As filed with the Securities and Exchange Commission on ____________, 1999
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FRENCH FRAGRANCES, INC.
(Exact name of registrant as specified in its charter)
Florida 59-0914138
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
14100 N.W. 60th Avenue
Miami Lakes, Florida 33014
(Address of Principal Executive Offices)
1995 Stock Option Plan
Non-Employee Director Stock Option Plan
(Full title of the plans)
Oscar E. Marina, Esquire
Vice President, General Counsel and Secretary
French Fragrances, Inc.
14100 N.W. 60th Avenue
Miami Lakes, Florida 33014
(Name and address of agent for service)
(305) 818-8114
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=============================================================================================
PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS TO BE OFFERING PRICE OFFERING REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE<F2> PRICE<F2> FEE
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 1,922,960
share . . . . . . . . . . . . . shares<F1> $6.85155 $13,175,257 $3,663.00
=============================================================================================
<FN>
<F1> Includes (a) 1,722,960 shares of Common Stock, par value $.01 per share ("Common Stock"),
of French Fragrances, Inc. (the "Company") issuable upon the exercise of options granted
or which may be granted under the 1995 Stock Option Plan (the "1995 Plan"), and (b)
200,000 shares of Common Stock issuable upon the exercise of options granted or which may
be granted under the Non-Employee Director Stock Option Plan (the "Non-Employee Director
Plan"). Because 477,040 shares of Common Stock issuable under the 1995 Plan already have
been registered by the Company pursuant to Registration Statement No. 33-98796, only the
remaining 1,722,960 shares of Common Stock available for issuance under the Plan are being
registered hereunder.
<PAGE>
<F2> Estimated solely for purposes of calculating the registration fee pursuant to Rule 457(c)
under the Securities Act of 1933 (the "Securities Act"). The registration fee has been
calculated based on the average of the high and low sales prices reported by the Nasdaq
National Market on July 6, 1999. Pursuant to Rule 416(a) under the Securities Act, there
are also being registered such additional securities as may be issued pursuant to the
anti-dilution provisions of the stock options granted under the 1995 Plan and the
Non-Employee Director Plan.
</FN>
</TABLE>
<PAGE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the
Securities and Exchange Commission (the "SEC") pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act") (Commission File No. 1-6370) and are
hereby incorporated herein by this reference:
(1) the Annual Report on Form 10-K for the fiscal year ended January 31,
1999;
(2) the Proxy Statement dated May 17, 1999, relating to the 1999 Annual
Meeting of Shareholders;
(3) the Quarterly Report on Form 10-Q for the quarter ended April 30,
1999;
(4) the Current Report on Form 8-K filed on February 4, 1999, and an
amendment thereto filed on April 6, 1999, and the Current Report on Form 8-K
filed on May 19, 1999; and
(5) the description of the Common Stock which is contained under the
caption "Description of the Registrant's Securities to be Registered" in the
Company's Registration Statement on Form 8-A, filed with the SEC on September
4, 1997, as amended by the Amendment to Registration on Form 8-A, filed with
the SEC on September 30, 1997, and including any amendment or report filed for
the purpose of updating such description.
In addition, all documents subsequently filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated herein by reference and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares offered hereby is being passed upon on the
Company's behalf by Oscar E. Marina, Esq., the Company's Vice President,
General Counsel and Secretary. Mr. Marina owns 3,300 shares of Common Stock
and 3,222 shares of Series C Convertible Preferred Stock, par value $.01 per
share ("Series C Preferred"), and has been granted stock options to purchase
an additional 50,000 shares of Common Stock. The Company also pays Mr. Marina
a salary and typically a bonus and provides him with certain employee benefits
which are made available to all of the Company's full-time employees. Neither
Mr. Marina's compensation or grants of Series C Preferred or stock options
have been made or will be made contingent on the successful registration or
offering of the shares that are the subject to this registration statement.
II-2
<PAGE>
<PAGE>
Item 6. Indemnification of Directors and Officers.
The Company has authority under Section 607.0850 of the Florida Business
Corporation Act (the "FBCA") to indemnify its directors and officers to the
extent provided for in such statute. The Company's Amended and Restated
Articles of Incorporation provide that, to the fullest extent permitted by
applicable law, as amended from time to time, the Company will indemnify any
person who was or is a director or officer of the Company, or serves or served
in such capacity with any other enterprise at the request of the Company,
against all fines, liabilities, settlements, costs and expenses asserted
against or incurred by such person in his capacity or arising out of his
status as such officer or director. The Company may also indemnify employees
or agents of the Company if the Company's Board of Directors so approves.
This indemnification includes the right to advancement of expenses when
allowed pursuant to applicable law.
The provisions of the FBCA authorize a corporation to indemnify its
officers and directors in connection with actions, suits and proceedings
brought against them if the person acted in good faith and in a manner which
the person reasonably believed to be in, or not opposed to, the best interests
of the corporation and, with respect to any criminal actions, had no
reasonable cause to believe the person's conduct was unlawful. Unless
pursuant to a determination by a court, the determination of whether a
director, officer or employee has acted in accordance with the applicable
standard of conduct must be made by (i) a majority vote of a quorum consisting
of directors who were not parties to the proceeding or a committee consisting
solely of two or more directors not parties to the proceeding, (ii)
independent legal counsel selected by a majority vote of a quorum consisting
of directors who were not parties to the proceeding or committee of directors
(or selected by the full Board if a quorum or committee cannot be obtained),
or (iii) the affirmative vote of the majority of a quorum consisting of the
corporation's shareholders who were not parties to the proceeding.
The FBCA further provides that a corporation may make any other or
further indemnity by resolution, by-law, agreement, vote of shareholders or
disinterested directors or otherwise, except with respect to certain
enumerated acts or omissions of such persons. Florida law prohibits
indemnification or advancement of expenses if a judgment or other final
adjudication establishes that the actions of a director, officer or employee
constitute (i) a violation of criminal law, unless the person had reasonable
cause to believe his conduct was lawful, (ii) a transaction from which such
person derived an improper personal benefit, (iii) willful misconduct or
conscious disregard for the best interests of the corporation in the case of a
derivative action by a shareholder, or (iv) in the case of a director, a
circumstance under which a director would be liable for improper distributions
under Section 607.0834 of the FBCA. The FBCA does not affect a director's
responsibilities under any other law, such as federal securities laws.
At present, there is no pending litigation or other proceeding involving
a director or officer of the Company as to which indemnification is being
sought, nor is the Company aware of any threatened litigation that may result
in claims for indemnification by any officer or director.
The Company maintains directors' and officers' liability insurance for
its directors and officers.
II-3
<PAGE>
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See "Exhibit Index" on page II-7 below.
