-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, U/um3BAxYO68ZHhKZFugT9aS7sguBk3rEnw266zPzPl9/9dCc2a3KU4K/XgyXtRF Mw0HWqeXRcyv6/paNI7jrA== 0000950144-99-010789.txt : 19990831 0000950144-99-010789.hdr.sgml : 19990831 ACCESSION NUMBER: 0000950144-99-010789 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 19990830 EFFECTIVENESS DATE: 19990830 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GERALD STEVENS INC/ CENTRAL INDEX KEY: 0000037525 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 410719035 STATE OF INCORPORATION: DE FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-86191 FILM NUMBER: 99703027 BUSINESS ADDRESS: STREET 1: 301 EAST LAS OLAS BLVD STREET 2: SUITE 300 CITY: FT LAUDERDALE STATE: FL ZIP: 33301 BUSINESS PHONE: 5615630263 MAIL ADDRESS: STREET 1: 301 EAST LAS OLAS BLVD STREET 2: SUITE 300 CITY: FT LAUDERDALE STATE: FL ZIP: 33301 FORMER COMPANY: FORMER CONFORMED NAME: FLORAFAX INTERNATIONAL INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: SPOTTS FLORAFAX CORP DATE OF NAME CHANGE: 19740924 FORMER COMPANY: FORMER CONFORMED NAME: SPOTTS CORP DATE OF NAME CHANGE: 19671205 S-8 1 GERALD STEVENS INC FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 30, 1999 REGISTRATION NO. 333-_______________ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------- GERALD STEVENS, INC. (Exact Name of Registrant as Specified in its Charter) DELAWARE 41-0719035 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 301 EAST LAS OLAS BOULEVARD, SUITE 300 FORT LAUDERDALE, FLORIDA 33301 (954) 713-5000 (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) FLORAFAX INTERNATIONAL, INC. MANAGEMENT INCENTIVE STOCK PLAN GERALD STEVENS, INC. 1998 STOCK OPTION PLAN CALYX & COROLLA, INC. 1988 STOCK OPTION PLAN (Full Title of the Plans) GERALD R. GEDDIS 301 EAST LAS OLAS BOULEVARD, SUITE 300 FORT LAUDERDALE, FLORIDA 33301 (954) 713-5000 (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) ---------- COPIES OF ALL COMMUNICATIONS TO: JONATHAN L. AWNER AKERMAN, SENTERFITT & EIDSON, P.A. ONE S.E. THIRD AVENUE, 28TH FLOOR MIAMI, FLORIDA 33131-1714 (305) 374-5600 CALCULATION OF REGISTRATION FEE
- ------------------------------------------------------------------------------------------------------------------------- PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF TO BE REGISTERED BE REGISTERED (1) PER SHARE(2) PRICE (2) REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------- Common stock, par value $.01 per share 2,408,544 shares $12.125 $29,203,596 $8,118.60 - -------------------------------------------------------------------------------------------------------------------------
(1) The 2,408,544 shares of common stock being registered hereby include 500,000 shares of common stock issuable upon the exercise of stock options which we may grant under our Florafax International, Inc. Management Incentive Stock Plan, 342,500 shares of common stock issuable upon the exercise of non-plan stock options which were granted to some of our former executive officers pursuant to written agreements with those executives prior to our business combination with Gerald Stevens Retail, Inc., 1,428,778 shares of common stock issuable upon the exercise of stock options which were granted by Gerald Stevens Retail under its Gerald Stevens, Inc. 1998 Stock Option Plan and which we assumed in connection with our business combination with Gerald Stevens Retail and 137,266 shares of common stock issuable upon the exercise of stock options which were granted by Calyx & Corolla, Inc. under its Calyx & Corolla, Inc. 1988 Stock Option Plan and which we assumed in connection with our business combination with Calyx & Corolla. Pursuant to Rule 416 under the Securities Act of 1933, as amended, this registration statement also includes an indeterminate number of additional shares that may become issuable pursuant to the anti-dilution adjustment provisions of the plans or agreements pursuant to which the options described herein were or may be granted. (2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended. The proposed maximum offering price is based on the average of the high and low sales prices on the Nasdaq National Market during the five trading days ending August 27, 1999. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS We will send documents containing the information specified in Part I of Form S-8 to recipients of the options described in this document, as appropriate, as specified by Rule 428(b)(1) under the Securities Act. We are not filing these documents with the Commission. However, these documents, along with the documents incorporated by reference into this registration statement, as described in Item 3 of Part II, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents which we have filed with the Commission are incorporated herein by reference: (a) Our Annual Report on Form 10-KSB for the fiscal year ended August 31, 1998, as amended on Amendment No. 1 to Form 10-KSB/A and on Amendment No. 2 to Form 10-KSB/A. (b) Our Final Prospectus, filed pursuant to Rule 424(b)(4), relating to Registration Statement on Form S-3, Regis. No. 333-78597, as amended. (c) Our Current Report on Form 8-K, dated December 9, 1998, filed December 11, 1998. (d) Our Quarterly Report on Form 10-QSB for the period ended November 30, 1998, as amended on Amendment No. 1 to Form 10-QSB/A. (e) Our Quarterly Report on Form 10-QSB for the period ended February 28, 1999. (f) Our Quarterly Report on Form 10-Q for the period ended May 31, 1999. (g) Pages F-20 to F-127 and F-146 to F-151 of our Definitive Proxy Statement on Schedule 14A, dated April 12, 1999. (h) Our Current Report on Form 8-K, dated April 30, 1999, filed May 3, 1999. (i) Our Current Report on Form 8-K, dated April 30, 1999, filed May 17, 1999, as amended on Amendment No. 1 to Form 8-K/A, filed June 4, 1999. (j) Our Current Report on Form 8-K, dated July 30, 1999, filed August 16, 1999. (k) The description of our common stock in our Registration Statement on Form 10, dated April 27, 1971. In addition, all documents which we file with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the date of this registration statement and prior to the termination of the offering shall be deemed to be incorporated by reference into this registration statement and to be a part of this document from the date we file it with the Commission. You should consider any statement contained in a document incorporated by reference to be modified or superseded, for purposes of the registration statement, to the extent that a statement contained in this document, or in any other subsequently filed document which is incorporated by reference, modifies or supersedes the statement. You should not consider any such modified or superseded statement to constitute a part of the registration statement except as it has been modified or superseded. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. The class of securities to be offered is registered under Section 12 of the Exchange Act. II-1 4 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Akerman, Senterfitt & Eidson, P.A., Miami, Florida, will pass upon the validity of the shares registered by this document. Some of the attorneys employed by Akerman, Senterfitt & Eidson, beneficially own shares of our common stock as of the date hereof. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. (a) Section 145 of the General Corporation Law of Delaware permits indemnification against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with actions, suits or proceedings in which an officer, director, employee or agent is a party by reason of the fact that he is or was such a director, officer, employee or agent, if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. However, in connection with actions by or in the right of the corporation, indemnification is not permitted if such person has been adjudged liable to the corporation unless the court determines that, under all of the circumstances, such person is nonetheless fairly and reasonably entitled to indemnity for such expenses as the court deems proper. Section 145 also permits a corporation to purchase and maintain insurance on behalf of its directors and officers against any liability which may be asserted against, or incurred by, such persons in their capacities as directors or officers of the corporation whether or not that corporation would have the power to indemnify such persons against such liabilities under the provisions of such sections. We have purchased such insurance. Section 145 further provides that the statutory provision is not exclusive of any other right to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or independent directors, or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. (b) Article 8 of our Restated Certificate of Incorporation permits, and Article 7 of our Bylaws provides for, indemnification of directors, officers, employees and agents to the fullest extent permitted by law. (c) We maintain directors and officers liability insurance coverage for our directors and officers and those of our subsidiaries and for certain other executive employees. This coverage insures these persons against certain losses that may be incurred by them in their respective capacities as our directors, officers or employees, with respect to which they may or may not be indemnified under the provisions of our Restated Certificate of Incorporation or Bylaws. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. II-2 5 ITEM 8. EXHIBITS. The exhibits filed as part of this Registration Statement are as follows:
EXHIBIT NUMBER DESCRIPTION ------ ----------- 4.1 -- Restated Certificate of Incorporation of Gerald Stevens (incorporated by reference to Exhibit 3.2 of the Gerald Stevens' Current Report on Form 8-K dated April 30, 1999). 4.2 -- Bylaws of Gerald Stevens (incorporated by reference to Exhibit 3.2 of the Gerald Stevens' Registration Statement on Form S-3 -- File No. 333-78597). 5.1 -- Opinion of Akerman, Senterfitt & Eidson, P.A. 10.1 -- Florafax International, Inc. Management Incentive Stock Plan. 10.2 -- First Amendment to Florafax International, Inc. Management Incentive Stock Plan. 10.3 -- Gerald Stevens, Inc. 1998 Stock Option Plan. 10.4 -- Non-Qualified Option Agreement of Andrew W. Williams (incorporated by reference to Exhibit 10(c) of Gerald Stevens' Annual Report on Form 10-KSB for the year ended August 31, 1997). 10.5 -- Non-Qualified Option Agreement of James H. West (incorporated by reference to Exhibit 10(d) of Gerald Stevens Annual Report on Form 10-KSB for the period ended August 31, 1997). 10.6 -- Non-Qualified Option Agreement of Kelly S. McMakin (incorporated by reference to Exhibit 10(e) of Gerald Stevens Annual Report on Form 10-KSB for the period ended August 31, 1997). 10.7 -- Non-Qualified Option Agreement of James L. Pagano. 10.8 -- Non-Qualified Option Agreement of T. Craig Benson. 10.9 -- Calyx & Corolla, Inc. 1988 Stock Option Plan. 23.1 -- Consent of Arthur Andersen LLP. 23.2 -- Consent of PricewaterhouseCoopers LLP. 23.3 -- Consent of Ernst & Young LLP. 23.4 -- Consent of Adair, Fuller, Witcher & Malcom, P.A. 23.5 -- Consent of Deloitte & Touche, LLP. 23.6 -- Consent of Akerman, Senterfitt & Eidson, P.A. (included in opinion filed as Exhibit 5.1). 24.1 -- Powers of Attorney -- included as part of the signature page hereto.
II-3 6 ITEM 9. UNDERTAKINGS. (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act. (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs (a)(1)(i) and (1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed or furnished to the Securities and Exchange Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act, that are incorporated by reference in this registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-4 7 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant, Gerald Stevens, Inc., certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf the undersigned, thereunto duly authorized, in the city of Fort Lauderdale, state of Florida, on the 30th day of August, 1999. GERALD STEVENS, INC. By: /s/ Gerald R. Geddis ------------------------------------------ Gerald R. Geddis President, Chief Executive Officer and Director KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gerald R. Geddis and Adam D. Phillips, and each of them, as true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the foregoing, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in their capacities on the date indicated.
SIGNATURES TITLE(S) DATE ---------- -------- ---- /s/ Gerald R. Geddis President, Chief Executive August 30, 1999 - ----------------------------- Officer and Director (Principal Gerald R. Geddis Executive Officer) /s/ Albert J. Detz Senior Vice President and Chief August 30, 1999 - ----------------------------- Financial Officer (Principal Albert J. Detz Financial and Principal Accounting Officer) /s/ Steven R. Berrard Director August 30, 1999 - ----------------------------- Steven R. Berrard /s/ Thomas C. Byrne Director August 30, 1999 - ----------------------------- Thomas C. Byrne /s/ Andrew W. Williams Director August 30, 1999 - ----------------------------- Andrew W. Williams
II-5 EX-5.1 2 CONSENT OF AKERMAN SENTERFITT 1 EXHIBIT 5.1 AKERMAN, SENTERFITT & EIDSON, P.A. ATTORNEYS AT LAW SUNTRUST INTERNATIONAL CENTER 26TH FLOOR ONE SOUTHEAST THIRD AVENUE MIAMI, FLORIDA 33131-1714 (305) 374-5600 FACSIMILE (305) 374-5095 August 27, 1999 Gerald Stevens, Inc. 301 East Las Olas Boulevard Suite 300 Ft. Lauderdale, FL 33301 RE: Registration Statement on Form S-8 (the "Registration Statement") Gentlemen: We have acted as counsel to Gerald Stevens, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company with the Securities and Exchange Commission of the Registration Statement under the Securities Act of 1933, as amended (the "Securities Act"). The Registration Statement relates to 2,408,544 shares (the "Shares") of the Company's common stock, par value $.01 per Share (the "Common Stock"). The Shares consist of 500,000 Shares issuable upon the exercise of stock options which the Company may grant under its Management Incentive Stock Plan, 342,500 Shares issuable upon the exercise of non-plan stock options which were granted to former executive officers prior to the Company's business combination with Gerald Stevens Retail, Inc. ("Gerald Stevens Retail"), 1,428,778 Shares issuable upon the exercise of stock options which were granted by Gerald Stevens Retail under its 1998 Stock Option Plan, and which the Company assumed in connection with its business combination with Gerald Stevens Retail and 137,266 shares of common stock issuable upon the exercise of stock options which were granted by Calyx & Corolla, Inc. ("Calyx") under its 1988 Stock Option Plan, and which the Company assumed in connection with its business combination with Calyx. We have examined such corporate records, documents, instruments and certificates of the Company and have received such representations from the officers and directors of the Company and have reviewed such questions of law as we have deemed necessary, relevant or appropriate to enable us to render the opinion expressed herein. In such examination, we have assumed the genuineness of all signatures and authenticity of all documents, instruments, records and certificates submitted to us as originals. 