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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FLORAFAX INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 41-0719035
(State or other Jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
8075 20TH STREET
VERO BEACH, FLORIDA 32966
(407) 563-0263
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
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FLORAFAX INTERNATIONAL, INC. MANAGEMENT
INCENTIVE STOCK PLAN AND
OPTIONS PREVIOUSLY ISSUED UNDER
MISCELLANEOUS EMPLOYEE BENEFIT PLANS
with copies to:
JAMES H. WEST DREW R. FULLER, JR. or
PRESIDENT HOLLY H. FULLER
FLORAFAX INTERNATIONAL, INC. CAUTHORN HALE HORNBERGER FULLER
8075 20TH STREET SHEEHAN & BECKER, INCORPORATED
VERO BEACH, FLORIDA 32966 700 NORTH ST. MARY'S STREET, SUITE 620
(407) 563-0263 SAN ANTONIO, TEXAS 78205
(210) 271-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Approximate date of commencement of proposed sale to public: As soon as
practicable after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==============================================================================================================
Title of Each Class of Amount to be Proposed maximum Proposed maximum Amount of
Securities to be Registered offering price per aggregate offering registration fee
Registered (1) unit (2) Price (2) (2)
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<S> <C> <C> <C> <C>
Common Stock, par
value, $.01 per share. 1,112,687 $ 2.125 $2,364,459.86 $815.33
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</TABLE>
(1) Plus such indeterminate number of shares of the Company's Common Stock as
may be issuable by reason of the operation of the anti-dilution provisions of
awards granted under the Plan and outstanding option agreements. This
Registration Statement also relates to resales and reoffers of shares of the
Company's Common Stock previously acquired by certain affiliates of the Company
upon the exercise of nonqualified stock options.
(2) Pursuant to Rule 457(g)(3) the registration fee is calculated pursuant to
Rule 457(c), computed based upon the average of the bid and asked prices of
the Company's Common Stock as reported on NASD's Electronic OTC Bulletin
Board, on June 24, 1996, which price is used solely for the purpose of
calculating the registration fee.
(3) The Company has agreed to pay certain expenses of this offering as
described in Part II, Item 14 of the Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" WHICH BEGIN ON P. 5 OF THE ACCOMPANYING PROSPECTUS.
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EXPLANATORY NOTE
This Registration Statement contains two parts. The first part
contains a prospectus pursuant to Form S-3 (in accordance with Section C of the
General Instructions to Form S-8) which covers reoffers and resales of shares
of Common Stock of the Registrant which previously have been issued or which
shall be issued upon the exercise of non-qualified stock options granted to
affiliates of the Company, the terms of which are governed by existing option
agreements. The second part contains Information Required in the Registration
Statement pursuant to Part II of Form S-8 and certain items from Information
Not Required in Prospectus pursuant to Part II of Form S-3. Pursuant to the
Note to Part I of Form S-8, the Plan Information for the particular employee
benefit plan applicable to the option holder, specified by Part I is being
separately provided as specified by Rule 428(b)(1) and is not being filed with
the Securities and Exchange Commission.
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PROSPECTUS
612,687 SHARES
FLORAFAX INTERNATIONAL, INC.
COMMON STOCK
The shares of common stock, par value $.01 (the "Common Stock"), of
Florafax International, Inc. (the "Company") offered hereby represent shares
issued or issuable upon the exercise of certain nonqualified stock options (the
"Options") previously granted to the selling Security Holders named herein (the
"Selling Security Holders"). Although the Company will not receive any of the
proceeds from the sale of the shares of Common Stock offered hereby, the
Company has received or will receive various amounts of approximately $85,000
upon the exercise of the Options. All expenses of registration incurred in
connection with this offering are being borne by the Company; however, all
selling and other expenses incurred by the Selling Security Holders will be
borne by them. See "Selling Security Holders."
The shares of Common Stock offered hereby may be sold from time to
time by Selling Security Holders named herein under the caption "Selling
Security Holders" through underwriters, dealers, agents, or directly to one or
more purchasers in fixed price offerings, in negotiated transactions, at market
prices prevailing at the time of sale or at prices related to such market
prices. The terms of the offering and sale of Common Stock in respect of which
this Prospectus is being delivered, including any discounts, commissions or
concessions allowed, reallowed or paid to underwriters, dealers or agents, the
purchase price of the Common Stock and the proceeds to the Selling Security
Holders, and any other material terms shall be as set forth in a Prospectus
Supplement. This Prospectus also may be delivered in connection with certain
resales as described under "Plan of Distribution." See "Plan of Distribution"
for possible indemnification arrangements for dealers and agents.
The shares of Common Stock offered hereby have not been registered
under the blue sky or securities laws of any jurisdiction, and any broker or
dealer should assure itself of the existence of an exemption from registration
or effect of such registration in connection with the offer and sale of such
shares.
