’s Chairman and Chief Executive
Officer during February 2017, Mr. Alan Levan served as Founder and strategic advisor to BVH’s Board of Directors. Mr. Alan
Levan has also served as Chief Executive Officer and President of Bluegreen since January 1, 2020 and as Chairman of the Board
of Bluegreen since May 2017 and from May 2002 to December 2015. From May 2015 until February 2017, he served Bluegreen in a non-executive
capacity. From 1994 until December 2015, Mr. Alan Levan was also Chairman and Chief Executive Officer of BBX Capital Corporation
(formerly BankAtlantic Bancorp, Inc), which merged with and into a wholly owned subsidiary of BVH during December 2016 (the “BVH
Merger”). In addition, Mr. Alan Levan served as Chairman of BankAtlantic from 1987 until July 2012 when BankAtlantic was
sold to BB&T Corporation (“BB&T”). Mr. Alan Levan also served as a director of Benihana Inc. (“Benihana”)
until August 2012. BVH had a significant investment in Benihana until August 2012 when Benihana was acquired by Safflower Holdings
Corp. The Company’s Board of Directors believes that Mr. Alan Levan is a strong operating executive and that his proven
leadership skills enhance the Company and its Board of Directors. The Board also believes that Mr. Alan Levan, as Chairman, provides
the Company’s Board of Directors with critical insight regarding the Company’s business and prospects. Mr. Alan Levan
is the father of Jarett S. Levan, who is the Chief Executive Officer, President, and a director of the Company.
JOHN
E. ABDO
John
E. Abdo, age 77, was appointed Vice Chairman of the Company’s Board of Directors in connection with the Company’s
Spin-Off from BVH during September 2020. Mr. Abdo is also Vice Chairman of BVH’s Board of Directors. Mr. Abdo has served
as Vice Chairman of BVH since 1993. He has also served as Vice Chairman of the Board of Bluegreen Vacations since 2002, except
for the period from December 2015 until August 2017, during which time he served as Acting Chairman of the Board. Effective October
1, 2020, he became executive Vice Chairman of Bluegreen after previously serving in a non-executive capacity. Mr. Abdo served
as Vice Chairman of BBX Capital Corporation (formerly BankAtlantic Bancorp, Inc.) prior to the BVH Merger and as Vice Chairman
of BankAtlantic from 1987 until the completion of the sale of BankAtlantic to BB&T during July 2012. Mr. Abdo is also President
of Abdo Companies, Inc., a member of the Board of Directors of the Performing Arts Center Authority (“PACA”), and
the former 20-year President, and current member of the Investment Committee and Finance Committee, of the Broward Performing
Arts Foundation. Mr. Abdo also served as a director of Benihana until August 2012, including serving as Vice Chairman of the Board
of Benihana from 2009 through August 2012. The Company’s Board of Directors believes that it benefits from Mr. Abdo’s
contributions, including those relating to his extensive experience as part of the Florida business community and his knowledge
of the Company’s business and affairs. The Company’s Board of Directors also believes that Mr. Abdo’s real estate
background enables him to provide additional knowledge and perspective to the Board.
JARETT
S. LEVAN
Jarett
S. Levan, age 47, was appointed Chief Executive Officer and President of the Company and as a director of the Company in connection
with the Company’s Spin-Off from BVH during September 2020. Mr. Jarett Levan is also a director of BVH, serving on BVH’s
Board of Directors since 2009, and he was President of BVH prior to the Spin-Off. From December 2015 to February 2017, he also
served as Acting Chairman and Chief Executive Officer of BVH. Since August 2017, Mr. Jarett Levan has served as a director of
Bluegreen. He was a director of BBX Capital Corporation (formerly BankAtlantic Bancorp, Inc.) from 1999, and he was also its Acting
Chairman and Chief Executive Officer from 2015, until the completion of the BVH Merger in December 2016. Further, Mr. Jarett Levan
was the President of BankAtlantic from 2005 to 2007 and was the Chief Executive Officer of BankAtlantic from January 2007 until
July 2012 when BankAtlantic was sold to BB&T. Mr. Jarett Levan also serves as a director of Business for the Arts of Broward,
the Broward Center for the Performing Arts, the Greater Fort Lauderdale Alliance, the Broward Workshop, the Broward College Foundation,
and the Ambassadors Board of Nova Southeastern University. The Company’s Board of Directors believes that Mr. Jarett Levan’s
operating and management experience, and his knowledge of the Company’s business, allow him to provide insight to the Board
with respect to the Company’s business, affairs and prospects. Mr. Jarett Levan is the son of Alan B. Levan, who is the
Company’s Chairman.
SETH
M. WISE
Seth
M. Wise, age 51, was appointed Executive Vice President and as a director of the Company in connection with the Company’s
Spin-Off from BVH during September 2020. Mr. Wise is President of BBX Capital Real Estate and Co-Chief Executive Officer of The
Altman Companies, a joint venture in which BBX Capital Real Estate owns a 50% interest. Mr. Wise was a director and Executive
Vice President of BVH prior to its Spin-Off of the Company. Mr. Wise has also served as a director of Bluegreen since August 2017.
He was Executive Vice President of BBX Capital Corporation (formerly BankAtlantic Bancorp, Inc.) from August 2012 until the completion
of the BVH Merger in December 2016. In addition, from July 2005 to September 2020, Mr. Wise served as President of Woodbridge
Holdings Corporation (including its predecessor, Woodbridge Holdings, LLC) (“Woodbridge”), a wholly owned subsidiary
of BVH, after serving as its Executive Vice President since September 2003. He also previously was Vice President of Abdo Companies,
Inc. The Company’s Board of Directors believes that Mr. Wise’s real estate-related experience and background enhance
the Board’s knowledge with respect to the real estate industry and that the Board benefits from the insight he brings with
respect to the Company’s operations and investments.
NORMAN
H. BECKER
Norman
H. Becker, age 83, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2016. Mr. Becker joined BVH’s Board of Directors in connection
with the completion of the BVH Merger during December 2016 after serving as a director of BBX Capital Corporation (formerly BankAtlantic
Bancorp, Inc.) since 2013. He has also served as a director of Bluegreen since 2003. Mr. Becker is currently, and has been for
more than ten years, self-employed as a Certified Public Accountant. Mr. Becker was the Chief Financial Officer and Treasurer
of Proguard Acquisition Corp., as well as a member of its Board of Directors, until his resignation from such positions during
June 2012. Mr. Becker was previously a partner with Touche Ross & Co., the predecessor of Deloitte & Touche LLP, for more
than ten years. He also served as a director of Benihana until August 2012. The Company’s Board of Directors believes that
Mr. Becker’s business, financial and accounting expertise allow him to provide valuable insight to the Board and that his
accounting and financial knowledge make him a valuable resource for the Audit Committee.
ANDREW
R. CAGNETTA, Jr.
Andrew
R. Cagnetta Jr., age 55, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off
from BVH during September 2020 after serving as a director of BVH since 2018. Mr. Cagnetta is the Chief Executive Officer of Transworld
Business Advisors, LLC, an international business brokerage firm headquartered in West Palm Beach, Florida. The Company’s
Board of Directors believes that Mr. Cagnetta is a valuable asset to the Board based on his understanding of, and connections
in, the South Florida business market and his knowledge and experience with respect to business acquisitions and sales, including
developments and trends with respect thereto, and other business and financial matters generally.
STEVEN
M. COLDREN
Steven
M. Coldren, age 72, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2016. Mr. Coldren joined BVH’s
Board of Directors in connection with the completion of the BVH Merger during December 2016 after serving as a director of BBX
Capital Corporation (formerly BankAtlantic Bancorp, Inc.) since 1986. Mr. Coldren is the
President/Founder of Business Information Systems, Inc., a distributor of commercial recording systems since 1982. Until 2004,
Mr. Coldren was also Chairman of Medical Information Systems, Corp., a distributor of hospital computer systems. The Company’s
Board of Directors believes that Mr. Coldren’s business and financial experience as the President/Founder of Business Information
Systems, Inc. and Chairman of Medical Information Systems Corp., combined with his knowledge of the Company’s business as
a consequence of his long history of service as a director of BVH and its predecessors, is valuable to the Board.
GREGORY
A. HAILE
Gregory
A. Haile, age 42, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2019. Mr. Haile has served as the President of Broward College
since July 2018. From September 2011 to June 2018, he was the General Counsel and Vice President for Public Policy and Government
Affairs for Broward College. Prior to joining Broward College, Mr. Haile was an attorney in private practice. The Company’s
Board of Directors believes that Mr. Haile provides valuable input and contributions to the Board based on, among other things,
his leadership experience, relationships within and knowledge of the South Florida community, and significant history of board
and committee service.
WILLIS
N. HOLCOMBE
Willis
N. Holcombe, age 75, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2016. Dr. Holcombe joined BVH’s
Board of Directors in connection with the completion of the BVH Merger during December 2016 after serving as a director of BBX
Capital Corporation (formerly BankAtlantic Bancorp, Inc.) since 2003. Dr. Holcombe served
as the Chancellor of the Florida College System from October 2007 until his retirement from that position in November 2011 and
as interim President of Florida State College at Jacksonville from January 2013 through December 2013. He previously served as
the President of Broward Community College from January 1987 until January 2004, as well as interim President from November 2006
to July 2007. Dr. Holcombe also served as a director on the Florida Prepaid College Board from January 2008 through November 2011.
The Company’s Board of Directors believes that Dr. Holcombe’s academic background and management acumen, including
his previous service as Chancellor of the Florida College System, give him a unique perspective to provide meaningful insight
to the Board and that the Board also benefits from Dr. Holcombe’s knowledge of, and relationships within, the South Florida
community.
ANTHONY
P. SEGRETO
Anthony
P. Segreto, age 70, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2016. Mr. Segreto joined BVH’s Board of Directors in
connection with the completion of the BVH Merger during December 2016 after serving as a director of BBX Capital Corporation (formerly
BankAtlantic Bancorp, Inc.) since 2012 and an advisory director from 2009 until 2012. Mr. Segreto also served as a consultant
to BankAtlantic from October 2009 until the completion of the sale of BankAtlantic to BB&T during July 2012. Mr. Segreto was
an integral part of the South Florida NBC news team for 40 years where he was a well-respected reporter and anchor for both sports
and news. He has also served on the boards of a number of nonprofit organizations, including as a member of the Board of Governors
of the Huizenga School of Business and Entrepreneurship and the Community Foundation of Broward. The Company’s Board of
Directors believes that it benefits from Mr. Segreto’s recognition, relationships and community involvement in Florida,
as well as his business acumen.
NEIL
STERLING
Neil
Sterling, age 69, was appointed to the Company’s Board of Directors in connection with the Company’s Spin-Off from
BVH during September 2020 after serving as a director of BVH since 2003. Mr. Sterling has been the principal of The Sterling Resources
Group, Inc., a business development consulting firm, since 1998. He is also the Founder and Chief Executive Officer of SRG Technology,
LLC, a software development company. The Company’s Board of Directors believes that, as a result of his experience as an
executive and business consultant and his resulting exposure to, and knowledge of, numerous companies and industries, Mr. Sterling
is able to bring strategic insight to the Board. In addition, the Board believes that Mr. Sterling provides a valuable perspective
resulting from his not-for-profit services as a former member of the Broward County School Board, Founding Chairperson of PACA,
and member of the Florida Ethics Commission, among other charitable and not-for-profit services.
The
Board of Directors Unanimously Recommends that Shareholders
Vote
“For” the Election of Each of the Director Nominees.
IDENTIFICATION
OF EXECUTIVE OFFICERS
The
following individuals serve as the Company’s current executive officers:
Name
|
Position
|
Alan
B. Levan
|
Chairman
|
John
E. Abdo
|
Vice
Chairman
|
Jarett
S. Levan
|
Chief
Executive Officer, President, and Director
|
Seth
M. Wise
|
Executive
Vice President and Director; President, BBX Capital Real Estate; Co-Chief Executive Officer, The Altman Companies
|
Brett
Sheppard
|
Chief
Financial Officer
|
The
Company’s executive officers serve until they resign or are replaced or removed by the Board of Directors. Biographical
information for Mr. Sheppard is set forth below. Biographical information for Mr. Alan Levan, Mr. Abdo, Mr. Jarett Levan, and
Mr. Wise is set forth in “Proposal No. 1 – Election of Directors” above.
Brett
Sheppard, age 37, was appointed Chief Financial Officer of the Company in connection with the Company’s Spin-Off from BVH
during September 2020. Mr. Sheppard previously was the Chief Accounting Officer of BVH. He joined BVH in 2017 and was appointed
its Chief Accounting Officer in August 2018. Prior to joining BVH, Mr. Sheppard served as Corporate Controller of Equity One,
Inc. and as a Senior Auditor with Ernst & Young LLP. Mr. Sheppard is a Certified Public Accountant and holds an M.Pr.A. and
B.B.A. in Accounting and Finance.
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
The
Company has in place a policy for the review and approval of transactions in which the Company is to be a participant, where the
amount involved exceeds or is expected to exceed $120,000 annually, and in which any of the Company’s directors or executive
officers, or any of their immediate family members, will have a direct or indirect material interest. Any such related party transaction
is to be for the benefit of the Company and upon terms no less favorable to the Company than if the related party transaction
was with an unrelated party.
The
Company’s Board of Directors has delegated to its Nominating/Corporate Governance Committee, as set forth in its charter,
the review and approval of related party transactions relating to directors or executive officers, or their immediate family members,
other than those presenting issues regarding financial or accounting matters. The review and approval of related party transactions
presenting issues regarding financial or accounting matters has been delegated to the Company’s Audit Committee, as set
forth in its charter. In reviewing related party transactions, the Nominating/Corporate Governance Committee or the Audit Committee,
as applicable, evaluates and considers the terms of the related party transaction, including an assessment of the arms-length
nature of the terms, and such other factors that it deems appropriate with respect to the transaction.
The
Company may be deemed to be controlled by Alan B. Levan, the Company’s Chairman, John E. Abdo, the Company’s Vice
Chairman, Jarett S. Levan, the Company’s Chief Executive Officer and President and a director of the Company, and Seth M.
Wise, the Company’s Executive Vice President and a director of the Company. Together, they may be deemed to beneficially
own shares of the Company’s Class A Common Stock and Class B Common Stock representing approximately 79% of the Company’s
total voting power as of April 9, 2021. See “Security Ownership of Certain Beneficial Owners and Management” below
for further information. Mr. Alan B. Levan serves as the Chairman, Chief Executive Officer and President of BVH and Bluegreen,
Mr. Abdo serves as Vice Chairman of BVH and Bluegreen, Mr. Jarett Levan serves as a director of BVH and Bluegreen and is the former
President of BVH, and Mr. Wise serves as a director of Bluegreen and is a former Executive Vice President of BVH. Alan B. Levan,
John E. Abdo, Jarett S. Levan, and Seth M. Wise may also be deemed to control BVH (and Bluegreen, indirectly through BVH, which
currently owns approximately 93% of Bluegreen) through their ownership of shares of BVH’s Class A Common Stock and Class
B Common Stock representing a majority of BVH’s total voting power.
Prior
to BVH’s Spin-Off of the Company on September 30, 2020, expenses related to certain support functions paid for by BVH, including
executive services, treasury, tax, accounting, legal, internal audit, human resources, public and investor relations, general
management, shared information technology systems, corporate governance activities, and centralized managed employee benefit arrangements,
were allocated to the Company on the basis of direct usage when identifiable, while the remainder of the expenses, including costs
related to executive compensation, were allocated primarily on a pro-rata basis of combined revenues and equity in earnings of
unconsolidated joint ventures of BVH and its subsidiaries. The expenses related to these support functions allocated to the Company
were $12.7 million for the year ended December 31, 2020.
In
connection with the BVH’s Spin-Off of the Company on September 30, 2020, BVH issued a $75.0 million note payable to the
Company that accrues interest at a rate of 6% per annum and requires payments of interest on a quarterly basis. Under the terms
of the note, BVH has the option in its discretion to defer interest payments under the note, with interest on the entire outstanding
balance thereafter to accrue at a cumulative, compounded rate of 8% per annum until such time that BVH is current on all accrued
payments under the note, including deferred interest. All outstanding amounts under the note become due and payable on September
30, 2025 or earlier upon certain other events.
