AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 7, 1999
REGISTRATION STATEMENT NO. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------
DEVCON INTERNATIONAL CORP.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-0671992
- ------------------------------- ----------------------
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1350 EAST NEWPORT CENTER DRIVE, SUITE 201
DEERFIELD BEACH, FLORIDA 33442
(954) 429-1500
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(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1999 STOCK OPTION PLAN
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DONALD L. SMITH, JR.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
DEVCON INTERNATIONAL CORP.
1350 EAST NEWPORT CENTER DRIVE, SUITE 201
DEERFIELD BEACH, FLORIDA 33442
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(Name and address of agent for service)
(954) 429-1500
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(Telephone number, including area code, of agent for service)
COPY TO:
ROBERT L. GROSSMAN, ESQ.
GREENBERG TRAURIG, P.A.
1221 BRICKELL AVENUE
MIAMI, FLORIDA 33131
(305) 579-0756
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
PROPOSED MAXIMUM PROPOSED
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK 350,000 $1.50 - $4.875 $615,187.50 $162.42
$.10 PAR VALUE...................... SHARES
====================================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the registration fee which
was computed in accordance with Rule 457(h) on the basis of the (i) actual
exercise price of $1.50 for an aggregate of 325,500 options to purchase
Common Stock being registered, which have already been granted under the
Devcon International Corp. 1999 Stock Option Plan (the "Plan"), (ii) the
average of the high and low price of a share of Common Stock as reported
by the Nasdaq National Market on December 1, 1999, (which was $4.875 with
respect to 24,500 shares of Common Stock subject to future grants of
options under the Plan).
</FN>
</TABLE>
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
- ---------------------
* The document(s) containing the information specified in this Part I
will be sent or given to employees as specified by Rule 428(b)(1). Such
documents will not be filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as the
prospectuses or prospectus supplements pursuant to Rule 424. These documents and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Part II of this Registration Statement, taken together, shall
constitute a prospectus which meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended.
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<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration
Statement the following documents or portions thereof as indicated:
(a) the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(b) the Registrant's Quarterly Reports on Form 10-Q, for the
quarterly periods ended March 31, 1999, June 30, 1999 and
September 30, 1999;
(c) all other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") since December 31, 1998;
(d) the description of the Registrant's Common Stock contained in
the Registrant's registration statement on Form 8-A filed with
the Commission on April 30, 1973, as amended on June 11, 1973,
and as such description is updated in any additional amendment
to such Form 8-A; and
(e) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-2 (Reg. No.
33-31107), filed with the Commission on September 15, 1989, as
amended on October 10, 1989.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated herein by reference shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein, or in a subsequently filed document incorporated
herein by reference, modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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 has authority under Section 607.0850 of the Florida
Business Corporation Act to indemnify its directors and officers to the extent
provided in such statute. The Registrant's Articles provide that the Registrant
may indemnify its executive officers and directors to the fullest extent
permitted by law.
The provisions of the Florida Business Corporation Act that authorize
indemnification do not eliminate the duty of care of a director and, in
appropriate circumstances, equitable remedies such as injunctive or other forms
of nonmonetary relief will remain available under Florida law. In addition, each
director will continue to be subject to liability for (a) violations of the
criminal law, unless the director had reasonable cause to believe his conduct
was lawful or had no reasonable cause to believe his conduct was unlawful, (b)
deriving an improper personal benefit from a transaction, (c) voting for or
assenting to an unlawful distribution and (d) willful misconduct or a conscious
disregard for the best interests of the Registrant in a proceeding by or in the
right of the Registrant to procure a judgment in its favor or in a proceeding by
or in the right of a shareholder. The statute does not affect a director's
responsibilities
3
<PAGE>
under any other law, such as the federal securities laws. The effect of the
foregoing is to require the Registrant to indemnify the officers and directors
of the Registrant for any claim arising against such persons in their official
capacities if such person acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 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 suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
See "Exhibit Index" on page II-1 below.
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:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933 (the "Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to Section
13 or 15(d) of the Exchange Act that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability
under the 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.
4
<PAGE>
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the 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
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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
5
<PAGE>
SIGNATURES
Pursuant to the requirements of the 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
Deerfield Beach, State of Florida on December 7, 1999.
DEVCON INTERNATIONAL CORP.