Item 9. Undertakings.
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 1(i) and 1(ii) of this
section do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the
SEC by the registrant pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 this registration statement shall be deemed to be
a new registration statement
II-4
<PAGE>
<PAGE>
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.
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 provisions described under Item 6 above, or
otherwise, the registrant has 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 the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Miami Lakes, State of Florida on
July 7, 1999.
FRENCH FRAGRANCES, INC.
By: /s/ E. Scott Beattie
---------------------------
E. Scott Beattie
President, Chief Executive
Officer and Director
II-5
<PAGE>
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints E.
Scott Beattie and Oscar E. Marina, or any one of them, as his true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution for him and in his name, place and stead in any and all
capacities to execute in the name of each such person who is then an officer
or director of the registrant 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 SEC,
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 required or
necessary to be done in and about the premises as fully as he 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 by the following persons in the
capacities and on the date indicated:
/s/ E. Scott Beattie President, Chief Executive Officer July 7, 1999
- ----------------------- and Director
E. Scott Beattie (Principal Executive Officer)
/s/ William J. Mueller Vice President, Chief Financial July 7, 1999
- ----------------------- Officer and Treasurer
William J. Mueller (Principal Financial and Accounting
Officer)
/s/ Rafael Kravec Chairman of the Board July 7, 1999
- -----------------------
Rafael Kravec
/s/ J. W. Nevil Thomas Director July 7, 1999
- -----------------------
J. W. Nevil Thomas
/s/ Richard C.W. Mauran Director July 7, 1999
- -----------------------
Richard C.W. Mauran
/s/ Fred Berens Director July 7, 1999
- -----------------------
Fred Berens
/s/ George Dooley Director July 7, 1999
- -----------------------
George Dooley
II-6
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page No.
- ------- ----------- --------
4.1 Amended and Restated Articles of Incorporation of the
Company dated March 6, 1996 (incorporated herein by
reference to Exhibit 3.1 filed as a part of the Company's
Form 10-K for the fiscal year ended January 31, 1996
(Commission File No. 1-6370)).
4.2 Amendment dated September 19, 1996 to the Amended and
Restated Articles of Incorporation of the Company
(incorporated herein by reference to Exhibit 4.4 filed as
part of the Company's Form 10-Q for the quarter ended
October 31, 1996 (Commission File No. 1-6370)).
4.3 By-Laws of the Company (incorporated herein by reference
to Exhibit 3.2 filed as a part of the Company's Form 10-K
for the fiscal year ended January 31, 1996 (Commission File
No. 1-6370)).
4.4 Indenture, dated as of May 13, 1997, between the Company
and HSBC Bank USA (formerly Marine Midland Bank), as trustee
(incorporated herein by reference to Exhibit 4.1 filed as a
part of the Company's Form 8-K dated May 13, 1997
(Commission File No. 1-6370)).
4.5 Indenture, dated as of April 27, 1998, between the Company
and HSBC Bank USA (Marine Midland Bank), as trustee
(incorporated herein by reference to Exhibit 4.1 filed as a
part of the Company's Form 8-K dated April 27, 1998
(Commission File No. 1-6370)).
4.6 Credit Agreement, dated as of May 13, 1997, between the
Company and Fleet National Bank (incorporated herein by
reference to Exhibit 4.3 filed as a part of the Company's
Form 8-K dated May 13, 1997 (Commission File No. 1-6370)).
4.7 First Amendment to Credit Agreement and Other Transaction
Documents, dated as of December 31, 1997, between the
Company and Fleet National Bank (incorporated herein by
reference to Exhibit 4.3 filed as a part of the Company's
Form 10-K for the fiscal year ended January 31, 1998
(Commission File No. 1-6370)).
4.8 Letter Agreement dated as of March 23, 1998, between the
Company and Fleet National Bank (incorporated herein by
reference to Exhibit 4.4 filed as a part of the Company's
Form 10-K for the fiscal year ended January 31, 1998
(Commission File No. 1-6370)).
4.9 Second Amendment to Credit Agreement and Other Transaction
Documents dated as of November 13, 1998, between the Company
and Fleet National Bank (incorporated herein by reference to
Exhibit 4.6 filed as a part of the Company's Form 10-Q for
the quarter ended October 31, 1998 (Commission File No.
1-6370)).
II-9
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit Sequential
Number Description Page No.
- ------- ----------- --------
4.10 Third Amendment to Credit Agreement and Other Transaction
Documents dated as of May 17, 1999, between the Company and
Fleet National Bank (incorporated herein by reference to
Exhibit 4.7 filed as part of the Company's Form 10-Q for the
quarter ended April 30, 1999 (Commission File No. 1-6370)).
4.11 Non-Employee Director Stock Option Plan.
4.12 1995 Stock Option Plan.
5.1 Opinion of Oscar E. Marina, Esq.
23.1 Consent of Oscar E. Marina, Esq. (contained in his opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney (contained on signature page).
II-8
<PAGE>
EXHIBIT 4.11
------------
FRENCH FRAGRANCES, INC.
Non-Employee Director Stock Option Plan
1. Purpose. The purpose of this Plan is to help attract, retain and
compensate highly qualified individuals who are not current employees of
French Fragrances, Inc. (the "Company") as members of the Board of Directors
and, by encouraging ownership of a stock interest in the Company, to gain for
the Company the advantages inherent in directors having a greater personal
financial investment in the Company.
2. Definitions. As used herein, the following terms shall have the
meanings indicated:
"Annual Meeting Date" means 5:00 p.m. on the date of the annual
meeting of the Company's shareholders at which the Directors are elected.
"Board" means the Company's Board of Directors.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
"Company" refers to French Fragrances, Inc., a Florida corporation,
or any successor thereof.
"Director" means a member of the Board.
"Effective Date" is the date specified in Section 16.1.
"Eligible Director" means any person who is a member of the Board
and who, at the time of the grant, is not an "employee" of the Company and/or
any of its subsidiaries, within the meaning of the Employee Retirement
Security Act of 1974, as amended ("ERISA").
"Fair Market Value" of the Common Stock on any date of reference
shall be determined in good faith by the Board and may, among other methods,
be the Closing Price of the Common Stock preceding the grant date or the
average of the Closing Prices of the Common Stock on each of the 30 business
days immediately preceding such date. For this purpose, the
Closing Price of the Common Stock on any business day shall be (i) if such
Common 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
Common Stock on such exchange or reporting system, as reported in any
newspaper of general circulation; (ii) if the Common Stock is quoted 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 closing bid quotation for such day of the
Common Stock on such system; or (iii) if neither clause (i) or (ii) is
applicable, the mean between the high bid and low ask quotations for the
Common Stock as reported by the National Quotation Bureau, Incorporated if at
least two securities dealers have inserted both bid and ask quotations for the
Common Stock on at least 5 of the 10 preceding days.