In
connection with the Spin-Off, on September 25, 2020, the Company entered into a Separation and Distribution Agreement, an Employee
Matters Agreement, a Transition Services Agreement, and a Tax Matters Agreement with BVH. The Separation and Distribution Agreement
governed the separation of businesses, including the assignment of assets and assumption of liabilities, between the Company and
BVH in connection with the Spin-Off. The Employee Matters Agreement, Transition Services Agreement, and Tax Matters Agreement
relate to the operations of the Company and BVH as separate companies, and the relationship between them, after the Spin-Off.
The Employee Matters Agreement sets out the respective rights, responsibilities, and obligations of the Company and BVH with respect
to the transfer of certain employees of the businesses of the Company and related matters, including benefit plans, terms of employment,
retirement plans. and other employment-related matters. Under the Employee Matters Agreement, the Company generally assumed or
agreed to retain responsibility as employer of employees whose duties primarily relate to their respective businesses as well
as all obligations and liabilities with respect thereto. The Tax Matters Agreement generally sets out the respective rights, responsibilities.
and obligations of the Company and BVH with respect to taxes (including taxes arising in the ordinary course of business and taxes
incurred as a result of the Spin-Off), tax attributes, tax returns, tax contests and certain other related tax matters. The Transition
Services Agreement generally sets out the respective rights, responsibilities, and obligations of the Company and BVH with respect
to the support services provided to one another after the Spin-Off, as may be necessary to ensure the orderly transition under
the Separation and Distribution Agreement. The Transition Services Agreement establishes a baseline charge for certain categories
or components of services to be provided, which is at cost unless the parties mutually agree to a different charge. The Transition
Services Agreement will continue for a minimum term of one year from the date of the Spin-Off, provided that after that year,
either party may terminate the Transition Services Agreement with respect to any or all services provided thereunder at any time
upon 30 days prior written notice to the other party. In addition, either party may renew or extend the term of the Transition
Services Agreement with respect to the provision of any service which has not been previously terminated.
Pursuant
to the Transition Services Agreement, the Company and BVH share office space at offices located in Fort Lauderdale, Florida. The
space is leased by BVH, and the Company reimburses BVH for payments under the lease, other than 20% of the rental payments under
the lease. During the year ended December 31, 2020, the Company reimbursed BVH $263,000 for shared office space. In addition,
the Company reimbursed BVH $1,296,000 for management advisory and employer provided
medical insurance provided by BVH to the Company during the year ended December 31, 2020.
During
the year ended December 31, 2020, the Company received $236,000 in consideration for its provision of management services to The
Altman Companies, $228,000 in consideration for its provision of administrative services to Bluegreen, and $723,000 in consideration
for its provision of risk management consulting services to Bluegreen.
During
the three months ended December 31, 2020, the Company paid Abdo Companies, Inc. approximately $38,000 for certain management services.
John E. Abdo, the Company’s Vice Chairman, is the principal shareholder and Chief Executive Officer of Abdo Companies, Inc.
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The
following table summarizes the compensation which, following the Company’s Spin-Off from BVH on September 30, 2020, was
paid by the Company to, or accrued by the Company on behalf of, Jarett S. Levan, the Company’s Chief Executive Officer and
President, Alan B. Levan, the Company’s Chairman, John E. Abdo, the Company’s Vice Chairman, and Seth M. Wise, Executive
Vice President of the Company (collectively, the “Named Executive Officers”), for the three months ended December
31, 2020. Information regarding compensation paid by BVH to, or accrued by BVH on behalf of, the Named Executive Officers for
the period from January 1, 2020 through the completion of the Spin-Off on September 30, 2020 is not presented in the table below;
however, such information has been included in the footnotes to the table.
Name and Principal Position
|
|
Year(1)
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|
Salary
($)
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Bonus
($)
|
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|
Stock Awards
($)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)
|
|
|
All Other
Compensation
($)
|
|
|
Total
($)
|
|
Jarett S. Levan (2)
|
|
|
2020
|
|
|
|
225,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
10,000
|
|
|
|
235,000
|
|
Chief Executive and President
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
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|
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|
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|
|
|
|
|
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Seth M. Wise (3)
|
|
|
2020
|
|
|
|
225,000
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
2,550
|
|
|
|
227,550
|
|
Executive Vice President
|
|
|
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|
|
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|
|
|
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|
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Alan B. Levan (4)
|
|
|
2020
|
|
|
|
100,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
6,336
|
|
|
|
106,336
|
|
Chairman
|
|
|
|
|
|
|
|
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|
|
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|
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|
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|
|
|
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John E. Abdo (5)
|
|
|
2020
|
|
|
|
100,000
|
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
38,280
|
(6)
|
|
|
138,280
|
|
Vice Chairman
|
|
|
|
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|
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|
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(1)
|
As
described above, includes only the three months ended December 31, 2020 following the completion of the Company’s Spin-Off
from BVH on September 30, 2020.
|
|
|
|
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(2)
|
The
amounts for Mr. Jarett Levan do not include (i) cash compensation comprised of $692,308 of salary, $3,022,024 of cash bonuses,
and $29,235 of other compensation received by Mr. Jarett Levan from BVH for the period from January 1, 2020 through the completion
of the Spin-Off on September 30, 2020, or (ii) stock compensation comprised of 48,261 shares of BVH’s Class A Common
Stock and 60,698 shares of BVH’s Class B Common Stock issued to Mr. Jarett Levan upon the acceleration of vesting of
restricted stock awards of BVH in contemplation of the Spin-Off (for an aggregate value realized on vesting of $1,789,107).
|
|
(3)
|
The
amounts for Mr. Wise do not include (i) cash compensation comprised of $692,308 of salary, $3,022,024 of cash bonuses, and
$23,300 of other compensation received by Mr. Wise from BVH for the period from January 1, 2020 through the completion of
the Spin-Off on September 30, 2020, or (ii) stock compensation comprised of 48,261 shares of BVH’s Class A Common Stock
and 60,698 shares of BVH’s Class B Common Stock issued to Mr. Wise upon the acceleration of vesting of restricted stock
awards of BVH in contemplation of the Spin-Off (for an aggregate value realized on vesting of $1,789,107).
|
|
(4)
|
The
amounts for Mr. Alan Levan do not include (i) cash compensation comprised of $412,500 of salary, $5,691,548 of cash bonuses,
and $179,425 of other compensation received by Mr. Alan Levan from BVH for the period from January 1, 2020 through the completion
of the Spin-Off on September 30, 2020, or (ii) stock compensation comprised of 193,042 shares of BVH’s Class A Common
Stock and 183,125 shares of BVH’s Class B Common Stock issued to Mr. Alan Levan upon the acceleration of vesting of
restricted stock awards of BVH in contemplation of the Spin-Off (for an aggregate value realized on vesting of $6,176,662).
|
|
(5)
|
The
amounts for Mr. Abdo do not include (i) cash compensation comprised of $1,193,077 of salary, $7,591,548 of cash bonuses, and
$241,080 of other compensation received by Mr. Abdo from BVH for the period from January 1, 2020 through the completion of
the Spin-Off on September 30, 2020, or (ii) stock compensation comprised of 193,042 shares of BVH’s Class A Common Stock
and 212,892 shares of BVH’s Class B Common Stock issued to Mr. Abdo upon the acceleration of vesting of restricted stock
awards of BVH in contemplation of the Spin-Off (for an aggregate value realized on vesting of $6,665,436).
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|
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(6)
|
Represents
management fees paid by the Company to Abdo Companies, Inc., of which Mr. Abdo is the principal shareholder and Chief Executive
Officer.
|
Initial
Compensation of the Named Executive Officers Following the Spin-Off
Following
the Spin-Off, the Compensation Committee determined that each of Mr. Alan Levan and Mr. Abdo will initially receive from the Company
annual cash compensation, including salary and bonuses, of up to $1.2 million in the aggregate and that each of Mr. Jarett Levan
and Mr. Wise will initially receive from the Company annual cash compensation, including salary and bonuses, of up to $1.4 million
in the aggregate. The Named Executive Officers may also receive grants of equity awards as from time to time determined by the
Compensation Committee as well as perquisites and other personal benefits. As described in greater detail elsewhere herein, including
under “Proposal No. 2 – Approval of the BBX Capital, Inc. 2021 Incentive Plan” below, the Compensation Committee
and Board of Directors have approved, and the Board is recommending that the Company’s shareholders approve at the Annual
Meeting, the BBX Capital, Inc. 2021 Incentive Plan, under which equity and equity-based awards of the Company may be granted to,
among other eligible persons, the Company’s executive officers, including the Named Executive Officers. If the proposal
to approve the BBX Capital, Inc. 2021 Incentive Plan is approved, it is currently expected that each of Mr. Alan Levan and Mr.
Abdo will initially have the opportunity to receive from the Company annual awards of restricted shares of the Company’s
common stock having a value of up to $1.6 million and that each of Mr. Jarett Levan and Mr. Wise will initially have the opportunity
to receive from the Company annual awards of restricted shares of the Company’s common stock having a value of up to $1.5
million. It is expected that such awards will be subject to pro rata vesting in annual installments over four years. However,
the amounts described above represent initial compensation targets and expected award opportunities for the Named Executive Officers.
The Compensation Committee is responsible for the final determination of actual compensation to be paid to the Named Executive
Officers and the terms of awards that may be granted to the Named Executive Officers under the BBX Capital, Inc. 2021 Incentive
Plan if the proposal to approve the plan is approved, including the number and class of shares subject to the awards and the vesting
schedules applicable to the awards.
Anticipated
Employment Agreements
Subject
to the approval of the Company’s Compensation Committee, it is expected that the Named Executive Officers will enter into
employment agreements with the Company on terms substantially similar to those contained in their respective employment agreements
with BVH in place at the time of the Spin-Off (or immediately, prior thereto, in the case of Mr. Jarett Levan and Mr. Wise, who
ceased serving as executives of BVH upon consummation of the Spin-Off). The following is a summary of the currently contemplated
terms of the anticipated employment agreements. Under the employment agreements, each Named Executive Officer would receive an
annual base salary and be entitled to receive bonuses (payable in cash, equity awards or a combination thereof) pursuant to bonus
plans established from time to time by the Compensation Committee or otherwise at the discretion of the Compensation Committee.
Each employment agreement would be terminable by the Company for “Cause” or “Without Cause” or by the
Named Executive Officer for “Good Reason.” If an employment agreement is terminated for “Cause,” the applicable
Named Executive Officer would be entitled to receive his base salary through the date of termination. If an employment agreement
is terminated “Without Cause” or by the Named Executive Officer for “Good Reason,” the applicable Named
Executive Officer would be entitled to receive his base salary through the date of termination and the prorated portion of the
Named Executive Officer’s annual bonus based on the average annual bonus paid to him during the prior two fiscal years,
subject to a maximum annual bonus for purposes of this calculation in an amount equal to 200% of his then-current annual base
salary, in the case of Mr. Alan Levan and Mr. Abdo, and 60% of his then-current annual base salary, in the case of Mr. Jarett
Levan and Mr. Wise. In addition, if an employment agreement is terminated “Without Cause” or by the Named Executive
Officer for “Good Reason,” the Named Executive Officer would be entitled to receive a severance payment as follows.
Each of Mr. Alan Levan and Mr. Abdo would be entitled to receive a severance payment in an amount equal to 2 times the sum of
his annual base salary and annual bonus opportunity at the date of termination (or 2.99 times the sum of his annual base salary
and annual bonus opportunity at the date of termination if such termination occurs within two years after a “Change in Control”).
Each of Mr. Jarett Levan and Mr. Wise would be entitled to receive a severance payment in an amount equal to 1.5 times the sum
of his annual base salary and annual bonus opportunity at the date of termination (or 2 times the sum of his annual base salary
and annual bonus opportunity at the date of termination if such termination occurs within two years after a “Change in Control”).
For purposes of calculating the severance payment, each Named Executive Officer’s “annual bonus opportunity”
would be subject to the same maximum as described above with respect to the calculation of the prorated bonus to which the Named
Executive Officer would be entitled in the event of a “Without Cause” or “Good Reason” termination. In
addition, if the employment agreement is terminated “Without Cause” or is terminated by the Named Executive Officer
for “Good Reason” or as a result of the Named Executive Officer’s death, all unvested incentive stock options
and restricted stock awards, if any, would immediately accelerate and fully vest as of the termination date. Further, in the event
of a termination “Without Cause” or a termination by the Named Executive Officer for “Good Reason,” the
Named Executive Officer would be entitled to continued benefits, including, without limitation, health and life insurance, for
the following periods: (i) two years following the year in which the termination occurs (or three years following the year in
which the termination occurs, if such termination occurred within two years after a “Change in Control”), in the case
of Mr. Alan Levan and Mr. Abdo, and (ii) eighteen months following the year in which the termination occurs (or two years following
the year in which the termination occurs, if such termination occurred within two years after a “Change in Control”),
in the case of Mr. Jarett Levan and Mr. Wise. Each employment agreement would also be terminated upon the Named Executive Officer’s
death, in which case the estate of the applicable Named Executive Officer would be entitled to receive his base salary through
the date of his death and the prorated portion of the Named Executive Officer’s annual bonus, calculated as described above.
As described above, the employment agreements, including the terms thereof, are subject to the approval of the Compensation Committee,
and there is no assurance that any or all of the employment agreements will be entered into on the contemplated terms, or at all.
Outstanding
Equity Awards at Fiscal-Year End 2020
None
of the Named Executive Officers nor any other person held any equity award of the Company as of December 31, 2020.
Equity
Compensation Plan Information
As
of the date of this Proxy Statement and December 31, 2020, the Company did not have in place any equity compensation plan, nor
were there any awards granted or outstanding, or authorized for future issuance, under any prior equity compensation plans, whether
approved or not approved by shareholders. However, as described in greater detail elsewhere herein, including under “Proposal
No. 2 – Approval of the BBX Capital, Inc. 2021 Incentive Plan” below, the Board of Directors have approved, and the
Board is recommending that the Company’s shareholders approve at the Annual Meeting, the BBX Capital, Inc. 2021 Incentive
Plan, under which equity and equity-based awards of the Company may be granted to, among other eligible persons, the Company’s
executive officers, including the Named Executive Officers.
DIRECTOR
COMPENSATION
The
compensation policy for the Company’s non-employee directors is designed to compensate directors fairly for work required
by a company of similar size and scope to the Company and based on a structure that is simple, transparent and easy for shareholders
to understand.
The
Company’s non-employee directors are currently compensated for their service on the Company’s Board of Directors and
its committees through cash fees. Each non-employee director receives an annual cash retainer of $100,000 for his service on the
Company’s Board of Directors. In addition, the Chairman of the Audit Committee receives an annual cash retainer of $20,000;
all other members of the Audit Committee receive annual cash retainers of $16,000; and the Chairman of the Compensation Committee
and the Chairman of the Nominating/Corporate Governance Committee each receives an annual cash retainer of $3,500. Other members
of the Compensation Committee and the Nominating/Corporate Governance Committee do not currently receive additional compensation
for their service on those committees.
Director
Compensation Table - Quarter Ended December 31, 2020
The
following table sets forth certain information regarding the compensation paid or accrued by the Company to or on behalf of each
individual who served as a non-employee director of the Company for the three months ended December 31, 2020 following the Company’s
Spin-Off from BVH on September 30, 2020. Information regarding compensation paid to the non-employee directors by BVH prior to
the Spin-Off is or will be contained in BVH’s filings with the SEC and is not presented in the following table.
Name
|
|
Fees
Earned or Paid in
Cash ($)
|
Norman
H. Becker
|
|
30,000
|
Andrew
R. Cagnetta, Jr.
|
|
29,000
|
Steven
M. Coldren
|
|
29,875
|
Gregory
A. Haile
|
|
29,000
|
Willis
N. Holcombe
|
|
25,000
|
Anthony
P. Segreto
|
|
25,000
|
Neil
Sterling
|
|
25,875
|
PROPOSAL
NO. 2 — APPROVAL OF THE BBX CAPITAL, INC. 2021 INCENTIVE PLAN
General
The
Company’s Board of Directors believes that equity-based compensation will be an important component of the Company’s
executive compensation program and believes that the ability to grant equity-based compensation awards will enhance the relationship
between employee performance and the creation of shareholder value. Accordingly, the Compensation Committee and Board of Directors
have approved, and the Board is recommending that the Company’s shareholders approve at the Annual Meeting, the BBX Capital,
Inc. 2021 Incentive Plan (the “Plan”). Set forth below is a summary of the Incentive Plan. The following summary is
qualified in its entirety by reference to the full text of the Plan, the form of which is attached to this Proxy Statement as
Appendix A and is incorporated herein by reference.
