<PAGE> 1
As filed with the Securities and Exchange Commission dated August 13, 1996
Registration No. 33-
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
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)
_______________
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
(561) 563-0263 SAN ANTONIO, TEXAS 78205
(210) 271-1700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------
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. [ ]
_____________________
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 unit aggregate offering price registration fee
Registered (1) (2) (2) (2)
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 2,791,945 $2.125 $5,932,883 $2,045.82
value, $.01 per share
==================================================================================================================
</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
the notes and the warrants described herein. This Registration Statement
relates to resales and reoffers of shares of the Company's Common Stock to be
purchased by holders of the notes and warrants described herein, who may be
deemed affiliates of the Company upon conversion of the notes or exercise of
the warrants.
(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 August 8, 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.4 OF THE ACCOMPANYING PROSPECTUS.
===============================================================================
<PAGE> 2
PROSPECTUS
2,791,945 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
issuable upon the conversion of certain Promissory Notes (the "Notes") and the
exercise of certain warrants to purchase Common Stock (the "Warrants", which
Notes and Warrants may be referred to herein collectively as the "Convertible
Securities"). 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
$2,500,000.00 of loan proceeds pursuant to the Notes, an indeterminate amount
of which may be retired upon the conversion of the Notes to shares of Common
Stock of the Company. The Company has also received $650.00 for the purchase
of the Warrants and will receive aggregate funds of between $0 and $650,000.00
upon the exercise of Warrants. 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 Company
has agreed to pay certain expenses of registering the shares of Common Stock
offered hereby, including filing fees, legal, accounting and miscellaneous
expenses in connection with registration, and has agreed to indemnify the
Selling Security Holders against certain liabilities, including certain
liabilities under the Securities Act of 1933, as amended (the "Securities
Act"). See "Plan of Distribution."
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 4.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
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 August 13, 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-3 under
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 informational
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, NW, 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, NW, 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 August 8, 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, February 29, 1996 and May 31, 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 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 most recent
annual report to stockholders will be promptly furnished, without charge, upon
written or oral
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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.
Through its wholly-owned subsidiary, Credit Card Management System,
Inc. (CCMS), the Company makes available to its members an electronic credit
card and charge card processing system, FloraCash. 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,
being August 31, 1995, 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. 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
6,138,561 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 or upon conversion of the
Convertible Securities are issued, the Company will have an additional
3,012,945 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 32% 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 the competitive market for generation
of revenues.
MAJOR CUSTOMER DEPENDENCE
During fiscal year 1995, 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 SECURITY HOLDERS
The following table sets forth the name of each Selling Security
Holder and certain information regarding the ownership and offering of the
Common Stock by each Selling Security Holder.
<TABLE>
<CAPTION>
Amount Amount Percentage
Beneficially Beneficially Beneficially
Owned Owned Owned
prior to Amount following following
Name Offering Offered Offering Offering
---- ------------ ------- ----------- -----------
<S> <C> <C> <C> <C>
St. James Capital Partners, L.P. 1,713,556 1,713,556 0 0%
SV Capital Partners, L.P. 588,389 588,389 0 0%
St. James Capital Corp. 104,000 104,000 0 0%
HUB, Inc. 108,758 108,758 0 0%
Guadalupe Funding Company 97,882 97,882 0 0%
Thomas M. Vertin 67,974 67,974 0 0%
Dennis J. LaValle 54,379 54,379 0 0%
Equity Resource Group of
Indian River County, Inc. 27,190 27,190 0 0%
Blake T. Liedtke 16,314 16,314 0 0%
1959 Trust for Robert Tilly Arnold 10,876 10,876 0 0%
George V. Burkholder 10,876 10,876 0 0%
Pinkye Lou Blair Estate Trust 5,438 5,438 0 0%
The Lillie C. Cullen Estate Trust
for Isaac Arnold, Jr. 5,438 5,438 0 0%
The Hugh Roy Cullen Estate Trust
for Isaac Arnold, Jr. 5,438 5,438 0 0%
Titus H. Harris, Jr. 2,719 2,719 0 0%
Todd M. Binet 2,718 2,718 0 0%
</TABLE>
NOTE: With the exception of St. James Capital Partners, L.P. ("St. James")
and SV Capital Partners, L.P. ("SV"), the Selling Security Holders
listed in the table above represent the current Warrant holders and
all general and limited partners of St. James. The original Warrant
holder, being St. James [as identified in the First Amendment to
Agreement of Purchase and Sale ("First Amendment") dated to be
effective February 29, 1996, by and between St. James, SV and the
Registrant, which was filed, along with the form of Warrant and all
other exhibits thereto, by the Registrant as Exhibit 10 to Form 10-QSB
for the fiscal quarter ended May 31, 1996], transferred to each such
individual and/or entity its respective interest in the Warrants, in
accordance with the terms of the partnership agreement by and among
the partners of St. James. Other than the name of each respective
Warrant holder, the terms and conditions of the Warrants remain the
same as the terms and conditions of the Warrant issued to St. James
pursuant to the terms of the First Amendment.