"Initial Grant Date" means the date on which a person is first
elected as a member of the Board.
"Option" (when capitalized) means any stock option granted under
this Plan.
"Option Agreement" means the agreement between the Company and the
Optionee for the grant of an option.
"Option Period" means the ten year period between the date an Option
is granted and the expiration date of the Option.
"Optionee" means a person to whom a stock option is granted under
this Plan or any person who succeeds to the rights of such person under this
Plan by reason of the death of such person.
"Plan" shall mean this Non-Employee Director Stock Option Plan for
the Company.
"Share(s)" shall mean a share or shares of the Common Stock.
3. Shares and Options. Subject to Section 11 of this Plan, the maximum
number of shares of Common Stock which may be issued pursuant to Options
granted under the Plan shall be 200,000 shares. Shares of Common Stock shall
be made available for issuance pursuant to the Plan either from shares of
Common Stock reacquired by the Company (either directly or indirectly through
an agent, trustee or other person or entity) or from authorized but unissued
shares. Any shares of Common Stock with respect to which Options have expired
or terminated for any reason other than exercise of such Options, shall again
be available for issuance pursuant to the Plan, to the extent permitted under
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
4. Grants of Options. Each Eligible Director elected after the
Effective Date shall receive an initial grant of an Option to purchase 7,000
Shares on the Initial Grant Date. In addition, commencing in 1996 and
provided that a sufficient number of shares remain available under this Plan,
each Eligible Director who is re-elected to serve as a director on the Annual
Meeting Date, shall be granted an option to purchase 7,500 shares each year on
the Annual Meeting Date. Upon the grant of each Option, the Company and the
Eligible Director shall enter into an Option Agreement, which shall specify
the grant date and the exercise price and shall include or incorporate by
reference the substance of this Plan and such other provisions consistent with
this Plan as the Board may determine. The options to be granted under
this Plan shall be nonqualified stock options (stock options which do not
constitute "incentive stock options" within the meaning of Section 422A of the
Code).
5. Exercise Price. The exercise price per Share of any Option shall be
the Fair Market Value of the Shares underlying such Option on the date such
Option is granted.
6. Exercise of Options. An Option shall be deemed exercised when (i)
the Company has received written notice of such exercise in accordance with
the terms of the Option; (ii) full payment of the aggregate exercise price of
the Shares as to which the Option is exercised has been made; and (iii)
arrangements that are satisfactory to the Board in its sole discretion have
been made for the Optionee's payment to the Company of the amount that is
necessary for the Company to withhold in accordance with applicable Federal or
state tax withholding requirements. The exercise price of any Shares
purchased, and any required tax payment, shall be paid, at the election of the
Company, in cash, by the tender of Shares, or both. If payment is made in
cash, it may be made by certified or official bank check, personal check or
money order. If payment is made by the tender of Shares, the Fair Market
Value of each Share shall be determined as of the day the Shares are tendered
for payment or, if no sale or bid has been made on such date, then on the last
preceding day on which such sale or bid shall have been made. Any
excess of the value of the tendered Shares over the purchase price will be
returned to the Optionee as follows:
(i) any whole Shares remaining in excess of the purchase price will
be returned to the Optionee in kind, and may be represented by one or more
certificates as determined by the Company in its sole discretion;
(ii) any partial Shares remaining in excess of the purchase price
will be returned to the Optionee in cash.
No Optionee shall be deemed to be a holder of any Shares subject to an
Option unless and until a stock certificate or certificates for such Shares
are issued to such person(s) under the terms of the Plan. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash, securities
or other property) or distributions or other rights for which the record date
is prior to the date such stock certificate is issued, except as expressly
provided in Section 11 hereof.
7. Issuance of Shares. No shares shall be issued and delivered upon
exercise of any option unless and until in the opinion of the Company's legal
counsel, any applicable registration requirements of the Securities Act of
1933, as amended, any applicable listing requirements of any national
securities exchange on which stock of the same class is then listed, and any
other requirements of law or of any regulatory bodies having jurisdiction over
such issuance and delivery, shall have been fully complied with.
8. Vesting; Exercisability.
8.1 Each Option granted hereunder on an Annual Meeting Date shall
vest and become nonforfeitable on the next Annual Meeting Date, if the
Optionee has continued to serve as a Director until that meeting. An Option
granted other than on an Annual Meeting Date shall vest and become
nonforfeitable on the first anniversary of the day on which such Option was
granted, if the Optionee has continued to serve as a Director until that day.
An Option shall on that day and thereafter be exercisable, subject only
Section 8.2.
8.2 The expiration date of an Option shall be 10 years from the
date of grant of the Option, subject to earlier termination pursuant to
Section 10.
9. Change of Control Provisions. Notwithstanding any other provision
of the Plan, the following acceleration provisions shall apply in the event of
a "Change of Control" as defined in this Section 9:
9.1 Any Option previously granted under the Plan to an Eligible
Director on the date of a "Change in Control" (as defined in Section 13.2)
automatically shall become fully exercisable and vested, subject only to legal
restrictions on the issuance of Shares set forth in Section 13 and the
provisions of the next sentence. Unless an Optionee can transfer an Option or
Shares issued upon exercise of an Option without incurring liability under
Section 16(b) of the Exchange Act, at least six months shall elapse from
the date of acquisition of the Option to the date of disposition of the Option
(other than upon exercise) or the underlying Shares.
9.2 For purposes of Section 9.1, a "Change of Control" shall mean:
(a) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened solicitation to which Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act applies or other actual or threatened solicitation of
proxies or consents; or
(b) Approval by the shareholders of the Company of a
reorganization, merger or consolidation, in each case, with respect to which
all or substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
reorganization, merger or consolidation do not, following such reorganization,
merger or consolidation beneficially own, directly or indirectly, more than
51% of, respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may be, of the
corporation resulting from such organization, merger or consolidation; or
(c) Approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company; or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, other
than to a corporation, with respect to which following such sale or other
disposition, more than 51% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote
generally in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such sale
or other disposition. The term "the sale or other disposition of all or
substantially all of the assets of the Company" shall mean a sale or other
disposition transaction or series of related transactions involving
assets of the Company or of any direct or indirect subsidiary of the Company
(including the stock of any direct or indirect subsidiary of the Company) in
which the value of the assets or stock being sold or otherwise disposed of (as
measured by the purchase price being paid therefor or by such other method as
the Board determines is appropriate in a case where there is no readily
ascertainable purchase price) constitutes more than two-thirds of the fair
market value of the Company (as hereinafter defined). The "fair market value
of the Company" shall be the aggregate market value of the then Outstanding
Company Common Stock (on a fully diluted basis) plus the aggregate market
value of the Company's other outstanding equity securities. The aggregate
market value of the shares of Outstanding Company Common Stock shall be
determined by multiplying the number of shares of Outstanding Company
Common Stock (on a fully diluted basis) outstanding on the date of the
execution and delivery of a definitive agreement with respect to the
transaction or series of related transactions (the "Transaction Date") by the
average Fair Market Value per share for the ten trading days immediately
preceding the Transaction Date. The aggregate market value of any other
equity securities of the Company shall be determined in a manner similar to
that prescribed in the preceding sentence for determining the aggregate
market value of the shares of Outstanding Company Common Stock.