Summary
of 2020 Incentive Plan
Purpose.
The purpose of the Plan will be to attract, retain, and motivate officers and other employees of the Company or its subsidiaries
or other affiliates, as well as directors and other individuals who perform services for the Company or its subsidiaries or other
affiliates, to compensate them for their services, to encourage ownership by them of stock of the Company, to align their interests
with those of the Company’s other shareholders in the creation of long-term value, and to promote the success and profitability
of the Company’s business.
Effective
Date; Term. The Plan will become effective on the date of the Annual Meeting if the Plan is approved by the Company’s
shareholders at the Annual Meeting. No awards may be granted after the tenth anniversary of the effective date, or the earlier
termination of the Plan by the Board of Directors or the Compensation Committee, which will serve as the administrative committee
for the Plan.
Awards.
The Company will be permitted to grant stock options to purchase, and restricted stock awards of, shares of the Company’s
Class A Common Stock and Class B Common Stock, as well as performance-based cash awards, to eligible individuals under the Plan.
Stock
Available under the Plan. The total number of shares that will be authorized and available for issuance pursuant to stock
options and restricted stock awards granted under the Plan will be 900,000 shares of Class A Common Stock and 300,000 shares of
Class B Common Stock. These maximum share amounts will be subject to adjustment in the event of any subsequent change in the Company’s
Class A Common Stock or Class B Common Stock, as the case may be, including, without limitation, by reason of a stock dividend,
recapitalization, reorganization, merger, consolidation, stock split, reverse stock split, split-up, spin-off, combination or
exchange of shares. Any shares subject to restricted stock awards or stock options granted under the Plan but which expire or
are terminated, forfeited or canceled without having been exercised or vested in full, will again be available for grant under
the Plan.
Administration.
The Plan will be administered by an administrative committee appointed by the Board of Directors, which shall initially be the
Compensation Committee. The administrative committee will have broad discretionary powers. Subject to the terms of the Plan, including
those described in further detail below, the administrative committee will have discretionary authority to, among other things:
(i) determine the individuals to whom, and the time or times at which, awards will be granted; (ii) determine the terms and provisions
of each award granted, including, without limitation, the class and number of shares of stock underlying each option and restricted
stock award and the vesting schedule applicable to each option and restricted stock award; (iii) modify or amend each option or
restricted stock award, including, without limitation, accelerate or defer the exercise or vesting date of any option or the vesting
date of any restricted stock award (in each case, with the consent of the holder thereof if the modification or amendment would
adversely affect the holder’s right with respect to the option or restricted stock award); (iv) re-price previously granted
options and/or substitute new options or restricted stock awards for previously granted options or restricted stock awards, as
the case may be, which previously granted options or restricted stock awards may contain less favorable terms, including, in the
case of options, higher exercise prices; and (v) interpret the Plan and make all other determinations deemed necessary or advisable
for the administration thereof.
Eligibility.
The administrative committee will have the authority to select the people who will receive awards under the Plan. Any employee
or director of the Company or of any subsidiary, parent (if any) or other affiliate of the Company, and any independent contractor
or agent of the Company or any subsidiary, parent (if any) or affiliate of the Company, may be selected by the administrative
committee to receive awards under the Plan.
Equity-Based
Awards. The Company will be permitted under the Plan to grant stock options (both incentive stock options and non-qualified
stock options) and restricted stock awards. Shares of both the Company’s Class A Common Stock and Class B Common Stock may
be issued pursuant to options and restricted stock awards granted under the Plan.
Stock
Options. The administrative committee will establish the terms and conditions of stock options granted under the Plan. The
administrative committee may not grant a stock option with a term of greater than 10 years or with a purchase price that is less
than the fair market value of a share of the applicable class of stock on the date of grant.
Both
incentive stock options that qualify for special federal income tax treatment and non-qualified stock options that do not qualify
for special federal income tax treatment may be granted under the Plan. Incentive stock options are subject to certain additional
restrictions under the Code and the Incentive Plan. The total number of shares of Class A Common Stock and Class B Common Stock
authorized for grant under the Plan as incentive stock options may not exceed the maximum number of shares of such stock authorized
for grant under the Plan, as described under “Stock Available Under the Incentive Plan” above.
Unless
otherwise designated by the administrative committee, options granted will be exercisable for a period of ten years after the
date of grant, but will be subject to earlier termination under certain circumstances, including upon, or after the expiration
of a specified period following, such time as the individual’s employment with the Company, or any subsidiary, parent (if
any) or, in certain cases, other affiliate of the Company, is deemed to be terminated under the terms of the Plan. Upon the exercise
of an option, the exercise price of the option must be paid in full. Payment may be made in cash and/or shares of the Company’s
common stock, or in such other consideration as the administrative committee authorizes. Options may be transferred prior to exercise
only to certain family members, trusts or other entities owned by the option holder and/or such family members, to charitable
organizations or upon the death of the option holder.
Restricted
Stock Awards. At the time of grant of restricted stock awards granted under the Plan, the administrative committee will establish
the terms of the restricted stock award, including, without limitation, whether the award is a performance-based restricted stock
award, the class and number of shares of stock subject to the award, and the vesting schedule applicable to the award.
Unless
the administrative committee determines otherwise with respect to any restricted stock award, before the shares subject to a restricted
stock award are vested and transferred to the award recipient, the administrative committee will hold the underlying shares and
any dividends or distributions accumulating on such shares. However, the award recipient will have the right to direct the voting
of the shares underlying the restricted stock award unless the administrative committee determines otherwise.
All
restricted stock awards will be subject to a vesting schedule specified by the administrative committee at the time the award
is granted. If the administrative committee does not specify a vesting schedule, the award will vest in full on the first anniversary
of the grant date unless earlier terminated in accordance with the terms of the Plan or the award agreement evidencing the restricted
stock award, including upon, or under certain circumstances following the expiration of a period after, such time as the award
recipient’s services on behalf of the Company, or any subsidiary, parent (if any) or other affiliate of the Company, is
deemed to have ceased under the terms of the Plan.
Performance-Based
Awards. At the time of grant of a restricted stock award, the administrative committee may designate the restricted stock
award as a performance-based restricted stock award. In addition, the Company will also be permitted to grant performance-based
cash awards under the Plan. If a performance-based award is granted, the administrative committee will establish (in addition
to or in lieu of service-based vesting requirements in the case of restricted stock awards) one or more performance goals which
must be attained as a condition to the vesting and/or retention of the shares or payment of the cash award, as the case may be.
The performance goal(s) may be based on one or more of the following:
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●
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net
operating income after tax;
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●
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pre-tax
or after-tax income;
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●
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return
on capital employed;
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●
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economic
value added (or an equivalent metric);
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●
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share
price performance or other measures of equity valuation;
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●
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other
earnings criteria or profit-related return ratios;
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●
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total
shareholder return;
|
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●
|
working
capital levels;
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●
|
strategic
business objectives, consisting of one or more objectives based on meeting specified
cost, profit, operating profit, sales, revenue, cash or cash generation targets or measures,
or goals, including those relating to business expansion, business development, acquisitions
or divestitures; or
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|
●
|
except
in the case of a “covered employee” under Section 162(m) of the Code, any
other performance criteria established by the administrative committee.
|
Performance
goals may be established on the basis of reported earnings or cash earnings, and consolidated results or the results of a business
segment or individual business unit and may, in the discretion of the administrative committee, include or exclude certain items,
including the operations or results of a business segment or individual business unit and/or the results of discontinued operations.
Each performance goal may be expressed on an absolute and/or relative basis, may be based on or otherwise employ comparisons based
on internal or external targets, the past performance of the Company (or individual business segments or units) and/or the past
or current performance of other companies. Performance goals need not be based upon an increase or positive result under a particular
business criterion and could include, for example, maintaining the status quo or limiting economic losses (measured, in each case,
by reference to specific business criteria).
Attainment
of the performance goals will be measured over a performance measurement period specified by the administrative committee when
the award is made. The administrative committee will determine in its discretion whether the award recipient has attained the
performance goals. If the administrative committee determines that the award recipient attained the performance goals, the administrative
committee will certify that fact in writing. If the performance goals are not satisfied during the performance measurement period,
the relevant award will be forfeited or not paid. If the performance goals (and any service-based vesting schedule in the case
of restricted stock awards) are satisfied, the award will be distributed (or any vesting-related legend removed from any stock
certificates previously delivered to the award recipient) or paid, as the case may be. Subject to applicable tax law, the administrative
committee may, in its discretion based on such objective or subjective factors as it may consider, adjust the amount of the payment
of a performance-based award.
Mergers
and Reorganizations. The number of shares available under the Plan and the number of shares subject to stock options and restricted
stock awards granted under the Plan may be adjusted to reflect any merger, consolidation or other business reorganization in which
we are the surviving entity, and to reflect any stock split, stock dividend, spin-off or other event where the administrative
committee determines an adjustment is appropriate in order to prevent the enlargement or dilution of an award recipient’s
rights. If a merger, consolidation or other business reorganization occurs and the Company is not the surviving entity, any outstanding
options, at the discretion of the administrative committee or the Board of Directors, may be (i) canceled and payment made to
the option holder in an amount equal to the value of the canceled options or (ii) modified to provide for alternative, nearly
equivalent securities. Any outstanding restricted stock award will be adjusted by allocating to the award recipient any money,
stock, securities, or other property received on account of outstanding shares by the other holders of record of the applicable
class of stock, and such money, stock, securities, or other property will be subject to the same terms and conditions as the restricted
stock award on account of which it is issued, exchanged, or paid.
Termination
or Amendment. The Board of Directors or the administrative committee will have the authority to at any time and from time
to time terminate, modify, suspend, or amend the Plan, in whole or in part, provided, however, that no such termination, modification,
suspension or amendment will be effective without shareholder approval if such approval is required to comply with any applicable
law or national securities exchange rule. In addition, no termination, modification, suspension, or amendment of the Plan will,
without the consent of an award recipient, adversely affect such award recipient’s rights under any previously granted and
then-outstanding award.
Federal
Income Tax Consequences
The
following discussion is intended to be a summary and is not a comprehensive description of the federal tax laws, regulations and
policies affecting the Company and recipients of awards granted under the Plan. Any descriptions of the provisions of any law,
regulation or policy are qualified in their entirety by reference to the particular law, regulation or policy. Any change in applicable
law or regulation or in the policies of various taxing authorities may have a significant effect on this summary. The Plan will
not be a qualified plan under Section 401(a) of the Internal Revenue Code of 1986, as amended (the “Code”).
Stock
Options. Incentive stock options do not create federal income tax consequences when they are granted. If incentive stock options
are exercised during the term of the option holder’s employment or within three months thereafter (or within one year thereafter
in the case of termination due to death or disability), the exercise does not create federal ordinary income tax consequences,
although Alternative Minimum Tax may apply. When the shares acquired on exercise of an incentive stock option are sold, the seller
must pay federal income taxes on the amount by which the sales price exceeds the exercise price. This amount will be taxed at
capital gains rates if the sale occurs at least two years after the option was granted and at least one year after the option
was exercised. Otherwise, the difference between the fair market value of the shares on date of exercise and the exercise price
will be taxed as ordinary income, and any difference between the sales price and the fair market value of the shares on the date
of exercise will be taxed at capital gains rates.
Incentive
stock options that are exercised more than three months after the termination of the option holder’s employment (or more
than one year after termination of the option holder’s employment due to death or disability) are treated as non-qualified
stock options. Non-qualified stock options do not create federal income tax consequences when they are granted. When non-qualified
stock options are exercised, federal income taxes at ordinary income tax rates must be paid on the amount by which the fair market
value of the shares acquired by exercising the option exceeds the exercise price. When an option holder sells shares acquired
by exercising a non-qualified stock option, he or she must pay federal income taxes on the amount by which the sales price exceeds
the exercise price plus the amount included in ordinary income at option exercise. This amount will be taxed at capital gains
rates, which will vary depending upon the time that has elapsed since the exercise of the option.
When
a non-qualified stock option is exercised, the Company is allowed a federal income tax deduction for the same amount that the
option holder includes in his or her ordinary income, subject to certain restrictions and limits set forth in the Code. When an
incentive stock option is exercised, the Company is not allowed to claim a deduction unless the shares acquired are resold sooner
than two years after the option was granted or one year after the option was exercised. In such case, the amount of the deduction
is equal to the ordinary income recognized by the option holder upon exercise.
Restricted
Stock Awards. A participant who is awarded a restricted stock award will not be taxed at the time of award unless the participant
makes a special election with the Internal Revenue Service pursuant to Section 83(b) of the Code as discussed below. Upon lapse
of the risk of forfeiture or restrictions on transferability applicable to the Company’s common stock comprising the restricted
stock award, the participant will be taxed at ordinary income tax rates on the then fair market value of the Company’s common
stock and a corresponding deduction will be allowable to the Company (subject to the satisfaction of certain conditions in the
case of restricted stock awards granted to “covered employees” under Section 162(m) of the Code). In such case, the
participant’s basis in the Company’s common stock will be equal to the ordinary income so recognized plus the purchase
price, if any, paid to acquire the shares. Upon subsequent disposition of such shares, the participant will realize capital gain
or loss (long-term or short-term, depending upon the holding period of the stock sold).
Pursuant
to Section 83(b) of the Code, the participant may elect within 30 days of receipt of a restricted stock award that is not a performance-based
restricted stock award to be taxed at ordinary income tax rates on the fair market value of the Company’s common stock comprising
such restricted stock award at the time of award (determined without regard to any restrictions which may lapse). In that case,
the participant will acquire a basis in such shares of the Company’s common stock equal to the ordinary income recognized
by the participant at the time of award plus the purchase price, if any, paid to acquire the shares. No tax will be payable upon
lapse or release of the restrictions or at the time the Company’s common stock first becomes transferable, and any gain
or loss upon subsequent disposition will be a capital gain or loss. In the event of a forfeiture of the Company’s common
stock with respect to which a participant previously made a Section 83(b) election, the participant will not be entitled to a
loss deduction.
Performance-Based
Awards. A participant who receives a performance-based restricted stock award will be taxed at ordinary income tax rates on
the then fair market value of the shares of the Company’s common stock distributed at the time of settlement of the award.
The participant’s basis in the shares of the Company’s common stock will be equal to the amount taxed as ordinary
income and, on subsequent disposition, the participant will realize capital gain or loss (long-term or short-term, depending upon
the holding period of the stock sold). A participant who receives a performance-based cash award will be taxed at ordinary income
tax rates on the cash amount at the time of payment of the award. A corresponding deduction will be allowable to the Company at
the time of settlement or payment of the award, as the case may be (subject to the satisfaction of certain conditions in the case
of performance-based awards granted to “covered employees” under Section 162(m) of the Code).
Section
162(m) Deduction Limits. Section 162(m) of the Code generally disallows a tax deduction to public corporations for compensation
over $1,000,000 paid for any fiscal year to its “covered employees.” A company’s “covered employees”
for a fiscal year include any person who served as the company’s chief executive officer or chief financial officer during
the fiscal year, each of the next three most highly compensated officers for the fiscal year, and any individual who was considered
a “covered employee” for any previous fiscal year.
The
preceding statements are intended to summarize the general principles of current federal income tax law applicable to awards granted
under the Plan. State and local tax consequences may also be significant.
New
Plan Benefits
Grants
of awards under the Plan will be at the discretion of the Compensation Committee. While the Compensation Committee has not yet
determined to whom and in what amount any future awards will be made, it is currently anticipated that each of Alan B. Levan,
the Company’s Chairman, and John E. Abdo, the Company’s Vice Chairman, will initially have the opportunity to receive
from the Company annual awards of restricted shares of the Company’s common stock having a value of up to $1.6 million and
that each of Jarett S. Levan, Chief Executive Officer, President and a director of the Company, and Seth M. Wise, Executive Vice
President and a director of the Company, will initially have the opportunity to receive from the Company annual awards of restricted
shares of the Company’s common stock having a value of up to $1.5 million. It is expected that such awards will be subject
to pro rata vesting in annual installments over four years.
