As filed with the Securities and Exchange Commission on June 22, 1998.
File No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JWGENESIS FINANCIAL CORP.
--------------------------------------------------
(Exact Name of Issuer as Specified in its Charter)
Florida 65-0811010
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(State or Other (I.R.S. Employer
Jurisdiction of Identification Number)
Incorporation or
Organization)
980 North Federal Highway, Suite 210
Boca Raton, Florida 33432
(561) 338-2800
-------------------------------------------------------------
(Address and Telephone Number of Issuer's Principal Executive
Offices)
1990 STOCK OPTION PLAN
(AS AMENDED JUNE 10, 1997)
--------------------------
(Full Title of the Plans)
Joel E. Marks
Executive Vice President and Chief Financial Officer
1117 Perimeter Center West, Suite 500E
Atlanta, GA 30338
(770) 399-8805
------------------------------------------------------------------
(Name, Address and Telephone Number, Including Area Code, of Agent
for Service)
Copies to:
W. Randy Eaddy, Esq.
KILPATRICK STOCKTON LLP
1100 Peachtree Street, N.E.
Atlanta, Georgia 30309-4530
(404) 815-6500
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share<F1> Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <S> <C> <C> <C>
Common Stock 1,600,000 shares $10.06 $16,100,000 $4,749.50
<FN>
<F1>Determined in accordance with Rule 457(c) under the
Securities Act of 1933, based on $10.06, the average of the high
and low prices on the American Stock Exchange on June 18, 1998.
</FN>
/TABLE
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
Registration Statement and are deemed to be a part hereof from the
date of the filing of such documents:
(1) The Registrant's Registration Statement on Form S-4,
Securities and Exchange Commission ("Commission") File
No. 333-47693, including the final prospectus included
therein.
(2) The description of the Common Stock contained in the
Registrant's registration statement on Form 8-A, dated
June 8, 1998, including all amendments or reports filed
for the purpose of updating such description.
(3) All other documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") prior to the filing of a post-effective
amendment which indicates that all securities offered
pursuant to this Registration Statement have been sold
or which deregisters all securities that remain unsold.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Articles of Incorporation provide for
indemnification of directors to the fullest extent permitted by
Florida law and, to the extent permitted by such law, eliminate
or limit the personal liability of directors to the Registrant
and its shareholders for monetary damages for certain breaches of
fiduciary duty and the duty of care. Insofar as indemnification
for liabilities under the Securities Act of 1933 (the "1933 Act")
may be permitted to directors, officers, or persons controlling
the Registrant pursuant to the foregoing provisions, the
Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as
expressed in the 1933 Act and is therefore unenforceable.
Pursuant to its Bylaws, the Registrant may indemnify its
officers, employees, agents, and other persons to the fullest
extent permitted by Florida law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
<PAGE>
ITEM 8. EXHIBITS
The exhibits included as part of this Registration
Statement are as follows:
Exhibit Number Description
- -------------- -----------
4 1990 Stock Option Plan (as amended
June 10, 1997)
5 Opinion and Consent of Kilpatrick
Stockton LLP, counsel to the
Registrant
23(a) Consent of Price Waterhouse LLP
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes: (1)
to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement,
to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement; (2) that, for the purpose of determining
any liability under the 1933 Act, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof; (3) to remove from registration by
means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act,
each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense
of any action, suit, or proceeding) is asserted by such director,
officer, or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent,
II-2
<PAGE>
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Registrant
certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of
Atlanta, State of Georgia, on June 16, 1998.
JWGENESIS FINANCIAL CORP.
By: /s/Joel E. Marks
--------------------------------
Joel E. Marks
Executive Vice President and Chief
Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Marshall T.
Leeds and Joel E. Marks as attorneys-in-fact, having the power of
substitution, for them in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 and to file
the same, with exhibits thereto, and other documents in
connection therewith, with the Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute
or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the 1933 Act, this
Registration Statement has been signed by the following persons
in the capacities indicated on June 16, 1998.