By: /s/ DONALD L. SMITH, JR.
--------------------------------------
Name: Donald L. Smith, Jr.
Title: Chairman of the Board and Chief Executive
Officer
Pursuant to the requirements of the Act, this Registration Statement
has been signed below by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ DONALD L. SMITH, JR. Chairman of the Board and Chief Executive December 7, 1999
- --------------------------- Officer
Donald L. Smith, Jr.
/s/ RICHARD L. HORNSBY Senior Vice President and Director December 7, 1999
- ---------------------------
Richard L. Hornsby
/s/ ROBERT A. STEELE Director December 7, 1999
- ---------------------------
Robert A. Steele
/s/ ROBERT L. KESTER Director December 7, 1999
- ---------------------------
Robert L. Kester
/s/ W. DOUGLAS PITTS Director December 7, 1999
- ---------------------------
W. Douglas Pitts
/s/ JOSE A. BECHARA, JR. Director December 7, 1999
- ---------------------------
Jose A. Bechara, Jr.
</TABLE>
6
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.1 Registrant's Amended and Restated Articles of Incorporation(1)
4.2 Registrant's Amended and Restated Bylaws(2)
4.3 1999 Stock Option Plan
5.1 Opinion of Greenberg Traurig, P.A.
23.1 Consent of KPMG LLP
23.2 Consent of Greenberg Traurig, P.A. (contained in its opinion filed
as Exhibit 5.1 hereto)
- ----------------------------
(1) Incorporated by reference to Exhibit 3.1 filed with the Registrant's
Registration Statement on Form S-2 (Reg. No. 33-31107).
(2) Incorporated by reference to Exhibit 3.2 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998.
II-1
EXHIBIT 4.3
---------------------------------------
DEVCON INTERNATIONAL CORP.
1999 STOCK OPTION PLAN
---------------------------------------
1. PURPOSE. The purpose of this Plan is to advance the interests of
DEVCON INTERNATIONAL CORP., a Florida corporation (the "Company"), and its
Subsidiaries by providing an additional incentive to attract and retain
qualified and competent persons who provide services to the Company and its
Subsidiaries, and upon whose efforts and judgment the success of the Company and
its Subsidiaries is largely dependent, through the encouragement of stock
ownership in the Company by such persons.
2. DEFINITIONS. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Committee" shall mean the committee appointed by the
Board pursuant to Section 13(a) hereof.
(c) "Common Stock" shall mean the Company's Common Stock,
par value $0.10 per share.
(d) "Director" shall mean a member of the Board.
(e) "Fair Market Value" of a Share on any date of
reference shall mean the "Closing Price" (as defined below) of the Common Stock
on the business day immediately preceding such date, unless the Committee or the
Board in its sole discretion shall determine otherwise in a fair and uniform
manner. For the purpose of determining Fair Market Value, the "Closing Price" of
the Common Stock on any business day shall be (i) if the Common Stock is listed
or admitted for trading on any United States national securities exchange, or if
actual transactions are otherwise reported on a consolidated transaction
reporting system, the last reported sale price of Common Stock on such exchange
or reporting system, as reported in any newspaper of general circulation, (ii)
if the Common Stock is quoted on the National Association of Securities Dealers
Automated Quotations System ("NASDAQ"), or any similar system of automated
dissemination of quotations of securities prices in common use, the last
reported sale price of Common Stock on such system or, if sales prices are not
reported, the mean between the closing high bid and low asked quotations for
such day of Common Stock on such system, as reported in any newspaper of general
circulation or (iii) if neither clause (i) or (ii) is applicable, the mean
between the high bid and low asked quotations for the Common Stock as reported
by the National Quotation Bureau, Incorporated if at least two securities
dealers have inserted both bid and asked quotations for Common Stock on at least
five of the ten preceding days. If neither (i), (ii), or (iii) above is
applicable, then Fair Market Value shall be determined in good faith by the
Committee or the Board in a fair and uniform manner.
(f) "Incentive Stock Option" shall mean an incentive
stock option as defined in Section 422 of the Internal Revenue Code.
(g) "Internal Revenue Code" shall mean the Internal
Revenue Code of 1986, as amended from time to time.
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<PAGE>
(h) "Non-Qualified Stock Option" shall mean an Option
which is not an Incentive Stock Option.
