As filed with the Securities and Exchange Commission on
January 13, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ALICO, INC.
(Exact name of registrant as specified in its charter)
Florida 59-0906081
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
P. O. Box 338, La Belle, FL 33975
(address, including zip code, of principal executive offices)
Alico, Inc. 1998 Incentive Equity Plan
(Full title of the plan)
Ben Hill Griffin, III
P. O. Box 338, La Belle, FL 33975
(941)675-2966
(Name, address and telephone number, including area code,
of agent for service)
Copies of all communications, including copies of all communications
sent to agent for service, should be sent to:
David C. Shobe, Esquire
Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A.
501 East Kennedy Boulevard, Suite 1700
Tampa, Florida 33602
CALCULATION OF REGISTRATION FEE
____________________________________________________________________________
Title of each Amount to be Proposed Proposed maximum Amount of
of class of registered maximum offering aggregate registration
securities to price per share offering price(1) fee
be registered
____________________________________________________________________________
Common Stock, 650,000 $18.125 $11,781,250 $3,275.19
par value shares
$1.00 per share
(1) Estimated solely for purposes of calculating the registration fee
pursuant to Rules 457(h) and 457(c) based on the average of the high
and low prices of the common stock of the Company as reported on
January 11, 1999 on the NASDAQ stock market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been previously filed by Alico, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) Annual Report on Form 10-K for the fiscal year ended August 31,
1998;
(b) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the documents of the Company referred to in (a) above.
(c) The Description of the Company's Common Stock which is contained
in the Company's Registration Statement on Form 8-A, including
all amendments or reports filed for the purpose of updating such
description.
In addition, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof
and prior to the filing of a post-effective amendment which indicates that
all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in
the registration statement and to be a part thereof from the date of filing
of such documents.
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 Florida Business Corporation Act (the "Florida Act") permits a
Florida corporation to indemnify a present or former director or officer
of the corporation (and certain other persons serving at the request of
the corporation in related capacities) for liabilities, including legal
expenses, arising by reason of service in such capacity if such person
shall have acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and in any
criminal proceeding if such person had no reasonable cause to believe his
conduct was unlawful. However, in the case of actions brought by or in the
right of the corporation, no indemnification may be made with respect to
any matter as to which such director or officer shall have been adjudged
liable, except in certain limited circumstances.
The registrant's Bylaws provide that the registrant shall indemnify
directors and officers against expenses, costs and liabilities actually
and necessarily incurred or paid in connection with the defense of any
action or proceeding in which they are made a party by reason of their
being or having been a director or officer of the Company except in
relation to matters as to which the director or officer shall be adjudged
in such action, suit or proceeding to be liable for negligence or misconduct
in the performance of their duties as a director or officer.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as exhibits to this Registration
Statement:
4.1 Alico, Inc. 1998 Incentive Equity Plan.
5.1 Opinion of Fowler, White, Gillen, Boggs, Villareal and Banker,
P.A., as to the legality of the securities being registered.
23.1 Consent of Fowler, White, Gillen, Boggs, Villareal and Banker,
P.A. (appears in its opinion filed as Exhibit 5.1).
23.2 Consent of KPMG 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:
(i) to include any prospectus required by Section 10(a)
(3) of the Securities Act of 1933;
(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 subparagraphs (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained
in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement
to the securities offered 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 lability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 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
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
provisions described in Item 6, 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 such 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 La Belle, State of Florida, on
the 13th day of January, 1999.
Alico, Inc.
BEN HILL GRIFFIN, III
By:____________________________
Ben Hill Griffin, III
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of the 13th day of January, 1999.