/s/ Marshall T. Leeds President, Chief
MARSHALL T. LEEDS Executive Officer and
Chairman of the Board of
Directors (Principal
Executive Officer)
/s/ Joel E. Marks Executive Vice President,
JOEL E. MARKS Chief Financial Officer,
Secretary and Director
(Principal Financial and
Accounting Officer)
/s/ Will K. Weinstein Vice Chairman and
WILL K. WEINSTEIN Director
/s/ Philip C. Stapleton Chief Operating Officer
PHILIP C. STAPLETON and Director
/s/ Wm. Dennis Ferguson
WM. DENNIS FERGUSON Director
II-4
<PAGE>
/s/ Gregg S. Glaser Director
GREGG S. GLASER
/s/ Harvey R. Heller Director
HARVEY R. HELLER
/s/ Jeffrey H. Lehman Director
JEFFREY H. LEHMAN
/s/ Curtis Sykora Director
CURTIS SYKORA
II-5
<PAGE>
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Number Description
- -------------- -----------
4 1990 Stock Option Plan (as amended
June 10, 1997)
5 Opinion and Consent of Kilpatrick
Stockton LLP, counsel to the
Registrant
23(a) Consent of Price Waterhouse LLP
Exhibit 4
1990 STOCK OPTION PLAN
(as amended June 10, 1997)
<PAGE>
1990 STOCK OPTION PLAN
(as amended June 10, 1997)
TABLE OF CONTENTS
ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
(a) Board . . . . . . . . . . . . . . . . . . . . . . . 1
(b) Code . . . . . . . . . . . . . . . . . . . . . . . . 1
(c) Committee . . . . . . . . . . . . . . . . . . . . . 1
(d) Company . . . . . . . . . . . . . . . . . . . . . . . 1
(e) Director . . . . . . . . . . . . . . . . . . . . . 1
(f) Disinterested Person . . . . . . . . . . . . . . . . 1
(g) Employee . . . . . . . . . . . . . . . . . . . . . . 1
(h) Employer . . . . . . . . . . . . . . . . . . . . . . 2
(i) Fair Market Value . . . . . . . . . . . . . . . . . . 2
(j) ISO . . . . . . . . . . . . . . . . . . . . . . . . . 2
(k) 1934 Act . . . . . . . . . . . . . . . . . . . . . . 2
(l) Officer . . . . . . . . . . . . . . . . . . . . . . . 3
(m) Option . . . . . . . . . . . . . . . . . . . . . . . 3
(n) Optionee . . . . . . . . . . . . . . . . . . . . . . 3
(o) Option Price . . . . . . . . . . . . . . . . . . . . 3
(p) Parent . . . . . . . . . . . . . . . . . . . . . . . 3
(q) Plan . . . . . . . . . . . . . . . . . . . . . . . . 3
(r) Purchasable . . . . . . . . . . . . . . . . . . . . . 3
(s) Reload Option . . . . . . . . . . . . . . . . . . . . 3
(t) Stock . . . . . . . . . . . . . . . . . . . . . . . . 4
(u) Stock Option Agreement . . . . . . . . . . . . . . . 4
(v) Subsidiary . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.1 Name . . . . . . . . . . . . . . . . . . . . . . . . 4
2.2 Purpose . . . . . . . . . . . . . . . . . . . . . . . 4
2.3 Effective Date . . . . . . . . . . . . . . . . . . . 4
2.4 Termination Date . . . . . . . . . . . . . . . . . . 4
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . 5
(i)<PAGE>
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Duties and Powers of the Committee . . . . . . . . . 5
4.2 Interpretation; Rules . . . . . . . . . . . . . . . . 5
4.3 No Liability . . . . . . . . . . . . . . . . . . . . 5
4.4 Majority Rule . . . . . . . . . . . . . . . . . . . . 6
4.5 Company Assistance . . . . . . . . . . . . . . . . . 6
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1 Limitations . . . . . . . . . . . . . . . . . . . . . 6
5.2 Antidilution . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Types of Options Granted . . . . . . . . . . . . . . 8
6.2 Option Grant and Agreement . . . . . . . . . . . . . 8
6.3 Optionee Limitations . . . . . . . . . . . . . . . . 8
6.4 $100,000 Limitation . . . . . . . . . . . . . . . . . 8
6.5 Option Price . . . . . . . . . . . . . . . . . . . . 9
6.6 Exercise Period . . . . . . . . . . . . . . . . . . . 9
6.7 Option Exercise . . . . . . . . . . . . . . . . . . . 9
6.8 Nontransferability of Option . . . . . . . . . . 10
6.9 Termination of Employment . . . . . . . . . . . . 11
6.10 No Employment Rights . . . . . . . . . . . . . . 11
6.11 Certain Successor Options . . . . . . . . . . . . 11
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . 12
9.1 Replacement Option Grants . . . . . . . . . . . . 12
9.2 Forfeiture for Competition . . . . . . . . . . . 12
9.4 Plan Binding on Successors . . . . . . . . . . . 13
9.5 Gender . . . . . . . . . . . . . . . . . . . . . 13
9.6 Headings No Part of Plan . . . . . . . . . . . . 13
(ii)<PAGE>
1990 STOCK OPTION PLAN
(as amended June 10, 1997)
ARTICLE I
DEFINITIONS
As used herein, the following terms have the meanings
hereinafter set forth unless the context clearly indicates to the
contrary:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Code" shall mean the United States Internal
Revenue Code of 1986, as amended, including effective date and
transition rules (whether or not codified). Any reference herein
to a specific section or sections of the Code shall be deemed to
include a reference to any corresponding provision of future law.
