<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 1999
REGISTRATION NO. 333-_______________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
----------
GERALD STEVENS, 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 No.)
301 EAST LAS OLAS BOULEVARD, SUITE 300
FORT LAUDERDALE, FLORIDA 33301
(954) 713-5000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
FLORAFAX INTERNATIONAL, INC.
MANAGEMENT INCENTIVE STOCK PLAN
GERALD STEVENS, INC.
1998 STOCK OPTION PLAN
CALYX & COROLLA, INC.
1988 STOCK OPTION PLAN
(Full Title of the Plans)
GERALD R. GEDDIS
301 EAST LAS OLAS BOULEVARD, SUITE 300
FORT LAUDERDALE, FLORIDA 33301
(954) 713-5000
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
----------
COPIES OF ALL COMMUNICATIONS TO:
JONATHAN L. AWNER
AKERMAN, SENTERFITT & EIDSON, P.A.
ONE S.E. THIRD AVENUE, 28TH FLOOR
MIAMI, FLORIDA 33131-1714
(305) 374-5600
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED (1) PER SHARE(2) PRICE (2) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock,
par value $.01 per share 2,408,544 shares $12.125 $29,203,596 $8,118.60
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The 2,408,544 shares of common stock being registered hereby include
500,000 shares of common stock issuable upon the exercise of stock options
which we may grant under our Florafax International, Inc. Management
Incentive Stock Plan, 342,500 shares of common stock issuable upon the
exercise of non-plan stock options which were granted to some of our former
executive officers pursuant to written agreements with those executives
prior to our business combination with Gerald Stevens Retail, Inc.,
1,428,778 shares of common stock issuable upon the exercise of stock
options which were granted by Gerald Stevens Retail under its Gerald
Stevens, Inc. 1998 Stock Option Plan and which we assumed in connection
with our business combination with Gerald Stevens Retail and 137,266 shares
of common stock issuable upon the exercise of stock options which were
granted by Calyx & Corolla, Inc. under its Calyx & Corolla, Inc. 1988 Stock
Option Plan and which we assumed in connection with our business
combination with Calyx & Corolla. Pursuant to Rule 416 under the Securities
Act of 1933, as amended, this registration statement also includes an
indeterminate number of additional shares that may become issuable pursuant
to the anti-dilution adjustment provisions of the plans or agreements
pursuant to which the options described herein were or may be granted.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) under the Securities Act of 1933, as amended.
The proposed maximum offering price is based on the average of the high and
low sales prices on the Nasdaq National Market during the five trading days
ending August 27, 1999.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
We will send documents containing the information specified in Part I of
Form S-8 to recipients of the options described in this document, as
appropriate, as specified by Rule 428(b)(1) under the Securities Act. We are not
filing these documents with the Commission. However, these documents, along with
the documents incorporated by reference into this registration statement, as
described in Item 3 of Part II, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which we have filed with the Commission are
incorporated herein by reference:
(a) Our Annual Report on Form 10-KSB for the fiscal year ended
August 31, 1998, as amended on Amendment No. 1 to Form 10-KSB/A
and on Amendment No. 2 to Form 10-KSB/A.
(b) Our Final Prospectus, filed pursuant to Rule 424(b)(4), relating
to Registration Statement on Form S-3, Regis. No. 333-78597, as
amended.
(c) Our Current Report on Form 8-K, dated December 9, 1998, filed
December 11, 1998.
(d) Our Quarterly Report on Form 10-QSB for the period ended November
30, 1998, as amended on Amendment No. 1 to Form 10-QSB/A.
(e) Our Quarterly Report on Form 10-QSB for the period ended February
28, 1999.
(f) Our Quarterly Report on Form 10-Q for the period ended May 31,
1999.
(g) Pages F-20 to F-127 and F-146 to F-151 of our Definitive Proxy
Statement on Schedule 14A, dated April 12, 1999.
(h) Our Current Report on Form 8-K, dated April 30, 1999, filed May 3,
1999.
(i) Our Current Report on Form 8-K, dated April 30, 1999, filed
May 17, 1999, as amended on Amendment No. 1 to Form 8-K/A, filed
June 4, 1999.
(j) Our Current Report on Form 8-K, dated July 30, 1999, filed
August 16, 1999.
(k) The description of our common stock in our Registration Statement
on Form 10, dated April 27, 1971.
In addition, all documents which we file with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as
amended, after the date of this registration statement and prior to the
termination of the offering shall be deemed to be incorporated by reference into
this registration statement and to be a part of this document from the date we
file it with the Commission. You should consider any statement contained in a
document incorporated by reference to be modified or superseded, for purposes of
the registration statement, to the extent that a statement contained in this
document, or in any other subsequently filed document which is incorporated by
reference, modifies or supersedes the statement. You should not consider any
such modified or superseded statement to constitute a part of the registration
statement except as it has been modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
II-1
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Akerman, Senterfitt & Eidson, P.A., Miami, Florida, will pass upon the
validity of the shares registered by this document. Some of the attorneys
employed by Akerman, Senterfitt & Eidson, beneficially own shares of our common
stock as of the date hereof.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) Section 145 of the General Corporation Law of Delaware permits
indemnification against expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in connection
with actions, suits or proceedings in which an officer, director, employee or
agent is a party by reason of the fact that he is or was such a director,
officer, employee or agent, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. However, in connection
with actions by or in the right of the corporation, indemnification is not
permitted if such person has been adjudged liable to the corporation unless the
court determines that, under all of the circumstances, such person is
nonetheless fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Section 145 also permits a corporation to purchase and maintain
insurance on behalf of its directors and officers against any liability which
may be asserted against, or incurred by, such persons in their capacities as
directors or officers of the corporation whether or not that corporation would
have the power to indemnify such persons against such liabilities under the
provisions of such sections. We have purchased such insurance. Section 145
further provides that the statutory provision is not exclusive of any other
right to which those seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or independent
directors, or otherwise, both as to action in such person's official capacity
and as to action in another capacity while holding such office.
(b) Article 8 of our Restated Certificate of Incorporation permits, and
Article 7 of our Bylaws provides for, indemnification of directors, officers,
employees and agents to the fullest extent permitted by law.
(c) We maintain directors and officers liability insurance coverage for
our directors and officers and those of our subsidiaries and for certain other
executive employees. This coverage insures these persons against certain losses
that may be incurred by them in their respective capacities as our directors,
officers or employees, with respect to which they may or may not be indemnified
under the provisions of our Restated Certificate of Incorporation or Bylaws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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<PAGE> 5
ITEM 8. EXHIBITS.
The exhibits filed as part of this Registration Statement are as
follows:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C> <C>
4.1 -- Restated Certificate of Incorporation of Gerald
Stevens (incorporated by reference to Exhibit 3.2 of
the Gerald Stevens' Current Report on Form 8-K dated
April 30, 1999).
4.2 -- Bylaws of Gerald Stevens (incorporated by reference
to Exhibit 3.2 of the Gerald Stevens' Registration
Statement on Form S-3 -- File No. 333-78597).
5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A.
10.1 -- Florafax International, Inc. Management Incentive
Stock Plan.
10.2 -- First Amendment to Florafax International, Inc.
Management Incentive Stock Plan.
10.3 -- Gerald Stevens, Inc. 1998 Stock Option Plan.
10.4 -- Non-Qualified Option Agreement of Andrew W. Williams
(incorporated by reference to Exhibit 10(c) of Gerald
Stevens' Annual Report on Form 10-KSB for the year
ended August 31, 1997).
10.5 -- Non-Qualified Option Agreement of James H. West
(incorporated by reference to Exhibit 10(d) of Gerald
Stevens Annual Report on Form 10-KSB for the period
ended August 31, 1997).
10.6 -- Non-Qualified Option Agreement of Kelly S. McMakin
(incorporated by reference to Exhibit 10(e) of Gerald
Stevens Annual Report on Form 10-KSB for the period
ended August 31, 1997).
10.7 -- Non-Qualified Option Agreement of James L. Pagano.
10.8 -- Non-Qualified Option Agreement of T. Craig Benson.
10.9 -- Calyx & Corolla, Inc. 1988 Stock Option Plan.
23.1 -- Consent of Arthur Andersen LLP.
23.2 -- Consent of PricewaterhouseCoopers LLP.
23.3 -- Consent of Ernst & Young LLP.
23.4 -- Consent of Adair, Fuller, Witcher & Malcom, P.A.
23.5 -- Consent of Deloitte & Touche, LLP.
23.6 -- Consent of Akerman, Senterfitt & Eidson, P.A.
(included in opinion filed as Exhibit 5.1).
24.1 -- Powers of Attorney -- included as part of the
signature page hereto.
</TABLE>
II-3
<PAGE> 6
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act.
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (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 or furnished to the Securities
and Exchange Commission by the registrant pursuant to Section 13 or Section
15(d) of the Exchange Act, that are incorporated by reference in this
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the 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 by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by a 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 of 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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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Gerald Stevens, Inc., 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 the
undersigned, thereunto duly authorized, in the city of Fort Lauderdale, state of
Florida, on the 30th day of August, 1999.
GERALD STEVENS, INC.
By: /s/ Gerald R. Geddis
------------------------------------------
Gerald R. Geddis
President, Chief Executive Officer and
Director
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gerald R. Geddis and Adam D. Phillips, and each
of them, as true and lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
foregoing, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in their
capacities on the date indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE(S) DATE
---------- -------- ----
<S> <C> <C>
/s/ Gerald R. Geddis President, Chief Executive August 30, 1999
- ----------------------------- Officer and Director (Principal
Gerald R. Geddis Executive Officer)
/s/ Albert J. Detz Senior Vice President and Chief August 30, 1999
- ----------------------------- Financial Officer (Principal
Albert J. Detz Financial and Principal
Accounting Officer)
/s/ Steven R. Berrard Director August 30, 1999
- -----------------------------
Steven R. Berrard
/s/ Thomas C. Byrne Director August 30, 1999
- -----------------------------
Thomas C. Byrne
/s/ Andrew W. Williams Director August 30, 1999
- -----------------------------
Andrew W. Williams
</TABLE>
II-5
<PAGE> 1
EXHIBIT 5.1
AKERMAN, SENTERFITT & EIDSON, P.A.
ATTORNEYS AT LAW
SUNTRUST INTERNATIONAL CENTER
26TH FLOOR
ONE SOUTHEAST THIRD AVENUE
MIAMI, FLORIDA 33131-1714
(305) 374-5600
FACSIMILE (305) 374-5095
August 27, 1999
Gerald Stevens, Inc.
301 East Las Olas Boulevard
Suite 300
Ft. Lauderdale, FL 33301
RE: Registration Statement on Form S-8 (the "Registration Statement")
Gentlemen:
We have acted as counsel to Gerald Stevens, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing by
the Company with the Securities and Exchange Commission of the Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act").
The Registration Statement relates to 2,408,544 shares (the "Shares") of the
Company's common stock, par value $.01 per Share (the "Common Stock"). The
Shares consist of 500,000 Shares issuable upon the exercise of stock options
which the Company may grant under its Management Incentive Stock Plan, 342,500
Shares issuable upon the exercise of non-plan stock options which were granted
to former executive officers prior to the Company's business combination with
Gerald Stevens Retail, Inc. ("Gerald Stevens Retail"), 1,428,778 Shares issuable
upon the exercise of stock options which were granted by Gerald Stevens Retail
under its 1998 Stock Option Plan, and which the Company assumed in connection
with its business combination with Gerald Stevens Retail and 137,266 shares of
common stock issuable upon the exercise of stock options which were granted by
Calyx & Corolla, Inc. ("Calyx") under its 1988 Stock Option Plan, and which the
Company assumed in connection with its business combination with Calyx.
We have examined such corporate records, documents, instruments and
certificates of the Company and have received such representations from the
officers and directors of the Company and have reviewed such questions of law as
we have deemed necessary, relevant or appropriate to enable us to render the
opinion expressed herein. In such examination, we have assumed the genuineness
of all signatures and authenticity of all documents, instruments, records and
certificates submitted to us as originals.
<PAGE> 2
Gerald Stevens, Inc.
August 27, 1999
Page 2
Based upon such examination and review and upon the representations
made to us by the officers and directors of the Company, we are of the opinion
that when the Registration Statement becomes effective under the Securities Act
and the Shares are issued in accordance with the terms and conditions of the
plan or agreement under which the options to acquire such Shares were granted,
the Shares will be validly issued, fully paid and non-assessable securities of
the Company.
The opinion expressed herein is limited to the Federal securities laws
of the United States of America and the corporate laws of the State of Delaware,
and we express no opinion as to the effect on the matters covered by any other
jurisdiction.
This firm consents to the filing of this opinion as an exhibit to the
Registration Statement and to all references to the firm in the Registration
Statement.
Very truly yours,
AKERMAN, SENTERFITT & EIDSON, P.A.
/s/ AKERMAN, SENTERFITT & EIDSON, P.A.
<PAGE> 1
Exhibit 10.1
FLORAFAX INTERNATIONAL, INC.
MANAGEMENT INCENTIVE STOCK PLAN
The purpose of this Plan is to benefit the stockholders of the Company
by encouraging and rewarding high levels of performance by individuals who are
key to the success of the Company by increasing the proprietary interest of such
individuals in the Company's growth and success. To accomplish these objectives,
the plan authorizes incentive Awards through grants of stock options, stock
appreciation rights, restricted stock, and performance shares to those
individuals whose judgment, initiative and efforts are responsible for the
success of the Company.
This Plan shall be effective January 30, 1996, subject to approval by
the holders of a majority of the securities of the Company at the Company's 1996
annual meeting to be held January 30, 1996.
SECTION 1
DEFINITIONS
"AWARD" means any award described in Section 3 of this Plan.
