-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Wg3/JQcKBi17iQYWQde88IKtdHhtEq3lB9tSlQe/xrZVh8TCwg6bwaXuJ8XSDMmc lkvbm5gfvaxE+1c3wjxpPQ== 0000930661-02-001168.txt : 20020416 0000930661-02-001168.hdr.sgml : 20020416 ACCESSION NUMBER: 0000930661-02-001168 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020412 GROUP MEMBERS: MORGAN STANLEY REAL ESTATE FUND III, L.P. GROUP MEMBERS: MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. GROUP MEMBERS: MSP REAL ESTATE FUND, L.P. GROUP MEMBERS: MSREF III SPECIAL FUND, L.P. GROUP MEMBERS: MSREF III, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BLUEGREEN CORP CENTRAL INDEX KEY: 0000778946 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE AGENTS & MANAGERS (FOR OTHERS) [6531] IRS NUMBER: 030300793 STATE OF INCORPORATION: MA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-38205 FILM NUMBER: 02609380 BUSINESS ADDRESS: STREET 1: 4960 BLUE LAKE DRIVE CITY: BOCA RATON STATE: FL ZIP: 33431 BUSINESS PHONE: 5619128000 MAIL ADDRESS: STREET 1: 4960 BLUE LAKE DRIVE CITY: BOCA RATON STATE: FL ZIP: 33431 FORMER COMPANY: FORMER CONFORMED NAME: PATTEN CORP DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: MORGAN STANLEY DEAN WITTER & CO CENTRAL INDEX KEY: 0000895421 STANDARD INDUSTRIAL CLASSIFICATION: FINANCE SERVICES [6199] IRS NUMBER: 363145972 STATE OF INCORPORATION: DE FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1585 BROADWAY CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 2127614000 MAIL ADDRESS: STREET 1: 1221 SIXTH AVENUE STREET 2: 27TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10020 FORMER COMPANY: FORMER CONFORMED NAME: DEAN WITTER DISCOVER & CO DATE OF NAME CHANGE: 19960315 SC 13D/A 1 dsc13da.txt AM #3 TO SCH 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------------- SCHEDULE 13D Rule 13d-101 INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULES 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) (Amendment No. 3)/1/ Bluegreen Corporation - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 703365 10 6 - -------------------------------------------------------------------------------- (CUSIP Number) Christopher L. O'Dell Morgan Stanley 1221 Avenue of the Americas New York, New York 10020 (212) 761-4000 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 10, 2002 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [_]. Note: Schedules filed in paper format shall include a signed original and five copes of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. - ---------- /1/ The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NO. 703365 10 6 SCHEDULE 13D Page 2 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Morgan Stanley Dean Witter & Co. 36-3145972 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 N/A - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware. - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 363,937 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 363,937 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 363,937 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 1.3% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO, HC - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! CUSIP NO. 703365 10 6 SCHEDULE 13D Page 3 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MSREF III, Inc. 13-3974129 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS (See Instructions) 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 N/A - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware. - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 363,937 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 363,937 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 363,937 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 1.3% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 CO, HC - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! CUSIP NO. 703365 10 6 SCHEDULE 13D Page 4 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Morgan Stanley Real Estate Fund III, L.P. 13-3991561 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware. - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 129,016.39 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 129,016.39 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 129,016.39 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Less than 0.48% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 PN - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! CUSIP NO. 703365 10 6 SCHEDULE 13D Page 5 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Morgan Stanley Real Estate Investors III, L.P. 13-3993701 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 5,980.58 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 5,980.58 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 5,980.58 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Less than 0.1% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 PN - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! CUSIP NO. 703365 10 6 SCHEDULE 13D Page 6 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON MSP Real Estate Fund, L.P. 13-3993696 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware. - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 103,302.06 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 103,302.06 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 103,302.06 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Less than 0.38% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 PN - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! CUSIP NO. 703365 10 6 SCHEDULE 13D Page 7 of 15 ----------------- - ------------------------------------------------------------------------------ NAMES OF REPORTING PERSONS 1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON* MSREF III Special Fund, L.P. 13-4011444 - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS* 4 N/A - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION 6 The state of organization is Delaware. - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 0 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY 125,637.97 (See Item 5) ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 0 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 125,637.97 (See Item 5) - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 125,637.97 (See Item 5) - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] 12 - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 Less than 0.46% (See Item 5) - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON* 14 PN - ------------------------------------------------------------------------------ - ---------- * See Instructions Before Filling Out! Item 1. Security and Issuer. This Amendment No. 3 to Schedule 13D amends and supplements the Schedule 13D Statement dated August 14, 1998 (the "Schedule 13D") which was filed with the Securities and Exchange Commission ("SEC") on behalf of Morgan Stanley Dean Witter & Co. ("MSDW"), MSREF III, Inc., Morgan Stanley Real Estate Investors III, L.P. ("MSREI"), Morgan Stanley Real Estate Fund III, L.P. ("MSREF"), MSP Real Estate Fund, L.P. ("MSP"), and MSREF III Special Fund, L.P., a Delaware limited partnership ("Special Fund" and, together with MSREI, MSREF and MSP, the "Funds"), as amended. Each capitalized term not defined in this Amendment has the meaning assigned to that term in the original Schedule 13D. The class of equity securities to which this statement relates is the common stock, $.01 par value per share ("Common Stock"), of Bluegreen Corporation (the "Issuer"), a Massachusetts corporation. The principal executive offices of the Issuer are located at 4960 Conference Way North, Suite 100, Boca Raton, Florida. Item 5. Interest in Securities of the Issuer. Item 5 is hereby amended by being deleted in its entirety and replaced with the following: The response to Item 6 is incorporated herein by this reference. Pursuant to a Stock Purchase Agreement dated as of April 10, 2002 (the "Stock Purchase Agreement"), the Funds sold 5,548,416 shares of Common Stock and agreed to sell, on or before June 14, 2002, 333,937 shares of Common Stock, all of which shares were previously reported on the Schedule 13D as held by the Funds, to Levitt Companies, LLC. A copy of the Stock Purchase Agreement is attached as Exhibit 4 hereto. As a result of such transaction, each of the reporting persons ceased to be the beneficial owner of more than 5% of the Common Stock, effective as of the date of the Stock Purchase Agreement. The only shares of Common Stock beneficially owned by any of the reporting persons are the 333,937 shares to be sold on or before June 14, 2002 and shares issuable upon the exercise of the Director Options (as hereinafter defined). 