(i) "Officer" shall mean the Company's Chairman of the
Board, President, Chief Executive Officer, principal financial officer,
principal accounting officer, any vice-president of the Company in charge of a
principal business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy-making function, or any other
person who performs similar policy-making functions for the Company. Officers of
Subsidiaries shall be deemed Officers of the Company if they perform such
policy-making functions for the Company. As used in this paragraph, the phrase
"policy-making function" does not include policy-making functions that are not
significant. If pursuant to Item 401(b) of Regulation S-K (17 C.F.R. /section/
229.401(b)) the Company identifies a person as an "executive officer," the
person so identified shall be deemed an "Officer" even though such person may
not otherwise be an "Officer" pursuant to the foregoing provisions of this
paragraph.
(j) "Option" (when capitalized) shall mean any option
granted under this Plan.
(k) "Optionee" shall mean a person to whom a stock option
is granted under this Plan or any person who succeeds to the rights of such
person under this Plan by reason of the death of such person.
(l) "Outside Director" shall mean a member of the Board
who qualifies as an "outside director" under Section 162(m) of the Internal
Revenue Code and the regulations thereunder and as a "Non-Employee Director"
under Rule 16b-3 promulgated under the Securities Exchange Act.
(m) "Plan" shall mean this 1999 Stock Option Plan for the
Company.
(n) "Securities Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended from time to time.
(o) "Share" shall mean a share of Common Stock.
(p) "Subsidiary" shall mean any corporation (other than
the Company) in any unbroken chain of corporations beginning with the Company
if, at the time of the granting of the Option, each of the corporations other
than the last corporation in the unbroken chain owns stock possessing 50 percent
or more of the total combined voting power of all classes of stock in one of the
other corporations in such chain.
3. SHARES AVAILABLE FOR OPTION GRANTS. The Committee or the Board may
grant to Optionees from time to time Options to purchase an aggregate of up to
Three Hundred Fifty Thousand (350,000) Shares from the Company's authorized and
unissued Shares. If any Option granted under the Plan shall terminate, expire,
or be cancelled or surrendered as to any Shares, new Options may thereafter be
granted covering such Shares.
4. INCENTIVE AND NON-QUALIFIED OPTIONS.
(a) An Option granted hereunder shall be either an
Incentive Stock Option or a Non-Qualified Stock Option as determined by the
Committee or the Board at the time of grant of such Option and shall clearly
state whether it is an Incentive Stock Option or a Non-Qualified Stock Option.
All Incentive Stock Options shall be granted within 10 years from the effective
date of this Plan. Incentive Stock Options may not be granted to any person who
is not an employee of the Company or any Subsidiary.
(b) Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate fair market value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Section 422(b) of the Internal Revenue Code are exercisable for the first
time by any individual during any
2
<PAGE>
calendar year (under all plans of the Company and its parent and subsidiary
corporations as defined in Section 424 of the Internal Revenue Code), exceeds
$100,000.
5. CONDITIONS FOR GRANT OF OPTIONS.
(a) Each Option shall be evidenced by an option agreement
that may contain any term deemed necessary or desirable by the Committee or the
Board, provided such terms are not inconsistent with this Plan or any applicable
law. Optionees shall be (i) those persons selected by the Committee or the Board
from the class of all regular employees of , or persons who provide consulting
or other services as independent contractors to, the Company or its
Subsidiaries, including Directors and Officers who are regular employees, and
(ii) Directors who are not employees of the Company or of any Subsidiaries. Any
person who files with the Committee or the Board, in a form satisfactory to the
Committee or the Board, a written waiver of eligibility to receive any Option
under this Plan shall not be eligible to receive any Option under this Plan for
the duration of such waiver.
(b) In granting Options, the Committee or the Board shall
take into consideration the contribution the person has made to the success of
the Company or its Subsidiaries and such other factors as the Committee or the
Board shall determine. The Committee or the Board shall also have the authority
to consult with and receive recommendations from officers and other personnel of
the Company and its Subsidiaries with regard to these matters. The Committee or
the Board may from time to time in granting Options under the Plan prescribe
such other terms and conditions concerning such Options as it deems appropriate,
including, without limitation, (i) prescribing the date or dates on which the
Option becomes exercisable, (ii) providing that the Option rights accrue or
become exercisable in installments over a period of years, or upon the
attainment of stated goals or both, or (iii) relating an Option to the continued
employment of the Optionee for a specified period of time, provided that such
terms and conditions are not more favorable to an Optionee than those expressly
permitted herein.