"AWARD AGREEMENT" means an agreement entered into between the Company
and a Participant, setting forth the terms and conditions applicable to the
Award granted to the Participant.
"BOARD" means the Board of Directors of Florafax International, Inc.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITTEE" means the Compensation Committee of the Board, the
requisite number of members of which shall qualify as "disinterested persons"
within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as
amended from time to time (the "1934 Act").
"COMMON STOCK" means the common stock, par value .01 per share, of the
Company and shall include both treasury shares and authorized but unissued
shares.
"COMPANY" means Florafax International, Inc.
"FAIR MARKET VALUE" of the Common Stock shall be the mean of the
applicable prices selected from the following alternatives, for the date as of
which fair market value is to be determined as quoted in The Wall Street Journal
(or in such other reliable publication as the Committee, in its discretion, may
determine to rely upon): (i) if the Common Stock is listed on the New York Stock
Exchange, the highest and lowest sales prices per share of the Common Stock as
quoted in the NYSE-Composite Transactions listing for such date, (ii) if the
Common Stock is not listed on such
<PAGE> 2
exchange, the highest and lowest sales prices per share of Common Stock for such
date on (or on any composite index including) the principal United States
securities exchange registered under the 1934 Act on which the Common Stock is
listed, or (iii) if the Common Stock is not listed on any such exchange, the
highest and lowest sales prices per share of the Common Stock for such date on
the National Associates of Securities Dealers Automated Quotations Systems or
any successor system then in use ("NASDAQ"). If there are no such sales price
quotations for the date as of which fair market value is to be determined but
there are such sales price quotations within a reasonable period both before and
after such date, then fair market value shall be determined by taking a weighted
average of the means between the highest and lowest sales prices per share of
the Common Stock as so quoted on the nearest date before, and the nearest date
after, the date as of which fair market value is to be determined. The average
should be weighted inversely by the respective numbers of trading days between
the selling dates and the date as of which fair market value is to be
determined. If the are no such sales price quotations on, or within a reasonable
period both before and after, the date as of which fair market value is to be
determined, then fair market value of the Common Stock shall be the mean between
the bona fide bid and asked prices per share of Common Stock as so quoted for
such date on NASDAQ, or if none, the weighted average of the means between such
bona fide bid and asked prices on the nearest trading date before, and the
nearest trading date after, the date as of which fair market value is to be
determined, if both such dates are within a reasonable period. If the fair
market value of the Common Stock cannot be determined on the basis set forth in
this definition for the date as of which fair market value is to be determined,
the Committee shall in good faith determine the fair market value of the Common
Stock on such date. Fair market value shall be determined without regard to any
restriction, other than a restriction which, by its terms, will never lapse.
"PARTICIPANT" means an individual who has been granted an Award
pursuant to this Plan.
"PLAN" means this Management Incentive Stock Plan, as set forth herein
and as it may be amended from time to time.
SECTION 2
ELIGIBILITY
Participants under this Plan shall consist of employees of the Company
who are from time to time selected by the Committee to receive Awards.
SECTION 3
MARKET-BASED AWARDS
Market-based Awards are Awards that will be valued, directly or
indirectly, by Common Stock of the Company or by reference to Common Stock. The
following types of market-based
2
<PAGE> 3
Awards may be granted under this Plan, singly or in combination or in tandem
with other Awards, as the Committee may determine.
(A) NONQUALIFIED STOCK OPTIONS. A nonqualified stock option
is a right to purchase a specified number of shares of Common Stock at
a fixed option price equal to the Fair Market Value of the Common Stock
on the date the Award is granted, during a specified time not to exceed
10 years as the Committee may determine:
(i) in U.S. dollars by personal check, bank draft or by
money order payable to the order of the Company or by money
transfer or direct account debit; or
(ii) if the Committee so determines, through the
delivery or attestation to the ownership of shares of Common
Stock of the Company with a Fair Market Value equal to all or
a portion of the option price for the total number of options
being exercised; or
(iii) by a combination of the methods described in
Sections 4(a)(i) and (4)(a)(ii) above, if Section 4(a)(ii)
applies.
(B) INCENTIVE STOCK OPTIONS. An incentive stock option is
an Award in the form of a stock option that shall comply with the
requirement of Code Section 422 or any successor section as it may be
amended from time to time. The aggregate Fair Market Value (determined
at the time of grant of the Award) of the shares with respect to which
incentive stock options are exercisable for the first time by an
optionee during a calendar year shall not exceed $100,000. The
Committee may provide that the option price under an incentive stock
option may be paid by one or more of the methods described in Section
4(a)(i), (ii) and (iii) above.
(C) STOCK APPRECIATION RIGHTS. A stock appreciation right
is a right to receive, upon surrender of the right (or of both the
option and the right in the case of a tandem right), or of a portion of
either, but without payment, an amount (payable in Common Stock, in
cash, or a combination thereof) not in excess of Fair Market Value on
the exercise date of the number of shares of Common Stock for which the
stock appreciation right is exercised, over the exercise price of such
right, which price shall equal the Fair Market Value of such shares on
the date the right was granted (or, in the case of an option with a
tandem right, the option price that the optionee would otherwise have
been required to pay for such shares).
(D) RESTRICTED STOCK. Restricted stock is Common Stock of
the Company that is subject to restrictions on transfer and/or such
other restrictions on incidents of ownership as the Committee may
determine, for a required period of continued employment as set by the
Committee at the time of Award. Restricted stock Awards shall require
no payment of consideration by the Participant, either on the date of
grant or the date the restriction(s) are removed, unless specifically
required by the terms of the Award Agreement.
3
<PAGE> 4
(E) PERFORMANCE SHARES. A performance share is Common Stock of
the Company, or a unit valued by reference to Common Stock, that is
subject to restrictions on transfer and/or such other restrictions on
incidents of ownership as the Committee may determine. The elimination
of restrictions on a performance share and the number of shares
ultimately earned by a Participant shall be contingent upon achievement
of one or more performance targets specified by the Committee.
Performance shares may be paid in Common Stock, cash or a combination
thereof. The Committee shall establish minimum performance targets with
respect to each performance share. Performance targets may be based on
financial criteria, such as the Fair Market Value of Common Stock or
other objective measures of financial performance of the Company, or
may be based on the performance of a division or operating unit of the
Company or on individual Participant performance.
SECTION 4
LIMITATION OF NUMBER OF SHARES
Subject to the adjustment provisions of Section 8 or 9 hereof, the
aggregate number of shares that may be subject to Awards under this Plan shall
not exceed 500,000 shares of Common Stock.
SECTION 5
AWARD AGREEMENTS
Each Award under this Plan shall be evidenced by an Award Agreement
setting forth the terms and conditions applicable to the Award. Award Agreements
shall include:
(A) NON-ASSIGNABILITY. A provision that no Award shall be
assignable or transferable except by will or by the laws of descent and
distribution and that during the lifetime of a Participant, the Award
shall be exercised only by such Participant.
(B) TERMINATION OF EMPLOYMENT. Provision governing the
disposition of an Award in the event of the retirement, disability,
death or other termination of a Participant's employment or
relationship to the Company.
(C) RIGHTS AS A SHAREHOLDER. A provision that a Participant
shall have no rights as a shareholder with respect to any shares
covered by an Award until the date the Participant or his nominee
becomes the holder of record. Except as provided in Section 8 or 9
hereof, no adjustment shall be made for dividends or other rights for
which the record date is prior to such date, unless the Award Agreement
specifically requires such adjustment.
4
<PAGE> 5
(D) WITHHOLDING. A provision requiring the withholding of all
taxes required by law from all amounts paid in cash. In the case of
payments of Awards in shares of Common Stock, the Participant may be
required to pay the amount of any taxes required to be withheld prior
to receipt of such shares, or alternatively, a number of shares the
Fair Market Value of which equals the amount required to be withheld
may be deducted from the payment.
(E) MISCELLANEOUS. Such other terms and conditions, including
the criteria for determining vesting of Awards and the amount or value
of Awards, as are necessary and appropriate to effect an Award
Agreement with the Participant with respect to the particular Award
granted.
SECTION 6
AMENDMENT AND TERMINATION
The Committee may at any time amend, suspend or discontinue the Plan or
alter or amend any or all Award Agreements under the Plan to the extent
permitted by law. However, no such action by the Committee may, without approval
of the Board and by the holders of a majority of the securities of the Company
if such approval is required by Rule 16b-3 of the 1934 Act, as amended from time
to time, alter the provisions of the Plan so as to:
(a) increase the maximum number of shares of Common Stock that
may be subject to Awards granted under the Plan except pursuant to
Section 8 or 9 hereof;
(b) change the class of individuals eligible to receive Awards
under the Plan;
(c) permit any member of the Committee to be eligible to
receive or hold an Award under the Plan; or
(d) effect any other amendment to the Plan that would require
the approval of the holders of a majority of the securities of the
Company in accordance with Rule 16b-3 under the 1934 Act, as amended
from time to time.
SECTION 7
ADMINISTRATION
(A) GENERAL. The Plan and all Awards granted pursuant thereto
shall be administered by the Committee in accordance with all
applicable requirements of Rule 16b-3 of the 1934 Act. The Committee
shall periodically make determinations with respect to individuals who
shall participate in the Plan and receive Awards pursuant thereto. All
5
<PAGE> 6
questions of interpretation and administration by the Committee, and
its determination shall be final and conclusive upon all parties in
interest.
(B) DELEGATION OF AUTHORITY. The Committee may delegate its
authority, as described in subsection (A) above, to persons other than
its members to carry out such responsibilities including the authority
to grant Awards, except that: (i) the authority to grant or administer
Awards with respect to persons who are subject to Section 16(a) or (b)
of the 1934 Act shall not be delegated by the Committee; and (ii) any
such delegation shall satisfy any other applicable requirements from
time to time. Any person to whom such authority is granted shall
continue to be eligible to receive Awards under the Plan, provided that
such Awards are granted directly by the Committee without delegation.
SECTION 8
ADJUSTMENT PROVISIONS
If the Company shall effect a subdivision or consolidation of shares or
other capital readjustment, the payment of a stock dividend or other increase or
reduction of the number of shares of the Common Stock outstanding without
receiving consideration therefor in money, services or property, the number of
shares of Common Stock then remaining subject to this Plan, and the maximum
number of shares that may be issued to anyone pursuant to this Plan, including
those that are then covered by outstanding Awards, shall (a) in the event of an
increase in the number of outstanding shares, be proportionately increased and
the price for each share then covered by an outstanding Award shall be
proportionately reduced, and (b) in the event of a reduction in the number of
outstanding shares, be proportionately reduced and the price for each share then
covered by an outstanding Award, shall be proportionately increased. In
addition, in such circumstances, the Committee shall make such adjustments to
the performance targets for performance share Awards and in the securities to
which such Awards correspond as the Committee deems appropriate.
Subject to any required action by the stockholders, if the Company
shall be a party to any merger or consolidation, a Participant holding an
outstanding Award valued directly or indirectly by Common Stock shall be
entitled to the same rights that a holder of the same number of shares of Common
Stock that are subject to the Award would be entitled to receive pursuant to
such merger or consolidation.
SECTION 9
CHANGES OF CONTROL
In the event of a change of control of the Company, or if the Board
reaches agreement to merge or consolidate with another corporation and the
Company is not the surviving corporation, or if all, or substantially all of the
assets of the Company are sold, or if the Company shall make a
6
<PAGE> 7
distribution to stockholders that is non-taxable under the Code, of if the
Company shall dissolve or liquidate (a "Restructuring Event"), then the
Committee may, in its discretion, recommend that the Board take any of the
following actions as a result of, or in anticipation of, any such Restructuring
Event to assure fair and equitable treatment of Plan Participants:
(a) accelerate time periods for purposes of vesting in, or
realizing gain from, any outstanding Award made pursuant to this Plan;
(b) offer to purchase, and cause the purchase of, any
outstanding Award made pursuant to this Plan from the holder for its
equivalent cash value, as determined by the Committee, as of the date
of the Restructuring Event; and
(c) make adjustments or modifications to outstanding Awards as
the Committee deems appropriate to maintain and protect the rights and
interests of Plan Participants following such Restructuring Event.
Any such action by the Board shall be conclusive and binding on the
Company and all Plan Participants. Notwithstanding the foregoing, the Committee
shall retain full authority to take, in its discretion, any of the foregoing
actions with respect to Awards held by Participants who are directors, and the
Board shall have no authority to act in any such matter.
For purposes of this Section, "changes of control" shall mean: (i) the
acquisition buy any person of voting shares of the Company, if, as a result of
the acquisition, such person, or any "group" as defined in Section 13(d)(3) of
the 1934 Act of which such person is a part, owns at least 20% of the
outstanding voting shares of the Company; or (ii) a change in the composition of
the Board such that within any period of two consecutive years, persons who (a)
at the beginning of such period constitute the Board or (b) become directors
after the beginning of such period and whose election, or nomination for
election by the stockholders of the Company, was approved by a vote of at least
two-thirds of the persons who were either directors at the beginning of such
period or whose subsequent election or nomination was previously approved in
accordance with this clause (b), cease to constitute at least a majority of the
Board.
SECTION 10
UNFUNDED PLAN
The plan shall be unfunded. Neither the Company nor the Board shall be
required to segregate any assets that may at any time be represented by Awards
made pursuant to this Plan. Neither the Company nor the Board shall be deemed to
be a trustee of any amounts to be paid under the Plan. Any liability of the
Company to any Participant with respect to an Award shall be based solely upon
contractual obligations created by the plan and the Award Agreement. No such
obligation shall be deemed to be secured by any pledge or any encumbrance on any
property of the Company.