105,000 shares of Common Stock are issuable upon exercise of the Director Options, 30,000 of which were exercisable immediately prior to consummation of the sale. The remainder of the options may have vested upon consummation of the transaction depending upon the total number shares of Common Stock held by the purchaser. The foregoing does not purport to be a complete description of the Stock Purchase Agreement and is qualified in its entirety by reference to Exhibit 4 hereof, which is incorporated herein by reference hereof. Pursuant to the Director Agreements (as hereinafter defined), the Issuer granted certain Stock Options (Right to Buy) (the "Director Options") to each of John P. Buza, Michael J. Franco and Joseph M. Zuber. Pursuant to the terms of the Director Agreements, the Director Options are held by each of Mr. Buza, Mr. Franco and Mr. Zuber for the full benefit of the Funds. Each of Mr. Buza, Mr. Franco and Mr. Zuber have resigned as directors of the Issuer as of April 10, 2002. For purposes of Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 13d-3") the Funds may be deemed to beneficially own, in the aggregate 363,937 shares of Common Stock, or 1.3% of the total number of shares of Common Stock outstanding pursuant to Rule 13d-3 (the "Outstanding Shares"). Each of the Funds is deemed to beneficially own the following amount of Common Stock or percentage of the Outstanding Shares: MSREI: 5,980.58 shares or less than 0.1%; MSP: 103,302.06 shares or 0.38%; Special Fund: 125,637.97 shares or 0.46%, MSREF: 129,016.39 shares or 0.48%. The percentages set forth in the preceding paragraphs are based on 27,058,950 shares of Common Stock outstanding as set forth in the Company's Quarterly Report on Form 10-Q for the period ended December 30, 2001. The information set forth in items 7 through 10 of the cover pages to this Schedule 13D is incorporated herein by reference. Except as disclosed herein, none of the Funds, MSDW or MSREF III, Inc. has effected any transaction in shares of Common Stock during the preceding 60 days. No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such securities. MSDW is filing solely in its capacity as parent company of, and indirect beneficial owner of securities held by, one of its business units. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Item 6 is hereby amended by being deleted in its entirety and replaced with the following: The Funds entered into (i) an Agreement Regarding Director Compensation, dated as of October 20, 1999, with Michael J. Franco (the "Franco Director Agreement"), MSREF's nominee to the Company's board of directors, (ii) an Agreement Regarding Director Compensation, dated as of October 20, 1999, with Joseph M. Zuber (the "Zuber Director Agreement"), MSP's nominee to the Company's board of directors, and (iii) an Agreement Regarding Director Compensation, dated March 21, 2001, with John P. Buza (the "Buza Director Agreement" and, together with the Franco Director Agreement and the Zuber Director Agreement, the "Director Agreements"), the nominee of MSREF and MSP, as Designating Funds (as defined in the Buza Director Agreement), to the Company's board of directors. Pursuant to the Director Agreements, each of Mr. Buza, Mr. Franco and Mr. Zuber agreed that he will hold any compensation and benefits he receives from the Company in his capacity as a member of the board of directors of the Company for the benefit of the Funds, and that the economic interest with respect to such compensation will, to the full extent permitted by law, belong to the Funds. The Funds' interest in any such compensation will be allocated among the Funds as follows: MSREI: 1.6433%; MSREF: 35.4502%; MSP: 28.3846%; and Special Fund: 34.5219%. Mr. Buza, Mr. Franco and Mr. Zuber each agreed (a) not to transfer any such compensation to any person other than the Funds without the Funds' prior written consent and (b) to vote or cause to be voted all shares of Common Stock he receives as such compensation (or that constitute proceeds of any such compensation), as directed by the Funds. A copy of the Buza Director Agreement, a copy of the Franco Director Agreement and a copy of the Zuber Director Agreement are attached as Exhibit 1, Exhibit 2 and Exhibit 3 hereto, respectively, and incorporated herein by this reference. On October 21, 1999, the Company granted an option to purchase 15,000 shares of Common Stock to each of Mr. Franco and Mr. Zuber (the "1999 Options") at an exercise price of $5.9375 per share of Common Stock. The 1999 Options vest in three annual installments beginning on October 21, 2000. Pursuant to the Director Agreements, the Funds are deemed to beneficially own the 1999 Options. On August 3, 2000 the Company granted an option to purchase 15,000 shares of Common Stock to each of Mr. Franco and Mr. Zuber (the "2000 Options") at an exercise price of $2.875 per share of Common Stock. The 2000 Options vest in three annual installments beginning August 5, 2001. Pursuant to the Director Agreements, the Funds are deemed to beneficially own the 2000 Options. On August 2, 2001 the Company granted an option to purchase 15,000 shares of Common Stock to each of Mr. Buza, Mr. Franco and Mr. Zuber (the "2001 Options") at an exercise price of $2.11 per share of Common Stock. The 2001 Options vest in three annual installments beginning August 2, 2002. Pursuant to the Director Agreements, the Funds are deemed to beneficially own the 2001 Options. Item 7. Material to be Filed as Exhibits. The following are filed herewith as Exhibits to this Amendment No. 3 to Schedule 13D. Exhibit No. Description ----------- ----------- 1 Agreement Regarding Director Compensation (Buza) 2* Agreement Regarding Director Compensation (Franco) 3* Agreement Regarding Director Compensation (Zuber) 4 Stock Purchase Agreement dated as of April 10, 2002, among the Funds and Levitt Companies, LLC *Previously filed. SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: April 11, 2002 MORGAN STANLEY DEAN WITTER & CO. By: /s/ Peter R. Vogelsgang -------------------------------------- Peter R. Vogelsgang Authorized signatory MSREF III, INC. By: /s/ Christopher L. O'Dell --------------------------------------- Christopher L. O'Dell Vice President and Secretary MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. By: MSREF III, L.L.C., its General Partner By: MSREF III, Inc., its MS Member By: /s/ Christopher L. O'Dell ----------------------------------- Christopher L. O'Dell Vice President and Secretary MORGAN STANLEY REAL ESTATE FUND III, L.P. By: MSREF III, L.L.C., its General Partner By: MSREF III, Inc., its MS Member By: /s/ Christopher L. O'Dell ----------------------------------- Christopher L. O'Dell Vice President and Secretary MSP REAL ESTATE FUND, L.P. By: MSREF III, L.L.C., its General Partner By: MSREF III, Inc., its MS Member By: /s/ Christopher L. O'Dell ----------------------------------- Christopher L. O'Dell Vice President and Secretary MSREF III SPECIAL FUND, L.P. By: MSREF III, L.L.C., its General Partner By: MSREF III, Inc., its MS Member By: /s/ Christopher L. O'Dell ---------------------------------- Christopher L. O'Dell Vice President and Secretary EXHIBIT INDEX Exhibit No. Description ----------- ------------ 1 Agreement Regarding Director Compensation (Buza) 2* Agreement Regarding Director Compensation (Franco) 3* Agreement Regarding Director Compensation (Zuber) 4 Stock Purchase Agreement dated as of April 10, 2002, among the Funds and Levitt Companies, LLC *Previously filed. AMENDMENTS TO APPENDIX A The portion of Appendix A listing and describing the executive officers and directors of MSDW is hereby deleted in its entirety and replaced with the following: The names of the Directors and the names and titles of the Executive Officers of MSDW and their business addresses and principal occupations are set forth below. If no address is given, the Director's or Executive Officer's business address is that of MSDW at 1585 Broadway, New York, New York 10036. Unless otherwise indicated, each occupation set forth opposite an individual's name refers to MSDW and each individual is a United States citizen.