THE COMMON STOCK OFFERED HEREBY INVOLVES A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" WHICH BEGINS ON PAGE 5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is June 28, 1996.
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AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a Registration Statement on Form S-8, as
supplemented by certain informational items from Form S-3, under the Securities
Act of 1933, as amended (the "Securities Act") with respect to the Common Stock
offered by this Prospectus. Certain portions of the Registration Statement
have not been included in this Prospectus. For further information, reference
is made to the Registration Statement and the exhibits thereto. Statements in
this Prospectus as to the contents of exhibits are not necessarily complete,
and each statement is qualified in all respects by reference to the copies of
documents filed or incorporated by reference as exhibits to the Registration
Statement or otherwise filed with the Commission. See also "Incorporation of
Certain Documents by Reference." The Company is subject to the information
reporting requirements of the Exchange Act, and in accordance therewith files
reports, proxy statements and other information with the Commission. The
Registration Statement (with exhibits), as well as such reports, proxy
statements and other information, can be inspected and copied at the public
reference facilities maintained by the Commission at its principal offices at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and its
regional offices at Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60601 and 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such material can be obtained at prescribed rates
from the Public Reference Section of the Commission at its principal office at
Judiciary Plaza, 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549.
The Company is subject to the reporting requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Company's Common
Stock is traded on the NASD Electronic OTC Bulletin Board (the "OTC") under the
symbol "FIIF." On June 24, 1996, the reported closing of the price of the
Company's Common Stock was $2.125 per share.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-KSB for the fiscal year ended
August 31, 1995; Quarterly Reports on Form 10-QSB for the fiscal quarters ended
November 30, 1995, and February 29, 1996; Current Report on Form 8-K dated
February 8, 1996; and all other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since August 31, 1995 are hereby
incorporated herein by reference. The shares of Common Stock registered
pursuant to the Registration Statement of which the Prospectus is a part are of
the same class of securities of the Company currently registered under Section
12 of the Exchange Act. The description of the Common Stock contained in
previous registration statements, as amended by the Company's Restated
Certificate of Incorporation and all amendments thereto, and any amendment or
reports filed which update such registration, are hereby incorporated herein by
reference.
All documents filed by the Company pursuant to Sections 13(a),13(c),
14 and 15(d) of the Exchange Act after the date of this Prospectus and before
the termination of the offering covered hereby will be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference in this Prospectus shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus or in any other
subsequently filed document which also is or is deemed to be incorporated by
reference modifies or replaces such statement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon the written or oral request of such person, a
copy of any or all of the documents incorporated by reference in this
Prospectus, other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into the information that this
Prospectus incorporates. In addition, a copy of the Company's
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most recent annual report to stockholders will be promptly furnished, without
charge, upon written or oral request. All such requests should be directed to
Florafax International, Inc., 8075 20th Street, Vero Beach, Florida 32966,
telephone number (407) 563-0263, attention Mr. Kelly S. McMakin.
THE COMPANY
The Company is principally engaged in the business of generating
floral orders and providing floral order placement services to retail florists.
The Company is also a third-party processor of credit cards.
The Company operates a flowers-by-wire business which enables the
Company member florists (independent owners) to send and deliver floral orders
throughout the United States. Floral orders between florists are transacted
primarily by telephone or by the Company's communication network, FloraNet.
Through its wholly-owned subsidiary, Credit Card Management System,
Inc., the Company makes available to its members an electronic credit card and
charge card processing system, FloraCash. FloraCash essentially eliminates
paper from the processing of credit cards and travel and entertainment cards.
FloraCash automatically provides authorization codes for each transaction and
captures all of the transaction data electronically, which allow florists to
receive frequent, automatic deposits directly to their bank account. FloraCash
terminals and optional printers are sold or leased by the Company at
competitive rates.
The Company's principal executive offices are located at 8075 20th
Street, Vero Beach, Florida 32966, telephone number (407) 563-0263.
RISK FACTORS
In evaluating the Company and its business, prospective investors
should carefully consider all of the information set forth in this Prospectus
and should give particular attention to the following risk factors.
HISTORY OF OPERATING LOSSES
During the two years prior to the most recently ended fiscal year, the
Company incurred net losses of $311,000 and $401,000 respectively. However,
during the most recently ended fiscal year, the Company reported net income of
$707,000.
COMPETITION
The flowers-by-wire industry is principally comprised of six
companies. A major portion of all flowers-by-wire transactions are processed
by Florists' Transworld Delivery Association (FTD), a cooperative organization
of retail florists. Because many florists subscribe to more than one
flowers-by-wire service, competition is intense. Usage can be affected by the
quality and cost of services offered by each company, promotional programs,
industry reputation and traditional patterns of usage employed by the sending
florist.