(c) The Options granted to employees under this Plan
shall be in addition to regular salaries, pension, life insurance or other
benefits related to their employment with the Company or its Subsidiaries.
Neither the Plan nor any Option granted under the Plan shall confer upon any
person any right to employment or continuance of employment by the Company or
its Subsidiaries.
(d) Notwithstanding any other provision of this Plan, an
Incentive Stock Option shall not be granted to any person owning directly or
indirectly (through attribution under Section 424(d) of the Internal Revenue
Code) at the date of grant, stock possessing more than 10% of the total combined
voting power of all classes of stock of the Company (or of its parent or
subsidiary corporation (as defined in Section 424 of the Internal Revenue Code)
at the date of grant) unless the option price of such Option is at least 110% of
the Fair Market Value of the Shares subject to such Option on the date the
Option is granted, and such Option by its terms is not exercisable after the
expiration of five years from the date such Option is granted.
(e) Notwithstanding any other provision of this Plan, and
in addition to any other requirements of this Plan, the aggregate number of
Options granted to any one Optionee may not exceed One Hundred Thousand
(100,000), subject to adjustment as provided in Section 10 hereof.
6. OPTION PRICE. The option price per Share of any Option shall be any
price determined by the Committee or the Board but shall not be less than the
par value per Share; provided, however, that in no event shall the option price
per Share of any Incentive Stock Option be less than the Fair Market Value of
the Shares underlying such Option on the date such Option is granted.
7. EXERCISE OF OPTIONS. An Option shall be deemed exercised when (i)
the Company has received written notice of such exercise in accordance with the
terms of the Option, (ii) full payment of the aggregate option price of the
Shares as to which the Option is exercised has been made, and (iii) arrangements
that are satisfactory to the Committee or the Board in its sole discretion have
been made for the Optionee's payment to the Company of the amount that is
necessary for the Company or Subsidiary employing the Optionee to withhold in
accordance with applicable Federal or state tax withholding requirements. The
consideration to be paid for the Shares to be issued upon exercise of an Option
as
3
<PAGE>
well as the method of payment of the exercise price and of any withholding and
employment taxes applicable thereto, shall be determined by the Committee or the
Board and may in the discretion of the Committee or the Board consist of: (1)
cash, (2) certified or official bank check, (3) money order, (4) Shares that
have been held by the Optionee for at least six (6) months (or such other Shares
as the Company determines will not cause the Company to recognize for financial
accounting purposes a charge for compensation expense), (5) the withholding of
Shares issuable upon exercise of the Option, (6) pursuant to a "cashless
exercise" procedure, by delivery of a properly executed exercise notice together
with such other documentation, and subject to such guidelines, as the Board or
the Committee shall require to effect an exercise of the Option and delivery to
the Company by a licensed broker acceptable to the Company of proceeds from the
sale of Shares or a margin loan sufficient to pay the exercise price and any
applicable income or employment taxes, or (7) in such other consideration as the
Committee or the Board deems appropriate, or by a combination of the above. In
the case of an Incentive Stock Option, the permissible methods of payment shall
be specified at the time the Option is granted. The Committee or the Board in
its sole discretion may accept a personal check in full or partial payment of
any Shares. If the exercise price is paid in whole or in part with Shares, or
through the withholding of Shares issuable upon exercise of the Option, the
value of the Shares surrendered or withheld shall be their Fair Market Value on
the date the Option is exercised. The Company in its sole discretion may, on an
individual basis or pursuant to a general program established in connection with
this Plan, lend money to an Optionee, guarantee a loan to an Optionee, or
otherwise assist an Optionee to obtain the cash necessary to exercise all or a
portion of an Option granted hereunder or to pay any tax liability of the
Optionee attributable to such exercise. If the exercise price is paid in whole
or part with Optionee's promissory note, such note shall (i) provide for full
recourse to the maker, (ii) be collateralized by the pledge of the Shares that
the Optionee purchases upon exercise of such Option, (iii) bear interest at the
prime rate of the Company's principal lender, and (iv) contain such other terms
as the Committee or the Board in its sole discretion shall reasonably require.