The amounts of Common Stock set forth above under the caption "Amount
Offered" represents the aggregate number of shares of Common Stock into which
the Convertible Securities owned by each Selling Security Holder are convertible
assuming the highest possible conversion rate and greatest number of securities
converted under the terms of the Convertible Securities, and, assuming further
that the antidilution provisions of the Convertible Securities are not
applicable. Such antidilution provisions are effective as to all of the
Convertible Securities and are generally effective only if the Company issues
additional Common Stock, declares a stock dividend, subdivides its outstanding
shares of Common Stock, effects a capital reorganization or reclassification of
the capital stock of the Company or effects a consolidation, merger, share
exchange or disposition of all or substantially all of its assets with another
person. Each Selling Security Holder may, but is not required to, sell all of
the shares of Common Stock owned by such Selling Security Holder.
The Company will not receive any proceeds from the sale of the shares
of Common Stock offered hereby. Of the 2,791,945 shares registered hereby,
2,141,945 shares are issuable upon conversion of the Notes. The interest rate
under each of the Notes is at a rate of 7% per annum, and the maturity date of
each Note is February 28, 1997. The Notes currently are convertible at a rate
of $1.25, subject to future adjustments based upon the above-described
antidilution provisions. The proceeds of the Notes were used to pay outstanding
obligations of the Company. Upon conversion of the Notes, the Company will
retire an indeterminate amount of debt pursuant to the Notes.
The remaining 650,000 shares are issuable upon the exercise of the
Warrants. The exercise price of the Warrants is currently $1.00 per share but
is subject to adjustments based upon the above-described antidilution
provisions; therefore, if all of the Warrants are exercised, the Company will
receive aggregate proceeds from such exercise of $650,000. The Company will use
such proceeds for general working capital and general corporate purposes.
With the exception of Equity Resource Group of Indian River County,
Inc. ("Equity"), no Selling Security Holder has held any position or office,
or has had any material relationship with, the Company or any of its
predecessors or any of its affiliates within the past three years, other than
as a stockholder. With respect to Equity, since 1990, Andrew W. Williams, the
Chairman of the Board and Chief Executive Officer of the Company, has also
served as Equity's Chairman of the Board, Chief Executive Officer and
President. Mr. Williams is also a majority stockholder of Equity.
PLAN OF DISTRIBUTION
The Selling Security Holders may offer the shares of Common Stock
subject to this Prospectus from time to time in one or more offerings through
underwriters, dealers or agents, or directly to one
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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.