Name Present Principal Occupation - --------------------------------------- ------------------------------------------------------------ * Philip J. Purcell Chairman of the Board and Chief Executive Officer * Robert G. Scott President and Chief Operating Officer * Robert P. Bauman Retired; former Chief Executive Officer of Smith Kline Invensys plc Beecham plc Invensys House, Carlisle Place London SW1P 1BX, ENGLAND * Edward A. Brennan Retired; former Chairman of the Board, President and Chief 400 North Michigan Avenue, Suite 400 Executive Officer of Sears, Roebuck and Co. Chicago, IL 60611 * John E. Jacob Executive Vice President and Chief Communications Officer Anheuser-Busch Companies, Inc. of Anheuser-Busch Companies, Inc. One Busch Place St. Louis, MO 63118 * C. Robert Kidder Chairman of the Board and Chief Executive Officer of Borden, Inc. Borden, Inc. 180 East Broad St. Columbus, OH 43215 * Charles F. Knight Chairman of Emerson Electric Co. Emerson Electric Co. 8000 West Florissant St. Louis, MO 63136 * John W. Madigan Chairman and Chief Executive Officer of Tribune Company Tribune Company 435 North Michigan Avenue, Suite 2300 Chicago, IL 60611 * Miles L. Marsh Former Chairman of the Board and Chief Executive Officer W.H. Clark & Associates of Fort James Corporation 20 S. Clark St, Suite 2222 Chicago, IL 60603 * Michael A. Miles Special Limited Partner of Forstmann Little and Co. 1350 Lake Road Lake Forest, IL 60045
Name Present Principal Occupation - --------------------------------------- ------------------------------------------------------------ * Laura D'Andrea Tyson Dean of the London Business School London Business School Sussex Place, Regents Park London NW1 4SA, England Stephen S. Crawford Executive Vice President and Chief Financial Officer Alexander C. Frank Treasurer Roger C. Hochschild Executive Vice President and Chief Strategic and Administrative Officer Donald G. Kempf, Jr. Executive Vice President, Chief Legal Officer & Secretary Tarek F. Abdel-Meguid Head of Worldwide Investment Banking Zoe Cruz Head of Worldwide Fixed Income Division John P. Havens Head of Worldwide Institutional Equities Group Mitchell M. Merin President and COO, Asset Management David W. Nelms President and COO, Discover Financial Services Stephan F. Newhouse Co-President and COO, Institutional Securities Group Vikram S. Pandit Co-President and COO, Institutional Securities Group Joseph R. Perella Chairman of Institutional Securities Group John H. Schaefer President and COO, Individual Investor Group
* Director EX-1 3 dex1.txt AGREEMENT REGARDING DIRECTOR COMPENSATION Exhibit 1 --------- AGREEMENT REGARDING DIRECTOR COMPENSATION This Agreement Regarding Director Compensation (this "Agreement"), dated as of March 21, 2001, is entered into by and among John P. Buza ("Director") and Morgan Stanley Real Estate Investors III, L.P., Morgan Stanley Real Estate Fund III, L.P. ("MSREF"), MSP Real Estate Fund, L.P. ("MSP"), and MSREF III Special Fund, L.P. (collectively, the "Funds"). RECITALS: A. Pursuant to the Stock Purchase Agreement (the "Purchase Agreement"), dated as of August 14, 1998, among Bluegreen Corporation ("Bluegreen") and the Funds, each of MSREF and MSP (the "Designating Funds") has the right, subject to certain conditions contained in the Purchase Agreement, to designate one director on the management slate of nominees to Bluegreen's board of directors. In addition to the foregoing, Bluegreen permitted the Designating Funds to designate an additional nominee for election to the Bluegreen Board of Directors. B. The Designating Funds have been granted the right to designate directors to Bluegreen's Board of Directors, among other reasons, in order to assure that its investment in Bluegreen will constitute a qualifying venture capital investment within the meaning of certain regulations issued by the U. S. Department of Labor at 29 C.F.R.ss. 2510.3-101. Such right was not intended to modify the economics to the Funds of their co-investment in Bluegreen. C. Director is an employee of an affiliate of the Designating Funds. D. The Designating Funds have designated Director as the additional nominee for election to Bluegreen's board of directors, and Director is currently serving as a member of the board of directors of Bluegreen. E. In Director's capacity as a member of the board of directors of Bluegreen, Director may receive certain compensation and benefits from Bluegreen. F. Director and the Funds desire to set forth their agreement that any such compensation and benefits belong to the Funds. NOW, THEREFORE, in consideration of the premises and agreements contained herein and intending to be legally bound hereby, the parties hereto agree as follows: 1. Ownership of Compensation. Director will hold any compensation and ------------------------- benefits he receives from Bluegreen in his capacity as a member of the board of directors of Bluegreen ("Compensation") for the benefit of the Funds, and the economic interest with respect to such compensation will, to the full extent permitted by law, belong to the Funds. The Funds' interest in any Compensation will be allocated among the Funds as follows: Morgan Stanley Real Estate Investors III, L.P.: 1.6433%; Morgan Stanley Real Estate Fund III, L.P.: 35.4502%; MSP Real Estate Fund, L.P.: 28.3846%; and MSREF III Special Fund, L.P.: 34.5219%. 2. Delivery of Compensation. Director will deliver to the Funds any ------------------------ Compensation he receives in the form of cash promptly after he receives any such Compensation, as directed by the Funds. Director will hold any Compensation he receives in the form of stock options, restricted stock awards, performance shares, and other similar awards and benefits (collectively, "Awards") for the benefit of the Funds and will use his best efforts, to the full extent permitted by law, to provide the Company with the economic benefits and burdens of any Award. 3. Director's Obligations. ---------------------- a. Director will not sell, assign, convey, pledge or otherwise transfer any Compensation to any person other than the Funds without the Funds' prior written consent. At the request of the Funds and for the account of the Funds, Director will enforce any of his rights under any Award or under any agreement evidencing Compensation or Director's right thereto. Without the Funds' prior written consent, Director will not terminate, modify, amend, renew or waive any right under any Award or any agreement evidencing Compensation or Director's right thereto. b. Without limiting the foregoing, Director will promptly take any lawful action, including without limitation, the exercise or conversion of any Award and the sale of the securities or other property underlying such Award as the Funds may from time to time request with respect to any Compensation. Director will deliver the proceeds of any such exercise, conversion, sale or other action as directed by the Funds. c. Director will vote or cause to be voted all shares of common stock of Bluegreen he receives as Compensation (or that constitute proceeds of any Compensation) and holds for the benefit of the Funds pursuant to this Agreement as directed by the Funds. d. To the extent permitted by applicable law, Director will deduct as an ordinary and necessary business expense (or as is otherwise appropriate) on his federal, state and local income tax returns an amount equal to the Compensation delivered to the Funds pursuant to this Agreement. 