10. Termination of Option Period. An Optionee whose directorship
terminates for any reason other than death or disability (as defined in
Section 105(d)(4) of the Code) shall be entitled to exercise any Options which
are then exercisable only within the six-month period after the date he ceases
to serve as a director; after such six-month period, such Options shall be
null and void. In the case of termination of the directorship by reason of
the Director's death or disability within the meaning of Section 105(d)(4) of
the Code, the Option or any portion thereof which was not exercisable on the
date of termination shall be accelerated and become immediately exercisable,
and the period to exercise such Option shall be twelve months, subject to the
earlier expiration of the Option Period. The estate of an Optionee who dies,
or a person who acquires the right to exercise an Option, including any
portion of such Option which was not exercisable at the time of death, by
bequest or inheritance or by reason of the death of the Optionee, may
exercise the Option only within the twelve-month period after the death of the
Optionee, subject to the earlier expiration of the Option Period.
11. Adjustment of Shares.
11.1 Option Agreements evidencing Options shall be subject to
adjustment by the Board as to the number and price of Shares subject to such
Options in the event of changes in the outstanding Shares by reason of stock
dividends, stock splits, recapitalizations, reorganizations, mergers,
consolidations, combinations, exchanges, or other relevant changes in
capitalization occurring after the date of grant of any such Option. In the
event of any such change in the outstanding Shares, the aggregate number of
Shares available under the Plan shall be appropriately adjusted by the Board,
whose determination shall be conclusive.
11.2 Except as otherwise expressly provided herein, the issuance by
the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection
with a direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
exercise price of the Shares then subject to outstanding Options granted under
the Plan.
11.3 Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in
any manner the right or power of the Company to make, authorize or consummate
(i) any or all adjustments, recapitalizations, reorganizations or other
changes in the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the
Shares subject to outstanding Options; (iv) the dissolution or liquidation of
the Company; (v) any sale, transfer or assignment of all or any part of the
assets or business of the Company; or (vi) any other corporate act or
proceedings, whether of a similar character or otherwise.
12. Transferability of Options. Each Option shall provide that such
Option shall not be transferable by the Optionee otherwise than by will or the
laws or descent and distribution, and each Option shall be exercisable during
the Optionee's lifetime only by the Optionee.
13. Issuance of Shares. As a condition of any sale or issuance of
Shares upon exercise of any Option, the Board may require such agreements or
undertakings, if any, as the Board may deem necessary or advisable to assure
compliance with any applicable law or regulation including, but not limited
to, the following:
(a) a representation and warranty by the Optionee to the Company, at
the time any Option is exercised, that Optionee is acquiring the Shares to be
issued for investment and not with a view to, or for sale in connection with,
the distribution of any such Shares; and
(b) a representation, warranty and/or agreement to be bound by any
legends that are, in the opinion of the Board, necessary or appropriate to
comply with the provisions of any securities law deemed by the Board to be
applicable to the issuance of the Shares and are endorsed upon the Share
certificates.
14. Administration of the Plan. The Plan shall be administered by the
Board, which shall have the authority to adopt such rules and regulations and
to make such determinations as are not inconsistent with the Plan and as are
necessary or desirable for the implementation and administration of the Plan,
provided that the Board does not have any discretion with respect to the grant
of options under the Plan.
15. Interpretation.
15.1 If any provision of the Plan should be held invalid or illegal
for any reason, such determination shall not affect the remaining provisions
hereof, but instead the Plan shall be construed and enforced as if such
provision had never been included in the Plan. Without limiting the
generality of the foregoing, transactions under this Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors
promulgated under the Securities Exchange Act of 1934, as amended (the "1934
Act"), and this Plan is intended to constitute a "Formula Plan" pursuant to
Rule 16b-3(c)(2)(ii) under the Exchange Act. To the extent any provision of
the Plan or action by the Board hereunder is inconsistent with the foregoing
requirements, it shall be deemed null and void, to the extent permitted by law
and deemed advisable by the Board.
15.2 The determinations and the interpretation and construction of
any provision of the Plan by the Board shall be final and conclusive. This
Plan shall be governed by the laws of the State of Florida. Headings
contained in this Plan are for convenience only and shall in no manner be
construed as part of this Plan. Any reference to the masculine, feminine, or
neuter gender shall be a reference to such other gender as is appropriate.
16. Term of Plan; Amendment and Termination of the Plan.
16.1 This Plan is effective as of January 26, 1995; provided,
however, that within one year after such date, the Plan shall have been
approved by the affirmative vote of the holders of a majority of the shares of
Common Stock present or represented and entitled to vote at a meeting of the
Company's shareholders, of any adjournment thereof. This Plan shall continue
in effect until all Options granted hereunder have expired or been exercised,
unless sooner terminated under the provisions relating thereto. No Option
shall be granted after 10 years from the Effective Date. Any Option granted
under this Plan prior to the date that shareholder approval is obtained
pursuant to this Section 16.1 shall be deemed to have been granted as of the
date such shareholder approval is obtained.
16.2 The Board may from time to time amend, terminate or suspend
the Plan or any Option; provided, however, that except to the extent provided
in Section 10, no such amendment may (i) without approval by the Company's
shareholders, increase the number of Shares reserved for Options or
change the class of persons eligible to receive Options or involve any other
change or modification requiring shareholder approval under Rule 16b-3 of the
1934 Act; (ii) permit the granting of Options that expire beyond the maximum
10-year period described in Section 8.2; (iii) extend the termination date of
the Plan as set forth in Section 16.1; or (iv) give the directors discretion
with respect to the grant of options; and, provided further, that except to
the extent otherwise specifically provided in Section 10, no amendment,
termination or suspension of the Plan or any Option issued hereunder shall
substantially impair any Option previously granted to any Optionee without the
consent of such Optionee. Any termination or suspension of the Plan shall not
affect Options already granted and such Options shall remain in full force and
effect as if this Plan had not been terminated or suspended. No Option may be
granted while the Plan is suspended or after it is terminated.