2 Gerald Stevens, Inc. August 27, 1999 Page 2 Based upon such examination and review and upon the representations made to us by the officers and directors of the Company, we are of the opinion that when the Registration Statement becomes effective under the Securities Act and the Shares are issued in accordance with the terms and conditions of the plan or agreement under which the options to acquire such Shares were granted, the Shares will be validly issued, fully paid and non-assessable securities of the Company. The opinion expressed herein is limited to the Federal securities laws of the United States of America and the corporate laws of the State of Delaware, and we express no opinion as to the effect on the matters covered by any other jurisdiction. This firm consents to the filing of this opinion as an exhibit to the Registration Statement and to all references to the firm in the Registration Statement. Very truly yours, AKERMAN, SENTERFITT & EIDSON, P.A. /s/ AKERMAN, SENTERFITT & EIDSON, P.A. EX-10.1 3 MANAGEMENT INCENTIVE STOCK PLAN 1 Exhibit 10.1 FLORAFAX INTERNATIONAL, INC. MANAGEMENT INCENTIVE STOCK PLAN The purpose of this Plan is to benefit the stockholders of the Company by encouraging and rewarding high levels of performance by individuals who are key to the success of the Company by increasing the proprietary interest of such individuals in the Company's growth and success. To accomplish these objectives, the plan authorizes incentive Awards through grants of stock options, stock appreciation rights, restricted stock, and performance shares to those individuals whose judgment, initiative and efforts are responsible for the success of the Company. This Plan shall be effective January 30, 1996, subject to approval by the holders of a majority of the securities of the Company at the Company's 1996 annual meeting to be held January 30, 1996. SECTION 1 DEFINITIONS "AWARD" means any award described in Section 3 of this Plan. "AWARD AGREEMENT" means an agreement entered into between the Company and a Participant, setting forth the terms and conditions applicable to the Award granted to the Participant. "BOARD" means the Board of Directors of Florafax International, Inc. "CODE" means the Internal Revenue Code of 1986, as amended from time to time. "COMMITTEE" means the Compensation Committee of the Board, the requisite number of members of which shall qualify as "disinterested persons" within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934, as amended from time to time (the "1934 Act"). "COMMON STOCK" means the common stock, par value .01 per share, of the Company and shall include both treasury shares and authorized but unissued shares. "COMPANY" means Florafax International, Inc. "FAIR MARKET VALUE" of the Common Stock shall be the mean of the applicable prices selected from the following alternatives, for the date as of which fair market value is to be determined as quoted in The Wall Street Journal (or in such other reliable publication as the Committee, in its discretion, may determine to rely upon): (i) if the Common Stock is listed on the New York Stock Exchange, the highest and lowest sales prices per share of the Common Stock as quoted in the NYSE-Composite Transactions listing for such date, (ii) if the Common Stock is not listed on such 2 exchange, the highest and lowest sales prices per share of Common Stock for such date on (or on any composite index including) the principal United States securities exchange registered under the 1934 Act on which the Common Stock is listed, or (iii) if the Common Stock is not listed on any such exchange, the highest and lowest sales prices per share of the Common Stock for such date on the National Associates of Securities Dealers Automated Quotations Systems or any successor system then in use ("NASDAQ"). If there are no such sales price quotations for the date as of which fair market value is to be determined but there are such sales price quotations within a reasonable period both before and after such date, then fair market value shall be determined by taking a weighted average of the means between the highest and lowest sales prices per share of the Common Stock as so quoted on the nearest date before, and the nearest date after, the date as of which fair market value is to be determined. The average should be weighted inversely by the respective numbers of trading days between the selling dates and the date as of which fair market value is to be determined. If the are no such sales price quotations on, or within a reasonable period both before and after, the date as of which fair market value is to be determined, then fair market value of the Common Stock shall be the mean between the bona fide bid and asked prices per share of Common Stock as so quoted for such date on NASDAQ, or if none, the weighted average of the means between such bona fide bid and asked prices on the nearest trading date before, and the nearest trading date after, the date as of which fair market value is to be determined, if both such dates are within a reasonable period. If the fair market value of the Common Stock cannot be determined on the basis set forth in this definition for the date as of which fair market value is to be determined, the Committee shall in good faith determine the fair market value of the Common Stock on such date. Fair market value shall be determined without regard to any restriction, other than a restriction which, by its terms, will never lapse. "PARTICIPANT" means an individual who has been granted an Award pursuant to this Plan. "PLAN" means this Management Incentive Stock Plan, as set forth herein and as it may be amended from time to time. SECTION 2 ELIGIBILITY Participants under this Plan shall consist of employees of the Company who are from time to time selected by the Committee to receive Awards. SECTION 3 MARKET-BASED AWARDS Market-based Awards are Awards that will be valued, directly or indirectly, by Common Stock of the Company or by reference to Common Stock. The following types of market-based 2 3 Awards may be granted under this Plan, singly or in combination or in tandem with other Awards, as the Committee may determine. (A) NONQUALIFIED STOCK OPTIONS. A nonqualified stock option is a right to purchase a specified number of shares of Common Stock at a fixed option price equal to the Fair Market Value of the Common Stock on the date the Award is granted, during a specified time not to exceed 10 years as the Committee may determine: (i) in U.S. dollars by personal check, bank draft or by money order payable to the order of the Company or by money transfer or direct account debit; or (ii) if the Committee so determines, through the delivery or attestation to the ownership of shares of Common Stock of the Company with a Fair Market Value equal to all or a portion of the option price for the total number of options being exercised; or (iii) by a combination of the methods described in Sections 4(a)(i) and (4)(a)(ii) above, if Section 4(a)(ii) applies. (B) INCENTIVE STOCK OPTIONS. An incentive stock option is an Award in the form of a stock option that shall comply with the requirement of Code Section 422 or any successor section as it may be amended from time to time. The aggregate Fair Market Value (determined at the time of grant of the Award) of the shares with respect to which incentive stock options are exercisable for the first time by an optionee during a calendar year shall not exceed $100,000. The Committee may provide that the option price under an incentive stock option may be paid by one or more of the methods described in Section 4(a)(i), (ii) and (iii) above. (C) STOCK APPRECIATION RIGHTS. A stock appreciation right is a right to receive, upon surrender of the right (or of both the option and the right in the case of a tandem right), or of a portion of either, but without payment, an amount (payable in Common Stock, in cash, or a combination thereof) not in excess of Fair Market Value on the exercise date of the number of shares of Common Stock for which the stock appreciation right is exercised, over the exercise price of such right, which price shall equal the Fair Market Value of such shares on the date the right was granted (or, in the case of an option with a tandem right, the option price that the optionee would otherwise have been required to pay for such shares). (D) RESTRICTED STOCK. Restricted stock is Common Stock of the Company that is subject to restrictions on transfer and/or such other restrictions on incidents of ownership as the Committee may determine, for a required period of continued employment as set by the Committee at the time of Award. Restricted stock Awards shall require no payment of consideration by the Participant, either on the date of grant or the date the restriction(s) are removed, unless specifically required by the terms of the Award Agreement. 3 4 (E) PERFORMANCE SHARES. A performance share is Common Stock of the Company, or a unit valued by reference to Common Stock, that is subject to restrictions on transfer and/or such other restrictions on incidents of ownership as the Committee may determine. The elimination of restrictions on a performance share and the number of shares ultimately earned by a Participant shall be contingent upon achievement of one or more performance targets specified by the Committee. Performance shares may be paid in Common Stock, cash or a combination thereof. The Committee shall establish minimum performance targets with respect to each performance share. Performance targets may be based on financial criteria, such as the Fair Market Value of Common Stock or other objective measures of financial performance of the Company, or may be based on the performance of a division or operating unit of the Company or on individual Participant performance. SECTION 4 LIMITATION OF NUMBER OF SHARES Subject to the adjustment provisions of Section 8 or 9 hereof, the aggregate number of shares that may be subject to Awards under this Plan shall not exceed 500,000 shares of Common Stock. SECTION 5 AWARD AGREEMENTS Each Award under this Plan shall be evidenced by an Award Agreement setting forth the terms and conditions applicable to the Award. Award Agreements shall include: (A) NON-ASSIGNABILITY. A provision that no Award shall be assignable or transferable except by will or by the laws of descent and distribution and that during the lifetime of a Participant, the Award shall be exercised only by such Participant. (B) TERMINATION OF EMPLOYMENT. Provision governing the disposition of an Award in the event of the retirement, disability, death or other termination of a Participant's employment or relationship to the Company. (C) RIGHTS AS A SHAREHOLDER. A provision that a Participant shall have no rights as a shareholder with respect to any shares covered by an Award until the date the Participant or his nominee becomes the holder of record. Except as provided in Section 8 or 9 hereof, no adjustment shall be made for dividends or other rights for which the record date is prior to such date, unless the Award Agreement specifically requires such adjustment. 4 5 (D) WITHHOLDING. A provision requiring the withholding of all taxes required by law from all amounts paid in cash. In the case of payments of Awards in shares of Common Stock, the Participant may be required to pay the amount of any taxes required to be withheld prior to receipt of such shares, or alternatively, a number of shares the Fair Market Value of which equals the amount required to be withheld may be deducted from the payment. (E) MISCELLANEOUS. Such other terms and conditions, including the criteria for determining vesting of Awards and the amount or value of Awards, as are necessary and appropriate to effect an Award Agreement with the Participant with respect to the particular Award granted. SECTION 6 AMENDMENT AND TERMINATION The Committee may at any time amend, suspend or discontinue the Plan or alter or amend any or all Award Agreements under the Plan to the extent permitted by law. However, no such action by the Committee may, without approval of the Board and by the holders of a majority of the securities of the Company if such approval is required by Rule 16b-3 of the 1934 Act, as amended from time to time, alter the provisions of the Plan so as to: (a) increase the maximum number of shares of Common Stock that may be subject to Awards granted under the Plan except pursuant to Section 8 or 9 hereof; (b) change the class of individuals eligible to receive Awards under the Plan; (c) permit any member of the Committee to be eligible to receive or hold an Award under the Plan; or (d) effect any other amendment to the Plan that would require the approval of the holders of a majority of the securities of the Company in accordance with Rule 16b-3 under the 1934 Act, as amended from time to time. SECTION 7 ADMINISTRATION (A) GENERAL. The Plan and all Awards granted pursuant thereto shall be administered by the Committee in accordance with all applicable requirements of Rule 16b-3 of the 1934 Act. The Committee shall periodically make determinations with respect to individuals who shall participate in the Plan and receive Awards pursuant thereto. All 5 6 questions of interpretation and administration by the Committee, and its determination shall be final and conclusive upon all parties in interest. (B) DELEGATION OF AUTHORITY. The Committee may delegate its authority, as described in subsection (A) above, to persons other than its members to carry out such responsibilities including the authority to grant Awards, except that: (i) the authority to grant or administer Awards with respect to persons who are subject to Section 16(a) or (b) of the 1934 Act shall not be delegated by the Committee; and (ii) any such delegation shall satisfy any other applicable requirements from time to time. Any person to whom such authority is granted shall continue to be eligible to receive Awards under the Plan, provided that such Awards are granted directly by the Committee without delegation. SECTION 8 ADJUSTMENT PROVISIONS If the Company shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend or other increase or reduction of the number of shares of the Common Stock outstanding without receiving consideration therefor in money, services or property, the number of shares of Common Stock then remaining subject to this Plan, and the maximum number of shares that may be issued to anyone pursuant to this Plan, including those that are then covered by outstanding Awards, shall (a) in the event of an increase in the number of outstanding shares, be proportionately increased and the price for each share then covered by an outstanding Award shall be proportionately reduced, and (b) in the event of a reduction in the number of outstanding shares, be proportionately reduced and the price for each share then covered by an outstanding Award, shall be proportionately increased. In addition, in such circumstances, the Committee shall make such adjustments to the performance targets for performance share Awards and in the securities to which such Awards correspond as the Committee deems appropriate. Subject to any required action by the stockholders, if the Company shall be a party to any merger or consolidation, a Participant holding an outstanding Award valued directly or indirectly by Common Stock shall be entitled to the same rights that a holder of the same number of shares of Common Stock that are subject to the Award would be entitled to receive pursuant to such merger or consolidation. SECTION 9 CHANGES OF CONTROL In the event of a change of control of the Company, or if the Board reaches agreement to merge or consolidate with another corporation and the Company is not the surviving corporation, or if all, or substantially all of the assets of the Company are sold, or if the Company shall make a 6 7 distribution to stockholders that is non-taxable under the Code, of if the Company shall dissolve or liquidate (a "Restructuring Event"), then the Committee may, in its discretion, recommend that the Board take any of the following actions as a result of, or in anticipation of, any such Restructuring Event to assure fair and equitable treatment of Plan Participants: (a) accelerate time periods for purposes of vesting in, or realizing gain from, any outstanding Award made pursuant to this Plan; (b) offer to purchase, and cause the purchase of, any outstanding Award made pursuant to this Plan from the holder for its equivalent cash value, as determined by the Committee, as of the date of the Restructuring Event; and (c) make adjustments or modifications to outstanding Awards as the Committee deems appropriate to maintain and protect the rights and interests of Plan Participants following such Restructuring Event. Any such action by the Board shall be conclusive and binding on the Company and all Plan Participants. Notwithstanding the foregoing, the Committee shall retain full authority to take, in its discretion, any of the foregoing actions with respect to Awards held by Participants who are directors, and the Board shall have no authority to act in any such matter. For purposes of this Section, "changes of control" shall mean: (i) the acquisition buy any person of voting shares of the Company, if, as a result of the acquisition, such person, or any "group" as defined in Section 13(d)(3) of the 1934 Act of which such person is a part, owns at least 20% of the outstanding voting shares of the Company; or (ii) a change in the composition of the Board such that within any period of two consecutive years, persons who (a) at the beginning of such period constitute the Board or (b) become directors after the beginning of such period and whose election, or nomination for election by the stockholders of the Company, was approved by a vote of at least two-thirds of the persons who were either directors at the beginning of such period or whose subsequent election or nomination was previously approved in accordance with this clause (b), cease to constitute at least a majority of the Board. SECTION 10 UNFUNDED PLAN The plan shall be unfunded. Neither the Company nor the Board shall be required to segregate any assets that may at any time be represented by Awards made pursuant to this Plan. Neither the Company nor the Board shall be deemed to be a trustee of any amounts to be paid under the Plan. Any liability of the Company to any Participant with respect to an Award shall be based solely upon contractual obligations created by the plan and the Award Agreement. No such obligation shall be deemed to be secured by any pledge or any encumbrance on any property of the Company. 