No Optionee shall be deemed to be a holder of any Shares subject to an Option
unless and until a stock certificate or certificates for such Shares are issued
to such person(s) under the terms of this Plan. No adjustment shall be made for
dividends (ordinary or extraordinary, whether in cash, securities or other
property) or distributions or other rights for which the record date is prior to
the date such stock certificate is issued, except as expressly provided in
Section 10 hereof.
8. EXERCISABILITY OF OPTIONS. Any Option shall become exercisable in
such amounts, at such intervals and upon such terms as the Committee or the
Board shall provide in such Option, except as otherwise provided in this Section
8.
(a) The expiration date of an Option shall be determined
by the Committee or the Board at the time of grant, but in no event shall an
Option be exercisable after the expiration of 10 years from the date on which
the Option is granted.
(b) Unless otherwise provided in any Option, each
outstanding Option shall become immediately fully exercisable in the event of a
"Change in Control" or in the event that the Committee or the Board exercises
its discretion to provide a cancellation notice with respect to the Option
pursuant to Section 9(b) hereof. For this purpose, the term "Change in Control"
shall mean:
(i) Approval by the shareholders of the Company
of a reorganization, merger, consolidation or other form of corporate
transaction or series of transactions, in each case, with respect to which
persons who were the shareholders of the Company immediately prior to such
reorganization, merger or consolidation or other transaction do not, immediately
thereafter, own more than 50% of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated company's then outstanding voting securities, in substantially the
same proportions as their ownership immediately prior to such reorganization,
merger, consolidation or other transaction, or a liquidation or dissolution of
the Company or the sale of all or substantially all of the assets of the Company
(unless such reorganization, merger, consolidation or other corporate
transaction, liquidation, dissolution or sale is subsequently abandoned); or
(ii) Individuals who, as of the date on which the
Option is granted, constitute the Board (the "Incumbent Board") cease for any
reason to constitute at least a majority of the Board, provided that any person
becoming a director subsequent to the date on which the Option was
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<PAGE>
granted whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board (other than an election or nomination of an
individual whose initial assumption of office is in connection with an actual or
threatened election contest relating to the election of the Directors of the
Company, as such terms are used in Rule 14a-11 of Regulation 14A of Regulation
14A promulgated under the Securities Exchange Act) shall be, for purposes of
this Agreement, considered as though such person were a member of the Incumbent
Board; or
(iii) The acquisition (other than from the
Company) by any person, entity or "group", within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act, of more than 25% of either
the then outstanding shares of the Company's Common Stock or the combined voting
power of the Company's then outstanding voting securities entitled to vote
generally in the election of directors (hereinafter referred to as the ownership
of a "Controlling Interest") excluding, for this purpose, any acquisitions by
(1) the Company or its Subsidiaries, (2) any person, entity or "group" that as
of the date on which the Option is granted owns beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Securities Exchange Act) of a
Controlling Interest or (3) any employee benefit plan of the Company or its
Subsidiaries.
(c) The Committee or the Board may in its sole
discretion, accelerate the date on which any Option may be exercised and may
accelerate the vesting of any Shares subject to any Option or previously
acquired by the exercise of any Option.
9. TERMINATION OF OPTION PERIOD.
(a) Unless otherwise provided in any Option agreement,
the unexercised portion of any Option shall automatically and without notice
terminate and become null and void at the time of the earliest to occur of the
following:
(i) Three months after the date on which the
Optionee's employment is terminated other than by reason of (A) Cause, which,
solely for purposes of this Plan, shall mean the termination of the Optionee's
employment by reason of the Optionee's willful misconduct or gross negligence,
(B) a mental or physical disability (within the meaning of Internal Revenue Code
Section 22(e)) of the Optionee as determined by a medical doctor satisfactory to
the Committee, or (C) death of the Optionee;
(ii) Immediately upon the termination of the
Optionee's employment for Cause;
(iii) Twelve months after the date on which the
Optionee's employment is terminated by reason of a mental or physical disability
(within the meaning of Internal Revenue Code Section 22(e)) as determined by a
medical doctor satisfactory to the Committee or the Board;
(iv) (A) Twelve months after the date of
termination of the Optionee's employment by reason of death of the Optionee, or,
if later, (B) three months after the date on which the Optionee shall die if
such death shall occur during the one year period specified in Subsection
9(a)(iii) hereof.
