As filed with the Securities and Exchange Commission on July 28,
1995
Registration No. 33-_________
_________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
TEMTEX INDUSTRIES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 75-1321869
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3010 LBJ Freeway, Suite 650
Dallas, Texas 75234
(Address of Principal Executive Offices) (Zip Code)
_________________________
1990 STOCK PLAN FOR KEY EMPLOYEES OF
TEMTEX INDUSTRIES, INC. AND ITS SUBSIDIARIES
(Full title of the plan)
_________________________
E. R. BUFORD Copy to:
President and Chief STANLEY R. HULLER, ESQ.
Executive Officer Arter, Hadden, Johnson & Bromberg
TEMTEX INDUSTRIES, INC. 1717 Main St., Suite 4100
3010 LBJ Freeway, Suite 650 Dallas, Texas 75201-4605
Dallas, Texas 75234 (214) 761-2100
(214) 484-1845
(Name, address and telephone
number, including area code,
of agent for service)
_________________________
<TABLE>
CALCULATION OF REGISTRATION FEE
_________________________________________________________________
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee(3)
_________________________________________________________________
Common Stock 100,000 $5.1875 $518,750 $178.88
($.20 par Shares
value)
_________________________________________________________________
Page one of 19 sequentially numbered pages.
Index to exhibits is located on page 4.
<PAGE> 2 of 19
<FN>
(1) The securities to be registered represent additional
shares of Common Stock reserved for issuance under the 1990 Stock
Plan For Key Employees of Temtex Industries, Inc. and its
Subsidiaries (the "Plan"). Pursuant to Rule 416, shares of Common
Stock of the Company allotted as restricted stock or issuable
pursuant to the exercise of options granted or to be granted under
the Plan in order to prevent dilution resulting from any future
stock split, stock dividend or similar transaction are also being
registered hereunder.
(2) Estimated solely for the purpose of calculating the
registration fee based upon the average of the high and low price
per share of the Common Stock on the Nasdaq Stock Market's National
Market on July 24, 1995 ($5.1875), in accordance with Rules 457(c)
and (h) and General Instruction E to Form S-8.
(3) Relates only to additional shares registered hereby
and does not include the amount of the registration fee previously
paid in connection with the 95,000 shares previously registered by
that Registration Statement on Form S-8 filed with the Commission
on January 30, 1995 (SEC Reg. No. 33-88980).
</FN>
</TABLE>
The contents of that Registration Statement on Form S-8, SEC
File No. 33-88980, filed with the Securities and Exchange
Commission on January 30, 1995 (the "Original Registration
Statement") relating to the 1990 Stock Option Plan for Key
Employees of Temtex Industries, Inc. and its Subsidiaries, are
incorporated herein by reference.
The only information and documents required in this
Registration Statement that were not included in the Original
Registration Statement are the additional Exhibits included in
"Item 8. Exhibits" below.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
4.5 1990 Stock Plan for Key Employees of Temtex
Industries, Inc. and its Subsidiaries, as
amended (filed herewith)
5.1 Opinion of Arter, Hadden, Johnson & Bromberg
(filed herewith)
23.1 Consent of Arter, Hadden, Johnson & Bromberg
(included in their opinion filed as Exhibit
5.1)
23.2 Consent of Ernst & Young, LLP
(filed herewith)
<PAGE> 3 of 19
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, as amended, the Registrant certifies that
it has reasonable grounds to believe that it meets all 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 Dallas,
Texas, on July 25, 1995:
TEMTEX INDUSTRIES, INC.
By: E. R. Buford
President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
as amended, this Registration Statement has been signed by the
following persons and in the capacities indicated on July 25,
1995:
Signature Title
James E. Upfield Chairman of the Board and Director
E. R. Buford Chief Executive Officer, President
and Director (Principal Executive
Officer)
R. N. Stivers Vice President-Finance and Chief
Financial Officer (Principal
Financial and Accounting Officer)
Larry J. Parsons Director
Joseph V. Mariner, Jr. Director
Scott K. Upfield Director
<PAGE> 4 of 19
INDEX TO EXHIBITS
Exhibit Sequentially
No. Description of Exhibit Numbered Page
4.5 1990 Stock Plan for Key Employees of 5
Temtex Industries, Inc. and its
Subsidiaries, as amended
(filed herewith)
5.1 Opinion of Arter, Hadden, Johnson & 16
Bromberg (filed herewith)
23.1 Consent of Arter, Hadden, Johnson &
Bromberg (included in their opinion
filed as Exhibit 5.1)
23.2 Consent of Ernst & Young, LLP (filed 19
herewith)
<PAGE> 5 of 19
EXHIBIT 4.5
1990 STOCK PLAN FOR KEY EMPLOYEES OF
TEMTEX INDUSTRIES, INC. AND ITS SUBSIDIARIES
As amended at 1995 Annual Meeting of Stockholders
1. Objectives of the Plan
The Plan is intended to encourage ownership of Common
Stock
of Temtex Industries, Inc., a Delaware corporation (hereinafter
called the "Corporation"), by eligible key employees and to
provide incentives for them to put forth maximum efforts for the
success of the Corporation. By extending to key employees the
opportunity to acquire proprietary interests in the Corporation
and to participate in its success, the Plan may be expected to
benefit the Corporation and its stockholders by making it
possible for the Corporation to attract and retain the best
available talent and by rewarding key management and technical
personnel for their part in increasing the value of the
Corporation's shares.