7 8 SECTION 11 RIGHT OF DISCHARGE RESERVED Nothing in this Plan or in any Award shall confer upon any employee or other individual the right to continue in the employment or service of the Company or affect any right the Company may have to terminate the employment or service of any such employee or other individual at any time for any reason. SECTION 12 NATURE OF PAYMENTS All Awards made pursuant to this Plan are in consideration of services performed for the Company. Any gain realized pursuant to such Awards constitute a special incentive payment to the Participant and shall not be taken into account as compensation for purposes of any of the employee benefits plans of the Company. SECTION 13 GOVERNING LAW This Plan shall be governed by, construed and enforced in accordance with the integral laws of the State of Delaware, and, where applicable, the laws of the United States. 8 EX-10.2 4 1ST AMEND TO MANAGEMENT INCENTIVE STOCK PLAN 1 EXHIBIT 10.2 FIRST AMENDMENT TO MANAGEMENT INCENTIVE STOCK PLAN WHEREAS, of the 500,000 shares currently subject to awards under that certain Management Incentive Stock Plan ("Incentive Plan") of Florafax International, Inc. ("Company") dated effective January 30, 1996, as of November 28, 1997, there were 1,250 shares of common stock outstanding and 498,750 shares reserved for issuance; and WHEREAS, the Company has proposed to increase the number of shares subject to awards under the Incentive Plan to continue encouraging and rewarding high levels of performance by individuals who are key to the success of the Company by increasing the proprietary interest of such individuals in the Company's growth and success. NOW, THEREFORE, in accordance with Rule 16b-3 of the Securities Exchange Act of 1934, as amended (the "Act"), and Section 6 of the Incentive Plan, the undersigned Compensation Committee of the Board of Directors of the Company ("Committee") adopts the following amendment to the Incentive Plan: FIRST: Section 4 is amended to read in its entirety as follows: "Section 4 LIMITATION OF NUMBER OF SHARES Subject to the adjustment provisions of Section 8 or 9 hereof, the aggregate number of shares that may be subject to Awards under this Plan shall not exceed 1,000,000 shares of Common Stock." In all other respects the Incentive Plan remains in full force and effect. We, the undersigned members of the Committee do hereby certify that this First Amendment to Management Incentive Stock Plan ("Amendment") was duly adopted in accordance with the Act and Incentive Plan. IN WITNESS WHEREOF, we have signed this Amendment on this 5th day of February, 1998. ATTEST: /s/ S. Oden Howell -------------------------------------- S. Oden Howell, Committee member /s/ Kelly S. McMakin /s/ T. Craig Benson - ------------------------------ -------------------------------------- Kelly S. McMakin, Secretary T. Craig Benson, Committee member /s/ Kenneth G. Puttick -------------------------------------- Kenneth G. Puttick, Committee member /s/ William E. Mercer -------------------------------------- William E. Mercer, Committee member EX-10.3 5 1998 STOCK OPTION PLAN 1 Exhibit 10.3 GERALD STEVENS, INC. 1998 STOCK OPTION PLAN Gerald Stevens, Inc. (the "Company") hereby adopts this Gerald Stevens, Inc. 1998 Stock Option Plan (the "Plan"), the terms of which shall be as follows: 1. PURPOSE The Plan is intended to advance the interests of the Company by providing eligible individuals (as designated pursuant to Section 4 below) with an opportunity to acquire or increase a proprietary interest in the Company, which thereby will create a stronger incentive to expend maximum effort for the growth and success of the Company and its subsidiaries, and will encourage such eligible individuals to remain in the employ of the Company or one or more of its subsidiaries. Each stock option granted under the Plan (an "Option") shall be an option that is not intended to constitute an "incentive stock option" ("Incentive Stock Option") within the meaning of Section 422 of the Internal Revenue Code of 1986, or the corresponding provision of any subsequently-enacted tax statute, as amended from time to time (the "Code") unless such Option is granted to an employee of the Company or a "subsidiary corporation" (a "Subsidiary") thereof within the meaning of Section 424(f) of the Code and is specifically designated at the time of grant as being an Incentive Stock Option. Any Option so designated shall constitute an Incentive Stock Option only to the extent that it does not exceed the limitations set forth in Section 7 below. 2. ADMINISTRATION (a) Board. The Plan shall be administered by the Board of Directors of the Company (the "Board"), which shall have the full power and authority to take all actions, and to make all determinations required or provided for under the Plan or any Option granted or Option Agreement (as defined in Section 8 below) entered into under the Plan and all such other actions and determinations not inconsistent with the specific terms and provisions of the Plan deemed by the Board to be necessary or appropriate to the administration of the Plan or any Option granted or Option Agreement entered into hereunder. All such actions and determinations shall be by the affirmative vote of a majority of the members of the Board present at a meeting at which any issue relating to the Plan is properly raised for consideration or without a meeting by written consent of the Board executed in accordance with the Company's Certificate of Incorporation and Bylaws, and with applicable law. The interpretation and construction by the Board of any provision of the Plan or of any Option granted or Option Agreement entered into hereunder shall be final and conclusive. (b) Committee. The Board may from time to time appoint a Stock Option Committee (the "Committee") consisting of not less than two members of the Board, none of whom shall be an officer or other salaried employee of the Company or any Subsidiary, and each of whom shall qualify in all respects as a "non-employee director" as defined in Rule 16b-3 of the Securities and Exchange Commission under the Securities Exchange Act of 1934 (the "Exchange Act") and an "outside director" for purposes of Section 162(m) of the Code. The Board, in its sole discretion, may provide that the role of the Committee shall be limited to making recommendations to the Board concerning any determinations to be made and actions to be taken by the Board pursuant to 2 or with respect to the Plan, or the Board may delegate to the Committee such powers and authorities related to the administration of the Plan, as set forth in Section 2(a) above, as the Board shall determine, consistent with the Certificate of Incorporation and Bylaws of the Company and applicable law. The Board may remove members, add members, and fill vacancies on the Committee from time to time, all in accordance with the Company's Certificate of Incorporation and Bylaws, and with applicable law. The majority vote of the Committee, or acts reduced to or approved in writing by a majority of the members of the Committee, shall be the valid acts of the Committee. (c) No Liability. No member of the Board or of the Committee shall be liable for any action or determination made in good faith with respect to the Plan or any Option granted or Option Agreement entered into hereunder. (d) Delegation to the Committee. In the event that the Plan or any Option granted or Option Agreement entered into hereunder provides for any action to be taken by or determination to be made by the Board, such action may be taken by or such determination may be made by the Committee if the power and authority to do so has been delegated to the Committee by the Board as provided for in Section 2(b) above. Unless otherwise expressly determined by the Board, any such action or determination by the Committee shall be final and conclusive. 3. STOCK The stock that may be issued pursuant to Options granted under the Plan shall be shares of common stock, $.01 par value, of the Company (the "Stock"), which shares may be treasury shares or authorized but unissued shares. The number of shares of Stock that may be issued pursuant to Options granted under the Plan shall not exceed in the aggregate 4,000,000 shares, subject to adjustment as provided in Section 16 below; provided, however, the number of shares of Stock issuable pursuant to Options then outstanding (whether vested or not) shall not exceed 10 percent of the outstanding shares of Stock. If any Option expires, terminates, or is terminated or canceled for any reason prior to exercise in full, the shares of Stock that were subject to the unexercised portion of such Option shall be available for future Options granted under the Plan. 4. ELIGIBILITY Options may be granted under the Plan to any employee, consultant or non-employee director of the Company, a Subsidiary or any other entity in which the Company has a significant equity or other interest as determined by the Committee (any other entity in which the Company has a significant equity or other interest as determined by the Committee referred to as an "Affiliate"). An individual may hold more than one Option, subject to such restrictions as are provided herein. 5. EFFECTIVE DATE AND TERM OF THE PLAN (a) Effective Date. The Plan shall be effective as of May 20, 1998 (b) Term. The Plan shall terminate on the date 10 years from the effective date. - 2 - 3 6. GRANT OF OPTIONS Subject to the terms and conditions of the Plan, the Board may, at any time and from time to time, prior to the date of termination of the Plan, grant to such eligible individuals as the Board may determine ("Optionees"), Options to purchase such number of shares of the Stock on such terms and conditions as the Board may determine. The date on which the Board approves the grant of an Option (or such later date as is specified by the Board) shall be considered the date on which such Option is granted. 7. LIMITATION ON INCENTIVE STOCK OPTIONS An Option intended to constitute an Incentive Stock Option (and so designated at the time of grant) shall qualify as an Incentive Stock Option only to the extent that the aggregate fair market value (determined at the time the Option is granted) of the stock with respect to which Incentive Stock Options are exercisable for the first time by the Optionee during any calendar year (under the Plan and all other plans of the Optionee's employer corporation and its parent and subsidiary corporations within the meaning of Section 422(d) of the Code) does not exceed $100,000. This limitation shall be applied by taking Options into account in the order in which they were granted. 8. OPTION AGREEMENTS All Options granted pursuant to the Plan shall be evidenced by written notification from the Company ("Option Agreements"), to be executed by the Company and by the Optionee, in such form or forms as the Board shall from time to time determine. Option Agreements covering Options granted from time to time or at the same time need not contain similar provisions; provided, however, that all such Option Agreements shall comply with all terms of the Plan. 9. OPTION PRICE The purchase price of each share of the Stock subject to an Option (the "Option Price") shall be fixed by the Board and stated in each Option Agreement, and shall be not less than 100 percent of the fair market value of a share of the Stock on the date the Option is granted (as determined in good faith by the Board); provided, however, that in the event the Optionee would otherwise be ineligible to receive an Incentive Stock Option by reason of the provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock ownership of more than 10 percent), the Option Price of an Option that is intended to be an Incentive Stock Option shall be not less than 110 percent of the fair market value of a share of Stock at the time such Option is granted. The fair market value of a share of Stock on any date of reference shall mean the "Closing Price" (as defined below) of the Stock on the business day immediately preceding such date, unless the Board or the Committee in its sole discretion shall determine otherwise. For the purpose of determining fair market value, the "Closing Price" of the Stock on any business day shall be (i) if the Stock is listed or admitted for trading on any United States national securities exchange, or if actual transactions are otherwise reported on a consolidated transaction reporting system, the last reported sale price of Stock on such exchange or reporting system, as reported in any newspaper of general circulation, (ii) if the Stock is quoted - 3 - 4 on the National Association of Securities Dealers Automated Quotations System ("NASDAQ"), or any similar system of automated dissemination of quotations of securities prices in common use, the last reported sale price of Stock on such system or, if sales prices are not reported, the mean between the closing high bid and low asked quotations for such day of Stock on such system, as reported in any newspaper of general circulation or (iii) if neither clause (i) or (ii) is applicable, the mean between the high bid and low asked quotations for the Stock as reported by the National Quotation Bureau, Incorporated if at least two securities dealers have inserted both bid and asked quotations for Stock on at least five of the ten preceding days. If neither (i), (ii) or (iii) above is applicable, then fair market value shall be determined in good faith by the Committee or the Board, and the Committee or the Board may determine such fair market value as of any date that is not more than one year prior to the date for which such determination is being made. 10. TERM AND EXERCISE OF OPTIONS (a) Option Period. Each Option granted under the Plan shall terminate and all rights to purchase shares thereunder shall cease upon the expiration of ten years from the date such Option is granted, or on such date prior thereto as may be fixed by the Board and stated in the Option Agreement relating to such Option; provided, however, that in the event the Optionee would otherwise be ineligible to receive an Incentive Stock Option by reason of the provisions of Sections 422(b)(6) and 424(d) of the Code (relating to stock ownership of more than 10 percent), an Option granted to such Optionee that is intended to be an Incentive Stock Option shall in no event be exercisable after the expiration of five years from the date it is granted. (b) Vesting and Limitations on Exercise. Each Option shall become exercisable with respect to 25% of the total number of shares subject to the Option on the date that is 12 months after the date of its grant (the "Vesting Date") and with respect to an additional 25% of the number of such shares on each of the next three succeeding anniversaries of the Vesting Date; provided, however, that the Board may in its discretion provide that an Option may be exercised, in whole or in part, at any time and from time to time, over a period commencing on or after the date of grant and ending upon the expiration or termination of the Option, as the Board shall determine and set forth in the Option Agreement relating to such Option. Without limiting the foregoing, the Board, subject to the terms and conditions of the Plan, may in its sole discretion provide that an Option may be exercised immediately upon grant or that it may not be exercised in whole or in part for any period or periods of time during which such Option is outstanding; provided, however, that any vesting requirement or other such limitation on the exercise of an Option may be rescinded, modified or waived by the Board, in its sole discretion, at any time and from time to time after the date of grant of such Option, so as to accelerate the time at which the Option may be exercised. (c) Method of Exercise. An Option that is exercisable hereunder may be exercised by delivery to the Company on any business day, at its principal office, addressed to the attention of the Stock Option Administrator, of written notice of exercise, which notice shall specify the number of shares with respect to which the Option is being exercised, and shall be accompanied by payment in full of the Option Price of the shares for which the Option is being exercised, except as provided below. The minimum number of shares of Stock with respect to which an Option may be exercised, in whole or in part, at any time shall be the lesser of 100 shares or the maximum - 4 - 5 number of shares available for purchase under the Option at the time of exercise. Payment of the Option Price for the shares of Stock purchased pursuant to the exercise of an Option shall be made (i) in cash or in cash equivalents; or (ii) by delivering a written direction to the Company that the Option be exercised pursuant to a "cashless" exercise/sale procedure (pursuant to which funds to pay for exercise of the Option are delivered to the Company by a broker upon receipt of stock certificates from the Company) or a cashless exercise/loan procedure (pursuant to which the Optionees would obtain a margin loan from a broker to fund the exercise) through a licensed broker acceptable to the Company whereby the stock certificate or certificates for the shares of Stock for which the Option is exercised will be delivered to such broker as the agent for the individual exercising the Option and the broker will deliver to the Company cash (or cash equivalents acceptable to the Company) equal to the Option Price for the shares of Stock purchased pursuant to the exercise of the Option plus the amount (if any) of federal and other taxes that the Company, may, in its judgment, be required to withhold with respect to the exercise of the Option. Payment in full of the Option Price need not accompany the written notice of exercise if the Option is exercised pursuant to the cashless exercise/sale procedure described above. An attempt to exercise any Option granted hereunder other than as set forth above shall be invalid and of no force and effect. Promptly after the exercise of an Option, the individual exercising the Option shall be entitled to the issuance of a Stock certificate or certificates evidencing his ownership of such shares. A separate Stock certificate or certificates shall be issued for any shares purchased pursuant to the exercise of an Option that is intended to be an Incentive Stock Option, which certificate or certificates shall not include any shares that were purchased pursuant to the exercise of an Option that is not an Incentive Stock Option. An individual holding or exercising an Option shall have none of the rights of a shareholder until the shares of Stock covered thereby are fully paid and issued to him and, except as provided in Section 16 below, no adjustment shall be made for dividends or other rights for which the record date is prior to the date of such issuance. (d) Restrictions on Transfer of Stock. If an Option is exercised before the date that is six months from the later of (i) the date of grant of the Option or (ii) the date of shareholder approval of the Plan and the sale of stock acquired pursuant to such exercise would subject the individual exercising the Option to liability under Section 16 of the Exchange Act, then such certificate or certificates shall bear a legend restricting the transfer of the Stock covered thereby until the expiration of six months from the later of the date specified in clause (i) above or the date specified in clause (ii) above. 