In the credit card industry, there are many banks and other companies
which process credit and charge card transactions on behalf of their business
clients. Most of these companies have greater revenues and process more
transactions than the Company. In addition, some of the Company's
flowers-by-wire industry competitors provide credit card processing services to
their members. The selection of one credit card processor over another can be
affected by a variety of factors including price, services offered and the
capability of providing specialized functions to accommodate the particular
credit card processing
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requirements of certain businesses. The Company believes that its credit card
processing services are competitive in the retail and wholesale floral industry
in particular and in the general credit card processing industry as a whole.
The total sales volume of the Company, in each of the industries in
which it competes, constitutes only a minor portion of the total available
market.
POSSIBLE VOLATILITY OF STOCK PRICE
The market price of the Common Stock, like that of the securities of
other small, growth-oriented companies, may be highly volatile. Historically,
the Common Stock has experienced low trading volume. There can be no assurance
that the market price of the Common Stock will remain at its present level, and
any future changes in market price cannot be predicted as to timing or extent.
Past performance of the Common Stock does not guarantee and should not be
construed to imply future performance. Factors such as announcements by the
Company or its competitors concerning technological innovations, new commercial
products or procedures, proposed government regulations and developments or
disputes relating to patents or proprietary rights may have a significant
effect on the market price of the Common Stock. Changes in the market price of
the Common Stock may have no connection with the Company's actual financial
results.
SHARES ELIGIBLE FOR FUTURE SALE
As of the date of this Prospectus, the Company had outstanding
6,147,973 shares of Common Stock. As of such date, the Company has outstanding
stock options to purchase 221,000 shares of its Common Stock. If all of the
shares issuable upon exercise of these options, upon exercise of outstanding
warrants, or upon conversion of outstanding convertible debt instruments, the
Company will have an additional 2,871,000 shares of Common Stock outstanding,
all of which will be eligible for resale into the public markets after any
applicable vesting periods. The sale of such shares in the public markets
could have a material adverse effect on the trading price of the Company's
Common Stock.
NASDAQ LISTING AND MARKET ILLIQUIDITY
The Common Stock is quoted on the NASD OTC Electronic Bulletin Board,
and is therefore not actively traded. In order to improve the liquidity of the
Company's Common Stock, it has applied for the listing of the Common Stock on
the Nasdaq Small Cap Market. Such application has not yet been approved. If
the application is approved, continued inclusion of such securities on the
Nasdaq Small Cap Market will, unless the NASD grants a specific exemption from
any particular requirement, require that (i) the Company maintain at least
$4,000,000 in total assets and $2,000,000 in capital and surplus, (ii) the
minimum bid price for the Common Stock be at least $3.00 per share, (iii) the
public float consist of at least 100,000 shares of Common Stock, valued in the
aggregate at more than $1,000,000, (iv) the Common Stock have at least two
registered market makers and (v) the Common Stock be held by at least 300
holders. If the Company is unable to satisfy such maintenance requirements,
the Company's securities may (if approval for listing is granted) be delisted
from the Nasdaq Small Cap Market. In such event, trading, if any, in the
Common Stock would thereafter be conducted, as it is conducted currently, in
the over-the-counter market in the so called "pink sheets" or the NASD's "OTC
Electronic Bulletin Board."
NO PROTECTION FROM CERTAIN BUSINESS COMBINATIONS
At the January 7, 1994 annual meeting of the stockholders of the
Company, a proposal was approved which provided for the amendment of the
Company's Restated Certificate of Incorporation to include one article therein
which specifically removes the Company from the provisions of Section 203 of
the Delaware
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General Corporation Law (the "DGCL"). The effect of this article is that the
provisions of this section of the DGCL, which were enacted with the intent to
prevent abusive takeover tactics, especially with regard to takeover by owners
of large blocks of the Company's stock, are not applicable to the Company. The
Company has several shareholders who, either acting alone, or in concert with
other shareholders, would be prevented from effecting certain business
combinations with the Company if this provision of the DGCL were still
applicable to the Company. Therefore, any purchaser of the Common Stock
offered hereby should realize that, unlike most corporations chartered under
the DGCL, the Company is not prevented from engaging in business combinations
with affiliates or other interested stockholders. The entire text of Section
203 of the DGCL should be reviewed by any potential purchaser of the Common
Stock offered hereby prior to any contemplated purchase.
DEPENDENCE UPON KEY PERSONNEL
Mr. Andrew W. Williams has been Chairman of the Board since November
of 1992, Chief Executive Officer of the Company since September of 1994 and
previously served as President of the Company. Mr. James H. West has been
Chief Financial Officer of the Company since February of 1993, President of the
Company since November of 1994 and Chief Operating Officer of the Company since
August of 1994. Messrs. Williams and West have been primarily responsible
for directing the corporate strategy of the Company since the date they joined
the Company. The loss of either of these individuals could have an adverse
effect on the Company.