4. Funds' Obligations. The Funds will (a) advance to Director any funds ------------------ required for, or reasonably incurred by Director in connection with the exercise or conversion of any Award or the taking of any other action requested by the Funds pursuant to this Agreement, (b) reimburse Director for any costs Director incurs in connection with taking any action requested by the Funds pursuant to this Agreement that are not advanced to Director pursuant to clause (a) above, and (c) reimburse Director for any federal, state and local income taxes Director incurs (after taking into account any deduction contemplated by Section 3(c)) with respect to the Compensation, including any federal, state and local income taxes Director incurs as a result of such tax reimbursement such that Director will not incur any federal, state or local income tax as a result of receiving or holding any Compensation that Director delivers to the Funds in accordance with this Agreement. 2 5. No Recourse Against Funds' Partners. Director agrees that no general ----------------------------------- partner or limited partner will have any personal liability with respect to this Agreement and Director will look solely to the assets of the Funds with respect to any rights he may have against any of the Funds pursuant to this Agreement. Director hereby waives any rights he may have or hereafter obtain to assert any claims based on this Agreement against any general partner or limited partner of any of the Funds. 6. Miscellaneous. ------------- a. Notices. Any notice, request or other communication required or ------- permitted hereunder will be in writing and will be deemed to have been duly given (a) when received if personally delivered or if dispatched by telecopy (confirmed in writing by mail simultaneously dispatched), (b) within five days after being sent by registered or certified mail, return receipt requested, postage prepaid, or (c) within one business day of being sent by priority delivery by established overnight courier, to the parties at their respective addresses set forth below: (i) If to the Funds: c/o Morgan Stanley Real Estate Fund 1585 Broadway, 37th Floor New York, New York 10036 Facsimile No.: (212) 761-0508 Attention: Chief Financial Officer (ii) If to Director: John P. Buza c/o Morgan Stanley Real Estate Fund 1585 Broadway, 37th Floor New York, New York 10036 Facsimile No.: (212) 761-0508 or to such other address or addresses as any such party may from time to time designate as to itself by like notice. b. Entire Agreement. This Agreement supersedes any and all other ---------------- agreements, either oral or written, between the parties hereto with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to such subject matter. 3 c. Successors and Assigns. This Agreement will be binding upon and ---------------------- inure to the benefit of the parties hereto and their respective successors, assigns, heirs, devisees and legatees. d. Governing Law. The validity, interpretation, construction and ------------- performance of this Agreement will be governed by and construed in accordance with the substantive laws of the State of New York, without giving effect to the principles of conflict of laws of such State. e. Severability and Reformation. If any provision of this Agreement is ---------------------------- held to be illegal, invalid or unenforceable under any present or future law, and if the rights or obligations of the parties under this Agreement would not be materially and adversely affected thereby, such provision shall be fully separable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part thereof, the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance therefrom, and, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible, and the parties hereto request the court or any arbitrator to whom disputes relating to this Agreement are submitted to reform the otherwise illegal, invalid or unenforceable provision in accordance with this Section 6(e). f. Modification and Waiver. No provision of this Agreement may be ----------------------- modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the parties hereto. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. g. Captions. The captions used in this Agreement are designed for -------- convenient reference only and are not to be used for the purpose of interpreting any provision of this Agreement. h. Counterparts. This Agreement may be executed in one or more ------------ counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement. 4 IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto or by their respective duly authorized officers, all as of the date first written above. MORGAN STANLEY REAL ESTATE FUND III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: ------------------------------------------- Its: ------------------------------------------ MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: ------------------------------------------- Its: ------------------------------------------ MSP REAL ESTATE FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: ------------------------------------------- Its: ------------------------------------------ MSREF III SPECIAL FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: ------------------------------------------- Its: ------------------------------------------ DIRECTOR: ----------------------------------------------- John P. Buza 5 EX-4 4 dex4.txt STOCK PURCHASE AGREEMENT Exhibit 4 --------- ================================================================================ STOCK PURCHASE AGREEMENT AMONG MORGAN STANLEY REAL ESTATE FUND III, L.P. a Delaware limited partnership, MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. a Delaware limited partnership MSP REAL ESTATE FUND, L.P. a Delaware limited partnership MSREF III SPECIAL FUND, L.P. a Delaware limited partnership AND LEVITT COMPANIES, LLC a Florida limited liability company DATED: April 10, 2002 ================================================================================ STOCK PURCHASE AGREEMENT This STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered into as of April 10, 2002, by and among MORGAN STANLEY REAL ESTATE FUND III, L.P., a Delaware limited partnership ("MSREF"), MORGAN STANLEY REAL ESTATE INVESTORS III, L. P., a Delaware limited partnership ("MSREI"), MSP REAL ESTATE FUND, L. P., a Delaware limited partnership ("MSP"), and MSREF III SPECIAL FUND, L. P., a Delaware limited partnership ("Special Fund") (collectively, "Sellers") and LEVITT COMPANIES, LLC, a Florida limited liability company ("Purchaser"). RECITALS: A. Sellers are the beneficial and record owners of 5,882,353 of the issued and outstanding shares (the "Company Shares") of common stock of Bluegreen Corporation, a Massachusetts corporation (the "Company"). B. Purchaser desires to acquire a significant stake in the Company without the Company issuing additional shares and approached Sellers, solely in their capacity as shareholders of the Company, to acquire their Company Shares. C. Sellers desire to sell to Purchaser, and Purchaser desires to purchase from Sellers, the Company Shares on the terms and subject to the conditions contained in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree as follows: I. PURCHASE OF STOCK 1.01 Purchase and Sale of Shares; Registration Rights Agreement. Upon the ---------------------------------------------------------- terms and subject to the conditions contained in this Agreement: (a) Sellers agree to sell and transfer to Purchaser free and clear of all liens, claims, security interests, pledges, mortgages, deeds of trust, rights of first refusal, restrictions (other than restrictions and applicable restrictive legends under applicable federal and state securities laws) and other encumbrances ("Liens"), and Purchaser agrees to purchase from Sellers, the Company Shares, and (b) Sellers agree to assign and deliver to Purchaser all of Sellers' right, title and interest in, to and under the Registration Rights Agreement, dated as of August 14, 1998, among Sellers and the Company (the "Registration Rights Agreement"), and Purchaser agrees to assume all of the obligations of Sellers under the Registration Rights Agreement. 