(c) "Committee" shall mean the Board, which shall have
all the authority granted in this Plan, provided that the Board
may appoint a committee of Directors from time to time to
exercise some or all of the authority of the Committee; provided,
further, that the Committee shall include at least two members
who are Disinterested Persons, and that all members of the
Committee who exercise any authority or discretion, with respect
to any Options granted to an Employee who is also an Officer or
Director, shall be Disinterested Persons.
(d) "Company" shall mean JWGenesis Financial Corp., a
Florida corporation.
(e) "Director" shall mean a member of the Board.
(f) "Disinterested Person" shall have the meaning set
forth in Rule 16b-3 under the 1934 Act, as the same may be in
effect from time to time, or in any successor rule thereto, and
shall be determined for all purposes under the Plan according to
interpretative or "no-action" positions with respect thereto
issued by the Securities and Exchange Commission.
(g) "Employee" shall mean any employee of or
registered representative licensed with the Company or any
Subsidiary of the Company.
(h) "Employer" shall mean the corporation that employs
an Optionee.
1
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(i) "Fair Market Value" of the shares of Stock on any
date shall mean
(i) the closing sales price, regular way, or in
the absence thereof the mean of the last reported bid
and asked quotations, on such date on the exchange
having the greatest volume of trading in the shares
during the thirty-day period immediately preceding such
date (or if such exchange was not open for trading on
such date, the next preceding date on which it was
open); or
(ii) if there is no price as specified in (i), the
final reported sales price, or if not reported in the
following manner, the mean of the closing high bid and
low asked prices, in the over-the-counter market for
the shares as reported by the National Association of
Securities Dealers Automatic Quotation System or, if
not so reported, then as reported by the National
Quotation Bureau Incorporated, or if such organization
is not in existence, by an organization providing
similar services, on such date (or if such date is not
a date for which such system or organization generally
provides reports, then on the next preceding date for
which it does so); or
(iii) if there also is no price as specified in
(ii), the price determined by the Committee by
reference to bid-and-asked quotations for the shares
provided by members of an association of brokers and
dealers registered pursuant to subsection 15(b) of the
1934 Act, which members make a market in the shares,
for such recent dates as the Committee shall determine
to be appropriate for fairly determining current market
value; or
(iv) if there also is no price as specified in
(iii), the amount determined in good faith by the
Committee based on such relevant facts, which may
include opinions of independent experts, as may be
available to the Committee.
(j) "ISO" shall mean an Option that complies with and
is subject to the terms, limitations, and conditions of Code
section 422A and any regulations promulgated with respect
thereto.
(k) "1934 Act" shall mean the Securities Exchange Act
of 1934, as the same has been or may be amended from time to
time.
(l) "Officer" shall mean a person who constitutes an
officer of the Company for the purposes of Section 16 of the 1934
Act, as determined by reference to such Section 16 and to the
rules, regulations, judicial decisions, and interpretative or
"no-action" positions with respect thereto of the Securities and
Exchange Commission, as the same may be in effect or set forth
from time to time.
2
<PAGE>
(m) "Option" shall mean a contractual right to
purchase Stock granted pursuant to the provisions of Article VI
hereof.
(n) "Optionee" shall mean a person to whom an Option
has been granted hereunder.
(o) "Option Price" shall mean the price at which an
Optionee may purchase a share of Stock pursuant to an Option.
(p) "Parent" shall mean any corporation (other than
the corporation with respect to which the determination is being
made) in an unbroken chain of corporations ending with the
corporation with the respect to which the determination is being
made if each of the corporations other than the corporation with
respect to which the determination is being made owns stock
possessing 50% or more of the total combined voting power of all
classes of stock in one of the other corporations in such chain.