Shareholder
Vote Required for Approval
Approval
of the Plan requires the affirmative vote of a majority of the votes cast on the proposal, with holders of the Company’s
Class A Common Stock and Class B Common Stock voting together as a single class. As previously described, all holders of the Company’s
Class A Common Stock outstanding as of the close of business on the Record Date are entitled to one vote per share and have in
the aggregate 22% of the general voting power, and all holders of the Company’s Class B Common Stock outstanding as of the
close of business on the Record Date are entitled to 14.65 votes per share and have in the aggregate the remaining 78% of the
general voting power. Abstentions will effectively count as votes against the Plan.
In
addition, under the Company’s Articles of Incorporation, holders of a majority of the shares of the Company’s Class
B Common Stock outstanding as of the close of business on the Record Date are required to approve the Plan and the issuance of
the shares of the Company’s Class B Common Stock pursuant to options and restricted stock awards which may be granted under
the Plan. A vote in favor of the amendment by the holders of the Company’s Class B Common Stock will also be deemed to constitute
a vote for the approval required by the Company’s Articles of Incorporation of the issuance of the shares of the Company’s
Class B Common Stock pursuant to options and restricted stock awards which may be granted under the Plan.
The
Board of Directors Unanimously Recommends that Shareholders Vote “For” the Approval of the Plan.
AUDIT
COMMITTEE REPORT
The
following Audit Committee Report shall not be deemed to be “soliciting material” or to be “filed” with
the SEC or subject to Regulation 14A or 14C promulgated by the SEC, other than as provided in Item 407 of Regulation S-K promulgated
by the SEC, or to the liabilities of Section 18 of the Exchange Act, except to the extent that the Company specifically requests
that the following Audit Committee Report be treated as “soliciting material” or specifically incorporates it by reference
into a document filed under the Securities Act or the Exchange Act.
The
charter of the Audit Committee sets forth the Audit Committee’s responsibilities, which include oversight of the Company’s
financial reporting on behalf of the Board of Directors and shareholders. The Audit Committee receives reports from and meets
with the Company’s internal auditors, management, and independent auditor. These meetings were designed, among other things,
to facilitate and encourage communication among the Audit Committee and the Company’s management and internal auditors,
as well as with Grant Thornton LLP, the Company’s independent registered public accounting firm for 2020 (“Grant Thornton”).
The Audit Committee discussed with the Company’s internal auditors and Grant Thornton the overall scope and plans for their
respective audits and discussed the results of their examinations and their evaluations of the Company’s internal controls
and compliance matters. The Audit Committee reviewed and discussed the Company’s audited consolidated financial statements
for the year ended December 31, 2020 with management and Grant Thornton prior to the filing with the SEC of the Company’s
Annual Report on Form 10-K for such year.
Management
has primary responsibility for the Company’s financial statements and the overall financial reporting process, including
the Company’s system of internal controls. The Company’s independent registered public accounting firm audits the
annual financial statements prepared by management, expresses an opinion as to whether those financial statements present fairly,
in all material respects, the financial position, results of operations and cash flows of the Company in conformity with accounting
principles generally accepted in the United States of America, and discusses with the Audit Committee its independence and any
other matters that it is required to discuss with the Audit Committee or that it believes should be raised with it. The Audit
Committee oversees these processes, although it must rely on information provided to it and on the representations made by management
and the Company’s independent registered public accounting firm.
The
Audit Committee discussed with Grant Thornton the matters required to be discussed with audit committees under generally accepted
auditing standards, including, among other things, matters related to the conduct of the audit of the Company’s consolidated
financial statements and the matters required to be discussed by Statement on Auditing Standards No. 61, as amended (AICPA, Professional
Standards, Vol. 1, AU section 380), as adopted by the Public Company Accounting Oversight Board in Rule 3200T.
The
Audit Committee also received from Grant Thornton the written disclosures and the letter required by applicable requirements of
the Public Company Accounting Oversight Board regarding Grant Thornton’s communications with the Audit Committee concerning
independence, and the Audit Committee discussed with Grant Thornton its independence from the Company. When considering Grant
Thornton’s independence, the Audit Committee considered whether Grant Thornton’s provision of services to the Company
beyond those rendered in connection with its audit and review of the Company’s consolidated financial statements was compatible
with maintaining Grant Thornton’s independence. The Audit Committee also reviewed, among other things, the amount of fees
paid to Grant Thornton for its services.
Based
on these reviews, meetings, discussions and reports, the Audit Committee recommended to the Board of Directors that the Company’s
audited consolidated financial statements for the year ended December 31, 2020 be included in the Company’s Annual Report
on Form 10-K for such year.
|
Submitted
by the Members of the Audit Committee:
|
|
|
|
Norman
H. Becker, Chairman
|
|
Andrew
R. Cagnetta, Jr.
|
|
Steven
M. Coldren
|
|
Gregory
A. Haile
|
Fees
to Independent Registered public Accounting Firm
for
THE YEARS ENDED dECEMBER 31, 2020 and 2019
Grant
Thornton served as the independent registered public accounting firm for the Company for 2020. The following table sets forth
the fees billed to the Company by Grant Thornton from September 30, 2020 (the date of the Spin-Off) through December 31, 2020.
Prior to the Spin-Off, audit, audit-related, tax and all other fees of Grant Thornton, including fees for services related to
the review of the Company’s financial statements for the first and second quarters of 2020, were paid by BVH as Company’s
results were included in the consolidated financial statements of BVH.
|
|
2020
|
|
(in thousands)
|
|
|
|
|
Audit Fees (1)
|
|
$
|
733
|
|
Audit-Related Fees
|
|
|
—
|
|
All Other Fees
|
|
|
—
|
|
Total
|
|
$
|
733
|
|
|
(1)
|
Represents
fees for services related to the Company’s annual financial statement audit and
review of the Company’s third quarter financial statements.
|
Under
its charter, the Company’s Audit Committee must review and pre-approve both audit and permitted non-audit services provided
by the Company’s independent registered public accounting firm and shall not engage the independent registered public accounting
firm to perform any non-audit services prohibited by law or regulation. The independent registered public accounting firm’s
retention to audit the Company’s financial statements, including the associated fee, is subject to approval each year by
the Audit Committee. The Audit Committee does not regularly evaluate potential engagements of the independent registered public
accounting firm and approve or reject such potential engagements. At each Audit Committee meeting, the Audit Committee receives
updates on the services actually provided by the independent registered public accounting firm, and management may present additional
services for pre-approval. The Audit Committee has delegated to the Chairman of the Audit Committee the authority to evaluate
and approve engagements on behalf of the Audit Committee in the event that a need arises for pre-approval between regular Audit
Committee meetings. If the Chairman so approves any such engagements, he will report that approval to the full Audit Committee
at the next Audit Committee meeting.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth, as of April 9, 2021, certain information as to the Company’s Class A Common Stock and Class
B Common Stock beneficially owned by persons known by the Company to own in excess of 5% of the outstanding shares of such stock.
In addition, the table includes information regarding the shares of the Company’s Class A Common Stock and Class B Common
Stock beneficially owned by (i) each Named Executive Officer, (ii) each of the Company’s directors and (iii) the Company’s
directors and executive officers as a group. Management knows of no person, except as listed below, who beneficially owned more
than 5% of the outstanding shares of the Company’s Class A Common Stock or Class B Common Stock as of April 9, 2021. Except
as otherwise indicated, the information provided in the following table was obtained from filings with the SEC and the Company
pursuant to the Exchange Act. For purposes of the following table, in accordance with Rule 13d-3 under the Exchange Act, a person
is deemed to be the beneficial owner of any shares of the Company’s Class A Common Stock or Class B Common Stock which he
or she has or shares, directly or indirectly, voting or investment power, or which he or she has the right to acquire beneficial
ownership of at any time within 60 days after April 9, 2021. As used herein, “voting power” is the power to vote,
or direct the voting of, shares, and “investment power” includes the power to dispose of, 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.
Name of Beneficial Owner
|
|
Notes
|
|
|
Class A
Common Stock
Ownership
|
|
|
Class B
Common Stock
Ownership
|
|
|
Percent of
Class A
Common Stock
|
|
|
Percent of
Class B
Common Stock
|
|
Levan BFC Stock Partners LP
|
|
|
(1,2,3,6)
|
|
|
|
—
|
|
|
|
336,915
|
|
|
|
2.2
|
%
|
|
|
9.1
|
%
|
Levan Partners LLC
|
|
|
(1,2,3,6)
|
|
|
|
986,197
|
|
|
|
141,577
|
|
|
|
7.3
|
%
|
|
|
3.8
|
%
|
Alan B. Levan
|
|
|
(1,2,3,4,5,6,7)
|
|
|
|
1,759,459
|
|
|
|
3,516,232
|
|
|
|
28.1
|
%
|
|
|
95.2
|
%
|
John E. Abdo
|
|
|
(1,2,3,5)
|
|
|
|
1,065,286
|
|
|
|
1,495,311
|
|
|
|
15.3
|
%
|
|
|
40.5
|
%
|
Jarett S. Levan
|
|
|
(1,2,3,6,7)
|
|
|
|
191,395
|
|
|
|
342,606
|
|
|
|
5.5
|
%
|
|
|
18.3
|
%
|
Seth M. Wise
|
|
|
(1,2,3,7,8,10)
|
|
|
|
197,445
|
|
|
|
335,158
|
|
|
|
3.4
|
%
|
|
|
9.1
|
%
|
Norman H. Becker
|
|
|
(2)
|
|
|
|
1,204
|
|
|
|
—
|
|
|
|
|
*
|
|
|
0.0
|
%
|
Andrew R. Cagnetta, Jr.
|
|
|
(2)
|
|
|
|
1,000
|
|
|
|
—
|
|
|
|
|
*
|
|
|
0.0
|
%
|
Steven M. Coldren
|
|
|
(2)
|
|
|
|
1,893
|
|
|
|
—
|
|
|
|
|
*
|
|
|
0.0
|
%
|
Gregory A. Haile
|
|
|
(2)
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Willis N. Holcombe
|
|
|
(2)
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Anthony P. Segreto
|
|
|
(2)
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Neil Sterling
|
|
|
(2)
|
|
|
|
—
|
|
|
|
—
|
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
Angelo, Gordon & Co. L.P.
|
|
|
(9)
|
|
|
|
1,212,624
|
|
|
|
—
|
|
|
|
7.9
|
%
|
|
|
0.0
|
%
|
Dr. Herbert A. Wertheim
|
|
|
(1,10)
|
|
|
|
793,632
|
|
|
|
83,290
|
|
|
|
5.7
|
%
|
|
|
2.3
|
%
|
All directors and executive officers of the Company as a group (12 persons)
|
|
|
(1,2,3,4,5,6,7,8)
|
|
|
|
3,217,682
|
|
|
|
3,516,233
|
|
|
|
35.9
|
%
|
|
|
95.2
|
%
|
|
*
|
Less than one percent of class.
|
|
(1)
|
Shares
of the Company’s Class B Common Stock are convertible on a share-for-share basis
into shares of the Company’s Class A Common Stock at any time in the beneficial
owner’s discretion. The number of shares of Class B Common Stock held by each beneficial
owner and convertible within 60 days after April 9, 2021 into shares of Class A Common
Stock is not separately included in the “Class A Common Stock Ownership”
column, but is included for the purpose of calculating the percent of Class A Common
Stock held by each beneficial owner.
|
|
(2)
|
Mailing
address is 401 East Las Olas Boulevard, Suite 800, Fort Lauderdale, Florida 33301.
|
|
(3)
|
The
Company may be deemed to be controlled by Messrs. Alan Levan, Abdo, Jarett Levan and
Wise, who collectively may be deemed to have an aggregate beneficial ownership of shares
of the Company’s Class A Common Stock and Class B Common Stock representing approximately
79% of the total voting power of the Company’s common stock.
|
|
(4)
|
Mr.
Alan Levan’s beneficial holdings include the 986,197 shares of Class A Common Stock
and 141,577 shares of Class B Common Stock owned by Levan Partners LLC and the 336,915
shares of Class B Common Stock owned by Levan BFC Stock Partners LP. Mr. Alan Levan’s
beneficial holdings also include 2,341 shares of Class A Common Stock and 240 shares
of Class B Common Stock held of record by his wife, 7,344 shares of Class A Common Stock
held through trusts for the benefit of his children and 78,700 of Class A Common Stock
held by the Susie and Alan B. Levan Family Foundation. In addition, Mr. Alan Levan’s
beneficial holdings of Class B Common Stock include the shares of Class B Common Stock
held by Mr. Abdo, Mr. Jarett Levan and Mr. Wise, as described below.
|
|
(5)
|
Mr.
Alan Levan and Mr. Abdo are parties to an agreement pursuant to which Mr. Abdo has granted
to Mr. Alan Levan a proxy to vote the shares of Class B Common Stock that Mr. Abdo beneficially
owns. As a result, the shares of Class B Common Stock beneficially owned by Mr. Abdo
are included in Mr. Alan Levan’s beneficial holdings in the table. Mr. Abdo has
also agreed not to sell any of his shares of Class B Common Stock without first converting
those shares into shares of Class A Common Stock. Pursuant to the agreement, Mr. Alan
Levan and Mr. Abdo have also agreed to vote their shares of Class B Common Stock in favor
of the election of the other to the Company’s Board of Directors for so long as
they are willing and able to serve as directors of the Company. The agreement also provides
for Mr. Jarett Levan to succeed to Mr. Alan Levan’s rights under the agreement
in the event of Mr. Alan Levan’s death or disability.
|
|
(6)
|
Mr.
Alan Levan and Mr. Jarett Levan are parties to an agreement pursuant to which Mr. Jarett
Levan has agreed to vote the shares of Class B Common Stock that he owns or otherwise
has the right to vote in the same manner as Mr. Alan Levan votes his shares of Class
B Common Stock. As a result, the shares of Class B Common Stock beneficially owned by
Mr. Jarett Levan are included in Mr. Alan Levan’s beneficial holdings in the table.
Mr. Jarett Levan has also agreed, subject to certain exceptions, not to transfer certain
of his shares of Class B Common Stock and to obtain the consent of Mr. Alan Levan prior
to the conversion of his shares of Class B Common Stock into shares of Class A Common
Stock if the effect of such conversion or sale would reduce his ownership of Class B
Common Stock below a specified number of shares. Pursuant to the agreement, Mr. Alan
Levan and Mr. Jarett Levan have also agreed to vote their shares of Class B Common Stock
in favor of the election of the other to the Company’s Board of Directors for so
long as they are willing and able to serve as directors of the Company.
|
|
(7)
|
Mr.
Jarett Levan and Mr. Wise are parties to an agreement pursuant to which Mr. Wise has
agreed to vote the shares of Class B Common Stock that he owns or otherwise has the right
to vote in the same manner as Mr. Jarett Levan’s shares of Class B Common Stock
are voted. As a result of this agreement and the above-described agreement between Mr.
Alan Levan and Mr. Jarett Levan, the shares of Class B Common Stock beneficially owned
by Mr. Wise are included in Mr. Alan Levan’s beneficial holdings in the table.
Mr. Wise has also agreed, subject to certain exceptions, not to transfer certain of his
shares of Class B Common Stock or convert such shares of Class B Common Stock into shares
of Class A Common Stock, in each case, without first offering Mr. Jarett Levan the right
to purchase such shares. Pursuant to the agreement, Mr. Jarett Levan and Mr. Wise have
also agreed to vote their shares of Class B Common Stock in favor of the election of
the other to the Company’s Board of Directors for so long as they are willing and
able to serve as directors of the Company.
|
|
(8)
|
Mr.
Wise’s holdings of Class A Common Stock include 50 shares held in his spouse’s
IRA which he may be deemed to beneficially own.
|
|
(9)
|
Based
on the Schedule 13D/A (Amendment No. 1) filed jointly with the SEC on March 12, 2021
by Angelo, Gordon & Co., L.P. (“Angelo, Gordon & Co.”), AG Partners,
LLC (“AG Partners”), JAMG LLC (“JAMG”), Josh Baumgarten and Adam
Schwartz. The Schedule 13D/A reports that Angelo, Gordon & Co., AG Partners and JAMG
have sole voting and dispositive power over all the shares and that Messrs. Baumgarten
and Schwartz have shared voting and dispositive power over the shares. The address of
the filers, as reported in the Schedule 13D/A, is 245 Park Avenue, 26th Floor, New York,
New York 10167.
|
|
(10)
|
Dr.