11. TRANSFERABILITY OF OPTIONS No Option shall be assignable or transferable by the Optionee to whom it is granted, other than by will or the laws of descent and distribution, except that, upon approval by the Board, the Optionee may transfer an Option that is not intended to constitute an Incentive Stock Option (a) pursuant to a qualified domestic relations order as defined for purposes of the Employee Retirement Income Security Act of 1974, as amended, or (b) by gift: to a member of the "Family" (as defined below) of the Optionee, to or for the benefit of one or more organizations qualifying under Code 501(c)(3) and 170(c)(2) (a "Charitable Organization") or to a trust for the exclusive benefit of the Optionee, one or more members of the Optionee's Family, one or more Charitable Organizations, or any combination of the foregoing, provided that any such transferee shall enter into a written - 5 - 6 agreement to be bound by the terms of this Agreement. For this purpose, "Family" shall mean the ancestors, spouse, siblings, spouses of siblings, lineal descendants and spouses of lineal descendants of the Optionee. During the lifetime of an Optionee to whom an Incentive Stock Option is granted, only such Optionee (or, in the event of legal incapacity or incompetence, the Optionee's guardian or legal representative) may exercise the Incentive Stock Option. 12. TERMINATION OF EMPLOYMENT OR SERVICE Upon the termination of the employment or other service of an Optionee with the Company, any Subsidiary or Affiliate, any Option that was not vested and exercisable on the date of the termination of such Optionee's employment shall expire and be forfeited as of such date, and any Option that was vested and exercisable on the date of the termination of such Optionee's employment shall expire and be forfeited as of such date, except that: (i) if any Optionee dies or has a "permanent and total disability" (within the meaning of Section 22(e)(3) of the Code), such Optionee's Option shall expire 12 months after the date of his death or "permanent and total disability", but in no event after the termination of the Option pursuant to Section 10(a) above, and (ii) if any Optionee is terminated other than for "cause", such Optionee's Option shall expire 90 days after the date of his termination, but in no event after the termination of the Option pursuant to Section 10(a) above. Notwithstanding the foregoing provisions of this Section 12, the Board may provide, in its discretion, that following the termination of employment or service of an Optionee with the Company, or any Subsidiary or Affiliate, an Optionee may exercise an Option, in whole or in part, at any time subsequent to such termination of employment or service and prior to termination of the Option pursuant to Section 10(a) above, either subject to or without regard to any vesting or other limitation on exercise imposed pursuant to Section 10(b) above. Whether a leave of absence or leave on military or government service shall constitute a termination of employment of service with the Company, or any Subsidiary or Affiliate, shall not be deemed to occur if the Optionee is immediately thereafter employed by or otherwise providing services to the Company, or any Subsidiary or Affiliate. Whether a termination of employment or service is to be considered by reason of "permanent and total disability" for purposes of this Plan shall be determined by the Board, which determination shall be final and conclusive. For the purposes of this Plan, "cause" shall mean (i) an Optionee's theft or embezzlement, or attempted theft or embezzlement, of money or property of the Company, an Optionee's perpetration or attempted perpetration of fraud, or an Optionee's participation in a fraud or attempted fraud, on the Company or an Optionee's unauthorized appropriation of, or an Optionee's attempt to misappropriate, any tangible or intangible asset or property of the Company, (ii) any act or acts of disloyalty, misconduct or moral turpitude by an Optionee materially injurious to the interest, property, operations, business or reputation of the Company or an Optionee's conviction of a crime the commission of which results in injury to the Company or (iii) an Optionees' failure or inability (other than by reason of "permanent and total disability") to carry out effectively his duties and obligations to the Company or to participate effectively and actively in the management of the Company, as determined in the reasonable judgment of the Board and after an Optionee has been given notice by the Company and a reasonable opportunity to cure such failure or inability. - 6 - 7 13. USE OF PROCEEDS The proceeds received by the Company from the sale of Stock pursuant to Options granted. 14. REQUIREMENTS OF LAW (a) Violations of Law. The Company shall not be required to sell or issue any shares of Stock under any Option if the sale or issuance of such shares would constitute a violation by the individual exercising the Option or the Company of any provisions of any law or regulation of any governmental authority, including without limitation any federal or state securities laws or regulations. Any determination in this connection by the Board shall be final, binding, and conclusive. The Company shall not be obligated to take any affirmative action in order to cause the exercise of an Option or the issuance of shares pursuant thereto to comply with any law or regulation of any governmental authority. As to any jurisdiction that expressly imposes the requirement that an Option shall not be exercisable unless and until the shares of Stock covered by such Option are registered or are subject to an available exemption from registration, the exercise of such Option (under circumstances in which the laws of such jurisdiction apply) shall be deemed conditioned upon the effectiveness of such registration or the availability of such an exemption. (b) Compliance with Rule 16b-3. The intent of this Plan is to qualify for the exemption provided by Rule 16b-3 under the Exchange Act. To the extent any provision of the Plan does not comply with the requirements of Rule 16b-3, it shall be deemed inoperative to the extent permitted by law and deemed advisable by the Board and shall not affect the validity of the Plan. In the event Rule 16b-3 is revised or replaced, the Board, or the Committee acting on behalf of the Board, may exercise discretion to modify this Plan in any respect necessary to satisfy the requirements of the revised exemption or its replacement. 15. AMENDMENT AND TERMINATION OF THE PLAN The Board may, at any time and from time to time, amend, suspend or terminate the Plan as to any shares of Stock as to which Options have not been granted; provided, however, that no amendment by the Board shall, without approval by a majority of the shares present and entitled to vote at a duly held meeting of the shareholders of the Company at which a quorum representing a majority of all outstanding voting stock is, either in person or by proxy, present and voting on the amendment, or by written consent in accordance with applicable state law and the Certificate of Incorporation and Bylaws of the Company, change the requirements as to eligibility to receive Options that are intended to qualify as Incentive Stock Options, increase the maximum number of shares of Stock in the aggregate that may be sold pursuant to Options that are intended to qualify as Incentive Stock Options granted under the Plan (except as permitted under Section 16 hereof) or modify the Plan so that Options granted under the Plan could not satisfy the applicable requirements of Code 162(m). Except as permitted under Section 16 hereof, no amendment, suspension or termination of the Plan shall, without the consent of the holder of the Option, alter or impair rights or obligations under any Option theretofore granted under the Plan. - 7 - 8 16. EFFECT OF CHANGES IN CAPITALIZATION (a) Recapitalization. If the outstanding shares of Stock are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company by reason of any recapitalization, reclassification, stock split, reverse split, combination of shares, exchange of shares, stock dividend or other distribution payable in capital stock, or other increase or decrease in such shares effected without receipt of consideration by the Company, occurring after the effective date of the Plan, the number and kinds of shares for the purchase of which Options may be granted under the Plan shall be adjusted proportionately and accordingly by the Company. In addition, the number and kind of shares for which Options are outstanding shall be adjusted proportionately and accordingly so that the proportionate interest of the holder of the Option immediately following such event shall, to the extent practicable, be the same as immediately prior to such event. Any such adjustment in outstanding Options shall not change the aggregate Option Price payable with respect to shares subject to the unexercised portion of the Option outstanding but shall include a corresponding proportionate adjustment in the Option Price per share. (b) Reorganization in Which the Company Is the Surviving Corporation. Subject to Subsection (c) hereof, if the Company shall be the surviving corporation in any reorganization, merger, or consolidation of the Company with one or more other corporations, any Option theretofore granted pursuant to the Plan shall pertain to and apply to the securities to which a holder of the number of shares of Stock subject to such Option would have been entitled immediately following such reorganization, merger, or consolidation, with a corresponding proportionate adjustment of the Option Price per share so that the aggregate Option Price thereafter shall be the same as the aggregate Option Price of the shares remaining subject to the Option immediately prior to such reorganization, merger, or consolidation. (c) Dissolution or Liquidation; Reorganization in Which the Company Is Not the Surviving Corporation or Sale of Assets or Stock. Upon the dissolution or liquidation of the Company the Plan and all Options outstanding hereunder shall terminate. In the event of any termination of the Plan under this Section 16(c), each individual holding an Option shall have the right, immediately prior to the occurrence of such termination and during such reasonable period as the Board in its sole discretion shall determine and designate, to exercise such Option in whole or in part, whether or not such Option was otherwise exercisable at the time such termination occurs and without regard to any vesting or other limitation on exercise imposed pursuant to Section 10(b) above. In connection with a merger, consolidation, reorganization or other business combination of the Company with one or more other entities in which the Company is not the surviving entity, or upon a sale of all or substantially all of the assets of the Company to another entity, or upon any transaction (including, without limitation, a merger or reorganization in which the Company is the surviving corporation) that results in any person or entity (or persons or entities acting as a group or otherwise in concert) owning more than 50 percent of the combined voting power of all classes of stock of the Company, the Company and the acquiring or surviving entity shall provide for the continuation of the Plan and the assumption of the Options theretofore granted, or for the substitution for such Options of new options covering the stock of a successor entity, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kinds of shares and exercise prices. The Board shall send prior written notice of the occurrence of an event described in this Section 16(c) - 8 - 9 to all individuals who hold Options not later than the time at which the Company gives notice to its shareholders that such event is proposed. (d) Adjustments. Adjustments under this Section 16 related to stock or securities of the Company shall be made by the Board, whose determination in that respect shall be final, binding, and conclusive. No fractional shares of Stock or units of other securities shall be issued pursuant to any such adjustment, and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward to the nearest whole share or unit. (e) No Limitations on Corporation. The grant of an Option pursuant to the Plan shall not affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations or changes of its capital or business structure or to merge, consolidate, dissolve or liquidate, or to sell or transfer all or any part of its business or assets. 17. DISCLAIMER OF RIGHTS No provision in the Plan or in any Option granted or Option Agreement entered into pursuant to the Plan shall be construed to confer upon any individual the right to remain in the employ or service of the Company, any Subsidiary or Affiliate, or to interfere in any way with the right and authority of the Company, any Subsidiary or Affiliate either to increase or decrease the compensation of any individual at any time, or to terminate any employment or other relationship between any individual and the Company, any Subsidiary or Affiliate. 18. NONEXCLUSIVITY OF THE PLAN Neither the adoption of the Plan nor the submission of the Plan to the shareholders of the Company for approval shall be construed as creating any limitations upon the right and authority of the Board to adopt such other incentive compensation arrangements (which arrangements may be applicable either generally to a class or classes of individuals or specifically to a particular individual or individuals) as the Board in its discretion determines desirable, including, without limitation, the granting of stock options or stock appreciation rights otherwise than under the Plan. * * * - 9 - EX-10.7 6 NON-QUALIFIED STOCK OPTION AGREEMENT 1 Exhibit 10.7 NON-QUALIFIED STOCK OPTION AGREEMENT THIS NON-QUALIFIED STOCK OPTION AGREEMENT ("Agreement") is made and entered into effective as of the 25th day of June, 1997, by and between FLORAFAX INTERNATIONAL, INC., a Delaware corporation (the "Company") and James J. Pagano (the "Optionee"). BACKGROUND A. The Company has determined to reward and to provide incentives to those who are primarily responsible for the operations of the Company and for shaping and carrying out the long-range plans of the Company and aiding in its continued growth and financial success. B. In furtherance of these purposes, the Board of Directors of the Company has authorized the grant to Optionee of a stock option to purchase certain shares of the common stock, par value $.01 per share, of the Company ("Common Stock") by resolution dated June 25, 1997. C. The Company and Optionee wish to confirm the terms, conditions, and restrictions of this option. For and in consideration of the premises, the mutual covenants contained herein, and other good and valuable consideration, the parties hereto agree as follows: ARTICLE 1 GRANT AND EXERCISE OF OPTION 1.1 GRANT OF OPTION. Subject to the terms, restrictions, limitations, and conditions stated herein, the Company hereby grants to Optionee an option (the "Option") to purchase 50,000 shares of Common Stock (the "Option Shares"). The date first written above shall be the date on which the Option has been granted (the "Grant Date"). 