(q) "Plan" shall mean the 1990 Stock Option Plan, (as
amended June 10, 1997) of the Company.
(r) "Purchasable," when used to describe Stock, shall
refer to Stock that may be purchased by an Optionee under the
terms of this Plan on or after a certain date specified in the
applicable Stock Option Agreement.
(s) "Reload Option" shall mean an Option that is
granted, without further action of the Committee, (i) to an
Optionee who surrenders or authorizes the withholding of shares
of Stock in payment of amounts specified in paragraphs 6.7(c) or
6.7(d) hereof, (ii) for the same number of shares as is so paid,
(iii) as of the date of such payment and at an Option Price equal
to the Fair Market Value of the Stock on such date, and (iv)
otherwise on the same terms and conditions as the Option whose
exercise has occasioned such payment, subject to such
contingencies, conditions, or other terms as the Committee shall
specify at the time such exercised Option is granted.
(t) "Stock" shall mean the $.001 par value common
stock of the Company or, in the event that the outstanding shares
of such stock are hereafter changed into or exchanged for shares
of a different class of stock or securities of the Company or
some other corporation, such other stock or securities.
(u) "Stock Option Agreement" shall mean an agreement
between the Company and an Optionee setting forth the terms of an
Option.
3
<PAGE>
(v) "Subsidiary" shall mean any corporation (other
than the corporation with respect to which the determination is
being made) in an unbroken chain of corporations beginning with
the corporation with respect to which the determination is being
made if each of the corporations other than the last corporation
in the unbroken chain owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
ARTICLE II
THE PLAN
2.1 NAME. This plan shall be known as the "1990 Stock
Option Plan".
2.2 PURPOSE. The purpose of the Plan is to advance the
interests of the Company, its shareholders, and any Subsidiary of
the Company, by offering certain Employees an opportunity to
acquire or increase their proprietary interests in the Company by
granting such persons Options to purchase Stock. The Options
will promote the growth and profitability of the Company, and any
Subsidiary of the Company, because Optionees will be provided
with an additional incentive to achieve the Company's objectives
through participation in its success and growth.
2.3 EFFECTIVE DATE. The Plan shall become effective on
July 1, 1990.
2.4 TERMINATION DATE. No further Options shall be granted
hereunder on or after June 30, 2000, but all Options granted
prior to that time shall remain in effect in accordance with
their terms; provided, however, that the Plan shall terminate,
and all options theretofore granted shall become void and may not
be exercised, on June 30, 1991, if the shareholders of the
Company shall not by that date have approved the Plan's adoption.
ARTICLE III
ELIGIBILITY
The persons eligible to participate in this Plan shall
consist only of Employees (which may include a person who is a
Director, if he is otherwise an Employee) whose participation the
Committee determines is in the best interests of the Company.
4
<PAGE>
ARTICLE IV
ADMINISTRATION
4.1 DUTIES AND POWERS OF THE COMMITTEE. The Plan shall be
administered by the Committee. The Committee shall select one of
its members as its Chairman and shall hold its meetings at such
time and places as it may determine. The Committee shall keep
minutes of its meetings and shall make such rules and regulations
for the conduct of its business as it may deem necessary. The
Committee shall have the power to act by unanimous written
consent in lieu of a meeting, and shall have the right to meet
telephonically. In administering the Plan, the Committee's
actions and determinations shall be binding on all interested
parties. The Committee shall have the power to grant Options in
accordance with the provisions of the Plan. Subject to the
provisions of the Plan, the Committee shall have the discretion
and authority to determine those individuals to whom Options will
be granted and whether such Options shall be accompanied by the
right to receive Reload Options, the number of shares of Stock
subject to each Option, such other matters as are specified
herein, and any other terms and conditions of a Stock Option
Agreement. To the extent not inconsistent with the provisions of
the Plan, the Committee shall have the authority to amend or
modify an outstanding Stock Option Agreement, or to waive any
provision thereof, provided that the Optionee consents to such
action.
4.2 INTERPRETATION; RULES. Subject to the express
provisions of the Plan, the Committee also shall have complete
authority to interpret the Plan, to prescribe, amend, and rescind
rules and regulations relating to it, to determine the details
and provisions of each Stock Option Agreement, and to make all
other determinations necessary or advisable in the administration
of the Plan, including, without limitation, the amending or
altering of any Options granted hereunder as may be required to
comply with or to conform to any federal, state, or local laws or
regulations.