Wertheim’s ownership was reported in a Rebuttal of Control Agreement filed on December
20, 1996 with the Office of Thrift Supervision (as adjusted for stock splits since the
date of filing). The Rebuttal of Control Agreement indicated that Dr. Wertheim had no
intention to directly or indirectly manage or control the Company. Dr. Wertheim’s
mailing address, as reported by him, is 191 Leucadendra Drive, Coral Gables, Florida
33156.
|
OTHER
MATTERS
As
of the date of this Proxy Statement, the Board of Directors is not aware of any matters other than those described in this Proxy
Statement which may be brought before the Annual Meeting.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF
PROXY
MATERIALS FOR THE ANNUAL SHAREHOLDER MEETING
TO
BE HELD ON MAY 17, 2021
This
Proxy Statement and the Company’s Annual Report to Shareholders for the year ended December 31, 2020 are available at http://bbxcapital.qesreports.com/BBX.
INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
As
previously described, Grant Thornton served as the Company’s independent registered public accounting firm for 2020. A representative
of Grant Thornton is expected to be present virtually at the Annual Meeting, will have the opportunity to make a statement if
he or she desires to do so, and will be available to respond to appropriate questions from shareholders.
ADDITIONAL
INFORMATION
“Householding”
of Proxy Material. The SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy delivery
requirements for proxy statements with respect to two or more shareholders sharing the same address by delivering a single proxy
statement 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 materials,
delivering a single proxy statement 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 AST, the Company’s transfer agent, 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
Proxy Statement to a shareholder at a shared address to which a single Proxy Statement was delivered. If, at any time, you no
longer wish to participate in householding and would prefer to receive a separate proxy statement, or if you are receiving multiple
proxy statements and would like to request delivery of a single proxy statement, please notify your broker if your shares are
held in a brokerage account or AST if you are the record holder of your shares. You can notify AST by sending a written request
to American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, 2nd Floor, Brooklyn, New York 11219, Attention: Customer
Service. You can also contact AST’s Customer Service department at (800) 937-5449.
Advance
Notice Procedures. Under the Company’s Bylaws, no business may be brought before an annual meeting of shareholders unless
it is specified in the notice of the annual meeting of shareholders or is otherwise brought before the annual meeting of shareholders
by or at the direction of the Board of Directors or by a shareholder entitled to vote who has delivered written notice to the
Company’s Secretary (containing certain information specified in the Company’s Bylaws about the shareholder and the
proposed action) not less than 90 or more than 120 days prior to the first anniversary of the preceding year’s annual meeting
of shareholders. However, if the date of the Company’s annual meeting of shareholders changes by more than 30 days from
the date of the preceding year’s annual meeting of shareholders, written notice of the proposed business must be received
by the Company within ten days after the Company first mails notice of or publicly discloses the date of the annual meeting of
shareholders. For the Company’s 2022 Annual Meeting of Shareholders, the Company must receive shareholder notice of a director
nomination (i) between January 17, 2022 and February 16, 2022 or (ii) if the Company’s 2022 Annual Meeting of Shareholders
is held more than 30 days before or after May 17, 2022, within ten days after the Company first mails notice of or publicly discloses
the date of the meeting. In addition, any shareholder who wishes to submit a nomination to the Board of Directors must deliver
written notice of the nomination within the applicable time period set forth above and comply with the information requirements
in the Company’s Bylaws relating to shareholder nominations. These requirements are separate from and in addition to the
SEC’s requirements that a shareholder must meet in order to have a shareholder proposal included in the Company’s
proxy statement for the 2022 Annual Meeting of Shareholders.
Shareholder
Proposals for the 2022 Annual Meeting of Shareholders. Shareholders interested in submitting a proposal for inclusion in the
proxy materials for the Company’s 2022 Annual Meeting of Shareholders may do so by following the procedures relating to
shareholder proposals set forth in the rules and regulations promulgated under the Exchange Act. To be eligible for inclusion,
shareholder proposals must be received by the Company’s Secretary at the Company’s principal executive offices by
January 17, 2022 or, if the Company’s 2022 Annual Meeting of Shareholders is held more than 30 days before or after May
17, 2022, then by the deadline as set forth in a Company filing with the SEC, which will be a reasonable time before the Company
begins to print and send its proxy materials.
Proxy
Solicitation Costs. The Company will bear the expense of soliciting proxies and of reimbursing brokers, banks and other nominees
for the out-of-pocket and clerical expenses of transmitting copies of the proxy materials to the beneficial owners of shares held
of record by such persons. The Company does not currently intend to solicit proxies other than by use of the mail, but certain
directors, officers and regular employees of the Company or its subsidiaries, without additional compensation, may solicit proxies
personally or by telephone, fax, special letter or otherwise.
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BY ORDER OF THE BOARD OF
DIRECTORS
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Alan B. Levan
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Chairman
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April
16, 2021
Appendix
A
BBX
CAPITAL, INC. 2021 INCENTIVE PLAN
1. PURPOSES.
The purpose of this BBX Capital, Inc. 2021 Incentive Plan (this “Plan”) is to attract,
retain and motivate officers and other employees of BBX Capital, Inc., a Florida corporation (the “Company”), or its
Subsidiaries or Affiliates (as hereinafter defined), as well as directors and other individuals who perform services for the Company
or its Subsidiaries or Affiliates, to compensate them for their services, to encourage ownership by them of stock of the Company,
to align their interests with those of shareholders in the creation of long-term value, and to promote the success and profitability
of the Company’s business.
2. DEFINITIONS.
As used herein, the following definitions shall apply:
2.1 “Affiliate”
shall mean, with respect to a specified Person, a Person that directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, the Person specified.
2.2 “Award
Notice” shall mean, with respect to a particular Restricted Stock Award, a written instrument signed by the Company and
the recipient of the Restricted Stock Award evidencing the Restricted Stock Award and establishing the terms and conditions thereof.
2.3 “Award
Recipient” shall mean the recipient of a Restricted Stock Award or Performance-Based Cash Award.
2.4 “Beneficiary”
shall mean the Person designated by an Award Recipient to receive any Shares subject to a Restricted Stock Award made to such
Award Recipient that become distributable following the Award Recipient’s death.
2.5 “Board
of Directors” shall mean the Board of Directors of the Company.
2.6 “Class
A Common Stock” shall mean the Class A common stock, par value $0.01 per share, of the Company.
2.7 “Class
B Common Stock” shall mean the Class B common stock, par value $0.01 per share, of the Company.
2.8 “Code”
shall mean the Internal Revenue Code of 1986, as amended.
2.9 “Committee”
shall mean the Committee appointed by the Board of Directors in accordance with paragraph (a) of Section 4 of this Plan.
2.10 “Common
Stock” shall mean, collectively, the Class A Common Stock and Class B Common Stock.
2.11 “Company”
shall mean BBX Capital, Inc., a Florida corporation, and its successors and assigns.
2.12 “Continuous
Status as an Employee” shall mean, subject to the following sentence, the absence of any interruption or termination of
service as an Employee. Notwithstanding the foregoing, “Continuous Status as an Employee” with respect to a particular
individual shall not be considered (i) interrupted in the case of such individual’s absence due to sick leave, military
leave, or any other leave of absence approved by the Board of Directors or the Committee or (ii) terminated or interrupted if
such individual (A) is hired or re-hired as an Employee of the Company or any Parent, Subsidiary or Affiliate of the Company within
a period of three (3) months following the termination of his or her employment or (B) continues to serve as a director of the
Company or any Parent, Subsidiary or Affiliate of the Company notwithstanding the termination of his or her employment, or is
appointed or re-appointed to serve as a director of the Company or any Parent, Subsidiary or Affiliate of the Company within a
period of three (3) months following the termination of his or her employment. If an individual remains in “Continuous Status
as an Employee” solely by reason of satisfaction of any of the events specified in clause (ii) of the preceding sentence,
any time-based vesting criteria with respect to an Option previously granted to the individual shall be tolled for the period
of time during which he or she was not an Employee or director of the Company or any Parent, Subsidiary or Affiliate of the Company.
2.13 “Covered
Employee” shall mean, for any taxable year of the Company, a person who is, or who the Committee determines is reasonably
likely to be, a “covered employee” (within the meaning of Section 162(m) of the Code).
2.14 “Disability”
shall mean permanent and total disability as defined in Section 22(e)(3) of the Code.
2.15 “Employee”
shall mean any person, including officers, employed by the Company or any Parent, Subsidiary or Affiliate of the Company.
2.16 “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
2.17 “Fair
Market Value” shall be determined by the Committee in its discretion; provided, however, that so long as (i) the Class A
Common Stock or Class B Common Stock, as the case may be, is listed or admitted for trading on any United States national securities
exchange, (ii) transactions in the Class A Common Stock or Class B Common Stock, as the case may be, are reported on a consolidated
transaction reporting system, or (iii) the Class A Common Stock or Class B Common Stock, as the case may be, is quoted on any
system of automated dissemination of quotations of securities prices in common use, the fair market value per Share of the Class
A Common Stock or Class B Common Stock shall be the closing price of the Class A Common Stock or Class B Common Stock, as the
case may be, on such exchange or reporting system or as quoted on such system of automated dissemination of quotations of securities,
as the case may be, on the relevant date.
2.18 “Incentive
Stock Option” shall mean an Option intended to qualify as an “incentive stock option” within the meaning of
Section 422 of the Code.
2.19 “Nonqualified
Stock Option” shall mean an Option not intended to qualify as an Incentive Stock Option, or an Option that at the time of
grant, or subsequent thereto, fails to satisfy the requirements of Section 422 of the Code.
2.20 “Option”
shall mean a stock option granted pursuant to this Plan.
2.21 “Optioned
Stock” shall mean the Common Stock subject to an Option.
2.22 “Optionee”
shall mean the recipient of an Option.
2.23 “Parent”
shall mean a “parent corporation,” whether now or hereafter existing, as defined in Section 424(e) of the Code.
2.24 “Performance-Based
Cash Award” means an award that is paid in the form of cash based on the attainment of Performance Goals as described in
Section 9.
2.25 “Performance-Based
Cash Award Formula” means the formula that determines the amount payable to a Participant under a Performance-Based Cash
Award.
2.26 “Performance-Based
Restricted Stock Award” shall mean a Restricted Stock Award to which Section 8.3 is applicable.
2.27 “Performance
Goal” shall mean, with respect to any Performance-Based Restricted Stock Award, a goal the attainment of which is a condition
to the vesting and/or retention of the Performance-Based Restricted Stock Award and, with respect to any Performance-Based Cash
Award, a goal the attainment of which is a condition to payment and/or the determination of the amount payable.
2.28 “Performance
Measurement Period” shall mean, with respect to any Performance Goal, the period of time over which attainment of the Performance
Goal is measured.
2.29 “Person”
shall mean an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a
trust, an estate, an unincorporated organization and any other business organization or institution.
2.30 “Restricted
Stock Award” shall mean an award of restricted Shares pursuant to Section 8.
2.31 “Rule
16b-3” shall mean Rule 16b-3 promulgated by the Securities and Exchange Commission under the Exchange Act or any successor
rule.
2.32 “Service”
shall mean, unless the Committee provides otherwise in an Award Notice: (a) service in any capacity as a common-law employee,
director, advisor or consultant to the Company or a Parent, Subsidiary or Affiliate of the Company; (b) service in any capacity
as a common-law employee, director, advisor or consultant (including periods of contractual availability to perform services under
a retainer arrangement) to an entity that was formerly a Parent, Subsidiary or Affiliate of the Company, to the extent that such
service is an uninterrupted continuation of services being provided immediately prior to the date on which such entity ceased
to be a Parent, Subsidiary or Affiliate of the Company; and (c) performance of the terms of any contractual non-compete agreement
for the benefit of the Company or a Parent, Subsidiary or Affiliate of the Company. Notwithstanding the foregoing, an individual’s
“Service” shall not be considered terminated if, within three (3) following the termination of his or service in any
capacity described in the preceding sentence or performance of a contractual non-compete agreement described in the preceding
sentence, such individual is hired or re-hired as an Employee of the Company or any Parent, Subsidiary or Affiliate of the Company
or is appointed or re-appointed to serve as a director of the Company or any Parent, Subsidiary or Affiliate of the Company. If
an individual’s “Service” is deemed to continue solely by reason of satisfaction of any of the events specified
in the preceding sentence, any time-based vesting criteria with respect to a Restricted Stock Award previously granted to the
individual shall be tolled for the period of time during which he or she did not satisfy the “Service” requirements
set forth in the first sentence of this paragraph.
2.33 “Share”
shall mean a share of Common Stock, as adjusted in accordance with Section 10.
2.34 “Stock
Option Agreement” shall mean the written Option agreements described in Section 15.
2.35 “Subsidiary”
shall mean a “subsidiary corporation,” whether now or hereafter existing, as defined in Section 424(f) of the Code.
2.36 “Transferee”
shall have the meaning set forth in Section 7.4.
3. STOCK.
Subject to the provisions of Section 10, the maximum aggregate number of shares which may be issued for Restricted Stock Awards
and upon the exercise of Options under this Plan is one million two hundred thousand (1,200,000) shares of Common Stock, consisting
of a maximum of nine hundred thousand (900,000) shares of Class A Common Stock and a maximum of three hundred thousand (300,000)
shares of Class B Common Stock. The number of shares of Common Stock, Class A Common Stock and Class B Common Stock authorized
for grant under this Plan as Incentive Stock Options shall be subject to the same limitations as set forth in the preceding sentence.
If an Option or Restricted Stock Award should expire or become un-exercisable for any reason without having been exercised or
vested in full, the un-purchased Shares which were subject thereto shall, unless this Plan shall have been terminated, become
available for further grant under this Plan.
4. ADMINISTRATION.
4.1 Procedure.
This Plan shall be administered by a Committee appointed by the Board of Directors, which initially shall be the Compensation
Committee of the Board of Directors. The Committee shall consist of not less than two (2) members of the Board of Directors. Once
appointed, the Committee shall continue to serve until otherwise directed by the Board of Directors. From time to time, the Board
of Directors, at its discretion, may increase the size of the Committee and appoint additional members thereof, remove members
(with or without cause), and appoint new members in substitution therefor, and fill vacancies however caused; provided, however,
that at no time shall the Committee consist of less than two (2) members of the Board of Directors. If the Committee does not
exist, or for any other reason determined by the Board of Directors and permitted pursuant to the terms hereof, the Board of Directors
may take any action and exercise any power, privilege or discretion under this Plan that would otherwise be the responsibility
of the Committee.
4.2 Powers
of the Committee. Subject to the provisions of this Plan, the Committee shall have the authority, in its discretion: (i) to grant
Incentive Stock Options, in accordance with Section 422 of the Code, to grant Nonqualified Stock Options, to grant Restricted
Stock Awards, and to grant Performance-Based Cash Awards; (ii) if applicable, to determine, upon review of relevant information,
the Fair Market Value of the Class A Common Stock or Class B Common Stock, as the case may be; (iii) to determine the persons
to whom, and the time or times at which, Options, Restricted Stock Awards and Performance-Based Cash Awards shall be granted;
(iv) to determine the terms and provisions of each Option, Restricted Stock Award and Performance-Based Cash Award granted (which
need not be identical), including, without limitation, the class of Common Stock, and number of shares thereof, represented by
each Restricted Stock Award, the class of Common Stock, and number of shares thereof, underlying each Option, the exercise price
per share of each Option, the consideration, if any, for each Restricted Stock Award and the vesting schedule of each Option and
Restricted Stock Award; (v) to interpret this Plan; (vi) to amend this Plan, if amendment by the Committee is permitted pursuant
to the terms hereof; (vii) to modify or amend each Option or Restricted Stock Award, including to accelerate or defer the exercise
or vesting date of any Option or the vesting date of any Restricted Stock Award (in each case with the consent of the holder thereof
to the extent required); (viii) to authorize any person to execute on behalf of the Company any instrument required to effectuate
the grant of an Option, Restricted Stock Award or Performance-Based Cash Award previously granted by the Committee; (ix) to re-price
previously granted Options and/or substitute new Options or Restricted Stock Awards for previously granted Options or Restricted
Stock Awards, as the case may be, which previously granted Options or Restricted Stock Awards contain less favorable terms, including,
in the case of Options, higher exercise prices; and (x) to make all other determinations deemed necessary or advisable for the
administration of this Plan.