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<PAGE> 8
SECTION 11
RIGHT OF DISCHARGE RESERVED
Nothing in this Plan or in any Award shall confer upon any employee or
other individual the right to continue in the employment or service of the
Company or affect any right the Company may have to terminate the employment or
service of any such employee or other individual at any time for any reason.
SECTION 12
NATURE OF PAYMENTS
All Awards made pursuant to this Plan are in consideration of services
performed for the Company. Any gain realized pursuant to such Awards constitute
a special incentive payment to the Participant and shall not be taken into
account as compensation for purposes of any of the employee benefits plans of
the Company.
SECTION 13
GOVERNING LAW
This Plan shall be governed by, construed and enforced in accordance
with the integral laws of the State of Delaware, and, where applicable, the laws
of the United States.
8
<PAGE> 1
EXHIBIT 10.2
FIRST AMENDMENT TO
MANAGEMENT INCENTIVE STOCK PLAN
WHEREAS, of the 500,000 shares currently subject to awards under that
certain Management Incentive Stock Plan ("Incentive Plan") of Florafax
International, Inc. ("Company") dated effective January 30, 1996, as of November
28, 1997, there were 1,250 shares of common stock outstanding and 498,750 shares
reserved for issuance; and
WHEREAS, the Company has proposed to increase the number of shares
subject to awards under the Incentive Plan to continue encouraging and rewarding
high levels of performance by individuals who are key to the success of the
Company by increasing the proprietary interest of such individuals in the
Company's growth and success.
NOW, THEREFORE, in accordance with Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Act"), and Section 6 of the Incentive
Plan, the undersigned Compensation Committee of the Board of Directors of the
Company ("Committee") adopts the following amendment to the Incentive Plan:
FIRST: Section 4 is amended to read in its entirety as follows:
"Section 4
LIMITATION OF NUMBER OF SHARES
Subject to the adjustment provisions of Section 8 or 9 hereof, the
aggregate number of shares that may be subject to Awards under this
Plan shall not exceed 1,000,000 shares of Common Stock."
In all other respects the Incentive Plan remains in full force and
effect.
We, the undersigned members of the Committee do hereby certify that
this First Amendment to Management Incentive Stock Plan ("Amendment") was duly
adopted in accordance with the Act and Incentive Plan.
IN WITNESS WHEREOF, we have signed this Amendment on this 5th day of
February, 1998.
ATTEST: /s/ S. Oden Howell
--------------------------------------
S. Oden Howell, Committee member
/s/ Kelly S. McMakin /s/ T. Craig Benson
- ------------------------------ --------------------------------------
Kelly S. McMakin, Secretary T. Craig Benson, Committee member
/s/ Kenneth G. Puttick
--------------------------------------
Kenneth G. Puttick, Committee member
/s/ William E. Mercer
--------------------------------------
William E. Mercer, Committee member
<PAGE> 1
Exhibit 10.3
GERALD STEVENS, INC.
1998 STOCK OPTION PLAN
Gerald Stevens, Inc. (the "Company") hereby adopts this Gerald Stevens,
Inc. 1998 Stock Option Plan (the "Plan"), the terms of which shall be as
follows:
1. PURPOSE
The Plan is intended to advance the interests of the Company by
providing eligible individuals (as designated pursuant to Section 4 below) with
an opportunity to acquire or increase a proprietary interest in the Company,
which thereby will create a stronger incentive to expend maximum effort for the
growth and success of the Company and its subsidiaries, and will encourage such
eligible individuals to remain in the employ of the Company or one or more of
its subsidiaries. Each stock option granted under the Plan (an "Option") shall
be an option that is not intended to constitute an "incentive stock option"
("Incentive Stock Option") within the meaning of Section 422 of the Internal
Revenue Code of 1986, or the corresponding provision of any subsequently-enacted
tax statute, as amended from time to time (the "Code") unless such Option is
granted to an employee of the Company or a "subsidiary corporation" (a
"Subsidiary") thereof within the meaning of Section 424(f) of the Code and is
specifically designated at the time of grant as being an Incentive Stock Option.
Any Option so designated shall constitute an Incentive Stock Option only to the
extent that it does not exceed the limitations set forth in Section 7 below.
2. ADMINISTRATION
(a) Board. The Plan shall be administered by the Board of
Directors of the Company (the "Board"), which shall have the full power and
authority to take all actions, and to make all determinations required or
provided for under the Plan or any Option granted or Option Agreement (as
defined in Section 8 below) entered into under the Plan and all such other
actions and determinations not inconsistent with the specific terms and
provisions of the Plan deemed by the Board to be necessary or appropriate to the
administration of the Plan or any Option granted or Option Agreement entered
into hereunder. All such actions and determinations shall be by the affirmative
vote of a majority of the members of the Board present at a meeting at which any
issue relating to the Plan is properly raised for consideration or without a
meeting by written consent of the Board executed in accordance with the
Company's Certificate of Incorporation and Bylaws, and with applicable law. The
interpretation and construction by the Board of any provision of the Plan or of
any Option granted or Option Agreement entered into hereunder shall be final and
conclusive.
(b) Committee. The Board may from time to time appoint a Stock
Option Committee (the "Committee") consisting of not less than two members of
the Board, none of whom shall be an officer or other salaried employee of the
Company or any Subsidiary, and each of whom shall qualify in all respects as a
"non-employee director" as defined in Rule 16b-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934 (the "Exchange Act") and an
"outside director" for purposes of Section 162(m) of the Code. The Board, in its
sole discretion, may provide that the role of the Committee shall be limited to
making recommendations to the Board concerning any determinations to be made and
actions to be taken by the Board pursuant to
<PAGE> 2
or with respect to the Plan, or the Board may delegate to the Committee such
powers and authorities related to the administration of the Plan, as set forth
in Section 2(a) above, as the Board shall determine, consistent with the
Certificate of Incorporation and Bylaws of the Company and applicable law. The
Board may remove members, add members, and fill vacancies on the Committee from
time to time, all in accordance with the Company's Certificate of Incorporation
and Bylaws, and with applicable law. The majority vote of the Committee, or acts
reduced to or approved in writing by a majority of the members of the Committee,
shall be the valid acts of the Committee.
(c) No Liability. No member of the Board or of the Committee
shall be liable for any action or determination made in good faith with respect
to the Plan or any Option granted or Option Agreement entered into hereunder.
(d) Delegation to the Committee. In the event that the Plan or
any Option granted or Option Agreement entered into hereunder provides for any
action to be taken by or determination to be made by the Board, such action may
be taken by or such determination may be made by the Committee if the power and
authority to do so has been delegated to the Committee by the Board as provided
for in Section 2(b) above. Unless otherwise expressly determined by the Board,
any such action or determination by the Committee shall be final and conclusive.
3. STOCK
The stock that may be issued pursuant to Options granted under the Plan
shall be shares of common stock, $.01 par value, of the Company (the "Stock"),
which shares may be treasury shares or authorized but unissued shares. The
number of shares of Stock that may be issued pursuant to Options granted under
the Plan shall not exceed in the aggregate 4,000,000 shares, subject to
adjustment as provided in Section 16 below; provided, however, the number of
shares of Stock issuable pursuant to Options then outstanding (whether vested or
not) shall not exceed 10 percent of the outstanding shares of Stock. If any
Option expires, terminates, or is terminated or canceled for any reason prior to
exercise in full, the shares of Stock that were subject to the unexercised
portion of such Option shall be available for future Options granted under the
Plan.
4. ELIGIBILITY
Options may be granted under the Plan to any employee, consultant or
non-employee director of the Company, a Subsidiary or any other entity in which
the Company has a significant equity or other interest as determined by the
Committee (any other entity in which the Company has a significant equity or
other interest as determined by the Committee referred to as an "Affiliate"). An
individual may hold more than one Option, subject to such restrictions as are
provided herein.
5. EFFECTIVE DATE AND TERM OF THE PLAN
(a) Effective Date. The Plan shall be effective as of
May 20, 1998
(b) Term. The Plan shall terminate on the date 10 years from
the effective date.
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<PAGE> 3
6. GRANT OF OPTIONS
Subject to the terms and conditions of the Plan, the Board may, at any
time and from time to time, prior to the date of termination of the Plan, grant
to such eligible individuals as the Board may determine ("Optionees"), Options
to purchase such number of shares of the Stock on such terms and conditions as
the Board may determine. The date on which the Board approves the grant of an
Option (or such later date as is specified by the Board) shall be considered the
date on which such Option is granted.
7. LIMITATION ON INCENTIVE STOCK OPTIONS
An Option intended to constitute an Incentive Stock Option (and so
designated at the time of grant) shall qualify as an Incentive Stock Option only
to the extent that the aggregate fair market value (determined at the time the
Option is granted) of the stock with respect to which Incentive Stock Options
are exercisable for the first time by the Optionee during any calendar year
(under the Plan and all other plans of the Optionee's employer corporation and
its parent and subsidiary corporations within the meaning of Section 422(d) of
the Code) does not exceed $100,000. This limitation shall be applied by taking
Options into account in the order in which they were granted.
8. OPTION AGREEMENTS
All Options granted pursuant to the Plan shall be evidenced by written
notification from the Company ("Option Agreements"), to be executed by the
Company and by the Optionee, in such form or forms as the Board shall from time
to time determine. Option Agreements covering Options granted from time to time
or at the same time need not contain similar provisions; provided, however, that
all such Option Agreements shall comply with all terms of the Plan.
9. OPTION PRICE
The purchase price of each share of the Stock subject to an Option (the
"Option Price") shall be fixed by the Board and stated in each Option Agreement,
and shall be not less than 100 percent of the fair market value of a share of
the Stock on the date the Option is granted (as determined in good faith by the
Board); provided, however, that in the event the Optionee would otherwise be
ineligible to receive an Incentive Stock Option by reason of the provisions of
Sections 422(b)(6) and 424(d) of the Code (relating to stock ownership of more
than 10 percent), the Option Price of an Option that is intended to be an
Incentive Stock Option shall be not less than 110 percent of the fair market
value of a share of Stock at the time such Option is granted. The fair market
value of a share of Stock on any date of reference shall mean the "Closing
Price" (as defined below) of the Stock on the business day immediately preceding
such date, unless the Board or the Committee in its sole discretion shall
determine otherwise. For the purpose of determining fair market value, the
"Closing Price" of the Stock on any business day shall be (i) if the Stock is
listed or admitted for trading on any United States national securities
exchange, or if actual transactions are otherwise reported on a consolidated
transaction reporting system, the last reported sale price of Stock on such
exchange or reporting system, as reported in any newspaper of general
circulation, (ii) if the Stock is quoted
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<PAGE> 4
on the National Association of Securities Dealers Automated Quotations System
("NASDAQ"), or any similar system of automated dissemination of quotations of
securities prices in common use, the last reported sale price of Stock on such
system or, if sales prices are not reported, the mean between the closing high
bid and low asked quotations for such day of Stock on such system, as reported
in any newspaper of general circulation or (iii) if neither clause (i) or (ii)
is applicable, the mean between the high bid and low asked quotations for the
Stock as reported by the National Quotation Bureau, Incorporated if at least two
securities dealers have inserted both bid and asked quotations for Stock on at
least five of the ten preceding days. If neither (i), (ii) or (iii) above is
applicable, then fair market value shall be determined in good faith by the
Committee or the Board, and the Committee or the Board may determine such fair
market value as of any date that is not more than one year prior to the date for
which such determination is being made.
10. TERM AND EXERCISE OF OPTIONS
(a) Option Period. Each Option granted under the Plan shall
terminate and all rights to purchase shares thereunder shall cease upon the
expiration of ten years from the date such Option is granted, or on such date
prior thereto as may be fixed by the Board and stated in the Option Agreement
relating to such Option; provided, however, that in the event the Optionee would
otherwise be ineligible to receive an Incentive Stock Option by reason of the
provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock
ownership of more than 10 percent), an Option granted to such Optionee that is
intended to be an Incentive Stock Option shall in no event be exercisable after
the expiration of five years from the date it is granted.
(b) Vesting and Limitations on Exercise. Each Option shall
become exercisable with respect to 25% of the total number of shares subject to
the Option on the date that is 12 months after the date of its grant (the
"Vesting Date") and with respect to an additional 25% of the number of such
shares on each of the next three succeeding anniversaries of the Vesting Date;
provided, however, that the Board may in its discretion provide that an Option
may be exercised, in whole or in part, at any time and from time to time, over a
period commencing on or after the date of grant and ending upon the expiration
or termination of the Option, as the Board shall determine and set forth in the
Option Agreement relating to such Option. Without limiting the foregoing, the
Board, subject to the terms and conditions of the Plan, may in its sole
discretion provide that an Option may be exercised immediately upon grant or
that it may not be exercised in whole or in part for any period or periods of
time during which such Option is outstanding; provided, however, that any
vesting requirement or other such limitation on the exercise of an Option may be
rescinded, modified or waived by the Board, in its sole discretion, at any time
and from time to time after the date of grant of such Option, so as to
accelerate the time at which the Option may be exercised.
(c) Method of Exercise. An Option that is exercisable
hereunder may be exercised by delivery to the Company on any business day, at
its principal office, addressed to the attention of the Stock Option
Administrator, of written notice of exercise, which notice shall specify the
number of shares with respect to which the Option is being exercised, and shall
be accompanied by payment in full of the Option Price of the shares for which
the Option is being exercised, except as provided below. The minimum number of
shares of Stock with respect to which an Option may be exercised, in whole or in
part, at any time shall be the lesser of 100 shares or the maximum
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<PAGE> 5
number of shares available for purchase under the Option at the time of
exercise. Payment of the Option Price for the shares of Stock purchased pursuant
to the exercise of an Option shall be made (i) in cash or in cash equivalents;
or (ii) by delivering a written direction to the Company that the Option be
exercised pursuant to a "cashless" exercise/sale procedure (pursuant to which
funds to pay for exercise of the Option are delivered to the Company by a broker
upon receipt of stock certificates from the Company) or a cashless exercise/loan
procedure (pursuant to which the Optionees would obtain a margin loan from a
broker to fund the exercise) through a licensed broker acceptable to the Company
whereby the stock certificate or certificates for the shares of Stock for which
the Option is exercised will be delivered to such broker as the agent for the
individual exercising the Option and the broker will deliver to the Company cash
(or cash equivalents acceptable to the Company) equal to the Option Price for
the shares of Stock purchased pursuant to the exercise of the Option plus the
amount (if any) of federal and other taxes that the Company, may, in its
judgment, be required to withhold with respect to the exercise of the Option.