4.3 NO LIABILITY. Neither any member of the Board nor any
member of the Committee shall be liable to any person for any act
or determination made in good faith with respect to the Plan or
any Option granted hereunder.
4.4 MAJORITY RULE. A majority of the members of the
Committee shall constitute a quorum, and any action taken by a
majority at a meeting at which a quorum is present, or any action
taken without a meeting evidenced by a writing executed by all
the members of the Committee, shall constitute the action of the
Committee.
4.5 COMPANY ASSISTANCE. The Company shall supply full and
timely information to the Committee on all matters relating to
eligible persons, their employment, death, retirement, disability
or other termination of employment, and such other pertinent
facts as the Committee may require. The Company shall furnish
the Committee with such clerical and other assistance as is
necessary in the performance of its duties.
5
<PAGE>
ARTICLE V
SHARES OF STOCK SUBJECT TO PLAN
5.1 LIMITATIONS. Subject to any antidilution adjustment
pursuant to the provisions of Section 5.2 hereof, the maximum
number of shares of Stock that may be issued and sold hereunder
shall be 1,600,000. Shares subject to an Option may be either
authorized and unissued shares or shares issued and later
acquired by the Company; provided, however, that shares of Stock
with respect to which an Option has been exercised shall not
again be available for issuance hereunder. The shares covered by
any unexercised portion of an Option that has terminated for any
reason, as well as that number of shares issued pursuant to
Option exercises that is equal to the number of shares of Common
Stock surrendered or withheld, in payment of (i) the Option Price
of such Options or (ii) taxes related to such exercises, may
again be optioned under this Plan, and such shares shall not be
considered as having been optioned or issued in computing the
number of shares of Stock remaining available for option
hereunder.
5.2 ANTIDILUTION.
(a) If the outstanding shares of Stock are changed
into or exchanged for a different number or kind of shares or
other securities of the Company by reason of merger,
consolidation, reorganization, recapitalization,
reclassification, combination or exchange of shares, stock split,
or stock dividend, or if any spin-off, split up, or other
distribution of assets materially affects the price of the
Company's stock, then:
(i) the aggregate number and kind of shares of
Stock for which Options may be granted hereunder shall
be adjusted proportionately by the Committee; and
(ii) the rights of Optionees (concerning the
number of shares subject to Options and the Option
Price) under outstanding Options shall be adjusted
proportionately by the Committee.
(b) If the Company shall be a party to any
reorganization in which it does not survive, involving merger,
consolidation, or acquisition of the stock or substantially all
the assets of the Company, the Committee, in its discretion, may:
(i) declare that all Options granted under the
Plan shall become exercisable immediately
notwithstanding the provisions of the respective Stock
Option Agreements regarding exercisability, and that
all such Options shall terminate 30 days after the
Committee gives written notice of the immediate right
to exercise all such Options and of the decision to
terminate all Options not exercised within such 30-day
period; or
6
<PAGE>
(ii) notify all Optionees that all Options granted
under the Plan shall be assumed by the successor
corporation or substituted with options issued by such
successor corporation.
(c) If the Company is to be liquidated or dissolved in
connection with a reorganization described in paragraph 5.2(b),
the provisions of such paragraph shall apply. In all other
instances, the adoption of a plan of dissolution or liquidation
of the Company shall cause every Option outstanding under the
Plan to terminate to the extent not exercised prior to the
adoption of the plan of dissolution or liquidation by the
shareholders, provided that the Committee in its discretion may
declare all Options granted under the Plan to be exercisable at
any time on or before the fifth business day following such
adoption notwithstanding the provisions of the respective Stock
Option Agreements regarding exercisability. The Committee's
actions under this provision and the Optionee's exercise of
Options under this provision shall be subject, however, to the
limitations set forth in Article VI hereof.
(d) The adjustments described in paragraphs (a)
through (c) of this Section 5.2, and the manner of their
application, shall be determined solely by the Committee, and any
such adjustment may provide for the elimination of fractional
share interests. The adjustments required under this Article V
shall apply to any successors of the Company and shall be made
regardless of the number or type of successive events requiring
such adjustments.
ARTICLE VI
OPTIONS
6.1 TYPES OF OPTIONS GRANTED. Within the limitations
provided herein, Options may be granted to one Employee at one or
several times or to different Employees at the same time or at
different times, in either case under different terms and
conditions, as long as the terms and conditions of each Option
are consistent with the provisions of the Plan. Without
limitation of the foregoing, Options may be granted subject to
conditions based on the financial performance of the Company or
any other factor the Committee deems relevant.