All references herein to the termination of the Optionee's employment shall, in
the case of a Optionee who is not an employee of the Company or a Subsidiary,
refer to the termination of the Optionee's service with the Company.
(b) To the extent not previously exercised, (i) each
Option shall terminate immediately in the event of (1) the liquidation or
dissolution of the Company, or (2) any reorganization, merger, consolidation or
other form of corporate transaction in which the Company does not survive,
unless the successor corporation, or a parent or subsidiary of such successor
corporation, assumes the Option or substitutes an equivalent option or right
pursuant to Section 10(c) hereof, and (ii) the Committee
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or the Board in its sole discretion may by written notice ("cancellation
notice") cancel, effective upon the consummation of any corporate transaction
described in Subsection 8(b)(i) hereof in which the Company does survive, any
Option that remains unexercised on such date. The Committee or the Board shall
give written notice of any proposed transaction referred to in this Section 9(b)
a reasonable period of time prior to the closing date for such transaction
(which notice may be given either before or after approval of such transaction),
in order that Optionees may have a reasonable period of time prior to the
closing date of such transaction within which to exercise any Options that then
are exercisable (including any Options that may become exercisable upon the
closing date of such transaction). An Optionee may condition his exercise of any
Option upon the consummation of a transaction referred to in this Section 9(b).
10. ADJUSTMENT OF SHARES.
(a) If at any time while the Plan is in effect or
unexercised Options are outstanding, there shall be any increase or decrease in
the number of issued and outstanding Shares through the declaration of a stock
dividend or through any recapitalization resulting in a stock split-up,
combination or exchange of Shares, then and in such event:
(i) Appropriate adjustment shall be made in the
maximum number of Shares available for grant under the Plan, or available for
grant to any person under the Plan, so that the same percentage of the Company's
issued and outstanding Shares shall continue to be subject to being so optioned;
and
(ii) The Board or the Committee may, in its
discretion, make any adjustments it deems appropriate in the number of Shares
and the exercise price per Share thereof then subject to any outstanding Option,
so that the same percentage of the Company's issued and outstanding Shares shall
remain subject to purchase at the same aggregate exercise price.
(b) Unless otherwise provided in any Option, the
Committee or the Board may change the terms of Options outstanding under this
Plan, with respect to the option price or the number of Shares subject to the
Options, or both, when, in the Committee's or Board's sole discretion, such
adjustments become appropriate so as to preserve but not increase benefits under
the Plan.
(c) In the event of a proposed sale of all or
substantially all of the Company's assets or any reorganization, merger,
consolidation or other form of corporate transaction in which the Company does
not survive, where the securities of the successor corporation, or its parent
company, are issued to the Company's shareholders, then the successor
corporation or a parent of the successor corporation may, with the consent of
the Committee or the Board, assume each outstanding Option or substitute an
equivalent option or right. If the successor corporation, or its parent, does
not cause such an assumption or substitution to occur, or the Committee or the
Board does not consent to such an assumption or substitution, then each Option
shall terminate pursuant to Section 9(b) hereof upon the consummation of sale,
merger, consolidation or other corporate transaction.
(d) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with a direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made to, the number of or exercise price
for Shares then subject to outstanding Options granted under the Plan.
(e) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities,
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company;
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(v) any sale, transfer or assignment of all or any part of the assets or
business of the Company; or (vi) any other corporate act or proceeding, whether
of a similar character or otherwise.
11. TRANSFERABILITY OF OPTIONS AND SHARES.
(a) No Incentive Stock Option, and unless the prior
written consent of the Committee or the Board is obtained (which consent may be
withheld for any reason) and the transaction does not violate the requirements
of Rule 16b-3 promulgated under the Securities Exchange Act no Non-Qualified
Stock Option, shall be subject to alienation, assignment, pledge, charge or
other transfer other than by the Optionee by will or the laws of descent and
distribution, and any attempt to make any such prohibited transfer shall be
void. Each Option shall be exercisable during the Optionee's lifetime only by
the Optionee, or in the case of a Non-Qualified Stock Option that has been
assigned or transferred with the prior written consent of the Committee or the
Board, only by the permitted assignee.
(b) No Shares acquired by an Officer or Director pursuant
to the exercise of an Option may be sold, assigned, pledged or otherwise
transferred prior to the expiration of the six-month period following the date
on which the Option was granted, unless the transaction does not violate the
requirements of Rule 16b-3 promulgated under the Securities Exchange Act.