1.02 Purchase Price. In consideration of the transfer of the Company Shares -------------- and the assignment of the Registration Rights Agreement hereunder, upon the terms and subject to the conditions set forth in this Agreement, Purchaser will pay Sellers the purchase price of $7 per share for an aggregate purchase price of $41,176,471 for all the Company Shares (the "Aggregate Purchase Price"). 1.03 Closings; Deliveries; Escrow. The purchase and sale of the Company ---------------------------- Shares will occur at the offices of Jones, Day, Reavis & Pogue at 2727 North Harwood Street, Dallas, Texas, at two separate closings (the "Closings") as follows: (a) Initial Closing. On the date hereof contemporaneous with the --------------- execution of this Agreement and effective for all purposes at 10:00 a.m., Dallas, Texas time, the closing of the purchase and sale of 5,548,416 of the Company Shares (the "Initial Shares") will take place (the "Initial Closing"). (i) At the Initial Closing, (A) Sellers will deliver to (1) Purchaser (x) certificates representing the Initial Shares with duly executed stock powers endorsed in favor 2 of Purchaser, and (y) an opinion of Jones, Day, Reavis & Pogue, counsel to Sellers, addressed to ChaseMellon Shareholder Services, L.L.C., the Company's transfer agent (the "Transfer Agent"), to the effect that no registration of the Initial Shares under the Securities Act of 1933, as amended (the "Securities Act"), is required in connection with the sale and delivery of the Initial Shares by Sellers to Purchaser in connection with the sale and delivery of the Initial Shares by Sellers to Purchaser in the manner contemplated by this Agreement; and (2) the Company, with copies to Purchaser, the written and executed resignations of Michael Franco, Joseph Zuber and John Buza as directors of the Company and all committees of the board of directors of the Company effective immediately; and (B) Purchaser will deliver to Sellers $38,838,912.00 of the Aggregate Purchase Price by wire transfer of immediately available funds to the accounts specified on Exhibit A as --------- follows: $13,768,471.98 to MSREF; $638,239.84 to MSREI; $11,024,269.82 to MSP; and $13,407,930.36 to Special Fund. (ii) Effective as of the Initial Closing, Sellers hereby assign and deliver to Purchaser Sellers' right, title and interest in, to and under the Registration Rights Agreement with respect to the Initial Shares, and, effective as of the Initial Closing, Purchaser hereby assumes the obligations of Sellers under the Registration Rights Agreement with respect to the Initial Shares. (b) On or as promptly as practicable after the Initial Closing, (i) Sellers, Purchaser and an entity selected by Sellers and reasonably acceptable to Purchaser to act 3 as escrow agent ("Escrow Agent") shall execute and deliver an Escrow Agreement in substantially the form attached hereto as Exhibit B, with such --------- changes as Escrow Agent shall request with respect to the portion of the Escrow Agreement relating to Escrow Agent and the escrow; (ii) Sellers will deliver to Escrow Agent one or more certificates representing 333,937 of the Company Shares (the "Remaining Shares"), with duly executed stock powers endorsed in favor of Purchaser (such certificates and powers being the "Remaining Share Certificates and Powers"), to be held in escrow by Escrow Agent pursuant to the terms and conditions set forth in the Escrow Agreement; and (iii) Purchaser will deliver to Escrow Agent $2,337,559.00 of the Aggregate Purchase Price (the "Remaining Purchase Price"), to an account specified by Escrow Agent, to be held in escrow by Escrow Agent pursuant to the terms and conditions set forth in the Escrow Agreement. (c) Final Closing. The closing of the sale of the Remaining Shares ------------- will take place (the "Final Closing") at 11:00 a.m. Dallas, Texas time on the earlier of June 14, 2002, and the business day after Sellers have notified Escrow Agent that the condition specified on Exhibit C has been --------- satisfied, or at such later time or date or at such other place as the parties may agree to in writing. At the Final Closing, subject to the terms and conditions set forth in the Escrow Agreement, (x) the Escrow Agent will deliver to (A) Purchaser the Remaining Share Certificates and Powers, and (B) Sellers the Remaining Purchase Price by wire transfer of immediately available funds to the accounts specified on Exhibit A as follows: --------- $828,669.34 to MSREF; $38,413.11 to MSREI; $663,506.77 to MSP; and $806,969.78 to Special Fund, and (y) Sellers will deliver to Purchaser an opinion of Jones, Day, Reavis & Pogue, counsel to the Sellers, 4 addressed to the Transfer Agent to the effect that no registration of the Remaining Shares under the Securities Act is required in connection with the sale and delivery of the Remaining Shares by Sellers to Purchaser in connection with the sale and delivery of the Remaining Shares by Sellers to Purchaser in the manner contemplated by this Agreement. At the Final Closing, Escrow Agent will also distribute any income, interest, dividends or distributions with respect to the Remaining Shares and the Remaining Purchase Price in accordance with the terms of the Escrow Agreement. Effective as of the Final Closing, Sellers hereby assign and deliver to Purchaser Sellers' right, title and interest in, to and under the Registration Rights Agreement with respect to the Remaining Shares (thereby assigning, along with the assignment under Section 1.03(a)(ii), all of Sellers' right, title and interest in, to and under the Registration Rights Agreement), and, effective as of the Final Closing, Purchaser hereby assumes the obligations of Sellers under the Registration Rights Agreement with respect to the Remaining Shares (thereby assuming, along with the assumption of obligations under Section 1.03(a)(ii), all the obligations of Sellers under the Registration Rights Agreement). If no Escrow Agreement is entered into by Sellers and Purchaser, Sellers and Purchaser will effect the Final Closing at the times and on the terms set forth in this section without any Escrow Agreement. II. REPRESENTATIONS and WARRANTIES 2.01 Representations and Warranties of Purchaser. Purchaser represents and ------------------------------------------- warrants to Sellers as follows: (a) Organization. Purchaser is a limited liability company duly ------------ organized, validly existing and in good standing under the laws of the State of Florida. Purchaser is 5 in good standing as a foreign limited liability company in each jurisdiction in which its ownership or lease of assets or its conduct of business requires such qualification under applicable law, except where the failure to be so qualified would not have a material adverse effect on Purchaser's ability to perform its obligations under this Agreement or the Escrow Agreement (a "Purchaser Effect"). Purchaser has the requisite