6.2 OPTION GRANT AND AGREEMENT. Each Option granted or
modified hereunder shall be evidenced (a) by either minutes of a
meeting or a written consent of the Committee, and (b) by a
written Stock Option Agreement executed by the Company and the
Optionee. The terms of the Option, including the Option's
duration, time or times of exercise, exercise price, whether the
Option is intended to be an ISO, and whether the Option is to be
accompanied by the right to receive a Reload Option, shall be
stated in the Stock Option Agreement. Separate Stock Option
Agreements shall be used for Options intended to be ISOs and
those not so intended.
7
<PAGE>
6.3 OPTIONEE LIMITATIONS. The Committee shall not grant an
ISO to any person who, at the time the ISO would be granted:
(a) is not an Employee; or
(b) owns or is considered to own stock possessing more
than 10% of the total combined voting power of all classes of
stock of the Employer, or any Parent or Subsidiary of the
Employer; provided, however, that this limitation shall not apply
if at the time an ISO is granted the Option Price is at least
110% of the Fair Market Value of the Stock subject to such Option
and such Option by its terms would not be exercisable after the
expiration of five years from the date on which the Option is
granted. For the purpose of this paragraph (b), a person shall
be considered to own (i) the stock owned, directly or indirectly,
by or for his brothers and sisters (whether by the whole or half
blood), spouse, ancestors, and lineal descendants, (ii) the stock
owned, directly or indirectly, by or for a corporation,
partnership, estate, or trust in proportion to such person's
stock interest, partnership interest, or beneficial interest
therein, and (iii) the stock that such person may purchase under
any outstanding options of the Employer or of any Parent or
Subsidiary of the Employer.
6.4 $100,000 LIMITATION. Except as provided below, the
Committee shall not grant an ISO to, or modify the exercise
provisions of outstanding ISOs held by, any person who, at the
time the ISO is granted (or modified), would thereby receive or
hold any incentive stock options (as described in Code section
422A) of the Employer and any Parent or Subsidiary of the
Employer, such that the aggregate Fair Market Value (determined
as of the respective dates of grant or modification of each
option) of the stock with respect to which such incentive stock
options are exercisable for the first time during any calendar
year is in excess of $100,000; provided, that the foregoing
restriction on modification of outstanding ISOs shall not
preclude the Committee from modifying an outstanding ISO if, as a
result of such modification and with the consent of the Optionee,
such Option no longer constitutes an ISO; and provided that, if
the $100,000 limitation described in this Section 6.4 is
exceeded, an Option that otherwise qualifies as an ISO shall be
treated as an ISO up to the limitation and the excess shall be
treated as an Option not qualifying as an ISO. The preceding
sentence shall be applied by taking options intended to be ISOs
into account in the order in which they were granted.
6.5 OPTION PRICE. The Option Price under each Option shall
be determined by the Committee. The Option Price shall not be
less than par value per share, or in the case of an ISO less than
the Fair Market Value of the Stock, on the date that the Option
is granted (or, in the case of an ISO that is subsequently
modified, on the date of such modification).
8<PAGE>
6.6 EXERCISE PERIOD. The period for the exercise of each
Option granted hereunder shall be determined by the Committee,
but the Stock Option Agreement with respect to each Option
intended to be an ISO shall provide that such Option shall not be
exercisable after the expiration of ten years from the date of
grant (or modification) of the Option. In addition, no Option
granted to an Employee who is also an Officer or Director shall
be exercisable prior to the expiration of six months from the
date such Option is granted, other than in the case of the death
or disability of such Employee.
6.7 OPTION EXERCISE.
(a) Unless otherwise provided in the Stock Option
Agreement, an Option may be exercised at any time or from time to
time during the term of the Option as to any or all whole shares
that have become Purchasable under the provisions of the Option,
but not at any time as to less than 100 shares unless the
exercise is for all the remaining shares that have become so
Purchasable. The Committee shall have the authority to prescribe
in any Stock Option Agreement that the Option may be exercised
only in accordance with a vesting schedule during the term of the
Option.
(b) An Option shall be exercised by (i) delivery to
the Treasurer of the Company at its principal office of written
notice of exercise with respect to a specified number of shares
of Stock, and (ii) payment to the Company at that office of the
full amount of the Option Price for such number of shares.