1.2 EXERCISE OF THE OPTION. (a) The Option may be exercised with respect to all or any portion of the Option Shares at any time during the Option Period (as defined below) by the delivery to the Company, at its principal place of business, of (i) a written notice of exercise which shall be delivered to the Company no earlier than thirty (30) days and no later than ten (10) days prior to the date upon which Optionee desires to exercise all or any portion of the Option (the "Exercise Date"); (ii) a certified check payable to the Company in the amount of the Exercise Price (as defined below) multiplied by the number of Option Shares being purchased (the "Purchase Price") OR by delivery of a number of shares of Common Stock, which have been held by Optionee for at least six months, having a fair market value, as of the date the Option is exercised, at least equal to the Purchase Price OR by a certified check payable to the Company in an amount less than the Exercise Price and by delivery of a number of shares of Common Stock, which have been held by Optionee for at least six months, having a fair market value, as of the date the Option is exercised, at least equal to the balance of the Purchase Price; and (iii) except as permitted in Paragraph 1.2(b) below, a certified check payable to the Company in the amount of all withholding tax obligations (whether federal state or local), imposed on the Company by reason of the exercise of the Option, or the Withholding Election described in Section 1.2(b). Upon acceptance of such notice, receipt of payment in full, the Company shall cause a certificate representing the shares of Common Stock as to which the Option has been exercised to be issued and delivered to the Optionee. (b) In lieu of paying the withholding tax obligation in cash, as described in Section 1.2(a) (iii), the Optionee may elect to have the actual number of shares issuable upon exercise of the Option reduced by the smallest number of whole shares of Common Stock which, when multiplied by the fair market value of the Common Stock as of the date the Option is exercised, is sufficient to satisfy the amount of the 2 withholding tax obligations imposed on the Company by reason of the exercise thereof (the "Withholding Election"). The Optionee may take a Withholding Election only if all of the following conditions are met: (i) the Withholding Election must be made by electing the Withholding Election in the written notice of exercise; and by executing and delivering to the Company a properly completed Notice of Withholding Election; and (ii) any Withholding Election made will be irrevocable; however, the Company may, in its sole discretion, disapprove and not give effect to any Withholding Election. 1.3 EXERCISE PRICE. The exercise price for each share of Common Stock shall be $4.00 (the "Exercise Price"). 1.4 "TERM AND TERMINATION OF OPTION. Except as otherwise provided herein, the term of the Option ("Option Period") shall commence on the Grant Date and terminate on June 25, 2006. Subject to paragraph 1.6 below, this Option shall become exercisable as to one-fourth (1/4) of the total number of Option Shares at such time as the Fair Market Value (as defined below) of the Common Stock of the Company Is equal to or greater than Five Dollars ($5.00) per share, for twenty (20) consecutive trading days. This Option shall become exercisable as to an additional one-fourth (1/4) of the total number of Option Shares at such time as the Fair Market Value of the Common Stock of the Company is equal or greater than Seven and 50/100 Dollars ($7.50) per share, for twenty (20) consecutive trading days. This Option shall become exercisable as to an additional one-fourth (1/4) of the total number of Option Shares at such time as the Fair Market Value of the Common Stock of the Company is equal or greater than Ten and No/100 Dollars ($10.00) per share, for twenty (20) consecutive trading days. This Option shall become exercisable as to the remaining one-fourth (1/4) of the total number of Option Shares at such time as the Fair Market Value of the Common Stock of the Company is equal to or greater than Twelve and 50/100 Dollars ($12.50) per share, for twenty (20) consecutive trading days. Once the right to purchase shares has accrued, such shares may thereafter be purchased at any time, or in part from time to time, until the termination date of this Option, subject to the provisions of Paragraph 1.6 below. In no case may this Option be exercised for a fraction of a share." Upon the expiration of the Option Period as set forth above, this Option, and all unexercised rights granted to the Optionee hereunder shall terminate, and thereafter be null and void. 1.5 RIGHTS AS STOCKHOLDER. Optionee, or, if applicable, any Transferee (as defined in Section 3.13 (d)) shall have no rights as a stockholder with respect to any shares covered by the Option until a stock certificate for the shares is issued in Optionee's or Transferee's name. No adjustment to the Option shall be made pursuant to Section 3.1 hereof for dividends paid or declared on or with respect to Common Stock in cash, securities other than Common Stock, or other property, for which the record date is prior to the date of exercise hereof. 1.6 "EARLY TERMINATION OF OPTION. The Option Period shall terminate on the date of the first to occur of the following: (a) June 25, 2006; (b) June 25, 2002, in the event all Option Shares have not vested; (c) the date immediately preceding the consummation of: (i) dissolution or liquidation of the Company; (ii) merger of the Company into another corporation, or any consolidation, share exchange, combination, reorganization, or like transaction in which the Company is not the survivor; or (iii) sale or transfer (other than as security of the Company's obligations) of at least a majority of the assets of the Company. The Company will use its best efforts to provide written notice to Optionee of such dissolution, liquidation, merger, consolidation, acquisition, separation, reorganization, sale, transfer, or like transaction, at least (30) days prior to the closing of such transaction to permit Optionee to exercise the Option." 2 3 ARTICLE 2 RESTRICTION ON OPTION AND OPTION SHARES 2.1 RESTRICTIONS ON TRANSFER OF OPTION. The Option evidenced hereby is non transferable other than by will or the laws of descent and distribution, and shall be exercisable during the lifetime of Optionee only by Optionee (or, in the event of Optionee's death or Disability, by a permitted Transferee). 2.2 RESTRICTIONS ON TRANSFER OF OPTION SHARES. Any Option Share acquired upon exercise of the Option shall be subject to the following restrictions: (a) Except for transfers made in compliance with Section 2.2(b) below, or as otherwise required or permitted hereunder, none of the Option Shares may be conveyed, pledged, assigned, transferred, hypothecated, encumbered, or otherwise disposed of by the Optionee, or in the case of exercise of an Option by a Transferee, by such Transferee. The foregoing notwithstanding, the Company may, but shall not be obligated to, approve the transfer of such Option Shares upon the condition that the transferee thereof execute and deliver to the Company such documents and agreements as the Company shall reasonably require to evidence the fact that the Option Shares to be owned, either directly or beneficially, by such transferee shall continue to be subject to all the restrictions set forth elsewhere herein, and that such transferee is subject to and bound by such restrictions and provisions. Any Option Shares transferred by bequest or by operation of the laws of descent and distribution shall remain subject to the restrictions set forth in this Section 2.2 and all applicable rights in favor of the Company set forth elsewhere herein in the hands of any transferee thereof. Nothing contained herein, however, shall be deemed to impose any requirement that any transferee be an officer, director, or employee of, or consultant to, the Company. (b) The Option Shares may be transferred by the Optionee to a Transferee upon the death or Disability of the Optionee, provided that all such Option Shares shall remain subject to the restrictions set forth in this Section 2.2 and all applicable rights in favor of the Company set forth elsewhere herein in the hands the Transferee and of any subsequent transferee of the Transferee. ARTICLE 3 GENERAL PROVISIONS 3.1 CHANGE IN CAPITALIZATION. If the number of outstanding shares of the Common Stock shall be increased or decreased by a change in par value, split-up, stock split, reverse stock split, reclassification, distribution of common stock dividend, or other similar capital adjustment, an appropriate adjustment shall be made by the Board of Directors in the number and kind of shares as to which the Option, or the portion thereof then unexercised, shall be or become exercisable, such that Optionee's proportionate interest shall be maintained as before the occurrence of the event. The adjustment shall be made without change in the total price applicable to the unexercised portion of the Option and with a corresponding adjustment in the Exercise Price. No fractional shares shall be issued or made subject to the Option in making such adjustment. All adjustments made by the Board of Directors under this Section shall be final, binding, and conclusive. 3.2 LEGENDS. Each certificate representing the Option Shares purchased upon exercise of the Option shall be endorsed with the following legend and Optionee shall not make any transfer of the Option shares without first complying with the restrictions on transfer described in such legend: TRANSFER IF RESTRICTED THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, (THE "SECURITIES ACT") OR SIMILAR STATE SECURITIES LAWS 3 4 APPLICABLE TO SUCH SECURITIES (COLLECTIVELY THE "ACTS") AND MAY NOT BE SOLD, TRANSFERRED, ASSIGNED, OR HYPOTHECATED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION UNDER SUCH ACTS COVERING SUCH SECURITIES, (2) THE TRANSFER IS MADE IN COMPLIANCE WITH RULE 144 PROMULGATED UNDER THE SECURITIES ACT, OR SIMILAR STATE SECURITIES LAW, OR (3) THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE COMPANY, STATING THAT SUCH SALE, TRANSFER, ASSIGNMENT OR HYPOTHECATION IS EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACTS. Optionee agrees that the Company may also include any other legends required by applicable federal or state securities laws. 3.3 GOVERNING LAWS. This Agreement shall be construed, administered and enforced according to the laws of the State of Delaware. 3.4 SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives, successors, and permitted assigns of the parties. 3.5 NOTICE. Except as otherwise specified herein, all notices and other communications under this Agreement shall be in writing and shall be deemed to have been given if personally delivered or if sent by registered or certified United States mail, return receipt requested, postage prepaid, addressed to the proposed recipient at the last known address of the recipient. Any party may designate any other address to which notices shall be sent by giving notice of the address to the other parties in the same manner as provided herein. 3.6 SEVERABILITY. In the event that any one or more of the provisions or portion thereof contained in this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, the same shall not invalidate or otherwise affect any other provisions of this Agreement, and this Agreement shall be construed as if the invalid, illegal or unenforceable provision or portion thereof had never been contained herein. 3.7 ENTIRE AGREEMENT. This Agreement expresses the entire understanding and Agreement of the parties with respect to the subject matter hereof. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 3.8 VIOLATION. Any transfer, pledge, sale, assignment, or hypothecation of the Option or any portion thereof made in violation of the terms of this Agreement shall be void and without effect. 3.9 HEADINGS. Paragraph headings used herein are for convenience of reference only and shall not be considered in construing this Agreement. 3.10 SPECIFIC PERFORMANCE. In the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement, the party or parties who are thereby aggrieved shall have the right to specific performance and injunction in addition to any and all other rights and remedies at law or in equity, and all such rights and remedies shall be cumulative. 3.11 NO EMPLOYMENT RIGHTS CREATED. The grant of the Option hereunder shall not be construed as giving Optionee the right to continued employment with the Company. 3.12 SPECIAL LIMITATION ON EXERCISE. Notwithstanding anything contained herein to the contrary, no purported exercise of the Option shall be effective without the written approval of the Company, which approval may be withheld if the exercise of this Option, together with the exercise of other previously exercised stock options and/or offers and sales pursuant to any prior or contemplated offering of securities, would, in the sole and absolute judgment of the Company, require the filing of a registration statement with the United States Securities and Exchange 4 5 Commission, or with the securities commission of any state. The Company shall avail itself of any exemptions from registration contained in applicable federal and state securities laws which are reasonably available to the Company on terms which, in its sole and absolute discretion, it deems reasonable and not unduly burdensome or costly. If the Option cannot be exercised at the time it would otherwise expire due to the restrictions contained in this Section 3.12, the exercise period may, upon request of Optionee, be extended for successive one-year periods until it can be exercised in accordance with this Section 3.12. Optionee shall deliver to the Company, prior to the exercise of the Option, such information, representations, and warranties as the Company may reasonably request in order for the Company to be able to satisfy itself that the Option Shares to be acquired pursuant to the exercise of the Option are being acquired in accordance with the terms of an applicable exemption from the securities registration requirements of applicable federal and state securities laws. 3.13 CERTAIN DEFINITIONS. The capitalized terms listed below are used herein with the meaning thereafter ascribed: (a) "Cause" means conduct amounting to (1) fraud or dishonesty against the Company, (2) repeated intoxication with alcohol or drugs while on the Company's premises or otherwise in a manner which materially interferes with Optionee's performance of duties of employment, or (3) a conviction or plea of guilty or nolo contendere to a felony or a crime involving dishonesty. (b) "Disability" means (1) the inability of Optionee to perform the duties of Optionee's employment with the Company due to physical or emotional incapacity or illness, where such inability is expected to be of long-continued and indefinite duration or (2) Optionee shall be entitled to (i) disability retirement benefits under the federal Social Security Act or (ii) recover benefits under any long-term disability plan or policy maintained by the Company. In the event of a dispute, the determination of Disability shall be made by the Board of Directors and shall be supported by advice of a physician competent in the area to which such Disability relates. (c) "Fair Market Value" means of the applicable prices selected from the following alternatives for the date as of which Fair Market Value is to be determined as quoted in the Wall Street Journal (or in such other reliable publication as the committee, in it's discretion, may determine to rely upon): (i) if the common stock is listed on the New York Stock Exchange, the highest and lowest sales prices per share of the Common Stock as quoted in the NYSE - Composite transactions listing for such date, (ii) if the common Stock is not listed on such exchange, the highest and lowest sales prices per share of Common stock for such date on (or on any composite index including) the principal United States Securities Exchange registered under the 1934 Act on which the Common Stock is listed, or (iii) if the Common Stock is not listed on any such exchange, the highest and lowest sales prices per share of the Common Stock for such date on the National Associates of Securities Dealers Automated Quotations Systems or any successor system then in use ("NASDAQ"). If there are no such sales price quotations for the date as of which Fair Market Value is to be determined but there are such sales price quotations within a reasonable period both before and after such date, then Fair Market Value shall be determined by taking a weighted average of the means between the highest and lowest sales prices per share of the Common Stock as so quoted on the nearest date before, and the nearest date after, the date as of which Fair Market Value is to be determined. The average should be weighted inversely by the respective numbers of trading days between the selling dates and the date as of which Fair Market Value is to be determined. If there are no such sales price quotations on, or within a reasonable period both before and after, the date as of which Fair Market Value is to be determined, then Fair Market Value of the Common Stock shall be the mean between the bonafide bid and asked prices per share of Common Stock as so quoted for such date on NASDAQ, or if none, the weighted average of the means between such bonafide bid and asked prices on the nearest trading date before, and the nearest trading date after, the date as of which Fair Market Value is to be determined, if both such dates are within a reasonable period. If the Fair Market Value of the Common Stock cannot be determined on the basis set forth in this definition for the date as of which Fair Market Value is to be determined, the Committee shall in good faith determine the Fair Market Value of the Common Stock on such date. Fair Market Value shall be determined without regard to any restriction, other than a restriction which, by its terms, will never lapse." 