16.3 Notwithstanding anything else contained herein, the provisions
of this Plan which govern the number of Options to be awarded to Directors,
the exercise price per share under each such Option, when and under what
circumstances an Option will be granted, and the period within which each
Option may be exercised, shall not be amended more than once every six months
(even with shareholder approval), other than to conform to changes in the
Code, or the rules promulgated thereunder, and under ERISA, or the rules
promulgated thereunder, or with rules promulgated by the Securities and
Exchange Commission.
17. No Right to Service. Except as provided in this Plan, no Eligible
Director shall have any claim or right to be granted a stock option under the
Plan. Neither the Plan nor any action pursuant thereto shall be construed as
giving any Eligible Director a right to be retained in the service of the
Company. The adoption of this Plan shall not affect any other compensation,
retirement or other benefit plan or program in effect for the Company.
18. Reservation of Shares. The Company, during the term of the Plan,
will at all times reserve and keep available a number of Shares as shall be
sufficient to satisfy the requirements of the Plan.
As adopted by the Board of Directors on January 26, 1995, and amended on
November 30, 1995 and March 29, 1996.
EXHIBIT 4.12
------------
FRENCH FRAGRANCES, INC.
1995 Stock Option Plan
1. Definitions: As used herein, the following definitions shall apply:
(a) "Compensation Committee" shall mean a committee appointed from time
to time by the Board to administer the plan and consisting of not fewer than
two members. Upon the registration by the Company of the Common Stock
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), all members of the Compensation Committee shall be
"disinterested persons" as defined by Rule 16b-3.
(b) "Common Stock" means the Common Stock, par value $.01 per share, of
the Company.
(c) "Company" shall mean French Fragrances, Inc., a Florida corporation,
or any successor thereof.
(d) "Eligible Person" means any individual who performs services for the
Company or a Subsidiary, including any individual who is an employee, officer
or director of the Company or a Subsidiary, regardless of whether such
individual is included on the regular payroll of the Company or a Subsidiary,
or is a full or part time employee.
(e) "Incentive Option" shall mean an option to purchase Common Stock
which meets the requirements set forth in the Plan and also meets the
definition of an incentive stock option set forth in Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code"). The stock
option agreement for an Incentive Option shall state that the option is
intended to be an Incentive Option.
(f) "Nonqualified Option" shall mean an option to purchase Common Stock
which meets the requirements set forth in the Plan but does not meet the
definition of an incentive stock option set forth in Section 422 of the Code.
The stock option agreement for a Nonqualified Option shall state that the
option is intended to be a Nonqualified Option.
(g) "Participant" shall mean any Eligible Person designated by the
Compensation Committee under Paragraph 6 for participation in the Plan.
(h) "Plan" shall mean this Stock Option Plan for the Company.
(i) "Rule 16b-3" shall mean Rule 16b-3 promulgated under the Securities
Exchange Act, or any successor thereto.
(j) "Subsidiary" shall mean any Company in which the Company owns,
directly or indirectly, stock possessing more than fifty percent of the total
combined voting power of all classes of stock.
2. Purpose of Plan: The purpose of the Plan is to provide key employees,
officers and directors of the Company and its Subsidiaries with incentives to
make significant and extraordinary contributions to the long-term performance
and growth of the Company and its Subsidiaries, to join the interests of such
persons with the interests of the shareholders of the Company, and to increase
their personal interest in the continued success and progress of the
Company.
3. Administration: The Plan shall be administered by the Compensation
Committee. Subject to the provisions of the Plan, the Compensation Committee
shall determine, from those eligible to be Participants under the Plan, the
persons to be granted stock options, the amount of stock options to be granted
to each such person, and the terms and conditions of such stock options.
Subject to the provisions of the Plan, the Compensation Committee is
authorized to interpret the Plan, to promulgate, amend and rescind rules and
regulations relating to the Plan and to make all other determinations
necessary or advisable for its administration. Interpretation and
construction of any provision of the Plan by the Compensation Committee shall
be final, conclusive and binding. Acts approved by either a majority of the
members present at any meeting at which a quorum is present, or without a
meeting by the unanimous written approval of the members of the Compensation
Committee, shall be the acts of the Compensation Committee.
4. Indemnification of Compensation Committee Members: In addition to such
other rights of indemnification as they may have, the members of the
Compensation Committee shall be indemnified by the Company against the
reasonable expenses, including attorneys' fees, actually and necessarily
incurred in connection with the defense of any action, suit or proceeding, or
in connection with any appeal therein, to which they or any of them may be a
party by reason of any action taken or failure to act under or in connection
with the Plan or any stock option granted hereunder, and against all amounts
paid by them in settlement thereof (provided such settlement is approved by
the Board of Directors of the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters
as to which it shall be adjudged in such action, suit or proceeding that such
Compensation Committee member has acted in bad faith; provided, however, that
within 60 days after receipt of notice of institution of any such action, suit
or proceeding a Compensation Committee member shall offer the Company
in writing the opportunity, at its own cost, to handle and defend the same.
5. Maximum Number of Shares Subject to Plan: The maximum number of shares of
Common Stock which may be issued pursuant to stock options granted under the
Plan shall be 2,200,000 shares. Shares of Common Stock shall be made
available for issuance pursuant to the Plan either from shares of Common Stock
reacquired by the Company (either directly or indirectly through an agent,
trustee or other person or entity) or from authorized but unissued shares.
Any shares of Common Stock with respect to which stock options have expired or
terminated for any reason other than exercise of such stock options, shall
again be available for issuance pursuant to the Plan to the extent permitted
under Rule 16b-3.
<PAGE>
The number of shares of Common Stock subject to each outstanding stock
option, the option price with respect to outstanding stock options, and the
aggregate number of shares available at any time under the Plan shall be
subject to such adjustment as the Compensation Committee, in its discretion,
deems appropriate to reflect such events as stock dividends, stock splits,
recapitalizations, mergers, consolidations or reorganizations of or by the
Company; provided, however, that no fractional shares shall be issued pursuant
to the Plan, no rights may be granted under the Plan with respect to
fractional shares, and any fractional shares resulting from such
adjustments shall be eliminated from any outstanding stock option; and
provided further, with respect to Incentive Stock Options, no such adjustment
shall be authorized to the extent that such authority would cause the Plan to
violate Section 422(b)(l) of the Code. Without limiting the generality of the
foregoing, the existence of outstanding options granted under the Plan shall
not affect in any manner the right or power of the Company to make, authorize
or consummate (i) any or all adjustments, recapitalizations, reorganizations
or other changes in the Company's capital structure or its business; (ii) any
merger or consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the
shares of Common Stock subject to outstanding options; (iv) the dissolution or
liquidation of the Company; (v) any sale, transfer or assignment of all or any
part of the assets or business of the Company; or (vi) any other corporate act
or proceedings, whether of a similar character or otherwise.