Payment in full of the Option Price need not accompany the written notice of
exercise if the Option is exercised pursuant to the cashless exercise/sale
procedure described above. An attempt to exercise any Option granted hereunder
other than as set forth above shall be invalid and of no force and effect.
Promptly after the exercise of an Option, the individual exercising the Option
shall be entitled to the issuance of a Stock certificate or certificates
evidencing his ownership of such shares. A separate Stock certificate or
certificates shall be issued for any shares purchased pursuant to the exercise
of an Option that is intended to be an Incentive Stock Option, which certificate
or certificates shall not include any shares that were purchased pursuant to the
exercise of an Option that is not an Incentive Stock Option. An individual
holding or exercising an Option shall have none of the rights of a shareholder
until the shares of Stock covered thereby are fully paid and issued to him and,
except as provided in Section 16 below, no adjustment shall be made for
dividends or other rights for which the record date is prior to the date of such
issuance.
(d) Restrictions on Transfer of Stock. If an Option is
exercised before the date that is six months from the later of (i) the date of
grant of the Option or (ii) the date of shareholder approval of the Plan and the
sale of stock acquired pursuant to such exercise would subject the individual
exercising the Option to liability under Section 16 of the Exchange Act, then
such certificate or certificates shall bear a legend restricting the transfer of
the Stock covered thereby until the expiration of six months from the later of
the date specified in clause (i) above or the date specified in clause (ii)
above.
11. TRANSFERABILITY OF OPTIONS
No Option shall be assignable or transferable by the Optionee to whom
it is granted, other than by will or the laws of descent and distribution,
except that, upon approval by the Board, the Optionee may transfer an Option
that is not intended to constitute an Incentive Stock Option (a) pursuant to a
qualified domestic relations order as defined for purposes of the Employee
Retirement Income Security Act of 1974, as amended, or (b) by gift: to a member
of the "Family" (as defined below) of the Optionee, to or for the benefit of one
or more organizations qualifying under Code 501(c)(3) and 170(c)(2) (a
"Charitable Organization") or to a trust for the exclusive benefit of the
Optionee, one or more members of the Optionee's Family, one or more Charitable
Organizations, or any combination of the foregoing, provided that any such
transferee shall enter into a written
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<PAGE> 6
agreement to be bound by the terms of this Agreement. For this purpose, "Family"
shall mean the ancestors, spouse, siblings, spouses of siblings, lineal
descendants and spouses of lineal descendants of the Optionee. During the
lifetime of an Optionee to whom an Incentive Stock Option is granted, only such
Optionee (or, in the event of legal incapacity or incompetence, the Optionee's
guardian or legal representative) may exercise the Incentive Stock Option.
12. TERMINATION OF EMPLOYMENT OR SERVICE
Upon the termination of the employment or other service of an Optionee
with the Company, any Subsidiary or Affiliate, any Option that was not vested
and exercisable on the date of the termination of such Optionee's employment
shall expire and be forfeited as of such date, and any Option that was vested
and exercisable on the date of the termination of such Optionee's employment
shall expire and be forfeited as of such date, except that: (i) if any Optionee
dies or has a "permanent and total disability" (within the meaning of Section
22(e)(3) of the Code), such Optionee's Option shall expire 12 months after the
date of his death or "permanent and total disability", but in no event after the
termination of the Option pursuant to Section 10(a) above, and (ii) if any
Optionee is terminated other than for "cause", such Optionee's Option shall
expire 90 days after the date of his termination, but in no event after the
termination of the Option pursuant to Section 10(a) above. Notwithstanding the
foregoing provisions of this Section 12, the Board may provide, in its
discretion, that following the termination of employment or service of an
Optionee with the Company, or any Subsidiary or Affiliate, an Optionee may
exercise an Option, in whole or in part, at any time subsequent to such
termination of employment or service and prior to termination of the Option
pursuant to Section 10(a) above, either subject to or without regard to any
vesting or other limitation on exercise imposed pursuant to Section 10(b) above.
Whether a leave of absence or leave on military or government service shall
constitute a termination of employment of service with the Company, or any
Subsidiary or Affiliate, shall not be deemed to occur if the Optionee is
immediately thereafter employed by or otherwise providing services to the
Company, or any Subsidiary or Affiliate. Whether a termination of employment or
service is to be considered by reason of "permanent and total disability" for
purposes of this Plan shall be determined by the Board, which determination
shall be final and conclusive. For the purposes of this Plan, "cause" shall mean
(i) an Optionee's theft or embezzlement, or attempted theft or embezzlement, of
money or property of the Company, an Optionee's perpetration or attempted
perpetration of fraud, or an Optionee's participation in a fraud or attempted
fraud, on the Company or an Optionee's unauthorized appropriation of, or an
Optionee's attempt to misappropriate, any tangible or intangible asset or
property of the Company, (ii) any act or acts of disloyalty, misconduct or moral
turpitude by an Optionee materially injurious to the interest, property,
operations, business or reputation of the Company or an Optionee's conviction of
a crime the commission of which results in injury to the Company or (iii) an
Optionees' failure or inability (other than by reason of "permanent and total
disability") to carry out effectively his duties and obligations to the Company
or to participate effectively and actively in the management of the Company, as
determined in the reasonable judgment of the Board and after an Optionee has
been given notice by the Company and a reasonable opportunity to cure such
failure or inability.
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<PAGE> 7
13. USE OF PROCEEDS
The proceeds received by the Company from the sale of Stock pursuant
to Options granted.
14. REQUIREMENTS OF LAW
(a) Violations of Law. The Company shall not be required to
sell or issue any shares of Stock under any Option if the sale or issuance of
such shares would constitute a violation by the individual exercising the Option
or the Company of any provisions of any law or regulation of any governmental
authority, including without limitation any federal or state securities laws or
regulations. Any determination in this connection by the Board shall be final,
binding, and conclusive. The Company shall not be obligated to take any
affirmative action in order to cause the exercise of an Option or the issuance
of shares pursuant thereto to comply with any law or regulation of any
governmental authority. As to any jurisdiction that expressly imposes the
requirement that an Option shall not be exercisable unless and until the shares
of Stock covered by such Option are registered or are subject to an available
exemption from registration, the exercise of such Option (under circumstances in
which the laws of such jurisdiction apply) shall be deemed conditioned upon the
effectiveness of such registration or the availability of such an exemption.
(b) Compliance with Rule 16b-3. The intent of this Plan is to
qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the
extent any provision of the Plan does not comply with the requirements of Rule
16b-3, it shall be deemed inoperative to the extent permitted by law and deemed
advisable by the Board and shall not affect the validity of the Plan. In the
event Rule 16b-3 is revised or replaced, the Board, or the Committee acting on
behalf of the Board, may exercise discretion to modify this Plan in any respect
necessary to satisfy the requirements of the revised exemption or its
replacement.
15. AMENDMENT AND TERMINATION OF THE PLAN
The Board may, at any time and from time to time, amend, suspend or
terminate the Plan as to any shares of Stock as to which Options have not been
granted; provided, however, that no amendment by the Board shall, without
approval by a majority of the shares present and entitled to vote at a duly held
meeting of the shareholders of the Company at which a quorum representing a
majority of all outstanding voting stock is, either in person or by proxy,
present and voting on the amendment, or by written consent in accordance with
applicable state law and the Certificate of Incorporation and Bylaws of the
Company, change the requirements as to eligibility to receive Options that are
intended to qualify as Incentive Stock Options, increase the maximum number of
shares of Stock in the aggregate that may be sold pursuant to Options that are
intended to qualify as Incentive Stock Options granted under the Plan (except as
permitted under Section 16 hereof) or modify the Plan so that Options granted
under the Plan could not satisfy the applicable requirements of Code 162(m).
Except as permitted under Section 16 hereof, no amendment, suspension or
termination of the Plan shall, without the consent of the holder of the Option,
alter or impair rights or obligations under any Option theretofore granted under
the Plan.
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<PAGE> 8
16. EFFECT OF CHANGES IN CAPITALIZATION
(a) Recapitalization. If the outstanding shares of Stock are
increased or decreased or changed into or exchanged for a different number or
kind of shares or other securities of the Company by reason of any
recapitalization, reclassification, stock split, reverse split, combination of
shares, exchange of shares, stock dividend or other distribution payable in
capital stock, or other increase or decrease in such shares effected without
receipt of consideration by the Company, occurring after the effective date of
the Plan, the number and kinds of shares for the purchase of which Options may
be granted under the Plan shall be adjusted proportionately and accordingly by
the Company. In addition, the number and kind of shares for which Options are
outstanding shall be adjusted proportionately and accordingly so that the
proportionate interest of the holder of the Option immediately following such
event shall, to the extent practicable, be the same as immediately prior to such
event. Any such adjustment in outstanding Options shall not change the aggregate
Option Price payable with respect to shares subject to the unexercised portion
of the Option outstanding but shall include a corresponding proportionate
adjustment in the Option Price per share.
(b) Reorganization in Which the Company Is the Surviving
Corporation. Subject to Subsection (c) hereof, if the Company shall be the
surviving corporation in any reorganization, merger, or consolidation of the
Company with one or more other corporations, any Option theretofore granted
pursuant to the Plan shall pertain to and apply to the securities to which a
holder of the number of shares of Stock subject to such Option would have been
entitled immediately following such reorganization, merger, or consolidation,
with a corresponding proportionate adjustment of the Option Price per share so
that the aggregate Option Price thereafter shall be the same as the aggregate
Option Price of the shares remaining subject to the Option immediately prior to
such reorganization, merger, or consolidation.
(c) Dissolution or Liquidation; Reorganization in Which the
Company Is Not the Surviving Corporation or Sale of Assets or Stock. Upon the
dissolution or liquidation of the Company the Plan and all Options outstanding
hereunder shall terminate. In the event of any termination of the Plan under
this Section 16(c), each individual holding an Option shall have the right,
immediately prior to the occurrence of such termination and during such
reasonable period as the Board in its sole discretion shall determine and
designate, to exercise such Option in whole or in part, whether or not such
Option was otherwise exercisable at the time such termination occurs and without
regard to any vesting or other limitation on exercise imposed pursuant to
Section 10(b) above. In connection with a merger, consolidation, reorganization
or other business combination of the Company with one or more other entities in
which the Company is not the surviving entity, or upon a sale of all or
substantially all of the assets of the Company to another entity, or upon any
transaction (including, without limitation, a merger or reorganization in which
the Company is the surviving corporation) that results in any person or entity
(or persons or entities acting as a group or otherwise in concert) owning more
than 50 percent of the combined voting power of all classes of stock of the
Company, the Company and the acquiring or surviving entity shall provide for the
continuation of the Plan and the assumption of the Options theretofore granted,
or for the substitution for such Options of new options covering the stock of a
successor entity, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kinds of shares and exercise prices. The Board
shall send prior written notice of the occurrence of an event described in this
Section 16(c)
- 8 -
<PAGE> 9
to all individuals who hold Options not later than the time at which the Company
gives notice to its shareholders that such event is proposed.
(d) Adjustments. Adjustments under this Section 16 related to
stock or securities of the Company shall be made by the Board, whose
determination in that respect shall be final, binding, and conclusive. No
fractional shares of Stock or units of other securities shall be issued pursuant
to any such adjustment, and any fractions resulting from any such adjustment
shall be eliminated in each case by rounding downward to the nearest whole share
or unit.
(e) No Limitations on Corporation. The grant of an Option
pursuant to the Plan shall not affect or limit in any way the right or power of
the Company to make adjustments, reclassifications, reorganizations or changes
of its capital or business structure or to merge, consolidate, dissolve or
liquidate, or to sell or transfer all or any part of its business or assets.
17. DISCLAIMER OF RIGHTS
No provision in the Plan or in any Option granted or Option Agreement
entered into pursuant to the Plan shall be construed to confer upon any
individual the right to remain in the employ or service of the Company, any
Subsidiary or Affiliate, or to interfere in any way with the right and authority
of the Company, any Subsidiary or Affiliate either to increase or decrease the
compensation of any individual at any time, or to terminate any employment or
other relationship between any individual and the Company, any Subsidiary or
Affiliate.
18. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan nor the submission of the Plan to the
shareholders of the Company for approval shall be construed as creating any
limitations upon the right and authority of the Board to adopt such other
incentive compensation arrangements (which arrangements may be applicable either
generally to a class or classes of individuals or specifically to a particular
individual or individuals) as the Board in its discretion determines desirable,
including, without limitation, the granting of stock options or stock
appreciation rights otherwise than under the Plan.
* * *
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<PAGE> 1
Exhibit 10.7
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is made and
entered into effective as of the 25th day of June, 1997, by and between FLORAFAX
INTERNATIONAL, INC., a Delaware corporation (the "Company") and James J. Pagano
(the "Optionee").
BACKGROUND
A. The Company has determined to reward and to provide incentives to
those who are primarily responsible for the operations of the Company and for
shaping and carrying out the long-range plans of the Company and aiding in its
continued growth and financial success.