BEN HILL GRIFFIN, III
By:____________________________
Ben Hill Griffin, III
Chairman and
Chief Executive Officer
L. CRAIG SIMMONS
By:____________________________
L. Craig Simmons
Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
BEN HILL GRIFFIN, III JANUARY 13, 1999
________________________ Ben Hill Griffin, III ____________________
Chairman of the Board;
Chief Executive Officer;
Director
W. BERNARD LESTER JANUARY 13, 1999
________________________ W. Bernard Lester ____________________
President;
Chief Operating Officer;
Director
RICHARD C. ACKERT JANUARY 13, 1999
________________________ Richard C. Ackert ____________________
Director
J.C. BARROW JANUARY 13, 1999
________________________ J. C. Barrow, Jr. ____________________
Director
WILLIAM L. BARTON JANUARY 13, 1999
________________________ William L. Barton ____________________
Director
WALKER E. BLOUNT JANUARY 13, 1999
________________________ Walker E. Blount, Jr. ____________________
Director
BEN HILL GRIFFIN, IV JANUARY 13, 1999
________________________ Ben Hill Griffin, IV ____________________
Director
K. E. HARTSAW JANUARY 13, 1999
________________________ K. E. Hartsaw ____________________
Director
THOMAS E. OAKLEY JANUARY 13, 1999
________________________ Thomas E. Oakley ____________________
Director
INDEX TO EXHIBITS
Exhibit
Number Description of Exhibits
_______ _______________________
4.1 Alico, Inc. 1998 Incentive Equity Plan.
5.1 Opinion of Fowler, White, Gillen, Boggs, Villareal
and Banker, P.A., as to the legality of the
securities being registered.
23.1 Consent of Fowler, White, Gillen, Boggs, Villareal
and Banker, P.A. (appears in its opinion filed
as Exhibit 5.1).
23.2 Consent of KPMG LLP. Filed with this Registration
Statement.
EXHIBIT 4.1
ALICO, INC.
1998 INCENTIVE EQUITY PLAN
ARTICLE I
DEFINITIONS
As used herein, the following terms have the meanings hereinafter set forth
unless the context clearly indicates to the contrary:
(a) "Affiliate" shall mean any entity other than the Company and its
Subsidiaries which the Board designates as an "Affiliate" for purposes of
this Plan.
(b) "Agreement" shall mean an agreement between the company and a
Participant pursuant to which the terms and conditions of any Options, SARs
or Restricted Stock granted to such Participant are specified.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "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.
(e) "Company" shall mean ALICO, INC., a Florida corporation, and any
successor to it.
(f) "Director" shall mean a member of the Board.
(g) "Employee" shall mean any employee of the Company or any Subsidiary of
the Company, and any Director who also serves as an Officer and whose duties
as such involve a significant time commitment beyond that associated with
preparation for and attendance at meetings of the Board and committees
thereof.
(h) "Employer" shall mean the corporation that employs an Optionee.
(i) "Fair Market Value" of the shares of Stock on any date shall mean:
(i) the closing sales price, 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 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 Nasdaq National Market 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 Board 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 Board 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 Board based on such relevant facts, which
may include opinions of independent experts, as may be available to the
Board.
(j) "ISO" shall mean an Option that complies with and is subject to the
terms, limitations and conditions of Code section 422 and any regulations
promulgated with respect thereto.
(k) "1934 Act" shall mean the Securities Exchange Act of 1934, as the same
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.
(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 respect to which the
determination is being made if, at the time of the grant (or modification)
of the Option, 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) "Participant" shall mean a person to whom an Option, SAR or Stock
Appreciation Right has been granted hereunder.
(r) "Plan" shall mean the Alico, Inc., 1998 Incentive Equity Plan as set
forth herein and as amended from time to time.
(s) "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.
(t) "Reload Option" shall mean an Option that is granted, without further
action of the Board, (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
Board shall specify at the time such exercised Option is granted.
(u) "Restriction Period" shall mean the period of time during which shares
of Stock awarded to a Participant pursuant to Article VIII remain subject to
the restrictions referred to in Section 8.2.
(v) "Restricted Stock" shall mean an award of shares of stock that is
subject to restrictions under Article VIII.
(w) "SAR" shall mean stock appreciation right.
(x) "Stock" shall mean the $1.00 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.
(y) "Stock Appreciation Right" shall mean the rights granted under Article
VII to surrender to the Company all or a portion of a stock appreciation
right in exchange for a payment in cash or Stock.
(z) "Stock Option Agreement" shall mean an agreement between the Company
and an Optionee setting forth the terms of an Option.
(aa) "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, at the time of the grant (or modification)
of the Option, 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.l Name. This plan shall be known as the "Alico, Inc., 1998 Incentive
Equity Plan."