6. Participants: The Compensation Committee shall determine and designate
from time to time, in its sole discretion, those Eligible Persons to whom
stock options are to be granted or awarded and who thereby become Participants
under the Plan. Notwithstanding the foregoing, Incentive Options may be
granted only to key employees eligible to receive Incentive Options pursuant
to Section 422 of the Code.
7. Written Agreement: Each stock option, shall be evidenced by a written
agreement between the Company and the Participant and shall contain such
provisions as may be approved by the Compensation Committee. Such agreements
shall constitute binding contracts between the Company and the Participant,
and every Participant, upon acceptance of such agreement, shall be bound by
the terms and restrictions of the Plan and of such agreement. The terms of
each such agreement shall be in accordance with the Plan, but the agreements
may include such additional provisions and restrictions determined by the
Compensation Committee, provided that such additional provisions and
restrictions are not forbidden by the terms of the Plan.
8. Allotment of Shares: The Compensation Committee shall determine and fix
the number of shares of Common Stock with respect to which each Participant
may be granted stock options provided, however, that no Incentive Option may
be granted under the Plan to any one Participant which would result in an
aggregate fair market value, determined as of the date the option is granted,
of Common Stock with respect to which Incentive Options are exercisable for
the first time by such Participant during any calendar year in excess of
$100,000.
9. Stock Options: Subject to the terms of the Plan, the Compensation
Committee may grant to Participants either Incentive Options, Nonqualified
Options or any combination thereof. Each option granted under the Plan shall
designate the number of shares covered thereby, with respect to which the
option is an Incentive Option, and the number of shares of Common Stock
covered thereby, with respect to which the option is a Nonqualified Option.
10. Stock Option Price: Subject to the rules set forth in this Paragraph 10,
at the time any stock option is granted, the Compensation Committee shall
establish the price per share for which the shares of Common Stock covered by
the option may be purchased. With respect to an Incentive Option, such option
price shall not be less than 100% of the fair market value of a share of
Common Stock on the date on which such option is granted; provided, however,
that with respect to an Incentive Option granted to an employee who at the
time of the grant owns (after applying the attribution rules of Section 424(d)
of the Code) more than 10% of the total combined voting power of all classes
of the stock of the Company or of any parent or subsidiary, the option price
shall not be less than 110% of the fair market value of a share of Common
Stock on the date such Incentive Option is granted. With respect to a
Nonqualified Option, the option price shall not be less than the par value of
a share of Common Stock. For purposes of the Plan, the "fair market
value" of a share of Common Stock shall be determined in good faith by the
Compensation Committee and may, among other methods, be the Closing Price of
the Common Stock preceding the grant date or the average of the Closing Prices
of the Common Stock on each of the 30 business days immediately preceding such
date. For this purpose, the Closing Price of the Common Stock on any business
day shall be (i) if such Common 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 Common Stock on such exchange or reporting system, as
reported in any newspaper of general circulation; (ii) if the Common Stock is
quoted 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 closing bid quotation
for such a day of the Common Stock on such system; or (iii) if neither clause
(i) or (ii) is applicable, the mean between the high bid and low ask
quotations for the Common Stock as reported by the National Quotation Bureau,
Incorporated if at least two securities dealers have inserted both bid and ask
quotations for the Common Stock on at least 5 of the 10 preceding days; or,
(iv) if none of clause (i), (ii), or (iii) is applicable, the fair market
value on a specified date of a share as determined by the Compensation
Committee in good faith. The option price shall be subject to adjustment in
accordance with the provisions of Paragraph 5 of the Plan.
11. Payment of Stock Option Price: At the time of the exercise in whole or
in part of any stock option granted hereunder, payment of the option price in
full in cash or by certified or official bank check, personal check or money
order, or, with the consent of the Compensation Committee, in Common Stock,
shall be made by the Participant for all shares so purchased. In the sole
discretion of and subject to such conditions as may be established by the
Compensation Committee, payment of the option price may also be made by the
Company retaining from the shares of Common Stock to be delivered upon
exercise of the stock option that number of shares having a fair market value
on the date of exercise equal to the option price of the number of shares with
respect to which the Participant exercises the stock option. If payment is
made by the tender of shares of Common Stock or retention by the Company of
shares of Common Stock to be delivered upon the exercise of the stock option,
the fair market value of each share of Common Stock tendered or retained, as
the case may be, shall be determined as of the day such shares are tendered or
such option is exercised, or if no sale or bid has been made on such date,
then on the last preceding day on which such sale or bid shall have been made.
Any excess of the value of the tendered or retained shares over the option
price will be returned to the Participant as follows:
(i) any whole shares of Common Stock remaining in excess of the
purchase price will be returned to the Participant in kind, and may be
represented by one or more certificates as determined by the Company in its
sole discretion; and
(ii) any partial shares of Common Stock remaining in excess of the
option price will be returned to the Participant in cash.
Such payment may also be made in such other manner as the
Compensation Committee determines is appropriate, in its sole discretion. No
Participant shall have any of the rights of a shareholder of the Company under
any stock option until the actual issuance of shares to said Participant, and
prior to such issuance no adjustment shall be made for dividends,
distributions or other rights in respect of such shares, except as provided in
Paragraph 5.
12. Granting and Exercise of Stock Options: Each stock option granted
hereunder shall be exercisable at any such time or times or in any such
installments as may be determined by the Compensation Committee at the time of
the grant; provided, however, that no stock option granted hereunder may be
exercisable prior to the expiration of six months from the date of grant.
The aggregate fair market value (determined at the time the option is granted)
of Common Stock with respect to which Incentive Options are exercisable for
the first time by a Participant during any calendar year shall not exceed
$100,000.
A Participant may exercise a stock option, if then exercisable, in whole
or in part by delivery to the Company of written notice of the exercise, in
such form as the Compensation Committee may prescribe, accompanied by (i) full
payment for the shares with respect to which the stock option is exercised, or
(ii) in the sole discretion of the Compensation Committee and subject to
the requirements of Regulation T (as in effect from time to time) under the
Exchange Act, irrevocable instructions to a stockbroker to promptly deliver to
the Company full payment for the shares with respect to which the stock option
is exercised from the proceeds of the stockbroker's sale of or loan against
the shares. Except as provided in Paragraph 17, stock options may be
exercised only while the Participant is an employee of, or performing service
to, the Company or a Subsidiary.
