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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GERALD STEVENS, INC.
(Exact name of registrant as specified in its charter)
FLORIDA 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
(Address of principal executive offices, including zip code)
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GERALD STEVENS, INC. 2000 STOCK OPTION PLAN
(Full title of the Plan)
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ADAM D. PHILLIPS
GERALD STEVENS, INC.
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)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to Offering Price Aggregate Amount of
Registered be Registered* Per Share** Offering Price** Registration Fee
- ------------------------- -------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share 3,002,500 Shares $7.84375 $23,550,859 $6,217.43
===================================================================================================================
</TABLE>
* Consists of 3,000,000 shares of common stock issuable upon the exercise
of stock options we may grant pursuant to the Gerald Stevens, Inc. 2000
Stock Option Plan and 2,500 shares issuable upon the exercise of a
non-plan stock option granted to a director pursuant to a written
agreement.
** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act. The proposed maximum
offering price is based on the average of the high and low sales prices
on the Nasdaq National Market on March 30, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Securities Act of 1933, as amended, and the
regulations thereunder, the documents containing the information specified in
Part I are not required to be filed with the Securities and Exchange Commission
as part of this Registration Statement and, therefore, are not set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents that we have filed with the SEC are
incorporated by reference:
1. Our Annual Report on Form 10-K for the fiscal year
ended August 31, 1999, as amended by Form 10-K/A
filed with the SEC on December 28, 1999, and any
further amendments thereto.
2. All other reports that we have filed with the SEC for
ourselves pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 since the end of our
fiscal year ended August 31, 1999, including our
quarterly report on Form 10-Q for the quarter ended
November 30, 1999.
3. The description of our common stock contained in our
Registration Statement on Form 10, dated April 27,
1971.
All documents that we subsequently file pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the effective
date of this Registration Statement and prior to such time as we file a
post-effective amendment to this Registration Statement that indicates that all
securities offered hereby have been sold, or that deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the Common Stock offered hereby will be passed
upon by Jeffrey M. Mattson. Mr. Mattson is Vice President and General Counsel of
the Company, owns shares of the Company's Common Stock, and holds options to
purchase shares of the Company's Common Stock under one or more of the Company's
stock incentive plans.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) The Florida Business Corporation Act permits a corporation to
indemnify a person who is a party to any proceeding by reason of the fact that
he is or was a director, officer, employee or agent of the corporation, or is or
was a director, officer, employee or agent of another entity at the request of
the corporation. The indemnification may cover any liability incurred in
connection with such proceeding, including any appeal, if the person acted in
good faith and in a manner such person 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, such 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.
The FBCA also provides that a director, officer, employee, or agent of
a corporation who has been successful in defense of any proceeding referred to
in the preceding paragraph, or in defense of any claim, issue, or matter
therein, shall be indemnified against expenses incurred in connection with such
defense. Such expenses may be paid in advance of the final disposition of such
proceeding, if the indemnified party provides an undertaking to repay such
advanced amounts if ultimately found not to be entitled to indemnification for
such expenses.
The FBCA also permits a corporation to purchase and maintain insurance
on behalf of its directors and officers against any liability that may be
asserted against, or incurred by, such persons in their capacities as directors
or officers of the corporation whether or not the corporation would have the
power to indemnify such persons against such liabilities under the provisions of
such sections.
The FBCA 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) Our Articles of Incorporation permit, and our Bylaws provide for,
indemnification of directors, officers, employees and agents to the fullest
extent permitted by law.
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(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 directors,
officers or employees, with respect to which they may or may not be indemnified
under the provisions of our Articles of Incorporation or Bylaws.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits have been filed with this Registration
Statement:
Exhibit No. Exhibit
- ----------- -------
5 Opinion of Jeffrey M. Mattson, General Counsel of the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Jeffrey M. Mattson, General Counsel of the Company
(included with Exhibit 5 to this document)
24 Powers of Attorney (included as part of the signature page)
ITEM 9. UNDERTAKINGS.
We undertake:
(a) 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) that, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
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(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)(i) and (a)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by us pursuant to Section 13
or 15(d) of the Exchange Act that are incorporated by reference in the
Registration Statement.