2.2 Purpose. The purpose of the Plan is to advance the interests of the
Company, its stockholders, and any Subsidiary of the Company, by offering
certain Participants an opportunity to acquire or increase their proprietary
interests in the Company by granting such persons Options, Stock
Appreciation Rights and/or Restricted Stock. These grants will promote the
growth and profitability of the Company, and any Subsidiary of the Company,
because Participants 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 the date of its
adoption by the Board (the "Effective Date"). No Option, SAR or Restricted
Stock granted under the Plan shall become exercisable or vested, however,
until the Plan is approved by the affirmative vote of the holders of a
majority of the shares of common stock represented at a stockholders meeting
at which a quorum is present and grants under the Plan prior to such
approval shall be conditioned on and subject to such approval. Subject to
this limitation, Options, SARs and Restricted Stock may be granted under the
Plan at any time after the Effective Date and before termination of the
Plan.
2.4 Termination Date. No further Options, SARs and/or Restricted Stock
shall be granted hereunder on or after the date which is ten (10) years
after the Effective Date, but all Options, SARs and/or Restricted Stock
granted prior to that time shall remain in effect in accordance with their
terms; provided, however, that the Plan shall terminate, and all Options,
SARs and Restricted Stock theretofore granted shall become void and may not
be exercised, on October 30, 1999 if the stockholders 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 those
individuals, Board members and employees whose participation the Board
determines is in the best interests of the Company.
ARTICLE IV
ADMINISTRATION
4.1 Duties and Powers of the Board in Administering the Plan. The Plan
shall be administered by the Board. In administering the Plan, the Board's
actions and determinations shall be binding on all interested parties. The
Board shall have the power to grant Options, SARs and/or Restricted Stock in
accordance with the provisions of the Plan. Subject to the provisions of the
Plan, the Board shall have the discretion and authority to determine those
individuals to whom Options, SARs and/or Restricted Stock will be granted
and in the case of Options whether such Options shall be accompanied by the
right to receive Reload Options, the number of shares of Stock subject to
each Option, SAR or Restricted Stock, such other matters as are specified
herein, and any other terms and conditions of the Agreement applicable
thereto. To the extent not inconsistent with the provisions of the Plan,
the Board shall have the authority to amend or modify an outstanding
Agreement relative to an Option, SAR or Restricted Stock (having due regard
for possible tax implications to the Company and the Participant of such
amendment or modification), or to waive any provision thereof, provided that
the Participant consents to such action.
4.2 Interpretation; Rules. Subject to the express provisions of the Plan,
the Board 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 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, SARs or Restricted Stock 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. No member of the Board shall be liable to any person for
any act or determination made in good faith with respect to the Plan or any
Option, SAR or Restricted Stock granted hereunder.
4.4 Company Assistance. The Company shall supply full and timely
information to the Board on all matters relating to eligible persons, their
employment, death, retirement, disability or other termination of
employment, and such other pertinent facts as the Board may require. The
Company shall furnish the Board with such clerical and other assistance as
is necessary in the performance of its duties.
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 650,000 shares. Shares subject to
an Option or issued pursuant to a Restricted Stock grant 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 or Restricted Stock which has become vested shall
not again be available for issuance hereunder. The shares covered by (i) any
unexercised portion of an Option that has terminated for any reason, or (ii)
any Restricted Stock which has been forfeited, may again be granted 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
grant hereunder.
5.2 Antidilution.
(a) In the event that 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 in the event that any spin-off, spin-out
or other distribution of assets materially affects the price of the
Company's stock:
(i) The aggregate number and kind of shares of Stock for which
Options, SARs and/or Restricted Stock may be granted hereunder shall be
adjusted proportionately by the Board; and
(ii) The rights of Participants (concerning the number of shares
subject to Options and SARs and the Option Price) under outstanding Options
and SARs shall be adjusted proportionately by the Board.