VOTING CONTROL
The directors and executive officers of the Company as a group have
sole voting and investment power of approximately 46% of the Company's
outstanding Common Stock, assuming that all shares to be offered hereby are
sold. Therefore those individuals exercise practical voting control over the
affairs of the Company.
PRODUCT CONCENTRATION
82% of the Company's net revenues for fiscal year 1995 were derived
from the Company's flowers-by-wire business. In the fiscal years ended August
31, 1994 and 1993, the Company's flowers-by-wire business comprised 83% and 88%
respectively of the Company's net revenues. Therefore, although the Company's
net revenues are not as concentrated in the flowers-by-wire business as in past
years, the Company is highly dependent on this competitive market for
generation of revenues.
MAJOR CUSTOMER DEPENDENCE
Of the $209,521,000 of credit and charge card transactions processed
by the Company's wholly-owned subsidiary, Credit Card Management System, Inc.,
for business and professional organizations, approximately $84,000,000 of such
transactions (or 40%) are dependent upon a contract with Service Corporation
International. Therefore if this contract terminates, or expires without being
renewed, this segment of the Company's business would probably be severely
adversely affected.
NO DIVIDENDS
The Company has not declared a dividend since 1982. Because of the
Company's Net Capital Deficiency, which was approximately $1,756,000 at the end
of the latest fiscal year, it is unlikely that the Company will be legally
able, or would otherwise, declare a dividend. Lack of payment of dividends
severely affects the liquidity and marketability of an investment in shares of
the Common Stock.
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SELLING SECURLTY HOLDERS
The following table sets forth the name of each Selling Security
Holder, the nature of any position, office, or other material relationship
which such Selling Security Holders have had with the Company or any of its
predecessors or any of its affiliates within the last three (3) years, and
certain information regarding the ownership and offering of the Common Stock by
each Selling Security Holder.
<TABLE>
<CAPTION>
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AMOUNT AMOUNT PERCENTAGE
CURRENT BENEFICIALLY BENEFICIALLY BENEFICIALLY
RELATIONSHIP TO OWNED PRIOR TO AMOUNT OWNED FOLLOWING OWNED FOLLOWING
NAME COMPANY OFFERING OFFERED OFFERING OFFERING
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<S> <C> <C> <C> <C> <C>
MR. JAMES H. WEST President,
Chief Operating
Officer, Chief
Financial 275,321 275,321 0 0%
Officer, and
Director (1)(2)
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MR. GLENN R. MASSEY Director (3) 162,366 142,366 20,000 .697%
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MR. KELLY S. MCMAKIN Chief
Accounting 65,000 50,000 15,000 .522%
Officer, and
Secretary (4)
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MR. DAVID HARPER Independent
Marketing 75,000 75,000 0 0%
Consultant (5)
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MR. DAVID APPEL Independent
Marketing 70,000 70,000 0 0%
Consultant (5)
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</TABLE>
The Company will not receive any proceeds from the sale of the shares
of Common Stock offered hereby. The Company has received or will receive
various amounts of approximately $85,000 upon exercise of all of the Options,
and will use such proceeds for general working capital and general corporate
purposes.
- -----------------
(1) Mr. West, 41, was elected Vice President, Treasurer and Chief
Financial Officer of the Company on February 5, 1993. On January 7, 1994, Mr.
West was elected Chief Operating Officer, and on August 8, 1994, he was elected
Secretary, of the Company. On November 17, 1994 he was elected President. He
has been a Director of the Company since January, 1994.
(2) On August 28, 1994, pursuant to Mr. West's employment agreement,
the Company committed to loan $70,000, bearing an interest rate of 7.75% per
annum, to Mr. West, of which $57,000 was advanced on the date of the loan. On
November 7, 1994, the Company advanced to Mr. West an additional $5,000 under
the terms of the original $70,000 commitment. The loan is secured by real
estate owned by Mr. West and will be repaid upon liquidation of the real
estate. As of April 30, 1996, the balance on this note, including interest,
was approximately $67,000.
(3) Mr. Massey, 42, is a Sales Manager for Gaylord Broadcasting in
Houston, Texas. From February, 1988, to June, 1992, he was President of Massey
Brothers, Inc., Houston, Texas, a wholesale and retail cut flower company.
Mr. Massey became President, Chief Executive Officer and a Director of the
Company on February 5, 1993. In September, 1994, Mr. Massey resigned as
President and Chief Executive Officer. Mr. Massey is presently the General
Sales Manager of KHTV in Houston, Texas. Of the 162,366 shares beneficially
owned by Mr. Massey prior to the offering, 20,000 shares thereof are being
offered to him under the Company's Nonemployee Directors' Stock Option Plan,
which shares were registered under a registration statement on Form S-8, filed
with the Commission on June 28, 1996.