B. In furtherance of these purposes, the Board of Directors of the
Company has authorized the grant to Optionee of a stock option to purchase
certain shares of the common stock, par value $.01 per share, of the Company
("Common Stock") by resolution dated June 25, 1997.
C. The Company and Optionee wish to confirm the terms, conditions, and
restrictions of this option.
For and in consideration of the premises, the mutual covenants
contained herein, and other good and valuable consideration, the parties hereto
agree as follows:
ARTICLE 1
GRANT AND EXERCISE OF OPTION
1.1 GRANT OF OPTION. Subject to the terms, restrictions, limitations,
and conditions stated herein, the Company hereby grants to Optionee an option
(the "Option") to purchase 50,000 shares of Common Stock (the "Option Shares").
The date first written above shall be the date on which the Option has been
granted (the "Grant Date").
1.2 EXERCISE OF THE OPTION.
(a) The Option may be exercised with respect to all or any
portion of the Option Shares at any time during the Option Period (as
defined below) by the delivery to the Company, at its principal place
of business, of (i) a written notice of exercise which shall be
delivered to the Company no earlier than thirty (30) days and no later
than ten (10) days prior to the date upon which Optionee desires to
exercise all or any portion of the Option (the "Exercise Date"); (ii)
a certified check payable to the Company in the amount of the Exercise
Price (as defined below) multiplied by the number of Option Shares
being purchased (the "Purchase Price") OR by delivery of a number of
shares of Common Stock, which have been held by Optionee for at least
six months, having a fair market value, as of the date the Option is
exercised, at least equal to the Purchase Price OR by a certified
check payable to the Company in an amount less than the Exercise Price
and by delivery of a number of shares of Common Stock, which have been
held by Optionee for at least six months, having a fair market value,
as of the date the Option is exercised, at least equal to the balance
of the Purchase Price; and (iii) except as permitted in Paragraph
1.2(b) below, a certified check payable to the Company in the amount
of all withholding tax obligations (whether federal state or local),
imposed on the Company by reason of the exercise of the Option, or the
Withholding Election described in Section 1.2(b). Upon acceptance of
such notice, receipt of payment in full, the Company shall cause a
certificate representing the shares of Common Stock as to which the
Option has been exercised to be issued and delivered to the Optionee.
(b) In lieu of paying the withholding tax obligation in cash,
as described in Section 1.2(a) (iii), the Optionee may elect to have
the actual number of shares issuable upon exercise of the Option
reduced by the smallest number of whole shares of Common Stock which,
when multiplied by the fair market value of the Common Stock as of the
date the Option is exercised, is sufficient to satisfy the amount of
the
<PAGE> 2
withholding tax obligations imposed on the Company by reason of the
exercise thereof (the "Withholding Election"). The Optionee may take a
Withholding Election only if all of the following conditions are met:
(i) the Withholding Election must be made by electing the
Withholding Election in the written notice of exercise; and by
executing and delivering to the Company a properly completed
Notice of Withholding Election; and
(ii) any Withholding Election made will be irrevocable;
however, the Company may, in its sole discretion, disapprove and
not give effect to any Withholding Election.
1.3 EXERCISE PRICE. The exercise price for each share of Common
Stock shall be $4.00 (the "Exercise Price").
1.4 "TERM AND TERMINATION OF OPTION. Except as otherwise provided
herein, the term of the Option ("Option Period") shall commence on the Grant
Date and terminate on June 25, 2006. Subject to paragraph 1.6 below, this Option
shall become exercisable as to one-fourth (1/4) of the total number of Option
Shares at such time as the Fair Market Value (as defined below) of the Common
Stock of the Company Is equal to or greater than Five Dollars ($5.00) per share,
for twenty (20) consecutive trading days. This Option shall become exercisable
as to an additional one-fourth (1/4) of the total number of Option Shares at
such time as the Fair Market Value of the Common Stock of the Company is equal
or greater than Seven and 50/100 Dollars ($7.50) per share, for twenty (20)
consecutive trading days. This Option shall become exercisable as to an
additional one-fourth (1/4) of the total number of Option Shares at such time as
the Fair Market Value of the Common Stock of the Company is equal or greater
than Ten and No/100 Dollars ($10.00) per share, for twenty (20) consecutive
trading days. This Option shall become exercisable as to the remaining
one-fourth (1/4) of the total number of Option Shares at such time as the Fair
Market Value of the Common Stock of the Company is equal to or greater than
Twelve and 50/100 Dollars ($12.50) per share, for twenty (20) consecutive
trading days. Once the right to purchase shares has accrued, such shares may
thereafter be purchased at any time, or in part from time to time, until the
termination date of this Option, subject to the provisions of Paragraph 1.6
below. In no case may this Option be exercised for a fraction of a share."
Upon the expiration of the Option Period as set forth above,
this Option, and all unexercised rights granted to the Optionee hereunder shall
terminate, and thereafter be null and void.
1.5 RIGHTS AS STOCKHOLDER. Optionee, or, if applicable, any
Transferee (as defined in Section 3.13 (d)) shall have no rights as a
stockholder with respect to any shares covered by the Option until a stock
certificate for the shares is issued in Optionee's or Transferee's name. No
adjustment to the Option shall be made pursuant to Section 3.1 hereof for
dividends paid or declared on or with respect to Common Stock in cash,
securities other than Common Stock, or other property, for which the record date
is prior to the date of exercise hereof.
1.6 "EARLY TERMINATION OF OPTION. The Option Period shall terminate
on the date of the first to occur of the following:
(a) June 25, 2006;
(b) June 25, 2002, in the event all Option Shares have not
vested;
(c) the date immediately preceding the consummation of: (i)
dissolution or liquidation of the Company; (ii) merger of the Company into
another corporation, or any consolidation, share exchange, combination,
reorganization, or like transaction in which the Company is not the survivor; or
(iii) sale or transfer (other than as security of the Company's obligations) of
at least a majority of the assets of the Company. The Company will use its best
efforts to provide written notice to Optionee of such dissolution, liquidation,
merger, consolidation, acquisition, separation, reorganization, sale, transfer,
or like transaction, at least (30) days prior to the closing of such transaction
to permit Optionee to exercise the Option."
2
<PAGE> 3
ARTICLE 2
RESTRICTION ON OPTION AND OPTION SHARES
2.1 RESTRICTIONS ON TRANSFER OF OPTION. The Option evidenced hereby is
non transferable other than by will or the laws of descent and distribution, and
shall be exercisable during the lifetime of Optionee only by Optionee (or, in
the event of Optionee's death or Disability, by a permitted Transferee).
2.2 RESTRICTIONS ON TRANSFER OF OPTION SHARES. Any Option Share
acquired upon exercise of the Option shall be subject to the following
restrictions:
(a) Except for transfers made in compliance with Section 2.2(b)
below, or as otherwise required or permitted hereunder, none of the
Option Shares may be conveyed, pledged, assigned, transferred,
hypothecated, encumbered, or otherwise disposed of by the Optionee, or
in the case of exercise of an Option by a Transferee, by such
Transferee. The foregoing notwithstanding, the Company may, but shall
not be obligated to, approve the transfer of such Option Shares upon
the condition that the transferee thereof execute and deliver to the
Company such documents and agreements as the Company shall reasonably
require to evidence the fact that the Option Shares to be owned,
either directly or beneficially, by such transferee shall continue to
be subject to all the restrictions set forth elsewhere herein, and
that such transferee is subject to and bound by such restrictions and
provisions. Any Option Shares transferred by bequest or by operation
of the laws of descent and distribution shall remain subject to the
restrictions set forth in this Section 2.2 and all applicable rights
in favor of the Company set forth elsewhere herein in the hands of any
transferee thereof. Nothing contained herein, however, shall be deemed
to impose any requirement that any transferee be an officer, director,
or employee of, or consultant to, the Company.
(b) The Option Shares may be transferred by the Optionee to a
Transferee upon the death or Disability of the Optionee, provided that
all such Option Shares shall remain subject to the restrictions set
forth in this Section 2.2 and all applicable rights in favor of the
Company set forth elsewhere herein in the hands the Transferee and of
any subsequent transferee of the Transferee.
ARTICLE 3
GENERAL PROVISIONS
3.1 CHANGE IN CAPITALIZATION. If the number of outstanding shares of
the Common Stock shall be increased or decreased by a change in par value,
split-up, stock split, reverse stock split, reclassification, distribution of
common stock dividend, or other similar capital adjustment, an appropriate
adjustment shall be made by the Board of Directors in the number and kind of
shares as to which the Option, or the portion thereof then unexercised, shall be
or become exercisable, such that Optionee's proportionate interest shall be
maintained as before the occurrence of the event. The adjustment shall be made
without change in the total price applicable to the unexercised portion of the
Option and with a corresponding adjustment in the Exercise Price. No fractional
shares shall be issued or made subject to the Option in making such adjustment.
All adjustments made by the Board of Directors under this Section shall be
final, binding, and conclusive.
3.2 LEGENDS. Each certificate representing the Option Shares purchased
upon exercise of the Option shall be endorsed with the following legend and
Optionee shall not make any transfer of the Option shares without first
complying with the restrictions on transfer described in such legend:
TRANSFER IF RESTRICTED
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE
"SECURITIES ACT") OR SIMILAR STATE SECURITIES LAWS
3
<PAGE> 4
APPLICABLE TO SUCH SECURITIES (COLLECTIVELY THE "ACTS") AND
MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS
(1) THERE IS AN EFFECTIVE REGISTRATION UNDER SUCH ACTS
COVERING SUCH SECURITIES, (2) THE TRANSFER IS MADE IN
COMPLIANCE WITH RULE 144 PROMULGATED UNDER THE SECURITIES ACT,
OR SIMILAR STATE SECURITIES LAW, OR (3) THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR
HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF
THE ACTS.
Optionee agrees that the Company may also include any other
legends required by applicable federal or state securities laws.
3.3 GOVERNING LAWS. This Agreement shall be construed, administered
and enforced according to the laws of the State of Delaware.
3.4 SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors, and permitted assigns
of the parties.
3.5 NOTICE. Except as otherwise specified herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given if personally delivered or if sent by registered or certified
United States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of the recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
3.6 SEVERABILITY. In the event that any one or more of the provisions
or portion thereof contained in this Agreement shall for any reason be held to
be invalid, illegal, or unenforceable in any respect, the same shall not
invalidate or otherwise affect any other provisions of this Agreement, and this
Agreement shall be construed as if the invalid, illegal or unenforceable
provision or portion thereof had never been contained herein.
3.7 ENTIRE AGREEMENT. This Agreement expresses the entire understanding
and Agreement of the parties with respect to the subject matter hereof. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which shall constitute one and the same
instrument.
3.8 VIOLATION. Any transfer, pledge, sale, assignment, or hypothecation
of the Option or any portion thereof made in violation of the terms of this
Agreement shall be void and without effect.
3.9 HEADINGS. Paragraph headings used herein are for convenience of
reference only and shall not be considered in construing this Agreement.
3.10 SPECIFIC PERFORMANCE. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and injunction in addition to any and all other rights
and remedies at law or in equity, and all such rights and remedies shall be
cumulative.
3.11 NO EMPLOYMENT RIGHTS CREATED. The grant of the Option hereunder
shall not be construed as giving Optionee the right to continued employment with
the Company.
3.12 SPECIAL LIMITATION ON EXERCISE. Notwithstanding anything contained
herein to the contrary, no purported exercise of the Option shall be effective
without the written approval of the Company, which approval may be withheld if
the exercise of this Option, together with the exercise of other previously
exercised stock options and/or offers and sales pursuant to any prior or
contemplated offering of securities, would, in the sole and absolute judgment of
the Company, require the filing of a registration statement with the United
States Securities and Exchange
4
<PAGE> 5
Commission, or with the securities commission of any state. The Company shall
avail itself of any exemptions from registration contained in applicable federal
and state securities laws which are reasonably available to the Company on terms
which, in its sole and absolute discretion, it deems reasonable and not unduly
burdensome or costly. If the Option cannot be exercised at the time it would
otherwise expire due to the restrictions contained in this Section 3.12, the
exercise period may, upon request of Optionee, be extended for successive
one-year periods until it can be exercised in accordance with this Section 3.12.
Optionee shall deliver to the Company, prior to the exercise of the Option, such
information, representations, and warranties as the Company may reasonably
request in order for the Company to be able to satisfy itself that the Option
Shares to be acquired pursuant to the exercise of the Option are being acquired
in accordance with the terms of an applicable exemption from the securities
registration requirements of applicable federal and state securities laws.
3.13 CERTAIN DEFINITIONS. The capitalized terms listed below are used
herein with the meaning thereafter ascribed:
(a) "Cause" means conduct amounting to (1) fraud or
dishonesty against the Company, (2) repeated intoxication with
alcohol or drugs while on the Company's premises or otherwise in
a manner which materially interferes with Optionee's performance
of duties of employment, or (3) a conviction or plea of guilty or
nolo contendere to a felony or a crime involving dishonesty.
(b) "Disability" means (1) the inability of Optionee to
perform the duties of Optionee's employment with the Company due
to physical or emotional incapacity or illness, where such
inability is expected to be of long-continued and indefinite
duration or (2) Optionee shall be entitled to (i) disability
retirement benefits under the federal Social Security Act or (ii)
recover benefits under any long-term disability plan or policy
maintained by the Company. In the event of a dispute, the
determination of Disability shall be made by the Board of
Directors and shall be supported by advice of a physician
competent in the area to which such Disability relates.