(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 Board, in its discretion,
may:
(i) declare that all Options and SARs granted under the Plan shall
become exercisable immediately and that all Restricted Stock shall become
vested notwithstanding the provisions of the respective Agreements regarding
exercisability or vesting, and that all such Options and SARs shall
terminate 30 days after the Board gives written notice of the immediate
right to exercise all such Options and SARs and of the decision to terminate
all Options and SARs not exercised within such 30-day period; or
(ii) notify all Participants that all Options and SARs granted under
the Plan and all Restricted Stock Agreements shall be assumed by the
successor corporation or substituted with Options, SARs or Restricted Stock
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 (i) every Option and
SAR outstanding under the Plan to terminate to the extent not exercised
prior to the adoption of the plan of dissolution or liquidation by the
stockholders, provided that the Board in its discretion may declare all
Options and SARs 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 Agreements regarding exercisability and (ii)
every share of Restricted Stock to vest. The Board's actions under this
provision and the Participant's exercise of Options and SAR's under this
provision shall be subject, however, to the limitations set forth in
Articles VI and Article VII 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 Board, 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 Participant at one or several times or to
different Participants 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 Board 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 Board, and (b) by a written Stock Option Agreement executed by the
Company and the Participant. 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 ISO's and those not so intended.
6.3 Optionee Limitations.
The Board 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 which 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 Board shall not
grant an ISO to, or modify the exercise provisions of outstanding ISO's 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 422) 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 ISO's shall not preclude the
Board 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 ISO's 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 Board. However, the Option Price shall not be less than 50% of the
Fair Market Value of the Stock, or in the case of an ISO less than the Fair
Market Value of the Stock, in each case 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).
6.6 Exercise Period. The period for the exercise of each Option granted
hereunder shall be determined by the Board, 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 a Participant 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
Participant.
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 remaining shares that have become so Purchasable are less than
100 shares. The Board 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 Board 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).
(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 Board 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 Board 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 transferred 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 Board 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, including but not
limited to the death or disability of the Optionee 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 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 or Board member. 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 such Subsidiary to terminate such
person's employment at any time.
6.11 Certain Successor Options. To the extent not inconsistent with the
terms, limitations and conditions of Code section 422, and any regulations
promulgated with respect thereto, an Option issued in respect of an option
held by a Participant 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 Participant the rights and
benefits contained in such predecessor option, or to satisfy the
requirements of Code section 425(a).
ARTICLE VII
STOCK APPRECIATION RIGHTS
7.1 Grant and Exercise. Stock Appreciation Rights may be granted in
conjunction with all or part of any Stock Option granted under the Plan. In
the case of a Non-Qualified Stock Option, such rights may be granted either
at or after the time of the grant of such Stock Option. In the case of an
Incentive Stock Option, such rights may be granted only at the time of the
grant of such Stock Option.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that,
unless otherwise determined by the Board at the time of grant, a Stock
Appreciation Right granted with respect to less than the full number of
shares covered by a related Stock Option shall not be reduced until the
number of shares covered by an exercise or termination of the related Stock
Option exceeds the number of shares not covered by the Stock Appreciation
Right.
A Stock Appreciation Right may be exercised by a Participant,in accordance
with Section 7.2, by surrendering the applicable portion of the related
Stock Option in accordance with procedures established by the Board for such
purposes. Upon such exercise and surrender, the Participant shall be
entitled to receive an amount determined in a manner prescribed in Section
7.1. Stock Options which have been so surrendered shall no longer be
exercisable to the extent the related Stock Appreciation Rights have been
exercised.
7.2 Terms and Conditions. Stock Appreciation Rights shall be
subject to such terms and conditions, not inconsistent with the provisions
of the Plan, as shall be determined from time to time by the Board,
including the following:
(i) Stock Appreciation Rights shall be exercisable only at such time or
times and to the extent that the Stock Options to which they relate are
exercisable, in accordance with the provisions of Article VI and Article VII
of the Plan.
(ii) Upon the exercise of a Stock Appreciation Right, a Participant shall
be entitled to receive an amount in cash and/or shares of Stock in the
aggregate equal in value to the excess of the Fair Market Value of one share
of Stock over the option price per share specified in the related Stock
Option multiplied by the number of shares in respect of which the Stock
Appreciation Right shall have been exercised, with the Board having the
right to determine the form of payment.
(iii) Stock Appreciation Rights shall be transferable only when and to the
extent that the underlying Stock Option would be transferable under
Article VI of the Plan.