(4) Mr. McMakin, 34, was elected Vice President and Treasurer of the
Company on November 17, 1994, and on February 6, 1995, he was elected
Secretary of the Company. From June, 1993, to the present, Mr. McMakin has
been Controller of the Company. From May, 1988, through May, 1993, Mr. McMakin
was Controller of M.P.I.I., Inc., which is in the funeral, cemetery and
insurance business. Mr. McMakin remains as Vice President, Secretary and
Treasurer. Of the 65,000 shares beneficially owned by Mr.
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McMakin prior to the offering, 15,000 shares thereof are being offered to him
under the Company's Management Incentive Stock Option Plan, which shares are
being registered under this Form S-8.
(5) Messrs. Harper and Appel are each independent marketing
consultants for the Company.
PLAN OF DISTRIBUTION
The sales of the shares of Common Stock offered hereby by the Selling
Security Holders may be effected, from time to time, on the OTC or on any stock
exchange on which the Common Stock may be listed at the time of sale, in
negotiated transactions, or through a combination of such methods of sale, at
fixed prices which may be changed, at market prices prevailing at the time of
sale, at prices related to such prevailing market prices, or at negotiated
prices. The Selling Security Holders may effect such transactions by selling
shares of Common Stock to or through broker-dealers, and such broker-dealers
may receive compensation in the form of discounts, concessions, or commissions
from the Selling Security Holders and/or the purchasers of shares of Common
Stock from whom such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer might
be in excess of customary commissions).
The Selling Securityholders and any broker-dealers that act in
connection with the sale of the shares of Common Stock hereunder might be
deemed to be "Underwriters" within the meaning of Section 2(11) of the
Securities Act; any commissions received by them and any profit realized on the
resale of shares of Common Stock as principals might be deemed to be
underwriting compensation under the Securities Act.
Any broker-dealer acquiring shares of Common Stock from a Selling
Security Holder may sell the shares either directly, in its normal
market-making activities, through or to other brokers on a principal or agency
basis, or to its customers. Any such sales may be at prices then prevailing on
the OTC, at prices related to such prevailing market prices, at negotiated
prices, or at prices reflecting the application of a combination of such
methods.
The Company's attorney has advised the Selling Security Holders that
anti-manipulative Rules 10b-5, 10b-6, and 10b-7 promulgated under the Exchange
Act may apply to their sales in the market. The Company has furnished the
Selling Security Holders with copies of these rules and has informed the
Selling Security Holders of the possible need for them to deliver copies of
this Prospectus in connection with their resales of the shares of Common Stock
offered hereby. The Selling Security Holders may indemnify any broker-dealer
that participates in transactions involving sales of shares of Common Stock
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealers, and, if any such broker-dealer purchases shares as a principal,
any profits received on the resale of such shares of Common Stock, may be
deemed to be underwriting discounts and commissions under the Securities Act.
Upon receipt of notification by the Company from any Selling Security
Holder that any material arrangement has been entered into with a broker-dealer
for the sale of shares through a cross or block trade, a supplemental
prospectus will be filed under Rule 424(c) under the Securities Act, setting
forth the name of the participating broker-dealer(s), the number of shares
involved, the price at which such share of Common Stock were sold by the
Selling Security Holder, the commissions paid or discounts or concessions
allowed by the Selling Security Holder to such broker-dealer(s), and where
applicable, that such broker-dealer(s) did not conduct any investigation to
verify the information set out in this Prospectus.
Any shares which qualify for resale pursuant to Rule 144 promulgated
under the Securities Act may be sold under that Rule rather than pursuant to
this Prospectus.
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There can be no assurance that any of the Selling Security Holders
will sell all or even any of the shares which may be offered by them or any of
them hereunder.
LEGAL OPINION
The validity of the Common Stock offered hereby will be passed on for
the Company by Cauthorn Hale Hornberger Fuller Sheehan & Becker Incorporated,
of San Antonio, Texas. Counsel does not have an interest in the Company which
exceeds Fifty Thousand and No/100 Dollars ($50,000.00).
EXPERTS
The consolidated financial statements and schedule of the Company
appearing in the Company's Annual Report (Form 10-KSB) of the year ended August
31, 1995, have been audited by Ernst & Young, LLP, independent certified public
accountants, as set forth in their report thereon included therein and
incorporated herein by reference. Such consolidated financial statements and
schedule are incorporated herein by reference in reliance upon such report
given upon the authority of such firm as experts in accounting and auditing.