limited liability company power to own its properties and to conduct its business as currently being conducted. (b) Authority. Purchaser has the requisite limited liability company --------- power and authority to enter into this Agreement and the Escrow Agreement, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Purchaser of this Agreement and the Escrow Agreement, and the consummation by Purchaser of the transactions contemplated hereby and thereby, have been duly authorized by all necessary limited liability company action on the part of Purchaser. This Agreement has been duly executed and delivered by Purchaser and, assuming that this Agreement constitutes a valid and binding obligation of the other parties hereto, constitutes a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity. When the Escrow Agreement is duly executed and delivered by Purchaser and, assuming the Escrow Agreement constitutes a valid and binding obligation of the other parties thereto, the Escrow Agreement will constitute a valid and binding obligation of Purchaser, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, 6 fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity. (c) Consents and Approvals. No consent, approval or authorization of, ---------------------- or declaration or filing with, or notice to, any federal, state, local or foreign court or governmental or regulatory authority (a "Governmental Entity") which has not been received or made, is required by or with respect to Purchaser in connection with the execution and delivery of this Agreement or the Escrow Agreement by Purchaser or the consummation by Purchaser of the transactions contemplated hereby or thereby, except for any consents, approvals, authorizations, filings or notices which, if not made or obtained, would not reasonably be expected to have, individually or in the aggregate, a Purchaser Effect. (d) Sophistication of Purchaser. Purchaser (i) has the requisite --------------------------- knowledge and experience in investment and business matters to be capable of evaluating the merits and risks of an investment in the Company Shares and has relied on the Company's public filings in making its decision to purchase the Company Shares; (ii) is an "accredited investor" as defined in Rule 501 under Regulation D promulgated under the Securities Act; (iii) understands that the Company Shares were acquired by Sellers as "restricted shares" in a private transaction and have not been registered under the Securities Act or the securities or similar laws of any state, and are being sold to Purchaser in reliance on the exemptions therefrom and in reliance on the representations and warranties of Purchaser contained herein; (iv) is acquiring the Company Shares for its own account without a view to a distribution or resale thereof; and (v) understands that its ability to 7 transfer the Company Shares is restricted under applicable state and federal securities laws. (e) Purchaser hereby acknowledges that Sellers and its affiliates (including affiliates of Sellers currently serving on the board of directors of the Company) may have information that is not available to the public and that may be material in making an investment decision in the Company Shares (the "Non-Public Information"). Purchaser, with full knowledge of the foregoing, has decided to purchase the Company Shares from Sellers and hereby acknowledges that, but for the representations and warranties of Purchaser contained in this Agreement, including without limitation the representations and warranties contained in this Section 2.01(e), Sellers would not sell or transfer the Company Shares to Purchaser. Purchaser is a sophisticated investor. Purchaser hereby acknowledges and confirms that (i) none of Sellers, their general partners, or their respective employees, officers, directors, members, agents or affiliates (collectively, the "Seller Parties"), has given any investment advice or rendered any opinion to Purchaser as to whether the purchase of the Company Shares is prudent or advisable; (ii) none of the Seller Parties has made any representations or warranties about the prudence or advisability of the purchase of the Company Shares, the financial condition, results of operation, business or future prospects of the Company or as to any other matter not expressly contained in this Agreement; and (iii) Purchaser is not relying on, and none of the Seller Parties has made, any representation or warranty other than those expressly contained in this Agreement. (f) Waiver of Liability. Purchaser hereby waives any liability ------------------- Sellers, their general partners, or their respective employees, officers, directors, members, agents or 8 affiliates may have to Purchaser based on its or their knowledge, use, possession or non-disclosure of the Non-Public Information. (g) Broker's Fee. Purchaser has not made any agreement or taken any ------------ other action which might cause anyone (other than Stephens Inc.) to become entitled to a broker's or finder's fee on commission as a result of the transactions contemplated under this Agreement. Purchaser will pay all of the fees, expenses and commissions of Stephens Inc. (h) No Violation. Neither the execution and delivery of this Agreement ------------ and the Escrow Agreement by Purchaser nor the consummation of the transactions contemplated hereby or thereby by Purchaser constitute a breach or default under (or an event which, with the lapse of time or the giving of notice, or both, could constitute a breach or default) or violate or conflict with any oral or written contract, agreement or instrument to which Purchaser is a party or by which any of its assets may be bound, limited or otherwise affected, or under any order, judgment, decree or writ applicable to Purchaser or any of its assets except to the extent any such breach or default would not reasonably be expected to have, individually or in the aggregate, a Purchaser Effect. 2.02 Representations and Warranties of Sellers. Sellers jointly and ----------------------------------------- severally represent and warrant to Purchaser as follows: (a) Organization. Each Seller is a limited partnership duly organized, ------------ validly existing and in good standing under the laws of the State of Delaware. Each Seller is in good standing as a foreign limited partnership in each jurisdiction in which its ownership or lease of assets or its conduct of business requires such qualification under applicable law, except where the failure to be so qualified would not have a material adverse effect 9 on Sellers' ability to perform its obligations under this Agreement or the Escrow Agreement (a "Seller Effect"). Each Seller has the requisite partnership power to own its properties and to conduct its business as currently being conducted. (b) Authority. Each Seller has the requisite partnership power and --------- authority to enter into this Agreement and the Escrow Agreement, and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Sellers of this Agreement and the Escrow Agreement, and the consummation by Sellers of the transactions contemplated hereby and thereby have been duly authorized by all necessary partnership action on the part of each Seller. This Agreement has been duly executed and delivered by each Seller and, assuming that this Agreement constitutes a valid and binding obligation of Purchaser, constitutes a valid and binding obligation of each Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity. When the Escrow Agreement is duly executed and delivered by each Seller and, assuming the Escrow Agreement constitutes a valid and binding obligation of Purchaser and Escrow Agent, the Escrow Agreement will constitute a valid and binding obligation of each Seller, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally and to general principles of equity. (c) Consents and Approvals. No