(c) The Option Price shall be paid in full upon the
exercise of the Option; provided, however, that the Committee may
provide in a Stock Option Agreement that, in lieu of cash, all or
any portion of the Option Price may be paid by tendering to the
Company shares of Stock duly endorsed for transfer and owned by
the Optionee, to be credited against the Option Price at the Fair
Market Value of such shares on the date of exercise (however, no
fractional shares may be so transferred, and the Company shall
not be obligated to make any cash payments in consideration of
any excess of the aggregate Fair Market Value of shares
transferred over the aggregate Option Price); provided further,
that the Committee may provide in a Stock Option Agreement that,
in lieu of cash or shares, all or a portion of the Option Price
may be paid by the Optionee's execution and delivery of a
promissory note equal to the Option Price or relevant portion
thereof; and provided further, that the Committee may provide in
a Stock Option Agreement that in lieu of the aforementioned forms
of payment, all or a portion of the Option Price may be paid by
any other means that the Committee determines is consistent with
the purpose of the Plan and applicable law.
9<PAGE>
(d) In addition to and at the time of payment of the
Option Price, the Optionee shall pay to the Company in cash the
full amount of any federal, state, and local income, employment,
or other taxes required to be withheld from the income of such
Optionee as a result of such exercise; provided, however, that in
the discretion of the Committee, any Stock Option Agreement may
provide that all or any portion of such tax obligations, together
with additional taxes not exceeding the actual additional taxes
to be owed by the Optionee as a result of such exercise, may,
upon the irrevocable election of the Optionee, be paid by
tendering to the Company whole shares of Stock duly endorsed for
transfer and owned by the Optionee, or by authorization to the
Company to withhold shares of Stock otherwise issuable upon
exercise of the Option, in either case in that number of shares
having a Fair Market Value on the date of exercise equal to the
amount of such taxes thereby being paid, and subject to such
restrictions as to the approval and timing of any such election
as the Committee may from time to time determine to be necessary
or appropriate to satisfy the conditions of the exemption set
forth in Rule 16b-3 under the 1934 Act.
(e) The holder of an Option shall not have any of the
rights of a stockholder with respect to the shares of Stock
subject to the Option until such shares have been issued and
delivered to him upon the exercise of the Option.
6.8 NONTRANSFERABILITY OF OPTION. No Option or any rights
therein shall be transferable by an Optionee otherwise than by
will or the laws of descent and distribution. During the
lifetime of an Optionee, an Option granted to that Optionee shall
be exercisable only by such Optionee (or by such Optionee's
guardian or other legal representative, should one be appointed).
6.9 TERMINATION OF EMPLOYMENT. The Committee shall have
the power to specify, with respect to the Options granted to any
particular Optionee, the effect upon such Optionee's right to
exercise an Option of the termination of such Optionee's
employment under various circumstances, which effect may include
immediate or deferred termination of such Optionee's rights under
an Option, or acceleration of the date at which an Option may be
exercised in full.
6.10 NO EMPLOYMENT RIGHTS. Options granted under the Plan
shall not be affected by any change of employment so long as the
Optionee continues to be an Employee. Nothing in the Plan or in
any Stock Option Agreement shall confer on any person any right
to continue in the employ of the Company or any Subsidiary of the
Company, or shall interfere in any way with the right of the
Company or any Subsidiary of the Company to terminate such
person's employment at any time for any reason.
6.11 CERTAIN SUCCESSOR OPTIONS. To the extent not
inconsistent with the terms, limitations, and conditions of Code
section 422A, and any regulations promulgated with respect
thereto, an Option issued in respect of an option held by an
Employee to acquire stock of any entity acquired, by merger or
otherwise, by the Company (or any Subsidiary of the Company) may
contain terms that differ from those stated in this Article VI,
but solely to the extent necessary to preserve for any such
Employee the rights and benefits contained in such predecessor
option, or to satisfy the requirements of Code section 425(a).
10<PAGE>
ARTICLE VII
CONDITIONS TO ISSUING STOCK
The Company shall not be required to issue or deliver any
Stock purchased upon the full or partial exercise of any Option
granted hereunder prior to fulfillment of all of the following
conditions:
(a) The admission of such shares to listing on all
stock exchanges on which the Stock is then listed;
(b) The completion of any registration or other
qualification of such shares that the Company shall determine to
be necessary or advisable under any federal or state law or under
the rulings or regulations of the Securities and Exchange
Commission or any other governmental regulatory body, or the
Company's determination that an exemption is available from such
registration or qualification;
(c) The obtaining of any approval or other clearance
from any federal or state governmental agency that the Company
shall determine to be necessary or advisable; and
(d) The lapse of such reasonable period of time
following exercise as shall be appropriate for reasons of
administrative convenience.