COMMISSION POSITION ON INDEMNIFICATION
FOR SECURITIES ACTS LIABILITIES
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, or controlling persons
of the Company pursuant to the foregoing provisions or the provisions of the
Company's Restated Certificate of Incorporation, its Bylaws, or the DGCL, or
otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of
the Company 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 Company 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.
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No dealer, salesman or other person has been
authorized to give any information or to make any
representation not contained in, or incorporated
by reference in, this Prospectus, and, if given or
made, such information or representation must not
be relied upon as having been authorized by the
Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy
any of the securities offered hereby in any
jurisdiction to any person to whom it is unlawful
to make such offer in such jurisdiction. Neither
the delivery of this Prospectus nor any sale made
hereunder shall, under any circumstances, create
any implication that the information contained
herein is correct as of any time subsequent to the
date hereof, or that there has been no change in
the affairs of the Company since such date.
---------------------
TABLE OF CONTENTS
[S] [C]
Available Information . . . . . . . . . . . . 4
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . 4
The Company . . . . . . . . . . . . . . . . . 5
Risk Factors . . . . . . . . . . . . . . . . . 5
Selling Security Holders . . . . . . . . . . . 8
Plan of Distribution . . . . . . . . . . . . 9
Legal Opinion . . . . . . . . . . . . . . . . 10
Experts . . . . . . . . . . . . . . . . . . . 10
Commission Position on Indemnification
for Securities Acts Liabilities . . . . . 10
FLORAFAX INTERNATIONAL,
INC.
COMMON STOCK
----------
P R O S P E C T U S
----------
June 28, 1996
11
<PAGE> 12
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT UNDER FORM S-8;
INFORMATION NOT REQUIRED IN PROSPECTUS UNDER FORM S-3
ITEM 3. (FORM S-8). INCORPORATION OF DOCUMENTS BY REFERENCE.
Florafax International, Inc. is referred to herein as the "Company."
The documents listed below are incorporated by reference in this Registration
Statement:
The Company's Annual Report on Form 10-KSB for the fiscal year ended
August 31, 1995; Quarterly Reports on Form 10-QSB for the fiscal quarters ended
November 30, 1995, and February 29, 1996; Current Report on Form 8-K dated
February 8, 1996; and all other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since August 31, 1995 are hereby
incorporated herein by reference. The shares of Common Stock registered
pursuant to the Registration Statement of which the Prospectus is a part are of
the same class of securities of the Company currently registered under Section
12 of the Exchange Act. The description of the Common Stock contained in
previous registration statements, as amended by any amendments or reports filed
which update such registration, and as amended by the Company's Restated
Certificate of Incorporation and all amendments thereto, are hereby
incorporated herein by reference.
All documents filed by the Company pursuant to Sections 13(a),13(c),
14 and 15(d) of the Exchange Act after the date of this Prospectus and prior to
the filing of a post-effective amendment which indicates that all securities
offered by the Registrant have been sold or which deregisters all securities
then remaining unsold, will be deemed to be incorporated by reference in this
Prospectus and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated
by reference in this Prospectus shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained in
this Prospectus or in any other subsequently filed document which also is or is
deemed to be incorporated by reference modifies or replaces such statement.
All documents subsequently filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 this Registration Statement and to be a part
thereof from the date of filing of such documents.
ITEM 4. (FORM S-8). DESCRIPTION OF SECURITIES.
The class of securities to be offered is registered under Section 12
of the Exchange Act.
ITEM 5. (FORM S-8). INTERESTS OF NAMED EXPERTS AND COUNSEL.
No expert or counsel for the Company has an interest in the Company
which exceeds Fifty Thousand Dollars ($50,000.00).
ITEM 14. (FORM S-3). OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company in connection with the
offering of the shares of Common Stock to be registered and offered hereby are
as follows:
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<TABLE>
<S> <C>
SEC registration fee $ 815.33
Legal fees and expenses $ 3,500.00
Accounting fees and expenses $ 3,000.00
Miscellaneous (including printing and engraving fees) $ 500.00
----------
Total $ 7,815.33
==========
</TABLE>
ITEM 6. (FORM S-8); ITEM 15. (FORM S-3). INDEMNIFICATION OF DIRECTORS AND
OFFICERS.
Section 145 of the DGCL permits a corporation to indemnify any person
who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of the fact that he is or was a
director, officer, employee or agent of the corporation or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action.
In an action brought to obtain a judgment in the corporation's favor,
whether by the corporation itself or derivatively by a stockholder, the
corporation may only indemnify for expenses, including attorney's fees,
actually and reasonably incurred in connection with the defense or settlement
of such action, and the corporation may not indemnify for amounts paid in
satisfaction of a judgment or in settlement of the claim. In any such action,
no indemnification may be paid in respect of any claim, issue or matters as to
which such person shall have been adjudged liable to the corporation, except as
otherwise approved by the Delaware Court of Chancery or the court in which the
claim was brought. In any other type of proceeding, the indemnification may
extend to judgments, fines and amounts paid in settlement, actually and
reasonably incurred in connection with such other proceeding, as well as to
expenses.