4.3 Effect
of the Committee’s Decision. All decisions, determinations and interpretations of the Committee shall be final and binding
on all Optionees, Award Recipients or Transferees, if applicable.
5. ELIGIBILITY.
Incentive Stock Options may be granted only to employees, including officers, of the Company or any Parent or Subsidiary of the
Company. Nonqualified Stock Options, Restricted Stock Awards and Performance-Based Cash Awards may be granted to Employees as
well as directors of, and independent contractors and agents who are natural persons and perform services for, the Company or
any Parent, Subsidiary or Affiliate of the Company (provided that Options and Restricted Stock Awards may not be granted under
this Plan to an independent contractor or agent to the Company or a Parent, Subsidiary or Affiliate of the Company for services
in connection with the offer or sale of securities in a capital-raising transaction or services that directly or indirectly promote
or maintain a market for the Company’s securities). Any individual who has been granted an Option, Restricted Stock Award
or Performance-Based Cash Award may, if he or she is otherwise eligible, be granted additional Options, Restricted Stock Awards
and/or Performance-Based Cash Awards.
Except
as otherwise provided under the Code, to the extent that the aggregate Fair Market Value of Shares for which Incentive Stock Options
(under all stock option plans of the Company and of any Parent or Subsidiary of the Company) are exercisable for the first time
by an Employee during any calendar year exceeds $100,000, such excess Options shall be treated as Nonqualified Stock Options.
For purposes of this limitation, (a) the Fair Market Value of Shares is determined as of the time the Option is granted and (b)
the limitation is applied by taking into account Options in the order in which they were granted.
This
Plan shall not constitute a contract of employment nor shall this Plan confer upon any Optionee or Award Recipient any right with
respect to continuation of employment or continuation of providing services to the Company, nor shall it interfere in any way
with his or her right or the Company’s or any Parent, Subsidiary or Affiliate of the Company’s right to terminate
his or her employment or provision of services at any time.
6. TERM
OF PLAN. This Plan shall become effective upon the approval of the Plan by the Company’s shareholders and, unless sooner
terminated under Section 2, continue in effect for a period of ten (10) years from the effective date.
7. STOCK
OPTIONS.
7.1 Term
of Option. The term of each Option shall be ten (10) years from the date of grant thereof or such shorter term as may be provided
in the Stock Option Agreement. However, in the case of an Incentive Stock Option granted to an Employee who, immediately before
the Incentive Stock Option is granted, owns stock representing more than ten percent (10%) of the voting power of all classes
of stock of the Company or any Parent or Subsidiary of the Company, the term of the Incentive Stock Option shall be five (5) years
from the date of grant thereof or such shorter time as may be provided in such Optionee’s Stock Option Agreement.
7.2 Exercise
Price and Consideration.
(a) Price.
The per Share exercise price for the Shares to be issued pursuant to exercise of an Option
shall be such price as determined by the Committee, but shall be subject to the following:
(i) In
the case of an Incentive Stock Option which is:
(A) granted
to an Employee who, immediately before the grant of such Incentive Stock Option, owns stock representing more than ten percent
(10%) of the voting power of all classes of stock of the Company or any Parent or Subsidiary of the Company, the per Share exercise
price shall be no less than one hundred and ten percent (110%) of the Fair Market Value per Share of the applicable class of Common
Stock on the date of grant; or
(B) granted
to an Employee not within (A), the per Share exercise price shall be no less than one hundred percent (100%) of the Fair Market
Value per Share of the applicable class of Common Stock on the date of grant.
(ii) In
the case of a Nonqualified Stock Option, the per Share exercise price shall be no less than one hundred percent (100%) of the
Fair Market Value per Share of the applicable class of Common Stock on the date of grant.
(b) Certain
Corporate Transactions. In the event an Option is substituted for a stock option issued by another Person in connection with a
corporate transaction, such as a merger, consolidation, acquisition of property or stock, separation (including a spin-off or
other distribution of stock or property), reorganization (whether or not such reorganization comes within the definition of such
term in Section 368 of the Code) or partial or complete liquidation involving the Company and such other Person, the exercise
price per Share of such substituted Option shall (subject to the provisions of Section 424(a) of the Code in the case of a stock
option that was intended to qualify as an “incentive stock option”) be in such amount so as to preserve, on a per
Share basis with respect to such substituted option, the same ratio of Fair Market Value per Share to exercise price per Share
which existed immediately prior to such corporate transaction.
(c) Payment.
The consideration to be paid for the Shares to be issued upon exercise of an Option, including the method of payment, shall be
determined by the Committee and may consist entirely of cash, check, promissory note, or other shares of the Company’s capital
stock having a Fair Market Value on the date of surrender equal to the aggregate exercise price of the Shares as to which said
Option shall be exercised, or any combination of such methods of payment, or such other consideration and method of payment for
the issuance of Shares to the extent permitted under the law of the Company’s jurisdiction of incorporation. The Committee
may also establish coordinated procedures with one or more brokerage firms for the “cashless exercise” of Options,
whereby Shares issued upon exercise of an Option are delivered against payment by the brokerage firm on the Optionee’s behalf.
When payment of the exercise price for the Shares to be issued upon exercise of an Option consists of shares of the Company’s
capital stock, such shares will not be accepted as payment unless the Optionee or Transferee, if applicable, has held such shares
for the requisite period necessary to avoid a charge to the Company’s earnings for financial reporting purposes.
7.3 Exercise
of Option.
(a) Procedure
for Exercise; Rights as a Shareholder. Any Option granted hereunder shall be exercisable
at such times and under such conditions as determined by the Committee, including performance
criteria with respect to the Optionee, performance criteria with respect to the Company
or any Parent or Subsidiary of the Company, or in the case of Nonqualified Stock Options,
performance criteria with respect to any Affiliate of the Company, and as shall be permissible
under the terms of this Plan. An Option may not be exercised for a fraction of a Share.
An Option shall be deemed to be exercised when written notice of such exercise has been
given to the Company in accordance with the terms of the Option by the person entitled
to exercise the Option and full payment for the Shares with respect to which the Option
is exercised has been received by the Company. Full payment may, as authorized by the
Committee, consist of any consideration and method of payment allowable under Section
7.2(c).
(b) Termination
of Status as an Employee. If any individual ceases to be in Continuous Status as an Employee, such individual or his or her Transferee
may, but only within three (3) months (or, provided that the applicable Option is not an Incentive Stock Option, such longer period
of time as may be determined by the Committee) after the date the individual ceases to be in Continuous Status as an Employee,
exercise an Option previously granted and then-outstanding to the extent that the individual or his or her Transferee was entitled
to exercise the Option as of the date of such termination of Continuous Status as an Employee and the Option did not otherwise
expire prior to the exercise date. To the extent that the individual or his or her Transferee was not entitled to exercise the
Option at the date of termination of Continuous Status as an Employee, or if the individual or any Transferee does not exercise
such Option within the time specified herein, the Option shall terminate and no longer be exercisable. Notwithstanding the foregoing
provisions of this Section 7.3(b), (i) if any individual ceases to serve as an Employee as a result of a termination for cause
(as determined by the Committee), any Option held by such individual or his or her Transferee shall terminate immediately and
automatically on the date of termination as an Employee unless otherwise determined by the Committee, and (ii) if an individual
ceases to be in Continuous Status as an Employee solely due to a reorganization, merger, consolidation, spin-off, combination,
or other similar corporate transaction or event, the Committee may, in its discretion, suspend the operation of this Section 7.3(b);
provided that, in the case of this clause (ii) or if an Employee of the Company or any Parent or Subsidiary of the Company is
re-assigned to an Affiliate of the Company, the individual shall execute an agreement, in form and substance satisfactory to the
Committee, waiving such individual’s right to have his or her Options treated as Incentive Stock Options from and after
a date determined by the Committee, which shall be no later than three (3) months after the cessation or re-assignment date, as
the case may be, and such individual’s Options shall thereafter be treated as Nonqualified Stock Options for all purposes.
(c) Disability
of Optionee. Notwithstanding the provisions of Section 7.3(b) above, in the event an Employee is unable to continue his employment
as a result of his or her Disability, such individual or his or her Transferee may, but only within three (3) months or such other
period of time as is determined by the Committee not exceeding twelve (12) months (or, provided that the applicable Option is
not an Incentive Stock Option, such longer period of time as may be determined by the Committee) from the date of cessation of
employment for Disability, exercise an Option previously granted and then-outstanding to the extent the individual or his or her
Transferee was entitled to exercise the Option at the date of such cessation of employment for Disability and the Option did not
otherwise expire prior to the exercise date. To the extent that the individual or his or her Transferee was not entitled to exercise
the Option at the date of cessation of employment for Disability, or if the individual or his or her Transferee does not exercise
such Option within the time specified herein, the Option shall terminate and no longer be exercisable.
(d) Death
of Optionee. In the event of the death of an Optionee:
(i) who
is at the time of his or her death an Employee and who shall have been in Continuous Status as an Employee since the date of grant
of the Option, the Option may be exercised at any time within twelve (12) months (or, provided that the applicable Option is not
an Incentive Stock Option, such longer period of time as may be determined by the Committee) following the date of death or the
earlier expiration of the Option in accordance with its terms, in each case by the Optionee’s estate, by a person who acquired
the right to exercise the Option by bequest or inheritance, or by any Transferee, as the case may be, but only to the extent of
the right to exercise in effect as of the date of death or that would have accrued had the Optionee continued living one (1) month
after the date of death; or
(ii) within
thirty (30) days or such other period of time as is determined by the Committee not exceeding three (3) months (or, provided that
the applicable Option is not an Incentive Stock Option, such longer period of time as may be determined by the Committee) after
the termination of the Optionee’s Continuous Status as an Employee (other than due to a termination for cause, in which
case clause (i) of Section 7.3(b) shall govern), the Option may be exercised, at any time within three (3) months following the
date of death or the earlier expiration of the Option in accordance with its terms, in each case by the Optionee’s estate,
by a person who acquired the right to exercise the Option by bequest or inheritance, or by any Transferee, as the case may be,
but only to the extent of the right to exercise that had accrued at the date of termination the Optionee’s Continuous Status
as an Employee.
7.4 Transferability
of Options. During an Optionee’s lifetime, an Option may be exercisable only by the Optionee and an Option granted under
this Plan and the rights and privileges conferred thereby shall not be subject to execution, attachment or similar process and
may not be sold, pledged, assigned, hypothecated, transferred or otherwise disposed of in any manner (whether by operation of
law or otherwise) other than by will or by the laws of descent and distribution. Notwithstanding the foregoing, to the extent
permitted by applicable law and Rule 16b-3, the Committee may determine that an Option may be transferred by an Optionee to any
of the following: (i) a family member of the Optionee; (ii) a trust established primarily for the benefit of the Optionee and/or
a family member of said Optionee in which the Optionee and/or one or more of his family members collectively have a more than
fifty percent (50%) beneficial interest; (iii) a foundation in which such persons collectively control the management of assets;
(iv) any other legal entity in which such persons collectively own more than fifty percent (50%) of the voting interests; or (v)
any charitable organization exempt from income tax under Section 501(c)(3) of the Code (collectively, a “Transferee”);
provided, however, that in no event shall an Incentive Stock Option be transferable if such transferability would violate the
applicable requirements under Section 422 of the Code. Any other attempt to sell, pledge, assign, hypothecate, transfer or otherwise
dispose of any Option under this Plan or of any right or privilege conferred thereby, contrary to the provisions of this Plan,
or the sale or levy or any attachment or similar process upon the rights and privileges conferred hereby, shall be null and void.
8. RESTRICTED
STOCK AWARDS.
8.1 In
General.
(a) Each
Restricted Stock Award shall be evidenced by an Award Notice issued by the Committee
to the Award Recipient containing such terms and conditions not inconsistent with this
Plan as the Committee may, in its discretion, prescribe, including, without limitation,
any of the following terms or conditions:
(i) the
class of Common Stock, and number of Shares thereof, covered by the Restricted Stock Award;
(ii) the
amount (if any) which the Award Recipient shall be required to pay to the Company in consideration for the issuance of such Shares
(which shall in no event be less than the minimum amount required for such Shares to be validly issued, fully paid and non-assessable
under applicable law);
(iii) whether
the Restricted Stock Award is a Performance-Based Award and, if it is, the applicable Performance Goal or Performance Goals;
(iv) the
date of grant of the Restricted Stock Award; and
(v) the
vesting date for the Restricted Stock Award.
(b) All
Restricted Stock Awards shall be in the form of issued and outstanding Shares that, in the discretion of the Committee, shall
be either:
(i) registered
in the name of the Committee for the benefit of the Award Recipient and held by the Committee pending the vesting or forfeiture
of the Restricted Stock Award;
(ii) registered
in the name of the Award Recipient and held by the Committee, together with a stock power executed by the Award Recipient in favor
of the Committee, pending the vesting or forfeiture of the Restricted Stock Award; or
(iii) registered
in the name of and delivered to the Award Recipient.
In
any event, the certificates evidencing the Shares shall at all times prior to the applicable vesting date bear the following legend:
The
[Class A Common Stock / Class B Common Stock] evidenced hereby is subject to the terms of a Restricted Stock Award agreement between
BBX Capital, Inc. and [Name of Award Recipient] dated [Date] made pursuant to the terms of the BBX Capital, Inc. 2021 Incentive
Plan, copies of which are on file at the executive offices of BBX Capital, Inc., and may not be sold, encumbered, hypothecated
or otherwise transferred except in accordance with the terms of such Plan and Agreement.
and/or
such other restrictive legend as the Committee, in its discretion, may specify.
(c) Except
as otherwise provided by the Committee, a Restricted Stock Award shall not be transferable by the Award Recipient other than by
will or by the laws of descent and distribution, and the Shares granted pursuant to such Restricted Stock Award shall be distributable,
during the lifetime of the Award Recipient, only to the Award Recipient.
8.2 Vesting
Date.
(a) The
vesting date for each Restricted Stock Award shall be determined by the Committee and
specified in the Award Notice and, if no date is specified in the Award Notice, shall
be the first anniversary of the date on which the Restricted Stock Award is granted.
Unless otherwise determined by the Committee and specified in the Award Notice:
(i) if
the Service of an Award Recipient is terminated prior to the vesting date of a Restricted Stock Award for any reason other than
death or Disability, any unvested Shares shall be forfeited without consideration (other than a refund to the Award Recipient
of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares
being forfeited and (B) the Fair Market Value of such Shares on the date of forfeiture); and
(ii) if
the Service of an Award Recipient is terminated prior to the vesting date of a Restricted Stock Award on account of death or Disability,
any unvested Shares with a vesting date that is during the period of six (6) months beginning on the date of termination of Service
shall become vested on the date of termination of Service and any remaining unvested Shares shall be forfeited without consideration
(other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually paid by
the Award Recipient to the Company for the Shares being forfeited and (B) the Fair Market Value of such Shares on the date of
forfeiture).
8.3 Performance-Based
Restricted Stock Awards.
(a) If
the Committee determines that a Restricted Stock Award shall be a Performance-Based Restricted
Stock Award, at the time of grant of the award, the Committee shall establish one or
more Performance Goals, the attainment of which shall be a condition to the vesting and/or
retention of the related Shares. The Performance Goals shall be selected from among the
following:
(i) earnings
per share;
(ii) total
or net revenue;
(iii) revenue
growth;
(iv) operating
income;
(v) net
operating income after tax;
(vi) pre-tax
or after-tax income;
(vii) cash
flow;
(viii) cash
flow per share;
(ix) net
income;
(x) EBIT;
(xi) EBITDA;
(xii) adjusted
EBITDA;
(xiii) profit
growth;
(xiv) return
on equity;
(xv) return
on assets;
(xvi) return
on capital employed;
(xvii) economic
value added (or an equivalent metric);
(xviii) core
earnings;
(xix) book
value;
(xx) share
price performance or other measures of equity valuation;
(xxi) other
earnings criteria or profit-related return ratios;
(xxii) total
shareholder return;
(xxiii) market
share;
(xxiv) expense
levels;
(xxv) working
capital levels;
(xxvi) strategic
business objectives, consisting of one or more objectives based on meeting specified cost, profit, operating profit, sales, revenue,
cash or cash generation targets or measures, or goals, including those relating to business expansion, business development, acquisitions
or divestitures;
(xxvii) except
in the case of a Covered Employee, any other performance criteria established by the Committee; or
(xxviii) any
combination of (i) through (xxvii) above.