Unless the shares of Stock covered by the Plan shall be the
subject of an effective registration statement under the
Securities Act of 1933, as amended, stock certificates issued and
delivered to Optionees shall bear such restrictive legends as the
Company shall deem necessary or advisable pursuant to applicable
federal and state securities laws.
11<PAGE>
ARTICLE VIII
TERMINATION, AMENDMENT, AND MODIFICATION OF PLAN
The Board may at any time (a) cause the Committee to cease
granting Options, (b) terminate the Plan, or (c) amend or modify
the Plan in any respect; provided, however, that the Board
(unless its actions are approved or ratified by the shareholders
of the Company within twelve months of the date the Board amends
the Plan) may not amend the Plan to (i) increase the number of
shares of Stock subject to the Plan; or (ii) change or modify the
class of employees that may participate in the Plan. No
termination, amendment, or modification of the Plan shall affect
adversely the rights of an Optionee under any outstanding Option
without the consent of the Optionee or his legal representative.
ARTICLE IX
MISCELLANEOUS
9.1 REPLACEMENT OPTION GRANTS. At the sole discretion of
the Committee, an Optionee may be given an election to surrender
an Option in exchange for a new Option.
9.2 FORFEITURE FOR COMPETITION. If an Optionee provides
services to a competitor of the Company or any of its
Subsidiaries, whether as an employee, officer, director,
independent contractor, consultant, agent, or otherwise, and if
such services are of a nature that reasonably can be expected to
involve the skills and experience used or developed by the
Optionee while an Employee, then that Optionee's rights under any
Options outstanding hereunder shall be forfeited and terminated,
subject to a determination to the contrary by the Committee.
9.3 REDEMPTION RIGHT. The Committee, in its sole
discretion but only with the consent of the Optionee, may
determine to settle all or a portion of the Company's obligations
arising out of the exercise of an Option by payment of cash equal
to the product of (a) the amount by which the fair market value
exceeds the Option Price, and (b) the number of shares to which
the Option is exercised.
9.4 PLAN BINDING ON SUCCESSORS. The Plan shall be binding
upon the successors of the Company.
9.5 GENDER. Whenever used herein, the masculine pronoun
shall include the feminine gender.
9.6 HEADINGS NO PART OF PLAN. Headings of Articles and
Sections hereof are inserted for convenience and reference, and
do not constitute a part of the Plan.
12
Exhibit 5 Attorneys at Law
Suite 2800
1100 Peachtree Street
Atlanta, Georgia 30309-4530
Telephone: 404.815.6500
Facsimile: 404.815.6555
June 19, 1998
JWGenesis Financial Corp.
980 North Federal Highway, Suite 210
Boca Raton, Florida 33242
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel for JWGenesis Financial Corp., a
Florida corporation (the "Company"), in the preparation of the
Form S-8 Registration Statement relating to the Company's 1990
Stock Option Plan (as amended June 10, 1997) and the proposed
offer and sale of up to 1,600,000 shares of the Company's common
stock, par value $.001 per share (the "Common Stock"), pursuant
thereto.
In such capacity, we have examined certificates of public
officials and originals or copies of such corporate records,
documents, and other instruments relating to the authorization of
the Plan and the authorization and issuance of the shares of
Common Stock pursuant to options granted thereunder as we have
deemed relevant under the circumstances.
Based on and subject to the foregoing, it is our opinion
that the Plan and the proposed offer and sale thereunder of up to
1,600,000 shares of Common Stock have been duly authorized by the
Board of Directors of the Company, and that the shares, when
issued in accordance with the terms and conditions of the Plan,
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to said Registration Statement.
Sincerely,
KILPATRICK STOCKTON LLP
By: /s/ Jan M. Davidson
Jan M. Davidson, a partner
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-8 of
JWGenesis Financial Corp. ("JWGenesis"), of our report dated March 5,
1998, appearing on page F-2 of JW Charles Financial Services, Inc.'s
Annual Report on Form 10-K/A for the year ended December 31, 1997. We
also consent to the use of our report dated April 16, 1998 on the
financial statement of JWGenesis as of January 16, 1998 included in the
JWGenesis Registration Statement on Form S-4 (No. 333-47693).
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Tampa, Florida
June 19, 1998