The statute does not permit indemnification unless the person seeking
indemnification has acted in good faith in a manner he reasonably believed to
be in, or not opposed to, the best interests of the corporation and, in the
case of criminal actions or proceedings, the person had no reasonable cause to
believe his conduct was unlawful. There are additional limitations applicable
to criminal actions and to actions brought by or in the name of the
corporation. The determination as to whether a person seeking indemnification
has met the required standard of conduct is to be made (1) by a majority vote
of a quorum of disinterested members of the board of directors, or (2) by
independent legal counsel in a written opinion, if such a quorum does not exist
or if the disinterested directors so direct, or (3) by the stockholders.
The Company's Restated Certificate of Incorporation and Bylaws require
the Company to indemnify the Company's directors to the maximum extent
permitted under Delaware law or any other applicable law in effect, but if such
statute or law is amended, the Company may change the standard of
indemnification only to the extent that such amended statute or law permits the
Company to provide broader indemnification rights to the Company's directors.
Pursuant to employment agreements entered into by the Company with its
executive officers and certain other key employees, the Company may be required
to indemnify such officers and employees in the same manner and to the same
extent that the Company is required to indemnify its directors under its
Restated Certificate of Incorporation and Restated Bylaws. The Company's
Restated Certificate of Incorporation limits the personal liability of a
director to the Company or its stockholders to damages for breach of the
director's fiduciary duty.
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<PAGE> 14
ITEM 7. (FORM S-8) EXEMPTION FROM REGISTRATION CLAIMED.
No restricted securities are to be reoffered or resold pursuant to
this Registration Statement.
ITEM 8. (FORM S-8); ITEM 16. (FORM S-3). EXHIBITS.
The following is a list of all the exhibits filed as part of the
Registration Statement.
EXHIBITS
<TABLE>
<CAPTION>
Number
------
<S> <C>
4 Restated Certificate of Incorporation of the Company and all amendments thereto, and Bylaws of
the Company, each filed as Exhibit 4 to Form S-8, Florafax International, Inc. Nonemployee
Directors' Stock Option Plan, filed by the Company on June 28, 1996, and incorporated herein by
reference,
5 Opinion of Cauthorn Hale Hornberger Fuller Sheehan & Becker Incorporated, as to the legality of
the Common Stock of the Company to be registered hereunder.
23.1 Consent of Cauthorn Hale Hornberger Fuller Sheehan & Becker Incorporated, (included within
Exhibit 5 hereof).
23.2 Consent of Ernst & Young, L.L.P.
24 Power of Attorney (included as part of the signature page of this Registration Statement).
99.1 Description of Common Stock of the Company contained in Form 8-A dated December 28, 1971, as
amended by the Company's Restated Certificate of Incorporation, and all amendments thereto,
filed as Exhibit 4 to Form S-8 filed by the Company on June 28, 1996, and incorporated herein
by reference.
99.2 Florafax International, Inc. Annual Report on Form 10-KSB for the fiscal year ended August 31,
1995, incorporated by reference.
99.3 Florafax International, Inc. Quarterly Reports on Form 10-QSB for the fiscal quarters ended
November 30, 1995, and February 29, 1996 incorporated by reference.
99.4 Current Report on Form 8-K dated February 8, 1996, incorporated by reference.
</TABLE>
ITEM 9. (FORM S-8), ITEM 17. (FORM S-3). 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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this
Registration Statement (or the most recent post-effective
amendment thereof);
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(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in this Registration Statement or any material change to such
information in this 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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act and are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act that is incorporated by reference in this 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.
For purposes of determining any liability under the Securities Act,
(i) the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuant to Rule 424(b)(1), or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective; and (ii) each
post-effective amendment that contains a form of prospectus 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.
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<PAGE> 16
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities 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 Vero Beach, and the State of Florida, as of the
28 day of June, 1996.
FLORAFAX INTERNATIONAL, INC.
By: /s/ James H. West
-------------------------------------
James H. West, President, Chief
Operating Officer and Chief
Financial Officer
We, the undersigned officers and directors of Florafax International,
Inc. (the "Company"), hereby severally appoint Andrew W. Williams or James H.
West and each of them, agent and attorney-in-fact to sign for us, and in our
names in the capacities indicated below, a Registration Statement on Form S-8
relating to certain shares of the Company's Common Stock, and any and all
amendments to such Registration Statement, for the purpose of registering such
shares under the Securities Act, hereby ratifying and confirming our signatures
as they may be signed by our attorneys to such Registration Statement and any
and all Amendments thereto.