(c) "Fair Market Value" means of the applicable prices
selected from the following alternatives for the date as of which
Fair Market Value is to be determined as quoted in the Wall
Street Journal (or in such other reliable publication as the
committee, in it's discretion, may determine to rely upon): (i)
if the common stock is listed on the New York Stock Exchange, the
highest and lowest sales prices per share of the Common Stock as
quoted in the NYSE - Composite transactions listing for such
date, (ii) if the common Stock is not listed on such exchange,
the highest and lowest sales prices per share of Common stock for
such date on (or on any composite index including) the principal
United States Securities Exchange registered under the 1934 Act
on which the Common Stock is listed, or (iii) if the Common Stock
is not listed on any such exchange, the highest and lowest sales
prices per share of the Common Stock for such date on the
National Associates of Securities Dealers Automated Quotations
Systems or any successor system then in use ("NASDAQ"). If there
are no such sales price quotations for the date as of which Fair
Market Value is to be determined but there are such sales price
quotations within a reasonable period both before and after such
date, then Fair Market Value shall be determined by taking a
weighted average of the means between the highest and lowest
sales prices per share of the Common Stock as so quoted on the
nearest date before, and the nearest date after, the date as of
which Fair Market Value is to be determined. The average should
be weighted inversely by the respective numbers of trading days
between the selling dates and the date as of which Fair Market
Value is to be determined. If there are no such sales price
quotations on, or within a reasonable period both before and
after, the date as of which Fair Market Value is to be
determined, then Fair Market Value of the Common Stock shall be
the mean between the bonafide bid and asked prices per share of
Common Stock as so quoted for such date on NASDAQ, or if none,
the weighted average of the means between such bonafide bid and
asked prices on the nearest trading date before, and the nearest
trading date after, the date as of which Fair Market Value is to
be determined, if both such dates are within a reasonable period.
If the Fair Market Value of the Common Stock cannot be determined
on the basis set forth in this definition for the date as of
which Fair Market Value is to be determined, the Committee shall
in good faith determine the Fair Market Value of the Common Stock
on such date. Fair Market Value shall be determined without
regard to any restriction, other than a restriction which, by its
terms, will never lapse."
5
<PAGE> 6
(d) "Transferee" means the estate, or the executor or
administrator of the estate, of a deceased Optionee, or the
personal representative of an Optionee suffering a Disability.
IN WITNESS WHEREOF, the parties have executed this Agreement on
the day and year first set forth above.
ATTEST: FLORAFAX INTERNATIONAL, INC.
/s/ Kelly S. McMakin By: /s/ James H. West
- ------------------------------- ---------------------------
Kelly S. McMakin, Secretary James H. West, President
ACCEPTED:
/s/ James J. Pagano
- -------------------------------
James J. Pagano
6
<PAGE> 1
EXHIBIT 10.8
FLORAFAX INTERNATIONAL, INC.
NON PLAN OPTION
NAME OF OPTIONEE: T. Craig Benson
DATE OF GRANT: November 13, 1996
NUMBER OF OPTION SHARES: 50,000
OPTION PRICE PER SHARE: $2.66
OPTION CERTIFICATE NUMBER: 1
THIS OPTION is granted on the above date (the "Date of Grant") by
FLORAFAX INTERNATIONAL, INC. (the "Company") to the person named above (the
"Optionee"), upon the following terms and conditions:
1. GRANT OF OPTION. The Company grants to the Optionee an option to
purchase, on the terms and conditions stated herein, the number of shares
specified above (the "Option" Shares) of the Company's common stock ("Common
Stock") par value $0.01 per share, at the Option Price per share specified
above.
2. PERIOD OF OPTION AND RIGHT TO EXERCISE. This Option shall become
exercisable as to one-fourth (1/4) of the total number of Option Shares on the
Date of Grant. This Option shall become exercisable as to an additional
one-fourth (1/4) of the total number of Option Shares on the first (1st)
anniversary of the Date of Grant. This Option shall become exercisable as to an
additional one-fourth (1/4) of the total number of Option Shares on the second
(2nd) anniversary of the Date of Grant, and shall become exercisable as to the
remaining one-fourth (1/4) of the total number of Option Shares on the (3rd)
third anniversary of the Date of Grant. Once the right to purchase shares has
accrued, such shares may thereafter be purchased at any time, or in part from
time to time, until the termination date of this Option. Subject to the
foregoing, and subject to subsections (i), (ii) and (iii) of this Section 2,
which provide for earlier termination of the Option, the Option shall terminate
upon the expiration of ten (10) years from the Date of Grant (the Expiration
Date ). In no event shall this Option be exercised after the Expiration Date. If
the Optionee ceases to be a Director of the Company for any reason, the Option
held by the Optionee shall be exercisable, and shall terminate as follows:
(i) Resignation or Removal for Cause. If the Optionee resigns
from the Board of Directors or is removed from office for cause, and if
the Option is not exercisable by the Optionee prior to resignation or
removal, the Option shall terminate as of the date of such resignation
or removal. If the Option is exercisable prior to such resignation or
removal, the unexercised portion of the Option may be exercised by the
Optionee at any time prior to the
<PAGE> 2
Expiration Date, or within three (3) months after the date of such
resignation or removal, whichever first occurs. If the Optionee dies
after ceasing to be a director and during a period when the Option is
exercisable, then the Option shall be exercisable at any time prior to
the Expiration Date, or within one (1) year after the date of death,
whichever first occurs.
(ii) Death During Service. If the Optionee dies during service
as a Director of the Company, the Option (whether or not exercisable
immediately prior to the Optionee's death) shall be exercisable at any
time prior to the Expiration Date or within one (1) year after the date
of death, whichever first occurs.
(iii) Cessation of Directorship for Other Reasons. If the
Optionee ceases to be a Director of the Company for any reason other
than resignation, removal for cause, or death, the Option shall be
exercisable (but only if exercisable by the Optionee immediately prior
to ceasing to be a Director) at any time prior to the Expiration Date
or within three (3) years after the date the Optionee ceases to be a
Director, whichever first occurs.
3. EXERCISE. To the extent this Option is exercisable, it may be
exercised by the Optionee or the legal representative of the Optionee or the
legal representative of the Optionee's estate or the permitted transferee of the
Optionee. Once this Option becomes exercisable, it may thereafter be exercised,
wholly or in part, at any time prior to the Expiration Date.
4. ACCELERATION. Upon the occurrence of any of the following events
prior to the Expiration Date, this Option shall become immediately and fully
exercisable:
(i) death of the Optionee; or
(ii) a change of control of the Company. "Change of Control"
shall mean:
a. the acquisition by any person of voting shares of the
Company, if, as a result of the acquisition, such person,
or any "group" as defined in Section 13(d)(3) of the
Securities Exchange Act of 1934, of which such person is
a part, owns at least 20% of the outstanding voting
shares of the Company; or
b. a change in the composition of the Board such that within
any period of two consecutive years, persons who (1) at
the beginning of such period constitute the Board or (2)
become directors after the beginning of such period and
whose election, or nomination for election by the
stockholders of the Company, was approved by a vote of at
least two-thirds of the persons who were either directors
at the beginning of such period or whose subsequent
election or nomination was previously approved in
accordance with this clause (2), cease to constitute at
least a majority of the Board; or
- 2 -
<PAGE> 3
(iii) a merger or consolidation with another corporation or
entity, and the Company is not the surviving corporation; or
(iv) a sale by the Company of all or substantially all of the
assets of the Company; or
(v) a distribution by the Company to the stockholders that is
non-taxable under the Internal Revenue Code of 1986, as amended; or
(vi) the dissolution or liquidation of the Company.
5. PAYMENT FOR SHARES. Payment for shares purchased upon exercise
of this Option shall be made in full at the time of exercise. Payment of the
Option Price shall be made in cash, or by delivering Common Stock having a fair
market value at least equal to the Option Price, or a combination of Common
Stock and cash. Fair market value for such purpose shall be the mean of the
highest and lowest sales prices on the exchange, or automated quotation system
on which the Common Stock is quoted, for the date as of which fair market value
is to be determined. If there are no such sale price quotations on or within a
reasonable period both before and after the date as of which fair market value
is to be determined, then fair market value shall be the mean between the bona
fide bid and asked prices per share of Common Stock as so quoted for such date.
If the fair market value of the Common Stock cannot be determined on either of
these bases, the Board of Directors of the Company shall in good faith determine
the fair market value of the Common Stock on such date. Payment in shares of
Common Stock shall be made by delivering to the Company certificates, duly
endorsed for transfer, representing shares of Common Stock having an aggregate
fair market value (determined as aforesaid) on the date of exercise equal to
that portion of the Option Price which is to be paid to the Company in Common
Stock. Whenever payment of the Option Price would require delivery of a
fractional share, the Optionee shall deliver the next lower whole number of
shares of Common Stock, and a cash payment shall be made by the Optionee for the
balance of the Option Price.
6. METHOD OF EXERCISE. This Option may be exercised only by written
notice given to the Company, which specifies the number of Option Shares which
the holder of the Option elects to purchase, the number of Option Shares which
the holder is paying for in cash and the number of Option Shares which the
holder is paying for in shares of Common Stock of the Company. Such written
notice shall be accompanied by a check payable to the order of the Company for
the cash portion of the purchase price and, if applicable, by the delivery of
certificates representing shares of Common Stock of the Company duly endorsed
and otherwise in proper form for transfer to the Company of such number of
shares of Common Stock as are required to equal the fair market value of the
Option Shares being paid for in stock. Upon each exercise of this Option, the
Company, as promptly as practicable, will mail or deliver to the person
exercising this Option a certificate or certificates representing the shares
then purchased.
7. TRANSFERABILITY. This Option is not assignable or transferable
other than by will, the laws of descent and distribution, or the terms of a
qualified domestic relations order, as defined in the Internal Revenue Code of
1986 as amended, or Title I of the Employee Retirement Income
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<PAGE> 4
Security Act, or the rules thereunder. During the Optionee's lifetime, this
Option may be exercised only by the Optionee or his or her guardian or other
legal representative, or the permitted transferee of the Optionee.
8. PROVISION FOR TAXES. It shall be a condition to the Company's
obligation to issue or reissue shares of Common Stock upon exercise of this
Option that the Optionee pay, or make provision satisfactory to the Company for
payment of, any federal or state income or other taxes which the Company is
obligated to withhold or collect with respect to the issuance or reissuance of
such shares.
9. LISTING AND REGISTRATION. The Company, in its discretion, may
postpone the issuance and delivery of shares, upon exercise of this Option,
until completion of such stock exchange listing, or registration, or other
qualification of such shares under any Federal or state law, rule, or
regulation, as the Company may consider appropriate. The Company may require any
person exercising this Option to make such representations and to furnish such
information as the Company may consider appropriate in connection with the
issuance of the shares in compliance with applicable law.
10. ADJUSTMENTS. In the event the outstanding shares of Common Stock
of the Company are increased or decreased or changed into or exchanged for a
different number or kind of shares or other securities of the Company or another
corporation, through reorganization, merger, consolidation, liquidation,
recapitalization, reclassification, stock split-up, combination of shares, or
dividend payable in stock of the class of shares which is subject to this
Option, appropriate adjustment in the number and kind of shares as to which this
Option or portion thereof then unexercised shall be exercisable, and in the
Option Price, shall be made to the end that the Optionee's proportionate
interest under this Option shall be maintained as before the occurrence of such
event.
11. NOTICES. Any notice hereunder by the holder of this Option
shall be given to the Company in writing and such notice and any payment
hereunder shall be deemed duly given or made only upon receipt thereof at the
Company's principal office in Vero Beach, Florida, or at such other place as the
Company may designate by written notice to the holder of this Option. Any notice
or other communication hereunder to the holder of this Option shall be in
writing and shall be deemed duly given if mailed or delivered to the holder at
such address as he or she may have on file with the Company.
12. SHAREHOLDER RIGHTS. The holder of this Option shall have no
rights as a shareholder with respect to any shares covered by this Option until
the holder of this Option becomes a shareholder of record with respect to such
shares.
13. GOVERNING LAW. This Option shall be governed by, construed and
enforced in accordance with the internal laws of the State of Delaware, and,
where applicable, the laws of the United States.
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<PAGE> 5
IN WITNESS WHEREOF, the Company has caused this Option to be executed
in duplicate.
ATTEST: FLORAFAX INTERNATIONAL, INC.
/s/ Kelly S. McMakin By: /s/ James H. West
- ------------------------------------ ---------------------------
Kelly S. McMakin, Secretary James H. West, President
ACCEPTED:
/s/ T. Craig Benson
- -----------------------------------
T. Craig Benson
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<PAGE> 1
Exhibit 10.9
CALYX & COROLLA, INC.
1988 STOCK OPTION PLAN
I. PURPOSES OF THE PLAN
(a) This Stock Option Plan (the "Plan") is intended to promote the
interests of CALYX & COROLLA, INC., (the "Company") by providing a method
whereby (i) key employees (including officers and directors) of the Company (or
its parent or subsidiary corporations) responsible for the management, growth
and financial success of the Company (or its parent or subsidiary
corporations), (ii) the non-employee members of the Company's Board of
Directors (or any parent or subsidiary corporations) and (iii) consultants and
independent contractors who provide valuable services to the Company (or its
parent or subsidiary corporations) may be offered incentives and rewards which
will encourage them to acquire a proprietary interest, or otherwise increase
their proprietary interest, in the Company and continue to render services to
the Company (or its parent or subsidiary corporations).
(b) For purposes of the Plan, the following provisions shall be
applicable in determining the parent and subsidiary corporations of the
Company:
(i) Any corporation (other than the Company) in an unbroken
chain of corporations ending with the Company shall be considered to be a
parent corporation of the Company, provided each such corporation in the
unbroken chain (other than the Company) owns, at the time of the determination,
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
(ii) Each corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company shall be considered to be a
subsidiary of the Company, provided each such corporation (other than the last
corporation) in the unbroken chain owns, at the time of the determination,
stock possessing fifty percent (50%) or more of the total combined voting power
of all classes of stock in one of the other corporations in such chain.
II. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Board of Directors (the
"Board") of the Company. The Board, however, may at any time appoint a
committee ("Committee") of three (3) or more members of the Board and delegate
to such Committee one or more of the administrative powers allocated to the
Board under the provisions of the Plan, including (without limitation) the
power to grant options under the Plan and administer the option surrender and
option acceleration provisions of the Plan. Members of the Committee shall
serve for such period of time as the Board may determine and shall be subject
to removal by the Board at any time. The Board may also at any time terminate
the functions of the Committee and reassume all powers and authority previously
delegated to the Committee.
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(b) The Plan Administrator (either the Board or the Committee, to the
extent the Committee is at the time responsible for the administration of the
Plan) shall have full power and authority (subject to the provisions of the
Plan) to establish such rules and regulations as it may deem appropriate for
the proper administration of the Plan and to make such determinations under,
and issue such interpretations of, the Plan and any outstanding option as it
may deem necessary or advisable. Decisions of the Plan Administrator shall be
final and binding on all parties who have an interest in the Plan or any
outstanding option.
III. ELIGIBILITY FOR OPTION GRANTS
(a) The persons eligible to receive option grants under the Plan are
as follows:
(i) key employees (including officers and directors) of the
Company (or its parent or subsidiary corporations) who render services which
contribute to the success and growth of the Company (or its parent or
subsidiary corporations) or which may reasonably be anticipated to contribute
to the future success and growth of the Company (or its parent or subsidiary
corporations);
(ii) the non-employee members of the Board or the
non-employee members of the Board of Directors of any parent corporation; and
(iii) those consultants or independent contractors who
provide valuable services to the Company (or its parent or subsidiary
corporations).
(b) The Plan Administrator shall have full authority to determine
which eligible individuals are to receive option grants under the Plan, the
number of shares to be covered by each such grant, whether the granted option
is to be an incentive stock option ("Incentive Option") which satisfies the
requirements of Section 422A of the Internal Revenue Code or a non-statutory
option not intended to meet such requirements, the time or times at which each
such option is to become exercisable, and the maximum term for which the option
is to be outstanding.
IV. STOCK SUBJECT TO THE PLAN
(a) The stock issuable under the Plan shall be shares of the Company's
authorized but unissued or reacquired Common Stock. The aggregate number of
shares which may be issued under the Plan shall not exceed fifteen thousand
(15,000) shares. The total number of shares issuable under the Plan shall be
subject to adjustment from time to time in accordance with Section IV(c) of the
Plan.
(b) Should an option be terminated for any reason without being
exercised or surrendered in whole or in part (including options cancelled in
accordance with the cancellation-regrant provisions of Section VIII of the
Plan), the shares subject to the portion of the option not so exercised or
surrendered shall be available for subsequent option grants under the Plan.
Shares subject to any option or portion thereof surrendered in accordance with
Section IX of the Plan and shares
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repurchased by the Company pursuant to its repurchase rights under the Plan
shall not be available for subsequent option grants under the Plan.
(c) In the event any change is made to the Common Stock issuable under
the Plan by reason of any stock split, stock dividend, combination of shares,
exchange of shares or other change affecting the outstanding Common Stock as a
class without receipt of consideration, then appropriate adjustments will be
made to (i) the aggregate number of shares issuable under the Plan and (ii) the
number of shares and price per share of the Common Stock subject to each
outstanding option in order to prevent the dilution or enlargement of benefits
thereunder.
V. TERMS AND CONDITIONS OF OPTIONS
Options granted pursuant to the Plan shall be authorized by action of
the Plan Administrator and may, at the Plan Administrator's discretion, be
either Incentive Options or non-statutory options. Individuals who are not
employees of the Company or its parent or subsidiary corporations may only be
granted non-statutory options. Each granted option shall be evidenced by one or
more instruments in the form approved by the Plan Administrator; provided,
however, that each such instrument shall comply with and incorporate the terms
and conditions specified below. Each instrument evidencing an Incentive Option
shall, in addition, be subject to the applicable provisions of Section VI.
1. Option Price.
A. The option price per share shall be fixed by the
Plan Administrator, but, subject to the provisions of Section V.1.B below, in
no event shall the option price per share be less than eighty-five percent
(85%) of the fair market value of a share of Common Stock on the date of the
option grant.
B. If any individual to whom an option is to be
granted pursuant to the provisions of the Plan is on the date of grant the
owner of stock (as determined under Section 425(d) of the Internal Revenue
Code) possessing 10% or more of the total combined voting power of all classes
of stock of the Company or any one of its parent or subsidiary corporations
(such person to be herein referred to as a 10% Shareholder), then the option
price per share shall not be less than one hundred and ten percent (110%) of
the fair market value of one share of Common Stock on the date of grant.
C. The option price shall become immediately due
upon exercise of the option and shall, subject to the provisions of Section X
and the instrument evidencing the grant, be payable in one of the alternative
forms specified below:
(i) full payment in cash or cash
equivalents; or
(ii) full payment in shares of Common Stock
held by the optionee for the requisite period necessary to avoid a charge to
the Company's reported earnings and valued
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at fair market value on the Exercise Date (as such term is defined below) in an
amount equal to the option price; or
(iii) a combination of shares of Common
Stock held by the optionee for the requisite period necessary to avoid a charge
to the Company's reported earnings and valued at fair market value on the
Exercise Date and cash or cash equivalents, equal in the aggregate to the
option price.
For purposes of this subparagraph C, the Exercise Date shall
be the first date on which the Company shall have received both written notice
of the exercise of the option and payment of the option price for the purchased
shares.
D. The fair market value of a share of Common Stock
on any relevant date under subparagraph A, B or C above (and for all other
valuation purposes under the Plan) shall be determined in accordance with the
following provisions:
(i) If the Common Stock is not at the time
listed or admitted to trading on any stock exchange but is traded in the
over-the-counter market, the fair market value shall be the mean between the
highest bid and lowest asked prices (or, if such information is available, the
closing selling price) of one share of Common Stock on the date in question in
the over-the-counter market, as such prices are reported by the National
Association of Securities Dealers through its NASDAQ system or any successor
system. If there are no reported bid and asked prices (or closing selling
price) for the Common Stock on the date in question, then the mean between the
highest bid price and lowest asked price (or the closing selling price) on the
last preceding date for which such quotations exist shall be determinative of
fair market value.
(ii) If the Common Stock is at the time
listed or admitted to trading on any stock exchange, then the fair market value
shall be the closing selling price of one share of Common Stock on the date in
question on the stock exchange determined by the Plan Administrator to be the
primary market for the Common Stock, as such price is officially quoted in the
composite tape of transactions on such exchange. If there is no reported sale
of Common Stock on such exchange on the date in question, then the fair market
value shall be the closing selling price on the exchange on the last preceding
date for which such quotation exists.
(iii) If the Common Stock at the time is
neither listed nor admitted to trading on any stock exchange nor traded in the
over-the-counter market, then the fair market value shall be determined by the
Plan Administrator after taking into account such factors as the Plan
Administrator shall deem appropriate, including one or more independent
professional appraisals.
2. Term and Exercise of Options. Each option granted under
the Plan shall be exercisable at such time or times, during such period, and
for such number of shares as shall be determined by the Plan Administrator and
set forth in the instrument evidencing such option; provided, however, that no
such option shall have a term in excess of ten (10) years from the grant
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<PAGE> 5
date and provided further, however, that no such option granted to a 10%
Shareholder shall have a term in excess of five (5) years from the grant date.
During the lifetime of the optionee, the option shall be exercisable only by
the optionee and shall not be assignable or transferable by the optionee
otherwise than by will or by the laws of descent and distribution.
3. Effect of Termination of Employment.
A. Should an optionee cease to be an Employee of the
Company for any reason (including death or permanent disability as defined in
Section 105(d)(4) of the Internal Revenue Code) while the holder of one or more
outstanding options granted to such optionee under the Plan, then such option
or options shall not (except to the extent otherwise provided pursuant to
Section XI below) remain exercisable for more than a twelve (12) month period
(or such shorter period determined by the Plan Administrator and specified in
the instrument evidencing the grant) following the date of such cessation of
Employee status; provided, however, that under no circumstances shall such
options be exercisable after the specified expiration date of the option term.
Each such option shall, during such twelve (12) month or shorter period, be
exercisable only to the extent of the number of shares (if any) for which the
option is exercisable on the date of such cessation of Employee status. Upon
the expiration of such twelve (12) month or shorter period or (if earlier) upon
the expiration of the option term, the option shall terminate and cease to be
exercisable.
B. Any option granted to an optionee under the Plan
and exercisable in whole or in part on the date of the optionee's death may be
subsequently exercised, but only to the extent of the number of shares (if any)
for which the option is exercisable on the date of the optionee's death, by the
personal representative of the optionee's estate or by the person or persons to
whom the option is transferred pursuant to the optionee's will or in accordance
with the laws of descent and distribution, provided and only if such exercise
occurs prior to the earlier of (i) the first anniversary of the date of the
optionee's death or (ii) the specified expiration date of the option term. Upon
the occurrence of the earlier event, the option shall terminate and cease to be
exercisable.
C. If (i) the optionee's status as an Employee is
terminated for misconduct (including, but not limited to, any act of
dishonesty, willful misconduct, fraud or embezzlement or any unauthorized
disclosure or use of confidential information or trade secrets) or (ii) the
optionee makes or attempts to make any unauthorized use or disclosure of
confidential information or trade secrets of the Company or its parent or
subsidiary corporations, then in any such event all outstanding options granted
the optionee under the Plan shall terminate and cease to be exercisable
immediately upon such termination of Employee status or such unauthorized use
or disclosure of confidential or secret information or attempt thereat.
D. Notwithstanding subparagraphs A and B above, the
Plan Administrator shall have complete discretion, exercisable either at the
time the option is granted or at the time the optionee ceases Employee status,
to establish as a provision applicable to the exercise of one or more options
granted under the Plan that during the limited period of exercisability
following the cessation
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of Employee status as provided in Section V.3.A above, the option may be
exercised not only with respect to the number of shares for which it is
exercisable at the time of the optionee's cessation of Employee status but also
with respect to one or more subsequent installments of purchasable shares for
which the option would otherwise have become exercisable had such cessation of
Employee status not occurred.
E. For purposes of the foregoing provisions of this
Section V.3 (and all other provisions of the Plan), the optionee shall be
deemed to be an Employee of the Company for so long as the optionee remains in
the employ of the Company or one or more of its parent or subsidiary
corporations.
F. If the option is to be granted to an individual
who is not an Employee of the Company, then the option agreement evidencing the
granted option shall include provisions comparable to subparagraphs V.3.A, B
and C above, and may include provisions comparable to subparagraphs V.3.D
above, with respect to the optionee's termination of service with the Company
or its parent or subsidiary corporations.
4. Shareholder Rights. An optionee shall have none of the
rights of a shareholder with respect to any shares covered by the option until
such individual shall have exercised the option and paid the option price.
5. Repurchase Rights. The shares of Common Stock acquired
upon the exercise of options granted under the Plan may be subject to one or
more repurchase rights of the Company in accordance with the following
provisions:
A. The Plan Administrator may in its discretion
determine that it shall be a term and condition of one or more options
exercised under the Plan that the Company (or its assignees) shall have the
right, exercisable upon the optionee's cessation of Employee or other service
status with the Company and its parent or subsidiary corporations, to
repurchase at the option price all or (at the discretion of the Company and
with the consent of the optionee) any portion of the shares of Common Stock
previously acquired by the optionee upon the exercise of such option. Any such
repurchase right shall be exercisable by the Company (or its assignees) upon
such terms and conditions (including the establishment of the appropriate
vesting schedule and other provision for the expiration of such right in one or
more installments over the optionee's period of Employee status) as the Plan
Administrator may specify in the instrument evidencing such right.
B. The Plan Administrator may assign the Company's
repurchase rights under subparagraph (a) above to any person or entity selected
by the Plan Administrator, including one or more stockholders of the Company.
If the selected assignee is other than a parent corporation of the Company,
then the assignee must make a cash payment to the Company, upon the assignment
of the repurchase rights, in an amount equal to the excess (if any) of the fair
market value of the unvested shares at the time subject to the repurchase
rights and the aggregate repurchase price payable for such unvested shares
thereunder.
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C. The Plan Administrator shall also have full power
and authority to provide for the automatic termination of the Company's
outstanding repurchase rights in whole or in part, and thereby accelerate the
vesting of any or all purchased shares, upon the occurrence of any Corporate
Transaction under Section VII.
D. The Plan Administrator may also in its discretion
establish as a term and condition of one or more options granted under the Plan
that the Company shall have a right of first refusal with respect to any
proposed sale or other disposition by the optionee (or any successor in
interest by reason of purchase, gift or other mode of transfer) of any shares
of Common Stock issued upon the exercise of such options. Any such right of
first refusal shall be exercisable by the Company (or its assignees) in
accordance with the terms and conditions set forth in the instrument evidencing
such right.
VI. INCENTIVE OPTIONS.
The terms and conditions specified below shall be applicable to all
Incentive Options granted under the Plan. Incentive Options may only be granted
to individuals who are Employees of the Company. Options which are specifically
designated as "non-statutory" options when issued under the Plan shall not be
subject to such terms and conditions.
(a) Option Price. The option price per share of the Common Stock
subject to an Incentive Option shall in no event be less than one hundred
percent (100%) of the fair market value of a share of Common Stock on the date
of grant.