Performance
Goals may be established on the basis of reported earnings or cash earnings, and consolidated results or the results of a business
segment or individual business unit and may, in the discretion of the Committee, include or exclude certain items, including the
operations or results of a business segment or individual business unit and/or the results of discontinued operations. Each Performance
Goal may be expressed on an absolute and/or relative basis, may be based on or otherwise employ comparisons based on internal
or external targets, the past performance of the Company (or individual business segments or units) and/or the past or current
performance of other companies. Performance Goals need not be based upon an increase or positive result under a particular business
criterion and could include, for example, maintaining the status quo or limiting economic losses (measured, in each case, by reference
to specific business criteria).
(b) At
the time it grants a Performance-Based Restricted Stock Award, the Committee shall establish
a Performance Measurement Period for each Performance Goal. The Performance Measurement
Period shall be the period over which the Performance Goal is measured and its attainment
is determined. If the Committee establishes a Performance Goal but fails to specify a
Performance Measurement Period, the Performance Measurement Period shall be:
(i) if
the Performance-Based Restricted Stock Award is granted during the first three months of the Company’s fiscal year, the
fiscal year of the Company in which the Performance-Based Restricted Stock Award is granted; and
(ii) in
all other cases, the period of four (4) consecutive fiscal quarters of the Company that begins with the fiscal quarter in which
the Performance-Based Restricted Stock Award is granted.
(c) Within
a reasonable period of time as shall be determined by the Committee following the end of each Performance Measurement Period,
the Committee shall determine, on the basis of such evidence as it deems appropriate, whether the Performance Goals for such Performance
Measurement Period have been attained and, if they have been obtained, shall certify such fact in writing.
(d) If
the Performance Goals for a Performance-Based Restricted Stock Award have been determined and certified by the Committee to have
been attained:
(i) if
the relevant vesting date has occurred, the Committee shall cause the ownership of the Shares subject to such Restricted Stock
Award, together with all dividends and other distributions with respect thereto that have been accumulated, to be transferred
on the stock transfer records of the Company, free of any restrictive legend other than as may be required by applicable law,
to the Award Recipient; and
(ii) in
all other cases, the Shares shall continue in their current status pending the occurrence of the relevant vesting date or forfeiture
of the Shares.
If
any one or more of the relevant Performance Goals have been determined by the Committee to not have been attained, all of the
Shares subject to such Restricted Stock Award shall be forfeited without consideration (other than a refund to the Award Recipient
of an amount equal to the lesser of (A) the cash amount, if any, actually paid by the Award Recipient to the Company for the Shares
being forfeited and (B) the Fair Market Value of such Shares on the date of forfeiture).
(e) If
the Performance Goals for any Performance Measurement Period shall have been affected by special factors (including material changes
in accounting policies or practices, material acquisitions or dispositions of property, or other unusual items) that in the Committee’s
judgment should or should not be taken into account, in whole or in part, in the equitable administration of this Plan, the Committee
may, for any purpose of this Plan, adjust such Performance Goals and make payments accordingly under this Plan; provided, however,
that any adjustments made in accordance with or for the purposes of this Section 8.3(e) shall be disregarded for purposes of calculating
the Performance Goals for a Performance-Based Restricted Stock Award to a Covered Employee if and to the extent that such adjustments
would have the effect of increasing the amount of a Restricted Stock Award to such Covered Employee.
8.4 Dividend
Rights. Unless the Committee determines otherwise with respect to any Restricted Stock Award and specifies such determination
in the relevant Award Notice, any dividends or distributions declared and paid with respect to Shares subject to the Restricted
Stock Award, whether or not in cash, shall be held and accumulated for distribution at the same time and subject to the same terms
and conditions as the underlying Shares.
8.5 Voting
Rights. Unless the Committee determines otherwise with respect to any Restricted Stock Award and specifies such determination
in the relevant Award Notice, the Award Recipient shall have the right to direct the voting of the Shares subject to the Restricted
Stock Award.
8.6 Tender
and Other Offers. Each Award Recipient shall have the right to respond, or to direct the response, with respect to the Shares
related to his or her Restricted Stock Award, to any tender offer, exchange offer, rights offer or other offer made to the holders
of Shares. To the extent applicable, such a direction for any such Shares shall be given by completing and filing, with the inspector
of elections, the trustee or such other person who shall be independent of the Company as the Committee shall designate in the
direction, a written direction in the form and manner prescribed by the Committee. If no such direction is given, then the Shares
shall not be tendered or the Award Recipient shall be deemed to not have participated in such exchange, rights or other offer,
as the case may be.
8.7 Designation
of Beneficiary. An Award Recipient may designate a Beneficiary to receive any unvested Shares that become available for distribution
on the date of his or her death. Such designation (and any change or revocation of such designation) shall be made in writing
in the form and manner prescribed by the Committee. In the event that the Beneficiary designated by an Award Recipient dies prior
to the Award Recipient, or in the event that no Beneficiary has been designated, any vested Shares that become available for distribution
on the Award Recipient’s death shall be paid to the executor or administrator of the Award Recipient’s estate, or
if no such executor or administrator is appointed within such time as the Committee, in its sole discretion, shall deem reasonable,
to the spouse or the descendants or blood relatives of such deceased person as the Committee may select.
8.8 Taxes.
The Company or the Committee shall have the right to require any person entitled to receive Shares pursuant to a Restricted Stock
Award to pay the amount of any tax which is required to be withheld with respect to such Shares, or, in lieu thereof, to retain,
or to sell without notice, or the person receiving the Shares pursuant to the Restricted Stock Award may otherwise satisfy the
tax withholding requirement by surrendering, a sufficient number of shares of the Company’s capital stock to cover the amount
required to be withheld.
9. PERFORMANCE-BASED
CASH AWARDS.
9.1 In
General. Performance-Based Cash Awards may be granted under this Plan as determined by the Committee from time to time, subject
to the following terms and conditions:
(a) Performance-Based
Cash Awards Authorized. The Committee shall establish the terms of each Performance-Based
Cash Award, including the cash amount payable pursuant thereto, the Performance-Based
Cash Award Formula, the Performance Goal(s) and Performance Period. Performance-Based
Cash Awards may be issued alone or in combination with Performance-Based Restricted Stock
Awards.
(b) Value
of Performance-Based Cash Awards. The final value payable to the Participant in settlement of a Performance-Based Cash Award determined
on the basis of the applicable Performance-Based Cash Award Formula will depend on the extent to which Performance Goals established
by the Committee are attained within the applicable Performance Period established by the Committee.
9.2 Establishment
of Performance Period, Performance Goals and Performance-Based Cash Award Formula. In granting each Performance-Based Cash Award,
the Committee shall establish in writing the applicable Performance Period, Performance-Based Cash Award Formula and one or more
Performance Goals which, when measured at the end of the Performance Period, shall determine on the basis of the Performance-Based
Cash Award Formula the maximum value of the Performance-Based Cash Award payable to the Participant. Unless otherwise permitted
in compliance with the requirements under Section 162(m) with respect to “performance-based compensation,” the Committee
shall establish the Performance Goal(s) and Performance-Based Cash Award Formula applicable to each Performance-Based Cash Award
no later than the earlier of (a) the date ninety (90) days after the commencement of the applicable Performance Period or (b)
the date on which 25% of the Performance Period has elapsed, and, in any event, at a time when the outcome of the Performance
Goals remains substantially uncertain. Once established, the Performance Goals and Performance-Based Cash Award Formula shall
not be changed during the Performance Period. The Performance Goals shall consist of one or more of the Performance Goals listed
in Section 8.3(a). For all purposes of this Plan, including this Section 9 and Section 8 above, (a) Performance Goals shall have
the same meanings as used in the Company’s financial statements, or, if such terms are not used in the Company’s financial
statements, they shall have the meaning applied pursuant to generally accepted accounting principles, or as used generally in
the industries in which the Company and its Subsidiaries operate, (b) Performance Goals may be calculated with respect to the
Company, its Parent, if any, and each Subsidiary consolidated therewith for financial reporting purposes or such division or other
business unit as may be selected by the Committee, and (c) Performance Goals may exclude the effect (whether positive or negative)
of any change in accounting standards or any extraordinary, unusual or nonrecurring item, as determined by the Committee, occurring
after the establishment of the Performance Goals; provided, however, no such adjustment shall made be if the exercise of such
authority by the Committee would constitute the exercise of “impermissible discretion,” within the meaning of Treas.
Reg. Section 1.162-27(e)(2)(iii), or would otherwise cause Performance-Based Restricted Stock Awards or Performance-Based Cash
Awards that are intended to qualify as “performance-based compensation” under Section 162(m) of the Code and regulations
thereunder to fail to sp qualify as “performance-based compensation” under Section 162(m) of the Code and regulations
thereunder. The Company shall notify each Participant granted a Performance-Based Cash Award of the terms of such Performance-Based
Cash Award, including the Performance Period, Performance Goal(s) and Performance-Based Cash Award Formula.
9.3 Settlement
of Performance-Based Cash Awards.
(a) Determination
of Final Value. As soon as practicable following the completion of the Performance Period
applicable to a Performance-Based Cash Award, the Committee shall certify in writing
the extent to which the applicable Performance Goals have been attained and the resulting
final value of the Performance-Based Cash Award earned by the Participant and to be paid
upon its settlement in accordance with the applicable Performance-Based Cash Award Formula.
(b) Discretionary
Adjustment. In its discretion, the Committee may, either at the time it grants a Performance Award or at any time thereafter,
provide for the positive or negative adjustment of the Performance-Based Cash Award Formula applicable to a Performance-Based
Cash Award granted to any Participant who is not a Covered Employee within the meaning of Section 162(m) to reflect such Participant’s
individual performance or such other factors as the Committee may determine. The Committee may, in its discretion, decrease, but
not increase, the value of a Performance-Based Cash Award that would otherwise be paid to a Covered Employee (including notwithstanding
the attainment of any Performance Goal); provided, however, that no such reduction may result in an increase in the amount payable
upon settlement of another Covered Employee’s Performance-Based Cash Award.
(c) Effect
of Leaves of Absence. Unless otherwise required by law, payment of the final value, if any, of a Performance-Based Cash Award
held by a Participant who has taken in excess of thirty (30) days in leaves of absence during a Performance Period shall be prorated
on the basis of the number of days of the Participant’s Service during the Performance Period during which the Participant
was not on a leave of absence.
(d) Notice
to Participants. As soon as practicable following the Committee’s determination and certification in accordance with this
Section 9.3, the Company shall notify each Participant of the determination of the Committee.
(e) Payment
in Settlement of Performance-Based Cash Awards. As soon as practicable following the Committee’s determination and certification
in accordance with this Section 9.3, payment shall be made to each eligible Participant (or such Participant’s legal representative
or other person who acquired the right to receive such payment by reason of the Participant’s death) of the final value
of the Participant’s Performance-Based Cash Award. Payment of such amount shall be made in cash, Shares, or a combination
thereof as determined by the Committee. Unless otherwise determined by the Committee, payment shall be made in a lump sum. In
no event shall payment of a Performance-Based Cash Award be made later than the 15th day of the third month following the taxable
year of the Participant in which the Participant has a legally binding right to the Performance-Based Cash Award.
(f) Provisions
Applicable to Payment in Shares. If payment is to be made in Shares, the number of such Shares shall be determined by dividing
the final value of the Performance-Based Cash Award by the Fair Market Value of the Share of the applicable class of Common Stock.
Shares issued in payment of any Performance Award may be fully vested and freely transferable Shares or may be Shares subject
to vesting conditions as provided in Section 8.2. Any shares subject to vesting conditions shall be evidenced by an appropriate
Award Agreement.
(g) Transfers
Prohibited. Prior to settlement in accordance with the provisions of the Plan, no Performance-Based Cash Award shall be subject
in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors
of the Participant or the Participant’s beneficiary, except transfer by will or by the laws of descent and distribution.
All rights with respect to a Performance-Based Cash Award granted to a Participant hereunder shall be exercisable during his or
her lifetime only by such Participant or the Participant’s guardian or legal representative.
10. ADJUSTMENTS
UPON CHANGES IN CAPITALIZATION OR MERGER. Subject to any required action by the shareholders of the Company, in the event any
recapitalization, forward or reverse split, reorganization, merger, consolidation, spin-off, combination, repurchase, or exchange
of Common Stock or other securities, stock dividend or other special and nonrecurring dividend or distribution (whether in the
form of cash, securities or other property), liquidation, dissolution, or other similar corporate transaction or event, affects
the Common Stock such that an adjustment is appropriate in the Committee’s discretion in order to prevent dilution or enlargement
of the rights of Optionees and Award Recipients under this Plan, then the Committee shall, in such manner as it may deem equitable,
adjust any or all of (i) the number and kind of shares of Common Stock or other securities deemed to be available thereafter for
grants of Options and Restricted Stock Awards under this Plan in the aggregate to all eligible individuals and individually to
any one eligible individual, (ii) the number and kind of shares of Common Stock or other securities that may be delivered or deliverable
in respect of outstanding Options or Restricted Stock Awards, and (iii) the exercise price of Options. In addition, the Committee
is authorized to make adjustments in the terms and conditions of, and the criteria included in, Options, Restricted Stock Awards
and Performance-Based Cash Awards (including, without limitation, cancellation of Options or Restricted Stock Awards in exchange
for the in-the-money value, if any, of the vested portion thereof, or substitution of Options or Restricted Stock Awards using
stock of a successor or other Person) in recognition of unusual or nonrecurring events (including, without limitation, events
described in the preceding sentence) affecting the Company or any Parent, Subsidiary or Affiliate of the Company, or the financial
statements of the Company or any Parent, Subsidiary or Affiliate of the Company, or in response to changes in applicable laws,
regulations, or accounting principles; provided, however, that any such adjustment to an Option, Performance-Based Restricted
Stock Award or Performance-Based Cash Award granted to a Covered Employee with respect to the Company or its Parent, Subsidiaries
or Affiliates shall conform to the requirements of Section 162(m) of the Code and the regulations thereunder then in effect. In
addition, each such adjustment with respect to an Incentive Stock Option shall comply with the rules of Section 424(a) of the
Code (or any successor provision), and in no event shall any adjustment be made which would cause any Incentive Stock Option granted
hereunder to fail to constitute an “incentive stock option” as defined in Section 422 of the Code. The Committee’s
determination shall be final, binding and conclusive. Except as expressly provided herein, no issuance by the Company of shares
of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason
thereof shall be made with respect to, the number or price of the Shares subject to an Option or Restricted Stock Award.
In
the event of the proposed dissolution or liquidation of the Company, or in the event of a proposed sale of all or substantially
all of the assets of the Company, or the merger of the Company with or into another Person, the Committee or the Board of Directors
may determine, in its discretion, that (i) if any such transaction is effected in a manner that causes holders of Class A Common
Stock or Class B Common Stock, as the case may be, to be entitled to receive stock or other securities in exchange for such shares,
then, as a condition of such transaction, lawful and adequate provision shall be made whereby the provisions of this Plan and
the Options granted hereunder shall thereafter be applicable, as nearly equivalent as may be practicable, in relation to any shares
of stock or securities thereafter deliverable upon the exercise of any Option or (ii) the Option will terminate immediately prior
to the consummation of such proposed transaction. The Committee or the Board of Directors may, in the exercise of its discretion
in such instances, declare that any Option shall terminate as of a date fixed by the Committee or the Board of Directors and give
each Optionee or Transferee, if applicable, the right to exercise his Option as to all or any part of the Optioned Stock, including
Shares as to which the Option would not otherwise be exercisable; provided, however, that the Committee may, at any time prior
to the consummation of such merger, consolidation or other business reorganization, direct that all, but not less than all, outstanding
Options be cancelled as of the effective date of such merger, consolidation or other business reorganization in exchange for a
cash payment per optioned Share equal to the excess (if any) of the value exchanged for an outstanding Share in such merger, consolidation
or other business reorganization over the exercise price of the Option being cancelled.