(iv) Upon the exercise of a Stock Appreciation Right, the Stock Option or
part thereof to which Stock Appreciation Right is related shall be deemed to
have been exercised for the purpose of the limitation set forth in Article V
of the Plan on the number of shares of Stock to be issued under the Plan,
but only to the extent of the number of shares of Stock issued under the
Stock Appreciation Right based on the value of the Stock Appreciation Right.
(v) The Board may provide, at the time of grant, that such Stock
Appreciation Right can be exercised only in the event of a Change in Control
and/or a Potential Change in Control, subject to such terms and conditions
as the Board may specify at grant.
(vi) The Board may also provide that, in the event of a Change in Control
and/or a Potential Change in Control, the amount to be paid upon the
exercise of a Stock Appreciation Right shall be based on the Change in
Control Price, subject to such terms and conditions as the Board may specify
at grant.
ARTICLE VIII
AWARDS OF RESTRICTED STOCK
8.1 Administration. Shares of Restricted Stock may be issued either alone
or in addition to other awards granted under the Plan. The Board shall
determine the Participants to whom, and the time or times at which, such
grants will be made, the number of shares to be awarded, the price (if any)
to be paid under Section 8.2(i) by the recipient of a Restricted Stock
Award, the time or times within which such awards may be subject to
forfeiture, and all other conditions of the awards.
The Board may condition grants of Restricted Stock upon the attainment of
specified performance goals or such other factors or criteria as the Board
may determine.
The provisions of Restricted Stock Awards need not be the same with respect
to each recipient.
8.2 Restrictions and Conditions. Restricted Stock Awards shall be subject
to the following restrictions and conditions:
(i) The purchase price for shares of Restricted Stock may be equal to or
less than their par value and may be zero.
(ii) Awards of Restricted Stock must be accepted within a period of 60 days
(or such shorter periods as the Board may specify at grant) after the award
date, by executing a Restricted Stock Agreement and paying whatever price
(if any) is required under Section 8.2(i).
The prospective recipient of a Restricted Stock Award shall not have
any rights with respect to such award, unless and until such recipient has
executed an agreement evidencing the award and has delivered a fully
executed copy thereof to the Company, and has otherwise complied with the
applicable terms and conditions of such award.
(iii) Each Participant receiving a Restricted Stock Award shall be
issued a stock certificate in respect of such shares of Restricted Stock.
Such certificate shall be registered in the name of such Participant, and
shall bear an appropriate legend referring to the terms, conditions, and
restrictions applicable to such award, substantially in the following form:
"The transferability of this certificate and the shares of stock
represented hereby are subject to the terms and conditions (including
forfeiture) of the Alico, Inc. 1998 Incentive Equity Plan and an Agreement
entered into between the registered owner and Alico, Inc. Copies of such
Plan and Agreement are on file in the offices of Alico, Inc., La Belle,
Florida."
The Board may require that the stock certificates evidencing such
shares be held in custody by the Company until the restrictions thereon
shall have lapsed, and that, as a condition of any Restricted Stock Award,
the participant shall have delivered a stock power, endorsed in blank,
relating to the Stock covered by such award.
(iv) Subject to the provisions of this Plan and the applicable award
agreement, during a period set by the Board commencing with the date of such
award (the "Restriction Period"), the Participant shall not be permitted to
sell, transfer, pledge, assign or otherwise encumber shares of Restricted
Stock awarded under the Plan.
Based on service, performance and/or such other factors or criteria as the
Board may determine, the Board may, however, at or after grant provide for
the lapse of such restrictions in installments and/or may accelerate or
waive such restrictions in whole or in part.
(v) Except as provided in this Section 8.2, unless otherwise determined by
the Board the recipient shall have, with respect to the shares of Restricted
Stock covered by any award, all of the rights of a stockholder of the
Company, including the right to vote the shares, and the right to receive
any dividends.
(vi) Except as otherwise provided in this Section 8.2 and in the applicable
award agreement, upon termination of a participant's employment with the
Company or any Subsidiary or Affiliate for any reason during the Restriction
Period for a given award, all shares still subject to restriction shall be
forfeited by the participant, provided, however, the Board may provide for
waiver of the restrictions in the event of termination of employment due to
death, disability or retirement.