consent, approval or authorization of, ---------------------- or declaration or filing with, or notice to, any Governmental Entity which has not been received or made, is required by or with respect to Sellers in connection with the 10 execution and delivery of this Agreement and the Escrow Agreement by Sellers or the consummation by Sellers of the transactions contemplated hereby or thereby, except for any consents, approvals, authorizations, filings or notices which, if not made or obtained, would not reasonably be expected to have, individually or in the aggregate, a Seller Effect. (d) Title to Company Shares. The sale and delivery of the Company ----------------------- Shares as contemplated by this Agreement are not subject to any preemptive right or right of first refusal, "tag along" or similar right, or right of redemption or repurchase. Upon delivery of the Company Shares to Purchaser as provided in Section 1.03 Purchaser will acquire beneficial ownership of the Company Shares, and upon registration of the transfer of the Company Shares with the Transfer Agent, Purchaser will acquire record ownership of each of the Company Shares, in each case free and clear of all Liens (other than restrictions and applicable restrictive legends under applicable federal and state securities laws). (e) Broker's Fee. Sellers have not made any agreement or taken any ------------ other action which might cause anyone (other than Morgan Stanley & Co. Incorporated) to become entitled to a broker's or finder's fee or commission as a result of the transactions contemplated under this Agreement. Sellers will pay all of the fees, expenses and commissions of Morgan Stanley & Co. Incorporated. (f) No Violation. Neither the execution and delivery of this Agreement ------------ and the Escrow Agreement by Sellers nor the consummation of the transactions contemplated hereby or thereby by Sellers constitute a breach or default under (or an event which, with the lapse of time or the giving of notice, or both, could constitute a breach or default) or 11 violate or conflict with any oral or written contract, agreement or instrument to which any of Sellers is a party or by which any of their respective assets may be bound, limited or otherwise affected, including without limitation the Registration Rights Agreement, the Securities Purchase Agreement dated as of August 14, 1998 by and among Sellers and the Company and the Voting and Cooperation Agreement dated as of August 14, 1998 by and among the Sellers and the Company (the Registration Rights Agreement, the Securities Purchase Agreement and the Voting and Cooperation Agreement are referred to collectively as, the "Company Agreements"), or under any order, judgment, decree or writ applicable to any Seller or any of their respective assets except to the extent any such breach or default would not reasonably be expected to have, individually or in the aggregate, a Seller Effect. (g) No Default. None of Sellers is in material breach or material ---------- default under the terms of any of the Company Agreements. III. INDEMNIFICATION 3.01 Sellers' Indemnity. Each Seller, jointly and severally, agrees to ------------------ indemnify and hold harmless Purchaser and its directors, officers, employees, shareholders and agents (the "Purchaser Indemnitees") from and against any and all liabilities, losses, claims, damages, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements) (collectively, "Losses") incurred by them as a result of or based upon or arising from any breach of any representation, warranty, covenant or agreement of Sellers under this Agreement. 3.02 Purchaser's Indemnity. Purchaser agrees to indemnify and hold harmless --------------------- each Seller, their general partners and their respective directors, officers, employees, members and agents (the "Seller Indemnitees") from and against any and all Losses incurred by them as a 12 result of, or based upon or arising from any breach of any representation, warranty, covenant or agreement of Purchaser under this Agreement. 3.03 Notice and Resolution of Claims. ------------------------------- (a) Notices. Each Person entitled to indemnification pursuant to ------- Section 3.01 or 3.02 (an "Indemnitee") shall give written notice to Sellers or Purchaser, respectively, promptly after obtaining knowledge of any claim that it may have under Section 3.01 or 3.02, as applicable. The notice shall set forth in reasonable detail the claim and the basis for indemnification. Failure to give written notice in a timely manner shall not release the party from whom such indemnification is sought (the "Indemnifying Party") from its obligations under Section 3.01 or 3.02, as applicable, except to the extent that such failure materially prejudices the ability of the Indemnifying Party to contest the claim. (b) Defense of Third Party Claims. If a claim for indemnification ----------------------------- pursuant to Section 3.01 or 3.02 shall arise from a demand, claim, action, suit, proceeding or investigation by a third party (a "Third Party Claim"), the Indemnifying Party may assume the defense of the Third Party Claim, provided the Indemnifying Party proceeds with diligence and in good faith with respect thereto. If the Indemnifying Party assumes the defense of the Third Party Claim, the defense shall be conducted by counsel chosen by the Indemnifying Party, provided that the Indemnitee shall retain the right to employ its own counsel and participate in the defense of the Third Party Claim at its own expense (which will not be recoverable from the Indemnifying Party under this Article III or otherwise). In addition, the Indemnitee may employ separate counsel, and the Indemnifying Party shall bear the expenses of such separate counsel, if (i) in the written opinion of counsel chosen by the Indemnifying Party, use of that counsel would be 13 expected to give rise to a conflict of interest, (ii) the Indemnifying Party shall not have employed counsel to represent the Indemnified Party within a reasonable time after notice of the assertion of any such claim or institution of any such action or proceeding, or (iii) the Indemnifying Party shall authorize the Indemnified Party in writing to employ separate counsel at the expense of the Indemnifying Party. In no event shall the Indemnifying Party be obligated to pay the fees and expenses of more than one counsel (together with any reasonably necessary local counsel) for all Indemnified Parties with respect to any claim indemnified under this Article III. Notwithstanding the foregoing provisions of this Section 3.03(b), (i) no Indemnifying Party shall be entitled to settle any Third Party Claim for which indemnification is sought under this Section 3.02 without the Indemnitee's prior written consent unless as part of such settlement the Indemnitee is fully and unconditionally released from all liability and Losses with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnitee, or require the Indemnitee to admit any wrongdoing, and (ii) no Indemnitee shall be entitled to settle any Third Party Claim for which indemnification is sought under Section 3.01 or Section 3.02 without the Indemnifying Party's prior written consent unless as part of the settlement the Indemnifying Party is fully and unconditionally released from all liability and Losses with respect to the Third Party Claim and the settlement does not impose any equitable remedy on the Indemnifying Party, or require the Indemnifying Party to admit any wrongdoing. 