If underwriters are used in any offering of shares of Common Stock, the
underwriter or underwriters with respect to such offering, will be named in a
Prospectus Supplement. Only underwriters named in a Prospectus Supplement will
be deemed to be underwriters in connection with the shares of Common Stock
offered thereby. Firms not so named will have no direct or indirect
participation in the underwriting of such Common Stock, although such a firm may
participate in the distribution of such Common Stock under circumstances
entitling it to a dealer's commission. Unless otherwise set forth in the
Prospectus Supplement relating to such offering, any underwriting agreement
pertaining to any offering of shares of Common Stock may (i) entitle the
underwriters to indemnification by the Company and the Selling Security Holders
against certain civil liabilities under the Securities Act; (ii) provide that
the obligations of the underwriters will be subject to certain conditions
precedent; and (iii) provide that the underwriters will be obligated to purchase
all shares of such Common Stock so offered if any shares are purchased. If
underwriters are used in any offering of Common Stock, the names of such
underwriters, the anticipated date of delivery and other material terms of the
transaction will be set forth in the Prospectus Supplement relating to such
offering.
If a dealer is used in any offering of Common Stock, the Selling
Security Holder will sell such Common Stock to the dealer as principal. The
dealer may then resell such Common Stock to the public at varying prices to be
determined by such dealer at the time of resale. The name of the dealer and the
material terms of the transaction will be set forth in the Prospectus Supplement
relating to such offering.
Common Stock may be offered through agents designated by the Selling
Security Holders from time to time. Any such agent will be named, and the terms
of any such agency will be set forth, in the Prospectus Supplement relating
thereto. Unless otherwise set forth in such Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its appointment.
Dealers or agents named in a Prospectus Supplement may be deemed to be
underwriters (within the meaning of the Securities Act) of the Common Stock
offered thereby. Unless otherwise set forth in the applicable Prospectus
Supplement, such dealers or agents may, under agreements with the Selling
Security Holders, be entitled to indemnification by the Company or the Selling
Security Holders against certain civil liabilities under the Securities Act.
Underwriters, dealers and agents may engage in transactions with or
perform services for the Company in the ordinary course of business.
Offers to purchase Common Stock may be solicited, and sales thereof may
be made, by the Selling Security Holders 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. Certain of such
purchasers may be deemed to be underwriters with respect to any resale by them
of Common Stock so acquired. This Prospectus may be delivered by any such
purchaser in connection with any such resales. Such resales may be through
underwriters, dealers or agents, or directly to one or more purchasers, all in
the manner described above.
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.
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EXPERTS
The consolidated financial statements and schedule of the Company
appearing in the Company's Annual Report (Form 10-KSB) for the year ended August
31, 1995, have been audited by Ernst & Young, L.L.P., 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 registrant 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 registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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 FLORAFAX
having been authorized by the Company. This INTERNATIONAL, INC.
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 COMMON STOCK
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. ----------
------------------------ P R O S P E C T U S
----------
TABLE OF CONTENTS
Available Information . . . . . . . . . . . . 3 August 13, 1996
Incorporation of Certain Documents
by Reference . . . . . . . . . . . . . . . 3
The Company . . . . . . . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . 4
Selling Security Holders . . . . . . . . . . . 7
Plan of Distribution . . . . . . . . . . . . . 7
Legal Opinion . . . . . . . . . . . . . . . 8
Experts . . . . . . . . . . . . . . . . . . . 9
Commission Position on Indemnification
for Securities Acts Liabilities . . . . . 9
10
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. 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:
<TABLE>
<S> <C>
SEC registration fee $2,045.82
Legal fees and expenses $3,500.00
Accounting fees and expenses $3,000.00
Miscellaneous (including printing $ 500.00
and engraving fees)
---------
Total $9,045.82
=========
</TABLE>
ITEM 15. 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
11
<PAGE> 12
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.
ITEM 16. EXHIBITS.
The following is a list of all the exhibits filed as part of the
Registration Statement.
EXHIBITS
<TABLE>
<CAPTION>
Number
------
<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 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 - Agreement of Purchase and Sale dated December 29, 1995 by and between St. James Capital
Partners, L.P. and Registrant, and all exhibits thereto.(1)
99.2 - First Amendment to Agreement of Purchase and Sale dated to be effective February 29, 1996 by
and between St. James Capital Partners, L.P., SV Capital Partners, L.P., and Registrant, and
all exhibits thereto.(2)
99.3 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.
99.4 Florafax International, Inc. Annual Report on Form 10-KSB for the fiscal year ended August 31,
1995, incorporated by reference.