(b) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) to remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
(d) that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC 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 our
payment of expenses incurred or paid by one of our directors, officers or
controlling persons in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether our indemnification is against
public policy as expressed in the Securities Act of 1933, as amended, and we
will be governed by the final adjudication of such issue.
EXPERTS
The audited consolidated financial statements as of August 31, 1999 and
1998 and for the years then ended of Gerald Stevens, Inc., incorporated by
reference in this Registration Statement and included in our Annual Report on
Form 10-K for the year ended August 31, 1999, have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in their
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reports with respect thereto, and are included therein in reliance upon the
authority of such firm as experts in giving said reports.
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule for the year ended August 31, 1997 included in
our Annual Report on Form 10-K for the year ended August 31, 1999, as set forth
in their reports which are incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements and schedule
are incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
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 by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale, State of Florida.
GERALD STEVENS, INC.
By /s/ Albert J. Detz
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Date: April 3, 2000 (Senior Vice President and Chief
Financial Officer)
Each person whose signature appears below appoints Gerald R. Geddis and
Adam D. Phillips, and each of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
stead, in any 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 all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been duly signed by the following persons in the
capacities indicated on April 3, 2000.
Signature Title
--------- -----
/s/ G. Geddis President, Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ S. Berrard } /s/ A. Phillips }
/s/ R. Johnson } /s/ K. Royer } Directors
/s/ R. Owades } /s/ A. Williams }
/s/ A. Detz Senior Vice President
- ---------------------------- (Principal Financial Officer)
(A. Detz)
/s/ E. Baker Vice President and Controller
- ---------------------------- (Principal Accounting Officer)
(E. Baker)
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EXHIBIT INDEX
Exhibit No. Exhibit
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5 Opinion of Jeffrey M. Mattson, General Counsel of the Company
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Jeffrey M. Mattson, General Counsel of the Company
(included with Exhibit 5 of this document)
24 Powers of Attorney (included as part of the signature page)
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Exhibit 5
April 3, 2000
Gerald Stevens, Inc.
301 E. Las Olas Blvd., Suite 300
Fort Lauderdale, FL 33301
Ladies and Gentlemen:
You have asked me, as General Counsel of Gerald Stevens, Inc.,
a Florida corporation ("Company"), to render my opinion regarding certain
matters in connection with a Registration Statement on Form S-8 ("Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933 covering 3,000,000 shares ("Shares")
of the Company's Common Stock, par value $0.01 per share, issuable pursuant to
the Company's 2000 Stock Option Plan, as amended ("Plan"), and 2,500 shares
issuable pursuant to a non-plan stock option.
I have examined, or caused to be examined, the Company's
Articles of Incorporation and By-laws, as amended to date, the records of its
corporate proceedings, the Plan, the non-plan stock option, the Registration
Statement and such other documents as I have deemed necessary in connection with
the opinion hereinafter expressed.
Based on the foregoing, I am of the opinion that the Shares,
when issued in accordance with the terms of the Plan or the non-plan stock
option, as applicable, will be validly issued and outstanding, fully paid and
nonassessable shares of the Company's Common Stock.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Jeffrey M. Mattson
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Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
As independent certified public accountants, we hereby consent to the
incorporation of our reports dated November 3, 1999, with respect to the Gerald
Stevens, Inc. consolidated financial statements as of August 31, 1999 and 1998
and for the years then ended, included in its Annual Report on Form 10-K for the
year ended August 31, 1999, and to all references to our Firm included in or
made a part of this Registration Statement.
ARTHUR ANDERSEN LLP
Miami, Florida,
March 29, 2000.
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Exhibit 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-8) pertaining to the Gerald Stevens, Inc. 2000
Stock Option Plan and to the incorporation by reference therein of our reports
dated October 8, 1998, with respect to the consolidated financial statements and
schedule for the year ended August 31, 1997 of Gerald Stevens, Inc. included in
its Annual Report (Form 10-K) for the year ended August 31, 1999 filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Tampa, Florida
March 27, 2000