5 6 (d) "Transferee" means the estate, or the executor or administrator of the estate, of a deceased Optionee, or the personal representative of an Optionee suffering a Disability. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first set forth above. ATTEST: FLORAFAX INTERNATIONAL, INC. /s/ Kelly S. McMakin By: /s/ James H. West - ------------------------------- --------------------------- Kelly S. McMakin, Secretary James H. West, President ACCEPTED: /s/ James J. Pagano - ------------------------------- James J. Pagano 6 EX-10.8 7 NON PLAN OPTION 1 EXHIBIT 10.8 FLORAFAX INTERNATIONAL, INC. NON PLAN OPTION NAME OF OPTIONEE: T. Craig Benson DATE OF GRANT: November 13, 1996 NUMBER OF OPTION SHARES: 50,000 OPTION PRICE PER SHARE: $2.66 OPTION CERTIFICATE NUMBER: 1 THIS OPTION is granted on the above date (the "Date of Grant") by FLORAFAX INTERNATIONAL, INC. (the "Company") to the person named above (the "Optionee"), upon the following terms and conditions: 1. GRANT OF OPTION. The Company grants to the Optionee an option to purchase, on the terms and conditions stated herein, the number of shares specified above (the "Option" Shares) of the Company's common stock ("Common Stock") par value $0.01 per share, at the Option Price per share specified above. 2. PERIOD OF OPTION AND RIGHT TO EXERCISE. This Option shall become exercisable as to one-fourth (1/4) of the total number of Option Shares on the Date of Grant. This Option shall become exercisable as to an additional one-fourth (1/4) of the total number of Option Shares on the first (1st) anniversary of the Date of Grant. This Option shall become exercisable as to an additional one-fourth (1/4) of the total number of Option Shares on the second (2nd) anniversary of the Date of Grant, and shall become exercisable as to the remaining one-fourth (1/4) of the total number of Option Shares on the (3rd) third anniversary of the Date of Grant. Once the right to purchase shares has accrued, such shares may thereafter be purchased at any time, or in part from time to time, until the termination date of this Option. Subject to the foregoing, and subject to subsections (i), (ii) and (iii) of this Section 2, which provide for earlier termination of the Option, the Option shall terminate upon the expiration of ten (10) years from the Date of Grant (the Expiration Date ). In no event shall this Option be exercised after the Expiration Date. If the Optionee ceases to be a Director of the Company for any reason, the Option held by the Optionee shall be exercisable, and shall terminate as follows: (i) Resignation or Removal for Cause. If the Optionee resigns from the Board of Directors or is removed from office for cause, and if the Option is not exercisable by the Optionee prior to resignation or removal, the Option shall terminate as of the date of such resignation or removal. If the Option is exercisable prior to such resignation or removal, the unexercised portion of the Option may be exercised by the Optionee at any time prior to the 2 Expiration Date, or within three (3) months after the date of such resignation or removal, whichever first occurs. If the Optionee dies after ceasing to be a director and during a period when the Option is exercisable, then the Option shall be exercisable at any time prior to the Expiration Date, or within one (1) year after the date of death, whichever first occurs. (ii) Death During Service. If the Optionee dies during service as a Director of the Company, the Option (whether or not exercisable immediately prior to the Optionee's death) shall be exercisable at any time prior to the Expiration Date or within one (1) year after the date of death, whichever first occurs. (iii) Cessation of Directorship for Other Reasons. If the Optionee ceases to be a Director of the Company for any reason other than resignation, removal for cause, or death, the Option shall be exercisable (but only if exercisable by the Optionee immediately prior to ceasing to be a Director) at any time prior to the Expiration Date or within three (3) years after the date the Optionee ceases to be a Director, whichever first occurs. 3. EXERCISE. To the extent this Option is exercisable, it may be exercised by the Optionee or the legal representative of the Optionee or the legal representative of the Optionee's estate or the permitted transferee of the Optionee. Once this Option becomes exercisable, it may thereafter be exercised, wholly or in part, at any time prior to the Expiration Date. 4. ACCELERATION. Upon the occurrence of any of the following events prior to the Expiration Date, this Option shall become immediately and fully exercisable: (i) death of the Optionee; or (ii) a change of control of the Company. "Change of Control" shall mean: a. the acquisition by any person of voting shares of the Company, if, as a result of the acquisition, such person, or any "group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, of which such person is a part, owns at least 20% of the outstanding voting shares of the Company; or b. a change in the composition of the Board such that within any period of two consecutive years, persons who (1) at the beginning of such period constitute the Board or (2) become directors after the beginning of such period and whose election, or nomination for election by the stockholders of the Company, was approved by a vote of at least two-thirds of the persons who were either directors at the beginning of such period or whose subsequent election or nomination was previously approved in accordance with this clause (2), cease to constitute at least a majority of the Board; or - 2 - 3 (iii) a merger or consolidation with another corporation or entity, and the Company is not the surviving corporation; or (iv) a sale by the Company of all or substantially all of the assets of the Company; or (v) a distribution by the Company to the stockholders that is non-taxable under the Internal Revenue Code of 1986, as amended; or (vi) the dissolution or liquidation of the Company. 5. PAYMENT FOR SHARES. Payment for shares purchased upon exercise of this Option shall be made in full at the time of exercise. Payment of the Option Price shall be made in cash, or by delivering Common Stock having a fair market value at least equal to the Option Price, or a combination of Common Stock and cash. Fair market value for such purpose shall be the mean of the highest and lowest sales prices on the exchange, or automated quotation system on which the Common Stock is quoted, for the date as of which fair market value is to be determined. If there are no such sale price quotations on or within a reasonable period both before and after the date as of which fair market value is to be determined, then fair market value shall be the mean between the bona fide bid and asked prices per share of Common Stock as so quoted for such date. If the fair market value of the Common Stock cannot be determined on either of these bases, the Board of Directors of the Company shall in good faith determine the fair market value of the Common Stock on such date. Payment in shares of Common Stock shall be made by delivering to the Company certificates, duly endorsed for transfer, representing shares of Common Stock having an aggregate fair market value (determined as aforesaid) on the date of exercise equal to that portion of the Option Price which is to be paid to the Company in Common Stock. Whenever payment of the Option Price would require delivery of a fractional share, the Optionee shall deliver the next lower whole number of shares of Common Stock, and a cash payment shall be made by the Optionee for the balance of the Option Price. 6. METHOD OF EXERCISE. This Option may be exercised only by written notice given to the Company, which specifies the number of Option Shares which the holder of the Option elects to purchase, the number of Option Shares which the holder is paying for in cash and the number of Option Shares which the holder is paying for in shares of Common Stock of the Company. Such written notice shall be accompanied by a check payable to the order of the Company for the cash portion of the purchase price and, if applicable, by the delivery of certificates representing shares of Common Stock of the Company duly endorsed and otherwise in proper form for transfer to the Company of such number of shares of Common Stock as are required to equal the fair market value of the Option Shares being paid for in stock. Upon each exercise of this Option, the Company, as promptly as practicable, will mail or deliver to the person exercising this Option a certificate or certificates representing the shares then purchased. 7. TRANSFERABILITY. This Option is not assignable or transferable other than by will, the laws of descent and distribution, or the terms of a qualified domestic relations order, as defined in the Internal Revenue Code of 1986 as amended, or Title I of the Employee Retirement Income - 3 - 4 Security Act, or the rules thereunder. During the Optionee's lifetime, this Option may be exercised only by the Optionee or his or her guardian or other legal representative, or the permitted transferee of the Optionee. 8. PROVISION FOR TAXES. It shall be a condition to the Company's obligation to issue or reissue shares of Common Stock upon exercise of this Option that the Optionee pay, or make provision satisfactory to the Company for payment of, any federal or state income or other taxes which the Company is obligated to withhold or collect with respect to the issuance or reissuance of such shares. 9. LISTING AND REGISTRATION. The Company, in its discretion, may postpone the issuance and delivery of shares, upon exercise of this Option, until completion of such stock exchange listing, or registration, or other qualification of such shares under any Federal or state law, rule, or regulation, as the Company may consider appropriate. The Company may require any person exercising this Option to make such representations and to furnish such information as the Company may consider appropriate in connection with the issuance of the shares in compliance with applicable law. 10. ADJUSTMENTS. In the event the outstanding shares of Common Stock of the Company are increased or decreased or changed into or exchanged for a different number or kind of shares or other securities of the Company or another corporation, through reorganization, merger, consolidation, liquidation, recapitalization, reclassification, stock split-up, combination of shares, or dividend payable in stock of the class of shares which is subject to this Option, appropriate adjustment in the number and kind of shares as to which this Option or portion thereof then unexercised shall be exercisable, and in the Option Price, shall be made to the end that the Optionee's proportionate interest under this Option shall be maintained as before the occurrence of such event. 11. NOTICES. Any notice hereunder by the holder of this Option shall be given to the Company in writing and such notice and any payment hereunder shall be deemed duly given or made only upon receipt thereof at the Company's principal office in Vero Beach, Florida, or at such other place as the Company may designate by written notice to the holder of this Option. Any notice or other communication hereunder to the holder of this Option shall be in writing and shall be deemed duly given if mailed or delivered to the holder at such address as he or she may have on file with the Company. 12. SHAREHOLDER RIGHTS. The holder of this Option shall have no rights as a shareholder with respect to any shares covered by this Option until the holder of this Option becomes a shareholder of record with respect to such shares. 13. GOVERNING LAW. This Option shall be governed by, construed and enforced in accordance with the internal laws of the State of Delaware, and, where applicable, the laws of the United States. - 4 - 5 IN WITNESS WHEREOF, the Company has caused this Option to be executed in duplicate. ATTEST: FLORAFAX INTERNATIONAL, INC. /s/ Kelly S. McMakin By: /s/ James H. West - ------------------------------------ --------------------------- Kelly S. McMakin, Secretary James H. West, President ACCEPTED: /s/ T. Craig Benson - ----------------------------------- T. Craig Benson - 5 - EX-10.9 8 CAYLX AND CORONA - 1988 STOCK OPTION PLAN 1 Exhibit 10.9 CALYX & COROLLA, INC. 1988 STOCK OPTION PLAN I. PURPOSES OF THE PLAN (a) This Stock Option Plan (the "Plan") is intended to promote the interests of CALYX & COROLLA, INC., (the "Company") by providing a method whereby (i) key employees (including officers and directors) of the Company (or its parent or subsidiary corporations) responsible for the management, growth and financial success of the Company (or its parent or subsidiary corporations), (ii) the non-employee members of the Company's Board of Directors (or any parent or subsidiary corporations) and (iii) consultants and independent contractors who provide valuable services to the Company (or its parent or subsidiary corporations) may be offered incentives and rewards which will encourage them to acquire a proprietary interest, or otherwise increase their proprietary interest, in the Company and continue to render services to the Company (or its parent or subsidiary corporations). (b) For purposes of the Plan, the following provisions shall be applicable in determining the parent and subsidiary corporations of the Company: (i) Any corporation (other than the Company) in an unbroken chain of corporations ending with the Company shall be considered to be a parent corporation of the Company, provided each such corporation in the unbroken chain (other than the Company) owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. (ii) Each corporation (other than the Company) in an unbroken chain of corporations beginning with the Company shall be considered to be a subsidiary of the Company, provided each such corporation (other than the last corporation) in the unbroken chain owns, at the time of the determination, stock possessing fifty percent (50%) or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. II. ADMINISTRATION OF THE PLAN (a) The Plan shall be administered by the Board of Directors (the "Board") of the Company. The Board, however, may at any time appoint a committee ("Committee") of three (3) or more members of the Board and delegate to such Committee one or more of the administrative powers allocated to the Board under the provisions of the Plan, including (without limitation) the power to grant options under the Plan and administer the option surrender and option acceleration provisions of the Plan. Members of the Committee shall serve for such period of time as the Board may determine and shall be subject to removal by the Board at any time. The Board may also at any time terminate the functions of the Committee and reassume all powers and authority previously delegated to the Committee. 