12. ISSUANCE OF SHARES.
(a) Notwithstanding any other provision of this Plan, the
Company shall not be obligated to issue any Shares unless it is advised by
counsel of its selection that it may do so without violation of the applicable
Federal and State laws pertaining to the issuance of securities, and may require
any stock so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps, as in its judgment are reasonably required to
prevent any such violation.
(b) As a condition to any sale or issuance of Shares upon
exercise of any Option, the Committee or the Board may require such agreements
or undertakings as the Committee or the Board may deem necessary or advisable to
facilitate compliance with any applicable law or regulation including, but not
limited to, the following:
(i) A representation and warranty by the
Optionee to the Company, at the time any Option is exercised, that he is
acquiring the Shares to be issued to him for investment and not with a view to,
or for sale in connection with, the distribution of any such Shares; and
(ii) A representation, warranty and/or agreement
to be bound by any legends endorsed upon the certificate(s) for such Shares that
are, in the opinion of the Committee or the Board, necessary or appropriate to
facilitate compliance with the provisions of any securities laws deemed by the
Committee or the Board to be applicable to the issuance and transfer of such
Shares.
13. ADMINISTRATION OF THE PLAN.
(a) The Plan shall be administered by the Board or by a
committee appointed by the Board (the "Committee") which shall be composed of
two or more Directors all of whom shall be Outside Directors. The membership of
the Committee shall be constituted so as to comply at all times with the
applicable requirements of Rule 16b-3 promulgated under the Securities Exchange
Act and Section 162(m) of the Internal Revenue Code. The Committee shall serve
at the pleasure of the Board and shall have the powers designated herein and
such other powers as the Board may from time to time confer upon it.
(b) The Board may grant Options pursuant to this Plan to
Directors who are not employees of the Company or any Subsidiary and/or other
persons to whom Options may be granted under Section 5(a) hereof.
(c) The Committee or the Board, from time to time, may
adopt rules and regulations for carrying out the purposes of the Plan. The
determinations by the Committee or the Board,
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and the interpretation and construction of any provision of the Plan or any
Option by the Committee or the Board, shall be final and conclusive.
(d) Any and all decisions or determinations of the
Committee shall be made either (i) by a majority vote of the members of the
Committee at a meeting or (ii) without a meeting by the unanimous written
approval of the members of the Committee.
14. WITHHOLDING OR DEDUCTION FOR TAXES. If at any time specified herein
for the making of any issuance or delivery of any Option or Common Stock to any
Optionee or beneficiary, any law or regulation of any governmental authority
having jurisdiction in the premises shall require the Company to withhold, or to
make any deduction for, any taxes or take any other action in connection with
the issuance or delivery then to be made, such issuance or delivery shall be
deferred until such withholding or deduction shall have been provided for by the
Optionee or beneficiary, or other appropriate action shall have been taken.
15. INTERPRETATION.
(a) As it is the intent of the Company that the Plan
comply in all respects with Rule 16b-3 promulgated under the Securities Exchange
Act ("Rule 16b-3"), any ambiguities or inconsistencies in construction of the
Plan shall be interpreted to give effect to such intention, and if any provision
of the Plan is found not to be in compliance with Rule 16b-3, such provision
shall be deemed null and void to the extent required to permit the Plan to
comply with Rule 16b-3. The Committee or the Board may from time to time adopt
rules and regulations under, and amend, the Plan in furtherance of the intent of
the foregoing.
(b) The Plan and any Option agreements entered into
pursuant to the Plan shall be administered and interpreted so that all Incentive
Stock Options granted under the Plan will qualify as Incentive Stock Options
under section 422 of the Internal Revenue Code. If any provision of the Plan or
any such Option agreement should be held invalid for the granting of Incentive
Stock Options or illegal for any reason, such determination shall not affect the
remaining provisions hereof, but instead the Plan and the Option agreement shall
be construed and enforced as if such provision had never been included in the
Plan or the Option agreement.
(c) This Plan shall be governed by the laws of the State
of Florida.
(d) Headings contained in this Plan are for convenience
only and shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine, or neuter
gender shall be a reference to such other gender as is appropriate.
