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 65-0773649
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
301 East Las Olas Boulevard, Suite 300
Fort Lauderdale, Florida 33301
(Address of principal executive offices, including zip code)
Gerald Stevens, Inc. 401(k) Plan
(Full title of the Plan)
Adam D. Phillips
Gerald Stevens, Inc.
301 East Las Olas Boulevard, Suite 300
Fort Lauderdale, Florida 33301
954/713-5000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to Offering Price Aggregate Amount of
Registered* be Registered Per Share** Offering Price** Registration Fee
- ----------------------------------------------------------------------------------------------------------------------
Common Stock, par value
$0.01 per share 1,000,000 Shares $8.21875 $8,218,750 $2,169.75
- ----------------------------------------------------------------------------------------------------------------------
* In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
referred to herein.
** Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Pursuant to the Securities Act of 1933, as amended, and the
regulations thereunder, the documents containing the information specified in
Part I are not required to be filed with the Securities and Exchange Commission
as part of this Registration Statement and, therefore, are not set forth herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The following documents that we have filed with the SEC are
incorporated by reference:
1. Our Annual Report on Form 10-K for the fiscal year
ended August 31, 1999, and any amendments thereto.
2. All other reports that we have filed with the SEC for
ourselves, or on behalf of our 401(k) Plan, pursuant
to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 since the end of our fiscal year ended
August 31, 1999.
3. The description of our common stock contained in our
Registration Statement on Form 10, dated April 27,
1971.
All documents subsequently filed by us or the Plan pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act after the date
of this Registration Statement and prior to such time as we file a
post-effective amendment to this Registration Statement that indicates that all
securities offered hereby have been sold, or that deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities.
--------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
---------------------------------------
Not applicable.
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Item 6. Indemnification of Directors and Officers.
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(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 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, such indemnification is not
permitted if such person has been adjudged liable to the corporation unless the
court determines that, under all of the circumstances, such person is
nonetheless fairly and reasonably entitled to indemnity for such expenses as the
court deems proper.
Section 145 also permits a corporation to purchase and maintain
insurance on behalf of its directors and officers against any liability that may
be asserted against, or incurred by, such persons in their capacities as
directors or officers of the corporation whether or not we 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 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 directors,
officers or employees, with respect to which they may or may not be indemnified
under the provisions of our Certificate of Incorporation or Bylaws.
Item 7. Exemptions from Registration Claimed.
-------------------------------------
Not applicable.
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Item 8. Exhibits.
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The following exhibits have been filed with this Registration
Statement:
Exhibit No. Exhibit
- ----------- -------
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney (included as
part of the signature page)
In lieu of the opinion of counsel or determination letter contemplated
by Section 601(b)(5)(ii) of Regulation S-K, the Registrant hereby undertakes
that it will submit the Plan and will submit any amendments thereto to the
Internal Revenue Service ("IRS") in a timely manner and will make all changes
required by the IRS in order to continue to qualify the Plan under Section 401
of the Internal Revenue Code of 1986, as amended.
Item 9. Undertakings.
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We undertake:
(a) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) to reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) that, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by us pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statement.
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(b) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) to remove from registration by means of a post-effective amendment
any of the securities being registered that remain unsold at the termination of
the offering.
(d) that, for purposes of determining any liability under the
Securities Act, each filing of our annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than our
payment of expenses incurred or paid by one of our directors, officers or
controlling persons in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with
the securities being registered, we will, unless in the opinion of our counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether our indemnification is against
public policy as expressed in the Securities Act of 1933, as amended, and we
will be governed by the final adjudication of such issue.
EXPERTS
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The audited consolidated financial statements as of August 31, 1999 and
1998 and for the years then ended of Gerald Stevens, Inc., incorporated by
reference in this Registration Statement and included in our Annual Report on
Form 10-K for the year ended August 31, 1999, have been audited by Arthur
Andersen LLP, independent certified public accountants, as indicated in their
reports with respect thereto, and are included therein in reliance upon the
authority of such firm as experts in giving said reports.
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedule for the year ended August 31, 1997 included in
our Annual Report on Form 10-K for the year ended August 31, 1999, as set forth
in their reports which are incorporated by reference in this prospectus and
elsewhere in the registration statement. Our financial statements and schedule
are incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Gerald Stevens, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale, State of Florida.
GERALD STEVENS, INC.
By /s/ Albert J. Detz
---------------------------------
Date: January 5, 2000 (Senior Vice President and Chief
Financial Officer)
Each person whose signature appears below appoints Gerald R. Geddis and
Adam D. Phillips, and each of them, as his true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him and in his
stead, in any capacities to sign any and all amendments, including
post-effective amendments to this Registration Statement and to file the same,
with all exhibits thereto and all other document in connection therewith, with
the Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitute or substitutes may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been duly signed by the following persons in the
capacities indicated on January 5, 2000.
Signature Title
--------- -----
/s/ G. Geddis President, Chief Executive Officer
and Director
(Principal Executive Officer)
/s/ S. Berrard } /s/ A. Phillips }
/s/ T. Byrne } /s/ K. Puttick } Directors
/s/ R. Johnson } /s/ K. Royer }
/s/ R. Owades } /s/ A. Williams }
/s/ A. Detz Senior Vice President
- ----------------------- (Principal Financial Officer)
(A. Detz)
/s/ E. Baker Vice President and Controller
- ----------------------- (Principal Accounting Officer)
(E. Baker)
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SIGNATURES
The Plan
- --------
Pursuant to the requirements of the Securities Act of 1933,
the Administrator of the Gerald Stevens, Inc. 401(k) Plan has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Fort Lauderdale, State of Florida, on January 5,
2000.
GERALD STEVENS, INC. 401(k) PLAN
By: Gerald Stevens, Inc.
Its: Plan Administrator
By: /s/ Adam D. Phillips
--------------------------
Its: Senior Vice President
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EXHIBIT INDEX
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Exhibit No. Exhibit
- ----------- -------
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Ernst & Young LLP
24 Powers of Attorney (included as part of the signature page)