2. Stock Reserved for the Plan
There will be reserved for issue under the Plan upon the
allotment of restricted stock or upon the exercise of Non-
- -Qualified or Incentive Options (as hereinafter defined) or stock
appreciation rights in conjunction therewith, one hundred ninety
five thousand (195,000) shares of Common Stock, par value $0.20
per share ("Common Stock"), of the Corporation, subject to
adjustment as provided in paragraph 17 below. Such shares may be
in whole or in part, as the Board of Directors of the Corporation
shall from time to time determine, authorized but unissued shares
of Common Stock or issued shares of Common Stock which shall have
been reacquired by the Corporation. If any option granted under
the Plan shall expire or terminate for any reason without having
been exercised in full or is reduced as to the number of shares
covered thereby, the unpurchased shares subject thereto, or the
shares by which such option is reduced, shall again be available
for the purposes of the Plan. If stock appreciation rights shall
be exercised under this Plan, only the number of shares actually
delivered upon the exercise of such stock appreciation rights
shall be charged against the maximum limitation on the aggregate
number of shares which may be issued under the Plan, and
otherwise the related stock option shall be deemed to have
terminated for a reason other than the exercise thereof for the
purpose of such maximum limitation. If restricted stock shall be
issued and if by reason of such restrictions any of the shares of
restricted stock shall revert back to the Corporation, such
shares shall again be available for the purposes of the Plan.
<PAGE> 6 of 19
3. Administration of the Plan
The Plan shall be administered by the committee referred
to in Paragraph 4 (hereinafter called the "Committee"). Subject to
express provisions of the Plan, the Committee shall have plenary
authority, in its discretion, to determine the individuals to
whom, and the time or times at which, restricted stock shall be
allotted or options or stock appreciation rights shall be
granted, the number of shares to be subject to each allotment of
restricted stock, stock option and stock appreciation right, the
option price, the duration of each option, whether restricted
stock should be issued on the exercise of an option or stock
appreciation right, the nature of the restrictions to be
applicable to any restricted stock issued (whether by allotment
or upon the exercise of an option or stock appreciation right),
whether any stock option granted hereunder shall constitute an
Incentive Option (as hereinafter defined), or a Non-Qualified
Option (as hereinafter defined), and the other terms and
provisions of each allotment of restricted stock, stock option
and stock appreciation right, which may include provisions for
repurchase by the Corporation of shares of Common Stock issued
pursuant to the Plan. In making such determination, the Committee
may take into account the nature of the services rendered by the
respective key employees, their present and potential
contributions to the Corporation's success, and such other
factors as the Committee in its discretion shall deem relevant.
Subject to the express provisions of the Plan, the Committee
shall also have plenary authority to interpret the Plan, to
prescribe, amend and rescind rules and regulations relating to
it, to determine the terms and provisions of the agreements with
the respective recipients of benefits under the Plan (which need
not be identical) and to make all other determinations necessary
or advisable for the administration of the Plan. The Committee's
determination on the matters referred to in this paragraph 3
shall be conclusive.
4. The Committee
The Committee shall consist of three or more members of
the Board of Directors of the Corporation, who are not currently,
and within one year prior to appointment have not been, eligible
for selection as a person to whom restricted stock may be allotted
or to whom stock options or stock appreciation rights may be
granted pursuant to the Plan. Although the members of the Committee
shall not be eligible to receive benefits under the Plan while they
are serving on the Committee, service by a director on the
Committee shall not affect in any way any benefits which may be
granted to such director while not serving on the Committee. The
Committee shall be appointed by the Board of Directors, which may
from time to time appoint members of the Committee in substitution
for members previously appointed and may fill vacancies, however
caused, in the Committee. The Committee may select one of its
members as its Chairman and shall hold its meetings at such times
and places as it may determine. A majority of its members shall
constitute a quorum. All determinations of the Committee shall be
made by not less than a majority vote at a meeting duly called
and held. The Committee may appoint a secretary, shall keep
minutes of its meetings and shall make such rules and regulations
for the conduct of its business as it shall deem advisable.