16. AMENDMENT AND DISCONTINUATION OF THE PLAN. The Committee or the
Board may from time to time amend, suspend or terminate the Plan or any Option;
provided, however, that, any amendment to the Plan shall be subject to the
approval of the Company's shareholders if such shareholder approval is required
by any federal or state law or regulation (including, without limitation, Rule
16b-3 or to comply with Section 162(m) of the Internal Revenue Code) or the
rules of any Stock exchange or automated quotation system on which the Common
Stock may then be listed or granted. Except to the extent provided in Sections 9
and 10 hereof, no amendment, suspension or termination of the Plan or any Option
issued hereunder shall substantially impair the rights or benefits of any
Optionee pursuant to any Option previously granted without the consent of the
Optionee.
17. EFFECTIVE DATE AND TERMINATION DATE. The effective date of the Plan
is April 1, 1999, the date on which the Board adopted this Plan, and the Plan
shall terminate on March 31, 2009. The Plan shall be submitted to the
shareholders of the Company for their approval and adoption and Options
hereunder may be granted prior to such approval and adoption but contingent upon
such approval and adoption.
8
EXHIBIT 5.1
December 7, 1999
Devcon International Corp.
1350 East Newport Center Drive, Suite 201
Deerfield Beach, Florida 33442
Re: Registration Statement on Form S-8 for Devcon International
Corp. 1999 Stock Option Plan
Ladies and Gentlemen:
On the date hereof, Devcon International Corp., a Florida corporation
(the "Company"), sent for filing with the Securities and Exchange Commission
(the "Commission") a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended (the "Act"). The
Registration Statement relates to the offering and sale by the Company of up to
350,000 shares of the Company's Common Stock, par value $.10 per share (the
"Common Stock"), pursuant to stock options ("Options") granted or to be granted
under the Company's 1999 Stock Option Plan (the "1999 Plan"). We have acted as
counsel to the Company in connection with the preparation and filing of the
Registration Statement.
In connection therewith, we have examined and relied upon the original
or a copy, certified to our satisfaction, of (i) the Amended and Restated
Articles of Incorporation and Amended and Restated Bylaws of the Company; (ii)
records of corporate proceedings of the Company authorizing the 1999 Plan; (iii)
the Registration Statement and exhibits thereto; and (iv) such other documents
and instruments as we have deemed necessary for the expression of the opinions
herein contained. In making the foregoing examinations, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, and the conformity to original documents of all documents
submitted to us as certified or photostatic copies. As to various questions of
fact material to this opinion, we have relied, to the extent we deemed
reasonably appropriate, upon representations of officers or directors of the
Company and upon documents, records and instruments furnished to us by the
Company, without independently checking or verifying the accuracy of such
documents, records and instruments.
Based upon the foregoing examination, we are of the opinion that the
Company presently has available approximately 10,501,065 shares of authorized
and unissued Common Stock from which the 350,000 shares of Common Stock proposed
to be sold pursuant to the exercise of Options granted under the 1999 Plan may
be issued. In addition, assuming that the Company maintains an adequate number
of authorized and unissued shares of Common Stock available for issuance to
those persons who exercise their Options, and that the consideration for the
underlying shares of Common Stock issued pursuant to the Options is actually
received by the Company as provided in the 1999 Plan, we are of the opinion that
the shares of Common Stock issued pursuant to the exercise of Options granted
under and in accordance with the terms of the 1999 Plan will be duly and validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit that we come
within the category of persons whose consent is required by Section 7 of the Act
or the rules and regulations of the Commission thereunder.
Sincerely,
GREENBERG TRAURIG, P.A.
By: /s/ ROBERT L. GROSSMAN
----------------------------
Robert L. Grossman
EXHIBIT 23.1
Consent of Independent Public Accountants
The Board of Directors
Devcon International Corp.:
We consent to incorporation by reference in this Registration Statement on Form
S-8 of our report dated March 26, 1999 relating to the consolidated balance
sheets of Devcon International Corp. and subsidiaries as of December 31, 1998
and 1997, and the related consolidated statements of operations, stockholders'
equity and comprehensive income, and cash flows for each of the years in the
three-year period ended December 31, 1998, and related financial statement
schedule, which report appears in the December 31, 1998 annual report on Form
10-K of Devcon International Corp.
/s/ KPMG LLP
Ft. Lauderdale, Florida
December 3, 1999