Witness our hands on the respective dates set forth below.
---------------
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and as of
the dates indicated.
<TABLE>
<CAPTION>
Signature Date Title
--------- ---- -----
<S> <C> <C>
/s/ June 28, 1996 Chairman of the Board, Chief
- ----------------------- ------------ Executive Officer and Director
Andrew W. Williams
/s/ June 28, 1996 President, Chief Operating Officer,
- ----------------------- ------------ Chief Financial Officer and Director
James H. West
/s/ June 28, 1996 Principal Accounting Officer
- ----------------------- ------------
Kelly S. McMakin
/s/ June 28, 1996 Director
- ----------------------- ------------
T. Craig Benson
/s/ June 28, 1996 Director
- ----------------------- ------------
Solomon O. Howell, Jr.
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ June 28, 1996 Director
- ----------------------- ------------
Glenn R. Massey
/s/ June 28, 1996 Director
- ----------------------- ------------
William E. Mercer
/s/ June 28, 1996 Director
- ----------------------- ------------
Kenneth G. Puttick
</TABLE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Page
<S> <C> <C>
4 Restated Certificate of Incorporation of the
Company and all amendments thereto, and
Bylaws of the Company, each filed as Exhibit 4
to Form S-8, Florafax International, Inc.
Nonemployee Directors' Stock Option Plan,
filed by the Company on June 28, 1996, and
incorporated herein by reference.
5 Opinion of Cauthorn Hale Hornberger Fuller
Sheehan & Becker Incorporated, as to the
legality of the Common Stock of the Company
to be registered hereunder.
-------
23.1 Consent of Cauthorn Hale Hornberger Fuller
Sheehan & Becker Incorporated, (included within
Exhibit 5 hereof).
-------
23.2 Consent of Ernst & Young, L.L.P.
-------
24 Power of Attorney (included as part of the
signature page of this Registration Statement).
99.1 Description of Common Stock of the Company
contained in Form 8-A dated December 28, 1971, as
amended by the Company's Restated Certificate
of Incorporation, and all amendments thereto, filed
as Exhibit 4 to Form S-8 filed by the Company on
June 28, 1996, and incorporated herein by reference.
99.2 Florafax International, Inc. Annual Report on Form
10-KSB for the fiscal year ended August 31, 1995,
</TABLE>
17
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<TABLE>
<S> <C>
incorporated by reference.
99.3 Florafax International, Inc. Quarterly Reports on
Form 10-QSB for the fiscal quarters ended November 30,
1995, and February 29, 1996 incorporated by reference.
99.4 Current Report on Form 8-K dated February 8, 1996,
incorporated by reference.
</TABLE>
18
<PAGE> 1
CAUTHORN HALE HORNBERGER
FULLER SHEEHAN & BECKER EXHIBIT 5
INCORPORATED EXHIBIT 23.1
ATTORNEYS AT LAW
ONE RIVERWALK PLACE, SUITE 620
700 NORTH ST. MARY'S STREET
SAN ANTONIO, TEXAS 78205-3508
June 28, 1996
Florafax International, Inc.
8075 20th Street
Vero Beach, Florida 32966
Re: Registration Statement on Form S-8
Management Incentive Stock Plan
Gentlemen:
We have acted and are acting as counsel for Florafax International,
Inc., a Delaware corporation (the "Company"), in connection with the
registration under the Securities Act of 1933, as amended, pursuant to the
above-mentioned Registration Statement on Form S-8 (the "Registration
Statement"), of 1,142,099 shares of the Common Stock, par value $.01 per share,
of the Company issuable under the Company's Management Incentive Stock Plan
(the "Plan") and Options previously issued under miscellaneous Employee Benefit
Plans.
We have examined and are familiar with the originals or copies, the
authenticity of which has been established to our satisfaction, of all such
documents, corporate records and other instruments as we have deemed necessary
to express the opinions hereinafter set forth.
Based upon the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing
under the laws of the State of Delaware.
2. The shares of the Common Stock of the Company to be issued
pursuant to the Plan will have been duly authorized and legally issued and will
constitute fully paid and non-assessable shares of the Common Stock of the
Company when issued in accordance with the Plan.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Registration
Statement.
Yours very truly,
Drew R. Fuller, Jr.
DRFJr/sh
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Florafax International,
Inc. Management Incentive Stock Plan and Options Previously Issued Under
Miscellaneous Employee Benefit Plans and to the incorporation by reference
therein of our report dated November 2, 1995, except for Note 10 for which the
date is December 5, 1995, with respect to the consolidated financial
statements and schedule of Florafax International, Inc. included in its
Annual Report (Form 10-KSB) for the year ended August 31, 1995, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
Miami, Florida
June 21, 1996