<PAGE> 7 of 19
5. Eligibility
Subject to the limitations set forth in paragraph 6
hereof, benefits under the Plan may be granted only to key
employees (which term as used herein includes officers) of the
Corporation and its present and future subsidiary corporations (as
defined in Section 425(f) of the Internal Revenue Code of 1986, as
amended (the "Code")) (herein called Subsidiaries ) as selected by
the Committee. A director of the Corporation or of a Subsidiary who
is not also an employee of the Corporation or one of its
Subsidiaries will not be eligible to receive benefits under the
Plan. Nothing contained in this Plan shall be construed to limit
the right of the Corporation to grant options and other benefits
otherwise than under this Plan in connection with the
acquisition, by purchase, lease, merger, consolidation or
otherwise, of the business and assets of any corporation, firm or
association, including options granted to employees thereof who
become employees of the Corporation or a Subsidiary, or for other
proper corporate purposes.
6. Stock Options
a. Subject to the express provisions of the Plan, the
Committee shall have full and complete authority to grant options
under the Plan which constitute "incentive stock options" within
the meaning of Section 422A of the Code (such options being
hereinafter referred to as "Incentive Options") or to grant
options under the Plan which do not constitute Incentive Options
(such options being hereinafter referred to as "Non-Qualified
Options") (hereinafter Incentive Options and Non-Qualified
Options may sometimes be referred to collectively as 'Stock
Options" or 'Options").
b. Options may be granted to eligible employees upon
such terms and conditions as the Committee may deem appropriate in
its discretion, provided that (i) Incentive Options shall comply
with all of the requirements contained in Section 422A of the Code;
(ii) in no event shall an Incentive Option be granted hereunder
to any person who, at the time such Incentive Option is granted,
owns (as defined in Sections 422A and 425 of the Code) stock
possessing more than 10% of the total combined voting power of
all classes of stock of the Corporation or of its parent
corporation, if any, or of any Subsidiary unless (A) at the time
such Incentive Option is granted, the option price is at least
110% of the fair market value of the stock subject to such
Incentive Option, and (B) such Incentive Option by its terms is
not exercisable after the expiration of 5 years from the date the
Incentive Option is granted; (iii) the aggregate fair market
value (determined as of the time the Incentive Option is granted)
of the stock with respect to which Incentive Options are
exercisable for the first time by any individual during any
calendar year under the Plan (and under any other plans granting
incentive stock options which may be maintained by the
Corporation or by its parent corporation, if any, or any
Subsidiary) shall not exceed $100,000; and (iv) no eligible
employee shall receive any grant of options, whether Incentive
Options or Non-Qualified Options, exercisable for more than
twenty-five thousand (25,000) shares of Common Stock during any
one fiscal year of the Corporation.
<PAGE> 8 of 19
7. Stock Appreciation Rights
Any Option granted under the Plan may, in the discretion
of the Committee, include a stock appreciation right, either at the
time of grant or by amendment. Such stock appreciation right
shall be subject to such terms and conditions as the Committee
shall impose, in its discretion, including the following:
a. A stock appreciation right shall not be
exercisable to any greater extent than the related Stock Option is
exercisable;
b. A stock appreciation right shall be exercisable
only after the expiration of any waiting period specified by the
Committee, and any such waiting period may be longer (but not
shorter) than the waiting period, if any, specified for the
exercise of the related Stock Option.