14 3.04 Limits on Indemnification. ------------------------- (a) Limit of Liability. The aggregate liability of Sellers, on the one ------------------ hand, and Purchaser, on the other hand, under Section 3.01 or Section 3.02, respectively, shall not exceed an amount equal to the Purchase Price. (b) Survival. The representations and warranties contained in Article -------- II of this Agreement shall terminate on the first anniversary of the date of this Agreement, except that the representations and warranties set forth in Section 2.01(b), Section 2.01(d), Section 2.01(e), Section 2.01(f), Section 2.01(g), Section 2.02(b), Section 2.02(d), and Section 2.02(e) shall survive indefinitely. Neither Sellers nor Purchaser shall have any obligation or liability pursuant to Section 3.01 or Section 3.02, respectively, for any breach of any representation or warranty unless notice of a claim asserting such breach shall have been given in accordance with Section 3.03(a) prior to the expiration of the survival of such representation or warranty. (c) Actual Damages. Neither Sellers nor Purchaser shall have any -------------- obligation or liability under Section 3.01 or Section 3.02, respectively, with respect to any consequential, special or punitive damages. (d) Exclusive Remedy. After the Initial Closing, except for any ---------------- nonmonetary, equitable relief to which any Indemnitee may be entitled, the rights and remedies set forth in this Article III shall constitute the sole and exclusive rights and remedies of the parties hereto under or with respect to the subject matter of this Agreement. Each of the parties hereto hereby waives any and all claims and any cause of action for monetary damages under or with respect to the subject matter of this Agreement (other than any claims or causes of action arising out of the express provisions of this Article III) that it might 15 otherwise be entitled to assert against any other party hereto under any law of any Governmental Entity, under the common law of any jurisdiction or otherwise. IV. MISCELLANEOUS 4.01 Notice. Any notice, consent, waiver or demand pursuant to or in ------ connection with this Agreement must be in writing and will be deemed to be delivered when personally delivered or when actually received by facsimile transmission, overnight courier of national reputation or United States mail, at the address or facsimile number stated below (or at such other address or facsimile number as such party may designate by written notice to all other parties), with copies sent to the persons indicated: SELLERS: c/o Morgan Stanley Real Estate Fund III, L.P. 37th Floor 1585 Broadway New York, New York 10036-8293 Attention: Michael J. Franco Facsimile No.: (212) 761-0165 Copy to: Jones, Day, Reavis & Pogue 2727 North Harwood Street Dallas, Texas 75201 Attention: David J. Lowery Facsimile No.: (214) 969-5100 PURCHASER: Levitt Companies, LLC 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Attention: John E. Abdo, President Facsimile No.: (954) 768-0520 16 Copies to: BankAtlantic Bancorp, Inc. 1750 East Sunrise Boulevard Fort Lauderdale, Florida 33304 Attention: Alan B. Levan, Chairman Facsimile No.: (954) 768-0520 Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Suite 2200 150 West Flagler Street Miami, FL 33130 Attention: Alison W. Miller Facsimile No.: (305) 789-3395 4.02 Transfer Taxes; Other Costs. Purchaser will pay all sales, use, --------------------------- transfer, stamp, conveyance, value added or other similar taxes, duties, excise or governmental charges imposed by any United States or state taxing authority, and all recording or filing fees, notarial fees and other similar costs of the Closings with respect to the transfer of the Company Shares or otherwise on account of this Agreement or the transactions contemplated hereby. Purchaser and Sellers will each pay 50% of all fees due to Escrow Agent under the Escrow Agreement. 4.03 Exhibits. The exhibits attached hereto and referred to herein are -------- incorporated herein and made a part of this Agreement for all purposes. 4.04 Entire Agreement. This Agreement and the agreements and documents ---------------- delivered hereunder, including without limitation the Escrow Agreement, constitute the entire agreement among the parties hereto with respect to the subject matters hereof and there are no understandings, representations, warranties or agreements relative hereto which are not fully expressed herein and therein. No change, waiver or discharge of this Agreement will be valid unless in writing and executed by the party against whom such change, waiver or discharge is sought to be enforced. 17 4.05 Assignment. This Agreement will apply to, inure to the benefit of, and ---------- be binding upon and enforceable against the parties to this Agreement and their respective legal representatives, successors and permitted assigns. Neither party may assign this Agreement without the prior written consent of the other party. 4.06 Exculpation. Notwithstanding any provision herein to the contrary, the ----------- liability of each Seller shall be limited to the assets of such Seller and no partner, shareholder, officer, director, employee or agent of any Seller shall have any personal liability hereunder. 4.07 Governing Law. This Agreement, and the rights and obligations of the ------------- parties hereto, will be governed by the substantive laws of the State of New York without giving effect to the principles of conflict of laws of that state. Each of Sellers and Purchaser irrevocably submits to the exclusive jurisdiction of the federal or state courts located in New York County, New York for purposes of any action, suit or other proceeding arising out of this Agreement or any transaction contemplated under this Agreement, and irrevocably waives any objection which it may now or hereafter have to the venue of any suit, action or proceeding brought in such courts and any claim that such suit, action or proceeding brought in such courts has been brought in an inconvenient forum and lack of jurisdiction. 4.08 Captions. Any captions, headings and arrangements used in this -------- agreement are for convenience and do not in any way effect, limit or amplify the terms and provisions hereof. 4.09 Expenses. Subject to Section 4.02, Sellers will be responsible for -------- their own expenses (including without limitation, legal and accounting fees) and Purchaser will be responsible for its own expenses (including, without limitation, legal and accounting fees) incurred in connection with the transactions contemplated under this Agreement, whether or not such transactions are consummated. 18 4.10 Counterparts. This Agreement may be executed in any number of separate ------------ counterparts, each of which will be deemed to be an original, but which together will constitute one and the same instrument. 4.11 Drafting Presumption. This Agreement will be construed fairly as to -------------------- each party to this Agreement regardless of which party drafted it. Each of the parties to this Agreement acknowledges and agrees that each of them played a significant and essential role in the preparation, drafting and review of this Agreement. [Signature Pages Follow] 19 IN WITNESS WHEREOF, each party hereto has duly executed, or has caused this Agreement to be duly executed, as of the date first above written. SELLERS: MORGAN STANLEY REAL ESTATE FUND III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: /s/ Joseph M. Zuber ---------------------------------- Joseph M. Zuber Vice President MORGAN STANLEY REAL ESTATE INVESTORS III, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: /s/ Joseph M. Zuber ---------------------------------- Joseph M. Zuber Vice President MSP REAL ESTATE FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: /s/ Joseph M. Zuber ---------------------------------- Joseph M. Zuber Vice President MSREF III SPECIAL FUND, L.P. By: MSREF III, L.L.C., its general partner By: MSREF III, Inc., its MS Member By: /s/ Joseph M. Zuber ---------------------------------- Joseph M. Zuber Vice President 20 PURCHASER: LEVITT COMPANIES, LLC By: /s/ John E. Abdo ------------------------------------- John E. Abdo President 21 -----END PRIVACY-ENHANCED MESSAGE-----