Unless
otherwise determined by the Committee or the Board of Directors, in the event of any merger, consolidation, or other business
reorganization in which the Company is not the surviving entity, any Restricted Stock Award with respect to which Shares had been
awarded to an Award Recipient shall be adjusted by allocating to the Award Recipient the amount of money, stock, securities or
other property to be received by the other shareholders of record, and such money, stock, securities or other property shall be
subject to the same terms and conditions of the Restricted Stock Award that applied to the Shares for which it has been exchanged.
Without
limiting the generality of the foregoing, the existence of outstanding Options or Restricted Stock Awards granted under this Plan
shall not affect in any manner the right or power of the Company to make, authorize or consummate (i) any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s capital structure or its business; (ii) any merger
or consolidation of the Company; (iii) any issuance by the Company of debt securities or preferred stock that would rank senior
to the Shares subject to outstanding Options or Restricted Stock Awards; (iv) the dissolution or liquidation of the Company; (v)
any sale, transfer or assignment of all or any part of the assets or business of the Company; or (vi) any other corporate act
or proceeding, whether of a similar character or otherwise.
11. COMPLIANCE
WITH CODE SECTION 162(m). It is the intent of the Company that Options granted to Covered Employees and Performance-Based Restricted
Stock Awards and Performance-Based Cash Awards to Covered Employees shall constitute qualified “performance-based compensation”
within the meaning of Section 162(m) of the Code and the regulations thereunder, unless otherwise determined by the Committee
at the time of grant of the Option, Restricted Stock Award or Performance-Based Cash Award. Accordingly, the applicable terms
hereof, including the definition of “Covered Employee” and the provisions of Section 8.3 and Section 9, shall be interpreted
in a manner consistent with Section 162(m) of the Code and the regulations thereunder. The foregoing notwithstanding, because
the Committee cannot determine with certainty whether a given person will be a Covered Employee with respect to a fiscal year
that has not yet been completed, the term Covered Employee as used herein shall mean only a person designated by the Committee
as likely to be a Covered Employee with respect to a specified fiscal year. If any provision of this Plan or any Option Agreement,
Award Notice relating to a Performance-Based Restricted Stock Award or notice relating to a Performance-Based Cash Award that
is designated as intended to comply with Section 162(m) of the Code does not comply or is inconsistent with the requirements of
Section 162(m) of the Code or the regulations thereunder, such provision shall be construed or deemed amended to the extent necessary
to conform to such requirements.
12. AMENDMENT
AND TERMINATION OF THIS PLAN. The Board of Directors or the Committee may at any time and from time to time terminate, modify,
suspend or amend this Plan, in whole or in part, provided, however, that no such termination, modification, suspension or amendment
shall be effective without shareholder approval if such approval is required to comply with any applicable law or stock exchange
rule. No termination, modification, suspension or amendment of this Plan shall, without the consent of an Optionee or Award Recipient,
adversely affect his or her rights under any Option, Restricted Stock Award or Performance-Based Cash Award previously granted
to the Optionee or Award Recipient, as the case may be. Notwithstanding any provision herein to the contrary, the Board of Directors
or the Committee shall have broad authority to amend this Plan to take into account changes in applicable tax laws, securities
laws, accounting rules and other applicable state and federal laws.
13. CONDITIONS
UPON ISSUANCE OF SHARES. Shares shall not be issued pursuant to the exercise of an Option or delivered with respect to any other
award granted hereunder unless the exercise of such Option and the issuance and delivery of such Shares pursuant thereto or the
grant of the award and the delivery of Shares with respect thereto shall comply with all relevant provisions of law, including,
without limitation, the Securities Act of 1933, as amended, the Exchange Act, the rules and regulations promulgated thereunder,
and the requirements of any stock exchange upon which the Shares may then be listed, and shall be further subject to the approval
of counsel for the Company with respect to such compliance.
As
a condition to the exercise of an Option, the grant of any other award or delivery of Shares with respect to an Option or any
other award, the Company may require the Person exercising such Option or acquiring such Shares or award to represent and warrant
at the time of any such exercise, grant or acquisition that the Shares are being purchased only for investment and without any
present intention to sell or distribute such Shares if, in the opinion of counsel for the Company, such a representation is required
by applicable law. The Company shall not be required to deliver any Shares under this Plan prior to (i) the admission of such
Shares to listing on any stock exchange on which Shares may then be listed, or (ii) the completion of such registration or other
qualification under any state or federal law, rule or regulation as the Committee shall determine to be necessary or advisable.
14. RESERVATION
OF SHARES. The Company, during the term of this Plan, will at all times reserve and keep available such number of shares of Class
A Common Stock and Class B Common Stock as shall be sufficient to satisfy the requirements of this Plan. Inability of the Company
to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel to
be necessary to the lawful issuance and sale of any Shares hereunder, shall relieve the Company of any liability in respect of
the failure to issue or sell such shares as to which such requisite authority shall not have been obtained.
15. STOCK
OPTION AGREEMENT; AWARD NOTICE. Options shall be evidenced by written Stock Option Agreements and Restricted Stock Awards shall
be evidenced by written Award Notices, each in such form as the Committee shall approve. The Company shall also provide notice,
in such form as the Committee may approve, to each Participant granted a Performance-Based Cash Award of the terms of such Performance-Based
Cash Award, including the Performance Period, Performance Goal(s) and Performance-Based Cash Award Formula.
The
date of grant of an Option, Restricted Stock Award or Performance-Based Cash Award shall, for all purposes, be the date on which
the Committee makes the determination to grant such Option, Restricted Stock Award or Performance-Based Cash Award, as the case
may be, or, in each case, such later date as the Committee may specify. Notice of the determination shall be given to each Optionee
or Award Recipient within a reasonable time after the date of grant.
16. SHAREHOLDER
APPROVAL. This Plan shall be subject to the approval by the shareholders of the Company holding shares of the Common Stock representing
a majority of the votes entitled to be cast on this Plan, as well as holders of a majority of the outstanding shares of the Class
B Common Stock.
17. OTHER
PROVISIONS. The Stock Option Agreements, Award Notices and notices relating to Performance-Based Restricted Stock Awards authorized
under this Plan may contain such other provisions, including, without limitation, restrictions upon the exercise of an Option
or vesting of a Restricted Stock Award, as the Board of Directors or the Committee shall deem advisable; provided such provisions
may not be inconsistent with the terms hereof. Any Stock Option Agreement with respect to an Incentive Stock Option shall contain
such limitations and restrictions upon the exercise of the Incentive Stock Option as shall be necessary in order to cause such
Option to constitute an “incentive stock option” as defined in Section 422 of the Code.
18. INDEMNIFICATION
OF COMMITTEE MEMBERS. In addition to such other rights of indemnification they may have as directors, the members of the Committee
shall be indemnified by the Company against the reasonable expenses, including attorneys’ fees actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or in connection with any appeal thereon, to which
they or any of them may be a party by reason of any action taken or any failure to act under or in connection with this Plan or
any Option or other award granted hereunder, and against all amounts paid by them in settlement thereof (provided such settlement
is approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a judgment in any such action,
suit or proceeding, except in relation to matters as to which it shall be adjudged in such action, suit or proceeding that such
Committee member is liable for gross negligence or misconduct in the performance of his or her duties; provided that within sixty
(60) days after institution of any such action, suit or proceeding a Committee member shall in writing offer the Company the opportunity,
at the Company’s own expense, to handle and defend the same.
19. NO
OBLIGATION TO EXERCISE OPTION. The granting of an Option shall impose no obligation upon the Optionee to exercise such Option.
20. WITHHOLDINGS;
TAX MATTERS.
20.1 The
Company shall have the right to deduct from all amounts paid by the Company in cash with respect to an Option under this Plan
any taxes required by law to be withheld with respect to such Option. Where any Person is entitled to receive Shares pursuant
to the exercise of an Option, the Company shall have the right to require such Person to pay to the Company the amount of any
tax which the Company is required to withhold with respect to such Shares, or, in lieu thereof, to retain, or to sell without
notice, a sufficient number of Shares to cover the minimum amount required to be withheld. To the extent determined by the Committee
and specified in the Stock Option Agreement, an Optionee shall have the right to direct the Company to satisfy the minimum required
federal, state and local tax withholding by reducing the number of Shares subject to the Option (without issuance of such Shares
to the Optionee) by a number equal to the quotient of (a) the total minimum amount of required tax withholding divided by (b)
the excess of the Fair Market Value of a Share on the Option exercise date over the Option exercise price per Share.
20.2 If
and to the extent permitted by the Committee and specified in an Award Notice for a Restricted Stock Award other than a Performance-Based
Restricted Stock Award, an Award Recipient may be permitted or required to make an election under Section 83(b) of the Code to
include the compensation related thereto in income for federal income tax purposes at the time of issuance of the Shares to such
Award Recipient instead of at a subsequent vesting date. In such event, the Shares issued prior to their vesting date shall be
issued in certificated form only, and the certificates therefor shall bear the following legend:
The
[Class A Common Stock / Class B Common Stock] evidenced hereby is subject to the terms of a Restricted Stock Award agreement between
BBX Capital, Inc. and [Name of Recipient] dated [Date] made pursuant to the terms of the BBX Capital, Inc. 2021 Incentive Plan,
copies of which are on file at the executive offices of BBX Capital, Inc., and may not be sold, encumbered, hypothecated or otherwise
transferred except in accordance with the terms of such Plan and Agreement.
or
such other restrictive legend as the Committee, in its discretion, may specify.
In
the event of the Award Recipient’s termination of Service prior to the relevant vesting date or forfeiture of the Shares
for any other reason, the Award Recipient shall be required to return all forfeited Shares to the Company without consideration
therefor (other than a refund to the Award Recipient of an amount equal to the lesser of (A) the cash amount, if any, actually
paid by the Award Recipient to the Company for the Shares being forfeited and (B) the Fair Market Value of such Shares on the
date of forfeiture).
21. OTHER
COMPENSATION PLANS. The adoption of this Plan shall not affect any other stock option or incentive or other compensation plans
in effect for the Company or any Parent, Subsidiary or Affiliate of the Company, nor shall this Plan preclude the Company from
establishing any other forms of incentive or other compensation for employees and directors of the Company or any Parent, Subsidiary
or Affiliate of the Company, or for any other individual who performs services for the Company or any Parent, Subsidiary or Affiliate
of the Company.
22. SINGULAR,
PLURAL; GENDER. Whenever used herein, nouns in the singular shall include the plural, and the masculine pronoun shall include
the feminine gender.
23. HEADINGS,
ETC. NO PART OF PLAN. Headings of Articles and Sections hereof are inserted for convenience and reference only; they constitute
no part of this Plan.
24. SEVERABILITY.
If any provision of this Plan is held to be invalid or unenforceable by a court of competent jurisdiction, then such invalidity
or unenforceability shall not affect the validity or enforceability of the other provisions of this Plan, and the provision held
to be invalid or unenforceable shall be enforced as nearly as possible according to its original terms and intent to eliminate
such invalidity or unenforceability.
BBX
CAPITAL, INC.
Form
of Proxy
Class
A Common Stock
ANNUAL
MEETING OF SHAREHOLDERS OF
BBX
CAPITAL, INC.
May
17, 2021
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The
undersigned hereby appoints Brett Sheppard and David Friedman, and each of them acting alone, with the power to appoint his substitute,
proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class A Common Stock of BBX Capital,
Inc. held of record by the undersigned as of the close of business on April 9, 2021 at the Annual Meeting of Shareholders to be
held on May 17, 2021 and at any adjournment or postponement thereof.
(Continued
and to be signed on the reverse side)
PLEASE
MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [X]
THE
BOARD OF DIRECTORS RECOMMENDS YOU VOTE “FOR ALL” OF THE DIRECTOR NOMINEES NAMED IN PROPOSAL 1 AND “FOR”
PROPOSAL 2.
1.
Election of eleven directors, each for a term expiring at the Company’s 2022 Annual
Meeting of Shareholders.
NOMINEES:
Alan
B. Levan
John
E. Abdo
Jarett
S. Levan
Seth
M. Wise
Norman
H. Becker
Andrew
R. Cagnetta, Jr.
Steven
M. Coldren
Gregory
A. Haile
Willis
N. Holcombe
Anthony
P. Segreto
Neil
Sterling
☐ FOR ALL NOMINEES
☐ WITHHOLD
AUTHORITY
FOR
ALL NOMINEES
☐ FOR
ALL EXCEPT
(See
instructions below)
INSTRUCTION:
To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and write the nominee’s name(s)
below.
____________________________
____________________________
|
2.
Approval of the BBX Capital, Inc. 2021 Incentive Plan.
☐ FOR
☐ AGAINST
☐ ABSTAIN
3.
In his discretion, the proxy is authorized to vote upon such other matters as may properly come before the meeting.
THIS
PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION
IS MADE, THIS PROXY WILL BE VOTED “FOR ALL” OF THE DIRECTOR NOMINEES NAMED IN PROPOSAL 1 AND “FOR”
PROPOSAL 2.
PLEASE
MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE.
To
change the address on your account, please check the box at right and indicate your new address in the address space above.
Please note that changes to the registered name(s) on the account may not be submitted via this method. ☐
|
Signature
of Shareholder:___________________________ Date:_______ Signature of Shareholder:_____________________________ Date: ______
|
NOTE:
|
Please
sign exactly as your name or names appear(s) on this proxy. When shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please
sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership
name by authorized person.
|
BBX
CAPITAL, INC.
Form
of Proxy
Class
B Common Stock
ANNUAL
MEETING OF SHAREHOLDERS OF
BBX
CAPITAL, INC.
May
17, 2021
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The
undersigned hereby appoints Brett Sheppard and David Friedman, and each of them acting alone, with the power to appoint his substitute,
proxy to represent the undersigned and vote as designated on the reverse all of the shares of Class B Common Stock of BBX Capital,
Inc. held of record by the undersigned as of the close of business on April 9, 2021 at the Annual Meeting of Shareholders to be
held on May 17, 2021 and at any adjournment or postponement thereof.
(Continued
and to be signed on the reverse side)
PLEASE
MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE [X]
THE
BOARD OF DIRECTORS RECOMMENDS YOU VOTE “FOR ALL” OF THE DIRECTOR NOMINEES NAMED IN PROPOSAL 1 AND “FOR”
PROPOSAL 2.
1.
Election of eleven directors, each for a term expiring at the Company’s 2022 Annual
Meeting of Shareholders.
NOMINEES:
Alan
B. Levan
John
E. Abdo
Jarett
S. Levan
Seth
M. Wise
Norman
H. Becker
Andrew
R. Cagnetta, Jr.
Steven
M. Coldren
Gregory
A. Haile
Willis
N. Holcombe
Anthony
P. Segreto
Neil
Sterling
☐ FOR ALL NOMINEES
☐ WITHHOLD AUTHORITY
FOR
ALL NOMINEES
☐ FOR
ALL EXCEPT
(See
instructions below)
INSTRUCTION:
To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and write the nominee’s name(s)
below.
____________________________
____________________________
|
2.
Approval of the BBX Capital, Inc. 2021 Incentive Plan.
☐ FOR
☐ AGAINST
☐ ABSTAIN
3.
In his discretion, the proxy is authorized to vote upon such other matters as may properly come before the meeting.
THIS
PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION
IS MADE, THIS PROXY WILL BE VOTED “FOR ALL” OF THE DIRECTOR NOMINEES NAMED IN PROPOSAL 1 AND “FOR”
PROPOSAL 2.
PLEASE
MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY IN THE ENCLOSED ENVELOPE.
To
change the address on your account, please check the box at right and indicate your new address in the address space above.
Please note that changes to the registered name(s) on the account may not be submitted via this method. ☐
|
Signature
of Shareholder:___________________________ Date:_______ Signature of Shareholder:_____________________________ Date: ______
|
NOTE:
|
Please
sign exactly as your name or names appear(s) on this proxy. When shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please
sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership
name by authorized person.
|
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