99.5 Florafax International, Inc. Quarterly Reports on Form 10-QSB for the fiscal quarters ended
November 30, 1995, February 29, 1996 and May 31, 1996 incorporated by reference.
99.6 Current Report on Form 8-K dated February 8, 1996, incorporated by reference.
</TABLE>
ITEM 17. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
________________________
(1) Filed as Exhibit 4(ii) to Form 8-K filed by the Registrant on
February 8, 1996, and incorporated herein by reference.
(2) Filed as Exhibit 10 to Form 10-QSB for the fiscal quarter ended
May 31, 1996, filed by the Registrant on July 12, 1996, and incorporated herein
by reference.
12
<PAGE> 13
(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);
(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.
13
<PAGE> 14
SIGNATURES
The Registrant. 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-3 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 13th day of August, 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-3
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 of 1933, 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 of 1933, 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/___________ August 13, 1996 Chairman of the Board, Chief
Andrew W. Williams Executive Officer and Director
_________/s/___________ August 13, 1996 President, Chief Operating Officer,
James H. West Chief Financial Officer and Director
_________/s/___________ August 13, 1996 Principal Accounting Officer
Kelly S. McMakin
_________/s/______________ August 13, 1996 Director
T. Craig Benson
_________/s/______________ August 13, 1996 Director
Solomon O. Howell, Jr.
</TABLE>
14
<PAGE> 15
<TABLE>
<S> <C> <C>
_________/s/______________ August 13, 1996 Director
Glenn R. Massey
_________/s/______________ August 13, 1996 Director
William E. Mercer
_________/s/______________ August 13, 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 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 Agreement of Purchase and Sale dated December
29, 1995 by and between St. James Capital Partners,
L.P. and Registrant, and all exhibits thereto.(3)
99.2 First Amendment to Agreement of Purchase and
Sale dated to be effective February 29, 1996 by and
between St. James Capital Partners, L.P., SV Capital
Partners, L.P., and Registrant, and all exhibits thereto.(4)
</TABLE>
________________________
(3) Filed as Exhibit 4(ii) to Form 8-K filed by the Registrant on
February 8, 1996, and incorporated herein by reference.
(4) Filed as Exhibit 10 to Form 10-QSB for the fiscal quarter ended May 31,
1996, filed by the Registrant on July 12, 1996, and incorporated herein by
reference.
15
<PAGE> 16
<TABLE>
<S> <C>
99.3 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.
99.4 Florafax International, Inc. Annual Report on Form
10-KSB for the fiscal year ended August 31, 1995,
incorporated by reference.
99.5 Florafax International, Inc. Quarterly Reports on
Form 10-QSB for the fiscal quarters ended November
30, 1995, February 29, 1996 and May 31, 1996 incorporated by
reference.
99.6 Current Report on Form 8-K dated February 8, 1996,
incorporated by reference.
</TABLE>
16
<PAGE> 1
CAUTHORN HALE HORNBERGER
FULLER SHEEHAN & BECKER
INCORPORATED Exhibit 5
Exhibit 23.1
ATTORNEYS AT LAW
ONE RIVERWALK PLACE, SUITE 620
700 NORTH ST. MARY'S STREET (210) 271-1700
SAN ANTONIO, TEXAS 78205-3506 FAX (210) 271-1740
August 13, 1996
Florafax International, Inc.
8075 20th Street
Vero Beach, Florida 32966
Re: Registration Statement on Form S-3
St. James Capital Partners, L.P./S V Capital Partners, L.P.
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-3 (the "Registration
Statement"), of 2,791,945 shares of the Common Stock, par value $.01 per share,
of the Company issuable under the First Amendment to Agreement of Purchase and
Sale dated to be effective February 28, 1996 (the "Agreement").
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 Agreement 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 Agreement.
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-3) and related Prospectus of Florafax
International, Inc. for the registration of 2,791,945 shares of its common
stock and to the incorporation by reference therein of our report dated
November 2, 1995, except for Note 10 as to 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
August 7, 1996