Successor stock options may be granted to the same Participant, whether or
not the stock option(s) previously granted to such Participant remain
unexercised. A Participant may exercise a stock option, if then exercisable,
notwithstanding that stock options previously granted to such Participant
remain unexercised.
13. Change of Control Provisions: Notwithstanding any other provision of the
Plan, the following acceleration provisions shall apply in the event of a
"Change of Control" as defined in this Section 13:
13.1 Any Option previously granted under the Plan to a Participant
who is an Eligible Person on the date of a "Change in Control" (as defined in
Section 13.2) shall become fully exercisable and vested, automatically in the
case of Participants subject to Section 16 of the Exchange Act, and unless
otherwise determined by the Board of Directors in writing at or after the
grant but prior to the occurrence of the Change in Control in the case of
Participants not subject to Section 16 of the Exchange Act, subject only to
the legal restrictions on the issuance of shares of Common Stock upon exercise
of an Option set forth in Section 18 and the provisions of the next sentence.
In the case of participants subject to Section 16 of the Exchange Act, unless
a participant can transfer an Option without incurring liability under Section
16(b) of the Exchange Act, at least six months shall elapse from the date of
acquisition of the Option to the date of disposition of the Option (other than
upon exercise) or its underlying Shares.
13.2 For purposes of Section 13.1, a "Change of Control" shall mean:
(a) Individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof whose election,
or nomination for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened solicitation to which Rule 14a-11 of Regulation 14A promulgated
under the Exchange Act applies or other actual or threatened solicitation of
proxies or consents; or
(b) Approval by the shareholders of the Company of a reorganization,
merger or consolidation, in each case, with respect to which all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization,
merger or consolidation do not, following such reorganization, merger or
consolidation beneficially own, directly or indirectly, more than 51% of,
respectively, the then outstanding shares of common stock and the combined
voting power of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of the corporation
resulting from such organization, merger or consolidation; or
(c) Approval by the shareholders of the Company of (i) a complete
liquidation or dissolution of the Company; or (ii) the sale or other
disposition of all or substantially all of the assets of the Company, other
than to a corporation, with respect to which following such sale or other
disposition, more than 51% of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally
in the election of directors is then beneficially owned, directly or
indirectly, by all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Outstanding Company Common
Stock and Outstanding Company Voting Securities immediately prior to such sale
or other disposition. The term "the sale or other disposition of all or
substantially all of the assets of the Company" shall mean a sale or other
disposition transaction or series of related transactions involving assets of
the Company or of any direct or indirect subsidiary of the Company (including
the stock of any direct or indirect subsidiary of the Company) in which the
value of the assets or stock being sold or otherwise disposed of (as measured
by the purchase price being paid therefor or by such other method as the Board
of Directors determines is appropriate in a case where there is no readily
ascertainable purchase price) constitutes more than two-thirds of the fair
market value of the Company (as hereinafter defined). The "fair market value
of the Company" shall be the aggregate market value of the then Outstanding
Company Common Stock (on a fully diluted basis) plus the aggregate market
value of the Company's other outstanding equity securities. The aggregate
market value of the shares of Outstanding Company Common Stock shall be
determined by multiplying the number of shares of Outstanding Company Common
Stock (on a fully diluted basis) outstanding on the date of the execution and
delivery of a definitive agreement with respect to the transaction or series
of related transactions (the "Transaction Date") by the average fair market
value (as defined in Section 10) per Share of Outstanding Company Common Stock
for the ten trading days immediately preceding the Transaction Date.
The aggregate market value of any other equity securities of the Company shall
be determined in a manner similar to that prescribed in the preceding sentence
for determining the aggregate market value of the shares of Outstanding
Company Common Stock or by such other method as the Board of Directors shall
determine is appropriate.
14. Non-Transferability of Stock Options: No stock option granted under the
Plan to a Participant shall be transferable by such Participant otherwise than
by will, or by the laws of descent and distribution, and such option shall be
exercisable, during the lifetime of the Participant, only by the Participant.
15. Term of Stock Options: If not sooner terminated, each stock option stock
granted hereunder shall expire not more than 10 years from the date of the
granting thereof; provided, however, that with respect to an Incentive Option
granted to a Participant who, at the time of the grant, owns (after applying
the attribution rules of Section 424(d) of the Code) more than 10% of
the total combined voting power of all classes of stock of the Company or of
any parent or subsidiary, such option shall expire not more than 5 years after
the date of granting thereof.
16. Continuation of Employment: The Compensation Committee may require, in
its discretion, that any Participant under the Plan to whom a stock option
shall be granted shall agree in writing as a condition of the granting of such
stock option to remain in the employ of, or continue to provide services to,
the Company or a Subsidiary for a designated minimum period from the date of
the granting of such stock option as shall be fixed by the Compensation
Committee.
17. Termination of Employment: If a Participant's employment by, or
provision of services to, the Company or a Subsidiary shall be terminated, the
Compensation Committee may, in its discretion, permit the exercise of stock
options granted to such Participant and then exercisable (i) for a period not
to exceed one year following such termination of employment with respect to
Incentive Options, and (ii) for a period not to extend beyond the expiration
date with respect to Nonqualified Options; provided, however, that no
Incentive Option may be exercised after three months following a Participant's
termination of employment, unless such termination of employment is due to the
Participant's death or permanent disability, in which event the Incentive
Option may be permitted to be exercised for up to one year following the
Participant's termination of employment for such reason. In no event,
however, shall a stock option be exercisable subsequent to its expiration date
and, furthermore, unless the Compensation Committee otherwise determines, a
stock option may only be exercised after termination of a Participant's
employment or service to the extent exercisable on the date of termination of
employment or as a result of termination of employment.
18. Investment Purpose: If the Compensation Committee in its discretion
determines that as a matter of law such procedure is or may be desirable, it
may require a Participant, upon any acquisition of Common Stock hereunder and
as a condition to the Company's obligation to deliver certificates
representing such shares, to execute and deliver to the Company a written
statement, in form satisfactory to the Compensation Committee, representing
and warranting that the Participant's acquisition of shares of Common Stock
shall be for such person's own account, for investment and not with a view to
the resale or distribution thereof and that any subsequent offer for sale or
sale of any such shares shall be made either pursuant to (a) a Registration
Statement on an appropriate form under the Securities Act of 1933, as amended
(the "Securities Act"), which Registration Statement has become effective and
is current with respect to the shares being offered and sold, or (b) a
specific exemption from the registration requirements of the Securities Act,
but in claiming such exemption the Participant shall, prior to any offer for
sale or sale of such shares, obtain a favorable written opinion from counsel
for or approved by the Company as to the availability of such exemption. The
Company may endorse an appropriate legend referring to the foregoing
restriction upon the certificate or certificates representing any shares
issued or transferred to the Participant under this Plan.