2 (b) The Plan Administrator (either the Board or the Committee, to the extent the Committee is at the time responsible for the administration of the Plan) shall have full power and authority (subject to the provisions of the Plan) to establish such rules and regulations as it may deem appropriate for the proper administration of the Plan and to make such determinations under, and issue such interpretations of, the Plan and any outstanding option as it may deem necessary or advisable. Decisions of the Plan Administrator shall be final and binding on all parties who have an interest in the Plan or any outstanding option. III. ELIGIBILITY FOR OPTION GRANTS (a) The persons eligible to receive option grants under the Plan are as follows: (i) key employees (including officers and directors) of the Company (or its parent or subsidiary corporations) who render services which contribute to the success and growth of the Company (or its parent or subsidiary corporations) or which may reasonably be anticipated to contribute to the future success and growth of the Company (or its parent or subsidiary corporations); (ii) the non-employee members of the Board or the non-employee members of the Board of Directors of any parent corporation; and (iii) those consultants or independent contractors who provide valuable services to the Company (or its parent or subsidiary corporations). (b) The Plan Administrator shall have full authority to determine which eligible individuals are to receive option grants under the Plan, the number of shares to be covered by each such grant, whether the granted option is to be an incentive stock option ("Incentive Option") which satisfies the requirements of Section 422A of the Internal Revenue Code or a non-statutory option not intended to meet such requirements, the time or times at which each such option is to become exercisable, and the maximum term for which the option is to be outstanding. IV. STOCK SUBJECT TO THE PLAN (a) The stock issuable under the Plan shall be shares of the Company's authorized but unissued or reacquired Common Stock. The aggregate number of shares which may be issued under the Plan shall not exceed fifteen thousand (15,000) shares. The total number of shares issuable under the Plan shall be subject to adjustment from time to time in accordance with Section IV(c) of the Plan. (b) Should an option be terminated for any reason without being exercised or surrendered in whole or in part (including options cancelled in accordance with the cancellation-regrant provisions of Section VIII of the Plan), the shares subject to the portion of the option not so exercised or surrendered shall be available for subsequent option grants under the Plan. Shares subject to any option or portion thereof surrendered in accordance with Section IX of the Plan and shares 2 3 repurchased by the Company pursuant to its repurchase rights under the Plan shall not be available for subsequent option grants under the Plan. (c) In the event any change is made to the Common Stock issuable under the Plan by reason of any stock split, stock dividend, combination of shares, exchange of shares or other change affecting the outstanding Common Stock as a class without receipt of consideration, then appropriate adjustments will be made to (i) the aggregate number of shares issuable under the Plan and (ii) the number of shares and price per share of the Common Stock subject to each outstanding option in order to prevent the dilution or enlargement of benefits thereunder. V. TERMS AND CONDITIONS OF OPTIONS Options granted pursuant to the Plan shall be authorized by action of the Plan Administrator and may, at the Plan Administrator's discretion, be either Incentive Options or non-statutory options. Individuals who are not employees of the Company or its parent or subsidiary corporations may only be granted non-statutory options. Each granted option shall be evidenced by one or more instruments in the form approved by the Plan Administrator; provided, however, that each such instrument shall comply with and incorporate the terms and conditions specified below. Each instrument evidencing an Incentive Option shall, in addition, be subject to the applicable provisions of Section VI. 1. Option Price. A. The option price per share shall be fixed by the Plan Administrator, but, subject to the provisions of Section V.1.B below, in no event shall the option price per share be less than eighty-five percent (85%) of the fair market value of a share of Common Stock on the date of the option grant. B. If any individual to whom an option is to be granted pursuant to the provisions of the Plan is on the date of grant the owner of stock (as determined under Section 425(d) of the Internal Revenue Code) possessing 10% or more of the total combined voting power of all classes of stock of the Company or any one of its parent or subsidiary corporations (such person to be herein referred to as a 10% Shareholder), then the option price per share shall not be less than one hundred and ten percent (110%) of the fair market value of one share of Common Stock on the date of grant. C. The option price shall become immediately due upon exercise of the option and shall, subject to the provisions of Section X and the instrument evidencing the grant, be payable in one of the alternative forms specified below: (i) full payment in cash or cash equivalents; or (ii) full payment in shares of Common Stock held by the optionee for the requisite period necessary to avoid a charge to the Company's reported earnings and valued 3 4 at fair market value on the Exercise Date (as such term is defined below) in an amount equal to the option price; or (iii) a combination of shares of Common Stock held by the optionee for the requisite period necessary to avoid a charge to the Company's reported earnings and valued at fair market value on the Exercise Date and cash or cash equivalents, equal in the aggregate to the option price. For purposes of this subparagraph C, the Exercise Date shall be the first date on which the Company shall have received both written notice of the exercise of the option and payment of the option price for the purchased shares. D. The fair market value of a share of Common Stock on any relevant date under subparagraph A, B or C above (and for all other valuation purposes under the Plan) shall be determined in accordance with the following provisions: (i) If the Common Stock is not at the time listed or admitted to trading on any stock exchange but is traded in the over-the-counter market, the fair market value shall be the mean between the highest bid and lowest asked prices (or, if such information is available, the closing selling price) of one share of Common Stock on the date in question in the over-the-counter market, as such prices are reported by the National Association of Securities Dealers through its NASDAQ system or any successor system. If there are no reported bid and asked prices (or closing selling price) for the Common Stock on the date in question, then the mean between the highest bid price and lowest asked price (or the closing selling price) on the last preceding date for which such quotations exist shall be determinative of fair market value. (ii) If the Common Stock is at the time listed or admitted to trading on any stock exchange, then the fair market value shall be the closing selling price of one share of Common Stock on the date in question on the stock exchange determined by the Plan Administrator to be the primary market for the Common Stock, as such price is officially quoted in the composite tape of transactions on such exchange. If there is no reported sale of Common Stock on such exchange on the date in question, then the fair market value shall be the closing selling price on the exchange on the last preceding date for which such quotation exists. (iii) If the Common Stock at the time is neither listed nor admitted to trading on any stock exchange nor traded in the over-the-counter market, then the fair market value shall be determined by the Plan Administrator after taking into account such factors as the Plan Administrator shall deem appropriate, including one or more independent professional appraisals. 2. Term and Exercise of Options. Each option granted under the Plan shall be exercisable at such time or times, during such period, and for such number of shares as shall be determined by the Plan Administrator and set forth in the instrument evidencing such option; provided, however, that no such option shall have a term in excess of ten (10) years from the grant 4 5 date and provided further, however, that no such option granted to a 10% Shareholder shall have a term in excess of five (5) years from the grant date. During the lifetime of the optionee, the option shall be exercisable only by the optionee and shall not be assignable or transferable by the optionee otherwise than by will or by the laws of descent and distribution. 3. Effect of Termination of Employment. A. Should an optionee cease to be an Employee of the Company for any reason (including death or permanent disability as defined in Section 105(d)(4) of the Internal Revenue Code) while the holder of one or more outstanding options granted to such optionee under the Plan, then such option or options shall not (except to the extent otherwise provided pursuant to Section XI below) remain exercisable for more than a twelve (12) month period (or such shorter period determined by the Plan Administrator and specified in the instrument evidencing the grant) following the date of such cessation of Employee status; provided, however, that under no circumstances shall such options be exercisable after the specified expiration date of the option term. Each such option shall, during such twelve (12) month or shorter period, be exercisable only to the extent of the number of shares (if any) for which the option is exercisable on the date of such cessation of Employee status. Upon the expiration of such twelve (12) month or shorter period or (if earlier) upon the expiration of the option term, the option shall terminate and cease to be exercisable. B. Any option granted to an optionee under the Plan and exercisable in whole or in part on the date of the optionee's death may be subsequently exercised, but only to the extent of the number of shares (if any) for which the option is exercisable on the date of the optionee's death, by the personal representative of the optionee's estate or by the person or persons to whom the option is transferred pursuant to the optionee's will or in accordance with the laws of descent and distribution, provided and only if such exercise occurs prior to the earlier of (i) the first anniversary of the date of the optionee's death or (ii) the specified expiration date of the option term. Upon the occurrence of the earlier event, the option shall terminate and cease to be exercisable. C. If (i) the optionee's status as an Employee is terminated for misconduct (including, but not limited to, any act of dishonesty, willful misconduct, fraud or embezzlement or any unauthorized disclosure or use of confidential information or trade secrets) or (ii) the optionee makes or attempts to make any unauthorized use or disclosure of confidential information or trade secrets of the Company or its parent or subsidiary corporations, then in any such event all outstanding options granted the optionee under the Plan shall terminate and cease to be exercisable immediately upon such termination of Employee status or such unauthorized use or disclosure of confidential or secret information or attempt thereat. D. Notwithstanding subparagraphs A and B above, the Plan Administrator shall have complete discretion, exercisable either at the time the option is granted or at the time the optionee ceases Employee status, to establish as a provision applicable to the exercise of one or more options granted under the Plan that during the limited period of exercisability following the cessation 5 6 of Employee status as provided in Section V.3.A above, the option may be exercised not only with respect to the number of shares for which it is exercisable at the time of the optionee's cessation of Employee status but also with respect to one or more subsequent installments of purchasable shares for which the option would otherwise have become exercisable had such cessation of Employee status not occurred. E. For purposes of the foregoing provisions of this Section V.3 (and all other provisions of the Plan), the optionee shall be deemed to be an Employee of the Company for so long as the optionee remains in the employ of the Company or one or more of its parent or subsidiary corporations. F. If the option is to be granted to an individual who is not an Employee of the Company, then the option agreement evidencing the granted option shall include provisions comparable to subparagraphs V.3.A, B and C above, and may include provisions comparable to subparagraphs V.3.D above, with respect to the optionee's termination of service with the Company or its parent or subsidiary corporations. 4. Shareholder Rights. An optionee shall have none of the rights of a shareholder with respect to any shares covered by the option until such individual shall have exercised the option and paid the option price. 5. Repurchase Rights. The shares of Common Stock acquired upon the exercise of options granted under the Plan may be subject to one or more repurchase rights of the Company in accordance with the following provisions: A. The Plan Administrator may in its discretion determine that it shall be a term and condition of one or more options exercised under the Plan that the Company (or its assignees) shall have the right, exercisable upon the optionee's cessation of Employee or other service status with the Company and its parent or subsidiary corporations, to repurchase at the option price all or (at the discretion of the Company and with the consent of the optionee) any portion of the shares of Common Stock previously acquired by the optionee upon the exercise of such option. Any such repurchase right shall be exercisable by the Company (or its assignees) upon such terms and conditions (including the establishment of the appropriate vesting schedule and other provision for the expiration of such right in one or more installments over the optionee's period of Employee status) as the Plan Administrator may specify in the instrument evidencing such right. B. The Plan Administrator may assign the Company's repurchase rights under subparagraph (a) above to any person or entity selected by the Plan Administrator, including one or more stockholders of the Company. If the selected assignee is other than a parent corporation of the Company, then the assignee must make a cash payment to the Company, upon the assignment of the repurchase rights, in an amount equal to the excess (if any) of the fair market value of the unvested shares at the time subject to the repurchase rights and the aggregate repurchase price payable for such unvested shares thereunder. 