(b) Dollar Limitation. The aggregate fair market value (determined as
of the respective date or dates of grant) of the Common Stock for which one or
more options granted to any Employee after December 31, 1986 under this Plan
(or any other option plan of the Company or its parent or subsidiary
corporations) may for the first time become exercisable as Incentive Options
during any one calendar year shall not exceed the sum of One Hundred Thousand
Dollars ($100,000). To the extent the Employee holds two or more such options
which become exercisable for the first time in the same calendar year, the
foregoing limitation on the exercisability thereof as Incentive Options shall
be applied on the basis of the order in which such options are granted.
Except as modified by the preceding provisions of this Section VI, all
the provisions of the Plan shall be applicable to the Incentive Options granted
hereunder.
VII. CORPORATE TRANSACTIONS
(a) In the event of any of the following transactions (a "Corporate
Transaction"):
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(i) a merger or acquisition in which the Company is not the
surviving entity, except for a transaction the principal purpose of which is to
change the State of the Company's incorporation,
(ii) the sale, transfer or other disposition of all or
substantially all of the assets of the Company or
(iii) any reverse merger in which fifty percent (50%) or more
of the Company's outstanding voting stock is transferred to different holders
in a single transaction or a series of related transactions, then the
exercisability of each option outstanding under the Plan shall be automatically
accelerated so that each such option shall, during the five (5) business day
period immediately prior to the specified effective date for the Corporate
Transaction, become fully exercisable with respect to the total number of
shares of Common Stock purchasable under such option and may be exercised for
all or any portion of such shares; provided, however, that the exercisability
as an Incentive Option of any accelerated options shall be subject to the
applicable dollar limitation of Section VI(b). However, an outstanding option
under the Plan shall not be so accelerated if and to the extent (i) such option
is, in connection with the Corporate Transaction, either to be assumed by the
successor corporation or parent thereof or be replaced with a comparable option
to purchase shares of the capital stock of the successor corporation or parent
thereof or (ii) the acceleration of such option is subject to other applicable
limitations imposed by the Plan Administrator. Upon the consummation of the
Corporate Transaction, all outstanding options under the Plan shall, to the
extent not previously exercised or assumed by the successor corporation or its
parent company, terminate and cease to be outstanding.
(b) If the Company is the surviving entity in any merger or other
business combination, then each option which remains outstanding under the Plan
immediately after such merger or other business combination shall be
appropriately adjusted to apply and pertain to the number and class of
securities which would be issuable, in consummation of such merger or business
combination, to an actual holder of the same number of shares of Common Stock
as are subject to such option immediately prior to such merger or business
combination, and appropriate adjustments shall also be made to the option price
payable per share, provided the aggregate option price payable for such option
shall remain the same. Appropriate adjustments shall also be made to the class
and number of securities available for issuance under the Plan following the
consummation of such merger or business combination.
(c) The grant of options under this Plan shall in no way affect the
right of the Company to adjust, reclassify, reorganize or otherwise change its
capital or business structure or to merge, consolidate, dissolve, liquidate or
sell or transfer all or any part of its business or assets.
VIII. CANCELLATION AND NEW GRANT OF OPTIONS
The Plan Administrator shall have the authority to effect, at any time
and from time to time, with the consent of the affected optionees, the
cancellation of any or all outstanding options under
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the Plan and to grant in substitution therefor new options under the Plan
covering the same or different numbers of shares of Common Stock but having an
option price per share not less than eighty-five percent (85%) of fair market
value (one hundred percent (100%) of fair market value in the case of an
Incentive Option or, in the case of a 10% Shareholder, not less than one
hundred and ten percent (110%) of fair market value) on the new grant date.
IX. SURRENDER OF OPTIONS FOR CASH OR STOCK
(a) Provided and only if the Plan Administrator determines in its
discretion to implement stock appreciation right provisions of this Section IX,
one or more optionees may be granted the right, exercisable upon such terms and
conditions as the Plan Administrator may establish at the time of the option
grant or at any time thereafter, to surrender all or part of an unexercised
option under the Plan in exchange for a distribution from the Company equal in
amount to the excess of (i) the fair market value (at date of surrender) of the
number of shares in which the optionee is at the time vested under the
surrendered option or portion thereof over (ii) the aggregate option price
payable for such vested shares.
(b) No surrender of an option shall be effective hereunder unless it
is approved by the Plan Administrator. If the surrender is so approved, then
the distribution to which the optionee shall accordingly become entitled under
this Section IX may be made in shares of Common Stock valued at fair market
value at date of surrender, in cash, or partly in shares and partly in cash, as
the Plan Administrator shall in its sole discretion deem appropriate.
(c) If the surrender of an option is rejected by the Plan
Administrator, then the optionee shall retain whatever rights the optionee had
under the surrendered option (or surrendered portion thereof) on the date of
surrender and may exercise such rights at any time prior to the later of (i)
the receipt of the rejection notice or (ii) the last day on which the option is
otherwise exercisable in accordance with the terms of the instrument evidencing
such option, but in no event may such rights be exercised at any time after ten
(10) years (or five (5) years in the case of a 10% Shareholder) after the date
of the option grant.
(d) Notwithstanding the foregoing provisions of this Section IX,
should twenty-five percent (25%) or more of the Company's outstanding voting
stock be acquired, at a time when one or more classes of the Company's equity
securities are registered under Section 12(g) of the Securities Exchange Act of
1934 (as amended), pursuant to a tender or exchange offer (i) which is made by
a person or group of related persons other than the Company or a person that
directly or indirectly controls, is controlled by or is under common control
with the Company and (ii) which the Board does not recommend the Company's
shareholders to accept, then each officer or director who is at the time
subject to the short-swing profit restrictions of the Federal securities laws
shall have the right (exercisable for a period not to exceed thirty (30) days)
to surrender any or all options held by such individual under this Plan, to the
extent such options are at the time exercisable for vested shares, and receive
in exchange therefor an appreciation distribution calculated in accordance with
Section IX(a). The approval of the Board shall not be required for such
surrender, and the
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distribution to which such individual shall become entitled upon such surrender
shall be made entirely in cash.
X. LOANS OR GUARANTEE OF LOANS
The Plan Administrator may assist any optionee (including any officer
or director) in the exercise of one or more options granted to such optionee
under the Plan by (a) authorizing the extension of a loan to such optionee from
the Company, (b) permitting the optionee to pay the option price for the
purchased Common Stock in installments over a period of years or (c)
authorizing a guarantee by the Company of a third party loan to the optionee.
The terms of any loan, installment method of payment or guarantee (including
the interest rate and terms of repayment) will be established by the Plan
Administrator in its sole discretion. Loans, installment payments and
guarantees may be granted without security or collateral (other than to
optionees who are consultants or independent contractors, in which event the
loan must be adequately secured by collateral other than the purchased shares,
but the maximum credit available to the optionee shall not exceed the sum of
(i) the aggregate option price payable for the purchased shares plus (ii) any
federal and state income and employment tax liability incurred by the optionee
in connection with the exercise of the option.
XI. EXTENSION OF EXERCISE PERIOD
The Board shall have full power and authority, exercisable in its sole
discretion to extend, either at any time while the option is granted or at the
time while the option remains outstanding, the period of time for which the
option is to remain exercisable following the optionee's termination of
Employee status from the twelve (12) month or shorter period set forth in the
option agreement to such greater period of time as the Plan Administrator shall
deem appropriate; provided, however, that in no event shall such option be
exercisable after the specified expiration date of the option term.
XII. AMENDMENT OF THE PLAN
The Board shall have complete and exclusive power and authority to
amend or modify the Plan in any or all respects whatsoever; provided, however,
that no such amendment or modification shall, without the consent of the
holders, adversely affect rights and obligations with respect to options at the
time outstanding under the Plan; and provided, further, that the Board shall
not, without the approval of the stockholders of the Company (i) increase the
maximum number of shares issuable under the Plan, except for permissible
adjustments under Section IV(c), (ii) materially modify the eligibility
requirements for the grant of options under the Plan or (iii) otherwise
materially increase the benefits accruing to participants under the Plan.
XIII. EFFECTIVE DATE AND TERM OF PLAN
(a) The Plan shall become effective when adopted by the Board, but no
option granted under the Plan shall become exercisable unless and until the
Plan shall have been approved by the
10
<PAGE> 11
stockholders of the Company. If such stockholder approval is not obtained
within twelve (12) months after the date of the Board's adoption of the Plan,
then all options previously granted under the Plan shall terminate and no
further options shall be granted. Subject to such limitation, the Plan
Administrator may grant options under the Plan at any time after the effective
date and before the date fixed herein for termination of the Plan.
(b) Unless sooner terminated in accordance with Section VII, the Plan
shall terminate upon the earlier of (i) the expiration of the ten (10) year
period measured from the date of the Board's adoption of the Plan or (ii) the
date on which all shares available for issuance under the Plan shall have been
issued or cancelled pursuant to the exercise or surrender of options granted
hereunder. If the date of termination is determined under clause (i) above,
then options outstanding on such date shall thereafter continue to have force
and effect in accordance with the provisions of the instruments evidencing such
options.
(c) Options may be granted under this Plan to purchase shares of
Common Stock in excess of the number of shares then available for issuance
under the Plan, provided (i) an amendment to increase the maximum number of
shares issuable under the Plan is adopted by the Board prior to the initial
grant of any such option and within one year thereafter such amendment is
approved by the stockholders of the Company and (ii) each option granted is not
to become exercisable, in whole or in part, at any time prior to the obtaining
of such stockholder approval.
XIV. USE OF PROCEEDS
Any cash proceeds received by the Company from the sale of shares
pursuant to options granted under the Plan shall be used for general corporate
purposes.
XV. REGULATORY APPROVALS
The implementation of the Plan, the granting of any option hereunder,
and the issuance of stock upon the exercise or surrender of any such option
shall be subject to the procurement by the Company of all approvals and permits
required by regulatory authorities having jurisdiction over the Plan, the
options granted under it and the stock issued pursuant to it.
XVI. FINANCIAL REPORTS
The Company shall deliver financial and other information regarding
the Company, on an annual or other periodic basis, to each individual holding
an outstanding option under the Plan, to the extent the Company is required to
provide such information pursuant to Section 260.140.41.2 of the Rules of the
California Corporations Commissioner.
11
<PAGE> 1
Exhibit 23.1
ARTHUR
ANDERSEN
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
---------------------------------------------------
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports on
Gerald Stevens, Inc.'s (formerly Florafax International, Inc.) supplemental
consolidated financial statements and Florafax International, Inc's
consolidated financial statements as of August 31, 1998 and for the year then
ended, and on Gerald Stevens Retail, Inc.'s financial statements included in
the Gerald Stevens, Inc.'s Form 8-K/A filed on May 17, 1999; and the financial
statements of Eastern Floral & Gift Shop, Inc. and subsidiary, Arizona
Wholesale Floral Co. d/b/a Cactus Flower Florists, Flower Franchising, Inc.
d/b/a Royer's Flowers, J.J. Fallon Company, Inc. d/b/a Fallon's Creative
Flowers, National Flora, Phoebe Floral, Inc. and A.G.A. Flowers, Inc. included
in Florafax International, Inc.'s Form S-4 filed on April 12, 1999; and to all
references to our Firm included in or made part of this Registration Statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Miami, Florida,
August 25, 1999.
<PAGE> 1
Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports, which appear in the Company's Proxy
Statement dated April 12, 1999.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Miami, Florida
August 25, 1999
<PAGE> 1
Exhibit 23.3
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Gerald Stevens, Inc. (formerly Florafax International, Inc.),
pertaining to the Florafax International, Inc. Management Incentive Plan, the
Gerald Stevens, Inc. 1998 Stock Option Plan and the Calyx & Corolla, Inc. 1988
Stock Option Plan, or our report dated October 8, 1998, with respect to the
consolidated financial statements of Florafax International, Inc. for the years
ended August 31, 1997 and 1996 included in its Annual Report (Form 10-KSB, as
amended by Amendment No. 1 on Form 10-KSB/A and as further amended by Amendment
No. 2 on Form 10-KSB/A) for the year ended August 31, 1998, filed with the
Securities and Exchange Commission. We also consent to the incorporation by
reference of our report dated October 8, 1998, with respect to the supplemental
consolidated financial statements of Gerald Stevens, Inc. (formerly Florafax
International, Inc.) for the year ended August 31, 1997 and 1996 included in
its Current Report (Form 8-K) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Tampa, Florida
August 25, 1999
<PAGE> 1
Exhibit 23.4
ADAIR, FULLER, WITCHER & MALCOM, P.A.
Certified Public Accountants
Michael R. Adair
Steven E. Fuller Trade Centre South
Terrell W. Witcher 100 West Cypress Creek Road, Suite 1045
William A. Malcolm Fort Lauderdale, Florida 33309-2115
Hugh H. Cooper --------
Fax: 954-491-9792
954-491-9790
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation by reference of our report dated February 17, 1999, except for
notes G and H as to which the date is April 30, 1999, with respect to the
combined financial statements of The Exotic Gardens, Inc. and Kuhn Flowers,
Inc. as of September 30, 1998 and 1997, and for the two years then ended that
were incorporated by reference in Registration Statement Number 333-78597 on
Form S-3, as amended, and to all references to our Firm included in or made a
part of this Registration Statement on Form S-8 of Gerald Stevens, Inc.
/s/ ADAIR FULLER WITCHER & MALCOLM, P.A.
ADAIR FULLER WITCHER & MALCOLM, P.A.
August 24, 1999
<PAGE> 1
Exhibit 23.5
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement of
Gerald Stevens, Inc. on Form S-8 of our report on Calyx & Corolla, Inc. dated
August 21, 1998, appearing in the Current Report on Form 8-K/A, of Gerald
Stevens, Inc., and incorporated by reference into Amendment No. 3 to
Registration Statement (No. 333-78597) on Form S-3 of Gerald Stevens, Inc.
/s/ Deloitte & Touche LLP
San Francisco, California
August 23, 1999