(vii) In the event of hardship or other special circumstances of a
participant whose employment with the Company or any Subsidiary or Affiliate
is involuntarily terminated, the Board may waive in whole or in part any or
all remaining restrictions with respect to any or all of the Participant's
Restricted Stock, based on such factors and criteria as the Board may deem
appropriate.
(viii) If and when the Restriction Period expires without a prior forfeiture
of the Restricted Stock subject to such Restriction Period, unrestricted
certificates for such shares shall be delivered to the participant.
ARTICLE IX
CONDITIONS TO ISSUING STOCK,
SAR OR RESTRICTED STOCK AWARD
The Company shall not be required to issue or deliver any Stock purchased
(i) pursuant to any Restricted Stock Award or (ii) upon the full or partial
exercise of any Option or SAR 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 Participants shall bear
such restrictive legends as the Company shall deem necessary or advisable
pursuant to applicable federal and state securities laws.
ARTICLE X
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
The Board may at any time, (i) cause the Board to cease granting Options or
Restricted Stock Awards, (ii) terminate the Plan, or (iii) in any respect
amend or modify the Plan; provided, however, that the Board (unless its
actions are approved or ratified by the stockholders of the Company within
twelve months of the date the Board amends the Plan) may not amend the Plan
to:
(a) Increase the number of shares of Stock subject to the Plan beyond the
amount previously approved or ratified by the stockholders; or
(b) Change or modify the class of persons that may participate in the
Plan.
No termination, amendment or modification of the Plan shall affect
adversely the rights of a Participant under any outstanding Option, SAR or
Restricted Stock Award without the consent of the Participant or his legal
representative.
ARTICLE XI
MISCELLANEOUS
11.1 Replacement Grants. At the sole discretion of the Board, a Participant
may be given an election to surrender an Option, SAR or Restricted Stock
Award in exchange for a new Option, SAR or Restricted Stock Award.
11.2 Forfeiture for Competition. If a Participant 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, such services being of a nature that can reasonably be expected
to involve the skills and experience used or developed by the Participant
while an Employee, then that Participant's rights under any Options, SARs or
Restricted Stock Awards outstanding hereunder shall be forfeited and
terminated, subject to a determination to the contrary by the Board.
11.3 Plan Binding on Successors. The Plan shall be binding upon the
successors of the Company.
11.4 Gender. Whenever used herein, the masculine pronoun shall include the
feminine gender.
11.5 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.
EXHIBIT 5.1
January 13, 1999
Alico, Inc.
P. O. Box 338
La Belle, FL 33975
Re: Registration Statement on Form S-8
Alico, Inc., 1998 Incentive Equity Plan
Gentlemen:
This opinion is given to you in connection with the filing by Alico,
Inc., a Florida Corporation (the "Company"), with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, of the
Registration Statement on Form S-8 (the "Registration Statement") with
respect to 650,000 shares of the common stock, $1.00 par value, of the
Company issuable pursuant to the Alico, Inc., 1998 Incentive Equity Plan
(the "Plan") (all shares of such stock issuable pursuant to the Plan are
referred to herein as the "Common Stock"). As counsel for the Company, we
have examined the relevant corporate documents incident to the giving of
this opinion.
Based on the foregoing, we are of the opinion that the shares of
Common Stock, when issued and delivered in accordance with the provisions
of the Plan and options issued thereunder, will be legally issued, fully
paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Fowler, White, Gillen, Boggs,
Villareal and Banker, P.A.
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement
on Form S-8 pertaining to the Alico, Inc. 1998 Incentive Equity Plan, of our
report dated October 9, 1998, relating to the consolidated balance sheets of
Alico, Inc. and subsidiary as of August 31, 1998 and 1997 and the related
consolidated statements of operations and cash flows for the fiscal years
in the three-year period ended August 31, 1998, which report appears on page
19 of the 1998 Financial Statements booklet in the Registrant's 1998 Annual
Report to Stockholders which is incorporated by reference in the August 31,
1998 Annual Report on Form 10-K of Alico, Inc. filed with the Securities and
Exchange Commission.
KPMG LLP
Orlando, Florida
January 13, 1999