19. Rights to Continued Employment: Nothing contained in the Plan or in any
stock option granted pursuant to the Plan, nor any action taken by the
Compensation Committee hereunder, shall confer upon any Participant any right
with respect to continuation of employment by, or the provision of services
to, the Company or a Subsidiary nor interfere in any way with the right of the
Company or a Subsidiary to terminate such person's employment or service at
any time with or without cause.
20. Withholding Payments: If upon the exercise of a Nonqualified Option or
upon a disqualifying disposition (within the meaning of Section 422 of the
Code) of shares acquired upon exercise of an Incentive Option, there shall be
payable by the Company or a Subsidiary any amount of income tax withholding,
in the Compensation Committee's sole discretion, either the Company shall
appropriately reduce the amount of Common Stock to be issued to the
Participant or the Participant shall pay such amount to the Company or
Subsidiary to reimburse it for such income tax withholding. The Compensation
Committee may, in its sole discretion, permit Participants to satisfy such
withholding obligations, in whole or in part, by electing to have the
amount of Common Stock delivered or deliverable by the Company upon exercise
of a stock option appropriately reduced or by electing to tender Common Stock
back to the Company subsequent to exercise of a stock option to reimburse the
Company for such income tax withholding, subject to such rules and regulations
as the Compensation Committee may adopt. The Compensation Committee may make
such other arrangements with respect to income tax withholding as it shall
determine.
21. Effectiveness of Plan: This Plan is effective as of January 26, 1995;
provided, however, that within one year after such date, the Plan shall have
been approved by the affirmative vote of the holders of a majority of the
shares of Common Stock present or represented and entitled to vote at a
meeting of the Company's shareholders, of any adjournment thereof. Any stock
option granted under this Plan prior to the date that shareholder approval is
obtained pursuant to this Section 21 shall, for purposes of Section 12 hereof,
be deemed to have been granted as of the date of such shareholder approval is
obtained.
22. Termination, Duration and Amendments of Plan: The Plan may be abandoned
or terminated at any time by the Board of Directors of the Company. Unless
sooner terminated, the Plan shall terminate on ten years from effective date,
and no stock options may be granted or awarded thereafter. The termination of
the Plan shall not affect the validity of any stock option outstanding on the
date of termination, and any such options shall be interpreted pursuant to the
terms of this Plan, notwithstanding the termination of the Plan.
For the purpose of conforming to any changes in applicable law or
governmental regulations, or for any other lawful purpose, the Board of
Directors shall have the right, with or without approval of the shareholders
of the Company, to amend or revise the terms of the Plan at any time;
provided, however, that no such amendment or revisions shall (i) increase the
maximum number of shares of Common Stock in the aggregate which are subject to
the Plan (except as provided under the provisions of Paragraph 5), change the
class of persons eligible to be Participants under the Plan or materially
increase the benefits accruing to Participants under the Plan, without
approval or ratification of the shareholders of the Company; or (ii) change
the stock option price (except as contemplated by Paragraph 5) or alter or
impair any stock option, which shall have been previously granted or awarded
under the Plan, without the consent of the holder thereof.
23. Interpretation: If any provision of the Plan should be held invalid or
illegal for any reason, such determination shall not affect the remaining
provisions hereof, but instead the Plan shall be construed and enforced as if
such provision had never been included in the Plan. Without limiting the
generality of the foregoing, transactions under the Plan are intended to
comply with all applicable conditions of Rule 16b-3 or its successors
promulgated under the Exchange Act. To the extent any provision of the Plan
or any action by the Compensation Committee or the Board of Directors
hereunder is inconsistent with the foregoing requirements, it shall be deemed
null and void, to the extent permitted by law and deemed advisable by the
Compensation Committee or the Board of Directors. This Plan shall be governed
by the laws of the State of Florida. Headings contained in the Plan are for
convenience only and shall in no manner be construed as part of the Plan. Any
reference to the masculine, feminine, or neuter gender shall be a reference to
such other gender as is appropriate.
<PAGE>
As adopted by the Board of Directors on January 26, 1995, and as amended
on November 30, 1995, March 29, 1996 and March 3, 1999.
EXHIBIT 5.1
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July 7, 1999
French Fragrances, Inc.
14100 N.W. 60th Avenue
Miami Lakes, Florida 33014
Ladies and Gentlemen:
On the date hereof, French Fragrances, Inc., a Florida corporation ("the
Company"), sent for filing with the Securities and Exchange Commission (the
"Commission"), a Registration Statement on Form S-8 (the "Registration
Statement"), under the Securities Act of 1933, as amended. The Registration
Statement relates to the offering and sale by the Company of up to 1,922,960
shares of the Company's Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to stock options ("Options") granted or to be granted under
the Company's 1995 Stock Option Plan (the "1995 Plan") and the Non-Employee
Director Stock Option Plan (the "Non-Employee Director Plan"). I have acted
as counsel to the Company in connection with the preparation and filing of the
Registration Statement with the Commission.
In connection therewith, I have examined the Company's Amended and
Restated Articles of Incorporation, as amended, and the By-Laws, resolutions
of the Board of Directors of the Company and such other corporate documents
and records, certificates of public officials and questions of law as I have
deemed necessary or appropriate for purposes of this opinion. I have also
reviewed the relevant statutory provisions of the Florida Business Corporation
Act, and such other legal authority in Florida as I have deemed relevant.
Based upon and subject to the foregoing, I am of the opinion that the
Company presently has sufficient shares of authorized and unissued Common
Stock available from which the 1,922,960 shares of Common Stock proposed to be
sold pursuant to the exercise of Options granted under the 1995 Plan and the
Non-Employee Director Plan may be issued. In addition, assuming that the
Company maintains an adequate number of authorized but unissued shares of
Common Stock available for issuance to those persons who exercise their
Options, and that the consideration for the underlying shares of Common Stock
issued pursuant to the Options is actually received by the Company as provided
in the 1995 Plan and Non-Employee Director Plan, I am of the opinion that
the shares of Common Stock issued pursuant to the exercise of Options granted
under and in accordance with the terms of the 1995 Plan and the Non-Employee
Director Plan will be duly and validly issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to me under the caption "Interests
of Named Experts and Counsel."
Very truly yours,
/s/ Oscar E. Marina
Oscar E. Marina, Esq.
EXHIBIT 23.2
------------
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
French Fragrances, Inc. on Form S-8 of our report dated April 16, 1999,
appearing in the Annual Report on Form 10-K of French Fragrances, Inc. for the
year ended January 31, 1999.
/s/Deloitte & Touche, LLP
Miami, Florida
July 7, 1999