6 7 C. The Plan Administrator shall also have full power and authority to provide for the automatic termination of the Company's outstanding repurchase rights in whole or in part, and thereby accelerate the vesting of any or all purchased shares, upon the occurrence of any Corporate Transaction under Section VII. D. The Plan Administrator may also in its discretion establish as a term and condition of one or more options granted under the Plan that the Company shall have a right of first refusal with respect to any proposed sale or other disposition by the optionee (or any successor in interest by reason of purchase, gift or other mode of transfer) of any shares of Common Stock issued upon the exercise of such options. Any such right of first refusal shall be exercisable by the Company (or its assignees) in accordance with the terms and conditions set forth in the instrument evidencing such right. VI. INCENTIVE OPTIONS. The terms and conditions specified below shall be applicable to all Incentive Options granted under the Plan. Incentive Options may only be granted to individuals who are Employees of the Company. Options which are specifically designated as "non-statutory" options when issued under the Plan shall not be subject to such terms and conditions. (a) Option Price. The option price per share of the Common Stock subject to an Incentive Option shall in no event be less than one hundred percent (100%) of the fair market value of a share of Common Stock on the date of grant. (b) Dollar Limitation. The aggregate fair market value (determined as of the respective date or dates of grant) of the Common Stock for which one or more options granted to any Employee after December 31, 1986 under this Plan (or any other option plan of the Company or its parent or subsidiary corporations) may for the first time become exercisable as Incentive Options during any one calendar year shall not exceed the sum of One Hundred Thousand Dollars ($100,000). To the extent the Employee holds two or more such options which become exercisable for the first time in the same calendar year, the foregoing limitation on the exercisability thereof as Incentive Options shall be applied on the basis of the order in which such options are granted. Except as modified by the preceding provisions of this Section VI, all the provisions of the Plan shall be applicable to the Incentive Options granted hereunder. VII. CORPORATE TRANSACTIONS (a) In the event of any of the following transactions (a "Corporate Transaction"): 7 8 (i) a merger or acquisition in which the Company is not the surviving entity, except for a transaction the principal purpose of which is to change the State of the Company's incorporation, (ii) the sale, transfer or other disposition of all or substantially all of the assets of the Company or (iii) any reverse merger in which fifty percent (50%) or more of the Company's outstanding voting stock is transferred to different holders in a single transaction or a series of related transactions, then the exercisability of each option outstanding under the Plan shall be automatically accelerated so that each such option shall, during the five (5) business day period immediately prior to the specified effective date for the Corporate Transaction, become fully exercisable with respect to the total number of shares of Common Stock purchasable under such option and may be exercised for all or any portion of such shares; provided, however, that the exercisability as an Incentive Option of any accelerated options shall be subject to the applicable dollar limitation of Section VI(b). However, an outstanding option under the Plan shall not be so accelerated if and to the extent (i) such option is, in connection with the Corporate Transaction, either to be assumed by the successor corporation or parent thereof or be replaced with a comparable option to purchase shares of the capital stock of the successor corporation or parent thereof or (ii) the acceleration of such option is subject to other applicable limitations imposed by the Plan Administrator. Upon the consummation of the Corporate Transaction, all outstanding options under the Plan shall, to the extent not previously exercised or assumed by the successor corporation or its parent company, terminate and cease to be outstanding. (b) If the Company is the surviving entity in any merger or other business combination, then each option which remains outstanding under the Plan immediately after such merger or other business combination shall be appropriately adjusted to apply and pertain to the number and class of securities which would be issuable, in consummation of such merger or business combination, to an actual holder of the same number of shares of Common Stock as are subject to such option immediately prior to such merger or business combination, and appropriate adjustments shall also be made to the option price payable per share, provided the aggregate option price payable for such option shall remain the same. Appropriate adjustments shall also be made to the class and number of securities available for issuance under the Plan following the consummation of such merger or business combination. (c) The grant of options under this Plan shall in no way affect the right of the Company to adjust, reclassify, reorganize or otherwise change its capital or business structure or to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or assets. VIII. CANCELLATION AND NEW GRANT OF OPTIONS The Plan Administrator shall have the authority to effect, at any time and from time to time, with the consent of the affected optionees, the cancellation of any or all outstanding options under 8 9 the Plan and to grant in substitution therefor new options under the Plan covering the same or different numbers of shares of Common Stock but having an option price per share not less than eighty-five percent (85%) of fair market value (one hundred percent (100%) of fair market value in the case of an Incentive Option or, in the case of a 10% Shareholder, not less than one hundred and ten percent (110%) of fair market value) on the new grant date. IX. SURRENDER OF OPTIONS FOR CASH OR STOCK (a) Provided and only if the Plan Administrator determines in its discretion to implement stock appreciation right provisions of this Section IX, one or more optionees may be granted the right, exercisable upon such terms and conditions as the Plan Administrator may establish at the time of the option grant or at any time thereafter, to surrender all or part of an unexercised option under the Plan in exchange for a distribution from the Company equal in amount to the excess of (i) the fair market value (at date of surrender) of the number of shares in which the optionee is at the time vested under the surrendered option or portion thereof over (ii) the aggregate option price payable for such vested shares. (b) No surrender of an option shall be effective hereunder unless it is approved by the Plan Administrator. If the surrender is so approved, then the distribution to which the optionee shall accordingly become entitled under this Section IX may be made in shares of Common Stock valued at fair market value at date of surrender, in cash, or partly in shares and partly in cash, as the Plan Administrator shall in its sole discretion deem appropriate. (c) If the surrender of an option is rejected by the Plan Administrator, then the optionee shall retain whatever rights the optionee had under the surrendered option (or surrendered portion thereof) on the date of surrender and may exercise such rights at any time prior to the later of (i) the receipt of the rejection notice or (ii) the last day on which the option is otherwise exercisable in accordance with the terms of the instrument evidencing such option, but in no event may such rights be exercised at any time after ten (10) years (or five (5) years in the case of a 10% Shareholder) after the date of the option grant. (d) Notwithstanding the foregoing provisions of this Section IX, should twenty-five percent (25%) or more of the Company's outstanding voting stock be acquired, at a time when one or more classes of the Company's equity securities are registered under Section 12(g) of the Securities Exchange Act of 1934 (as amended), pursuant to a tender or exchange offer (i) which is made by a person or group of related persons other than the Company or a person that directly or indirectly controls, is controlled by or is under common control with the Company and (ii) which the Board does not recommend the Company's shareholders to accept, then each officer or director who is at the time subject to the short-swing profit restrictions of the Federal securities laws shall have the right (exercisable for a period not to exceed thirty (30) days) to surrender any or all options held by such individual under this Plan, to the extent such options are at the time exercisable for vested shares, and receive in exchange therefor an appreciation distribution calculated in accordance with Section IX(a). The approval of the Board shall not be required for such surrender, and the 9 10 distribution to which such individual shall become entitled upon such surrender shall be made entirely in cash. X. LOANS OR GUARANTEE OF LOANS The Plan Administrator may assist any optionee (including any officer or director) in the exercise of one or more options granted to such optionee under the Plan by (a) authorizing the extension of a loan to such optionee from the Company, (b) permitting the optionee to pay the option price for the purchased Common Stock in installments over a period of years or (c) authorizing a guarantee by the Company of a third party loan to the optionee. The terms of any loan, installment method of payment or guarantee (including the interest rate and terms of repayment) will be established by the Plan Administrator in its sole discretion. Loans, installment payments and guarantees may be granted without security or collateral (other than to optionees who are consultants or independent contractors, in which event the loan must be adequately secured by collateral other than the purchased shares, but the maximum credit available to the optionee shall not exceed the sum of (i) the aggregate option price payable for the purchased shares plus (ii) any federal and state income and employment tax liability incurred by the optionee in connection with the exercise of the option. XI. EXTENSION OF EXERCISE PERIOD The Board shall have full power and authority, exercisable in its sole discretion to extend, either at any time while the option is granted or at the time while the option remains outstanding, the period of time for which the option is to remain exercisable following the optionee's termination of Employee status from the twelve (12) month or shorter period set forth in the option agreement to such greater period of time as the Plan Administrator shall deem appropriate; provided, however, that in no event shall such option be exercisable after the specified expiration date of the option term. XII. AMENDMENT OF THE PLAN The Board shall have complete and exclusive power and authority to amend or modify the Plan in any or all respects whatsoever; provided, however, that no such amendment or modification shall, without the consent of the holders, adversely affect rights and obligations with respect to options at the time outstanding under the Plan; and provided, further, that the Board shall not, without the approval of the stockholders of the Company (i) increase the maximum number of shares issuable under the Plan, except for permissible adjustments under Section IV(c), (ii) materially modify the eligibility requirements for the grant of options under the Plan or (iii) otherwise materially increase the benefits accruing to participants under the Plan. XIII. EFFECTIVE DATE AND TERM OF PLAN (a) The Plan shall become effective when adopted by the Board, but no option granted under the Plan shall become exercisable unless and until the Plan shall have been approved by the 10 11 stockholders of the Company. If such stockholder approval is not obtained within twelve (12) months after the date of the Board's adoption of the Plan, then all options previously granted under the Plan shall terminate and no further options shall be granted. Subject to such limitation, the Plan Administrator may grant options under the Plan at any time after the effective date and before the date fixed herein for termination of the Plan. (b) Unless sooner terminated in accordance with Section VII, the Plan shall terminate upon the earlier of (i) the expiration of the ten (10) year period measured from the date of the Board's adoption of the Plan or (ii) the date on which all shares available for issuance under the Plan shall have been issued or cancelled pursuant to the exercise or surrender of options granted hereunder. If the date of termination is determined under clause (i) above, then options outstanding on such date shall thereafter continue to have force and effect in accordance with the provisions of the instruments evidencing such options. (c) Options may be granted under this Plan to purchase shares of Common Stock in excess of the number of shares then available for issuance under the Plan, provided (i) an amendment to increase the maximum number of shares issuable under the Plan is adopted by the Board prior to the initial grant of any such option and within one year thereafter such amendment is approved by the stockholders of the Company and (ii) each option granted is not to become exercisable, in whole or in part, at any time prior to the obtaining of such stockholder approval. XIV. USE OF PROCEEDS Any cash proceeds received by the Company from the sale of shares pursuant to options granted under the Plan shall be used for general corporate purposes. XV. REGULATORY APPROVALS The implementation of the Plan, the granting of any option hereunder, and the issuance of stock upon the exercise or surrender of any such option shall be subject to the procurement by the Company of all approvals and permits required by regulatory authorities having jurisdiction over the Plan, the options granted under it and the stock issued pursuant to it. XVI. FINANCIAL REPORTS The Company shall deliver financial and other information regarding the Company, on an annual or other periodic basis, to each individual holding an outstanding option under the Plan, to the extent the Company is required to provide such information pursuant to Section 260.140.41.2 of the Rules of the California Corporations Commissioner. 11 EX-23.1 9 CONSENT OF ARTHUR ANDERSEN LLP 1 Exhibit 23.1 ARTHUR ANDERSEN CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS --------------------------------------------------- As independent certified public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our reports on Gerald Stevens, Inc.'s (formerly Florafax International, Inc.) supplemental consolidated financial statements and Florafax International, Inc's consolidated financial statements as of August 31, 1998 and for the year then ended, and on Gerald Stevens Retail, Inc.'s financial statements included in the Gerald Stevens, Inc.'s Form 8-K/A filed on May 17, 1999; and the financial statements of Eastern Floral & Gift Shop, Inc. and subsidiary, Arizona Wholesale Floral Co. d/b/a Cactus Flower Florists, Flower Franchising, Inc. d/b/a Royer's Flowers, J.J. Fallon Company, Inc. d/b/a Fallon's Creative Flowers, National Flora, Phoebe Floral, Inc. and A.G.A. Flowers, Inc. included in Florafax International, Inc.'s Form S-4 filed on April 12, 1999; and to all references to our Firm included in or made part of this Registration Statement. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Miami, Florida, August 25, 1999. EX-23.2 10 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 Exhibit 23.2 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports, which appear in the Company's Proxy Statement dated April 12, 1999. /s/ PricewaterhouseCoopers LLP PricewaterhouseCoopers LLP Miami, Florida August 25, 1999 EX-23.3 11 CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.3 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement (Form S-8) of Gerald Stevens, Inc. (formerly Florafax International, Inc.), pertaining to the Florafax International, Inc. Management Incentive Plan, the Gerald Stevens, Inc. 1998 Stock Option Plan and the Calyx & Corolla, Inc. 1988 Stock Option Plan, or our report dated October 8, 1998, with respect to the consolidated financial statements of Florafax International, Inc. for the years ended August 31, 1997 and 1996 included in its Annual Report (Form 10-KSB, as amended by Amendment No. 1 on Form 10-KSB/A and as further amended by Amendment No. 2 on Form 10-KSB/A) for the year ended August 31, 1998, filed with the Securities and Exchange Commission. We also consent to the incorporation by reference of our report dated October 8, 1998, with respect to the supplemental consolidated financial statements of Gerald Stevens, Inc. (formerly Florafax International, Inc.) for the year ended August 31, 1997 and 1996 included in its Current Report (Form 8-K) filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Tampa, Florida August 25, 1999 EX-23.4 12 CONSENT OF ADAIR FULLER WITCHER & MALCOM PA 1 Exhibit 23.4 ADAIR, FULLER, WITCHER & MALCOM, P.A. Certified Public Accountants Michael R. Adair Steven E. Fuller Trade Centre South Terrell W. Witcher 100 West Cypress Creek Road, Suite 1045 William A. Malcolm Fort Lauderdale, Florida 33309-2115 Hugh H. Cooper -------- Fax: 954-491-9792 954-491-9790 CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS As independent certified public accountants, we hereby consent to the incorporation by reference of our report dated February 17, 1999, except for notes G and H as to which the date is April 30, 1999, with respect to the combined financial statements of The Exotic Gardens, Inc. and Kuhn Flowers, Inc. as of September 30, 1998 and 1997, and for the two years then ended that were incorporated by reference in Registration Statement Number 333-78597 on Form S-3, as amended, and to all references to our Firm included in or made a part of this Registration Statement on Form S-8 of Gerald Stevens, Inc. /s/ ADAIR FULLER WITCHER & MALCOLM, P.A. ADAIR FULLER WITCHER & MALCOLM, P.A. August 24, 1999 EX-23.5 13 CONSENT OF DELOITTE & TOUCHE LLP 1 Exhibit 23.5 Independent Auditors' Consent We consent to the incorporation by reference in this Registration Statement of Gerald Stevens, Inc. on Form S-8 of our report on Calyx & Corolla, Inc. dated August 21, 1998, appearing in the Current Report on Form 8-K/A, of Gerald Stevens, Inc., and incorporated by reference into Amendment No. 3 to Registration Statement (No. 333-78597) on Form S-3 of Gerald Stevens, Inc. /s/ Deloitte & Touche LLP San Francisco, California August 23, 1999 -----END PRIVACY-ENHANCED MESSAGE-----