c. A stock appreciation right shall entitle the
optionee at his election to surrender to the Corporation the Stock
Option in which it is included, or any portion thereof, in lieu of
exercising such Stock Option, or portion thereof, and to receive
from the Corporation in exchange therefor that number of shares
having an aggregate value equal to the excess (if any) of the
market value (as hereinafter defined) of one share over the
purchase price per share specified in such Option multiplied by
the total number of shares called for by the Option or portion
thereof, which is so surrendered, with a cash settlement on the
basis of such excess of market value over option price to be made
for any fractional share interests. In the discretion of the
Committee, the Corporation shall be entitled to elect instead to
settle its obligation, arising out of the exercise of a stock
appreciation right, by the payment in cash equal to the aggregate
market value of the shares it would otherwise be obligated to
deliver, or the Corporation may elect to settle such obligation
in part with stock and in part with cash. The Committee may,
however, in its discretion, agree with any holder of a stock
appreciation right that the Corporation will not exercise its
election for a cash settlement without the consent of the holder
of such stock appreciation right. The market value of a share for
the purpose of this paragraph 7 shall be the closing sales price
of a share on the National Association of Securities Dealers
Automated Quotation System, as reported by the National
Association of Securities Dealers, Inc. ("NASD"), if the shares
are so quoted, or if not so quoted, the mean between dealer "bid"
and "ask" prices of the shares in the over-the-counter market, as
reported by the NASD, or, if the shares are listed upon an
established stock exchange, the closing price of a share on such
stock exchange, in each such case on the trading day next
preceding the date on which the stock appreciation right shall be
exercised, except that, if the Corporation shall elect to settle
its obligation in cash, then such market value shall be
determined by reference to the higher of such reported closing or
other price or the closing or other price of a share as so
reported on the trading day next preceding the date of such
election by the Corporation; provided that if in the opinion of
the Committee determination of market value in such manner shall
not then be practical, the market value shall be determined in
such other manner as may be specified by the Committee in its
discretion. Any such determination of market value shall in all
respects be subject to any applicable rules and regulations under
Section 422A of the Code with respect to the determination of
fair market value in the case of any stock appreciation right
issued in connection with an Incentive Option.
<PAGE> 9 of 19
8. Restricted Stock
Subject to the express provisions of the Plan, the
Committee shall have full authority to allot to eligible employees,
as a bonus, shares of Common Stock as restricted stock, upon such
terms and subject to such restrictions and conditions as the
Committee may deem appropriate in its discretion. Also, any
Non-Qualified Option or related stock appreciation right granted
under the Plan may, in the discretion of the Committee, either at
the time of grant or by amendment to which the optionee consents,
provide for the issuance of restricted stock, in whole or in
part, upon the exercise of such Non-Qualified Option or related
stock appreciation right, such restricted stock to be issued upon
such terms and subject to such restrictions and conditions as the
Committee may deem appropriate in its discretion. Any such
restrictions may, in the discretion of the Committee, be intended
to subject the shares of Common Stock issued under such
restrictions to a "substantial risk of forfeiture" (as defined in
Section 83 of the Code) until such restrictions shall lapse or be
removed.
9. Option Prices
The purchase price of the Common Stock under each Stock
Option shall be determined by the Committee, but shall not be
less than 100% of the fair market value of the stock at the time
of the granting of the Option. Such fair market value shall be
determined by the Committee and may be computed by such method as
the Committee shall consider will reflect the fair market value
of the Common Stock on such day; provided, however, that the
method used by the Committee to value the Common Stock in
connection with any Incentive Option shall be consistent with any
applicable regulations adopted by the Treasury Department under
Section 422A of the Code.
10. Term of Stock Options, Stock Appreciation Rights and Stock
Restrictions
The term of each Stock Option and any related stock
appreciation right shall, subject to the limitations set forth
herein, be for such period (not to exceed ten years and one month
from the date such Option is granted in the case of any
Non-Qualified Option or ten years from the date such Option is
granted in the case of any Incentive Option) as the Committee
shall determine, and shall be subject to earlier termination as
provided in this Plan. All allotments of restricted stock shall
provide that such restricted stock shall revert back to the
Corporation to the extent that the restrictions thereon have not
lapsed or been removed within such period as the Committee shall
determine, and the right to such shares may become sooner
forfeitable as provided in this Plan.
<PAGE> 10 of 19
11. Exercise of Stock Options and Stock Appreciation Rights
Subject to any applicable legal requirements (including,
in the case of Incentive Options or related stock appreciation
rights, any requirements pursuant to Section 422A of the Code),
and unless otherwise provided in the option agreement, each Stock
Option, and any related stock appreciation right, shall be
exercisable, in whole at any time, or in part from time to time
during the term of the Option. The purchase price of the shares
as to which an Option shall be exercised shall be paid in full at
the time of exercise. Except as provided in paragraphs 15 and 16
hereof, no Option or related stock appreciation right may be
exercised at any time unless the holder is then a regular
employee of the Corporation or of a Subsidiary and has
continuously remained an employee at all times since the date of
the granting of the Option. The holder of an Option shall not
have any rights of a stockholder with respect to the shares
covered by his Option until such shares shall be issued to him
upon the due exercise of the Option or related stock appreciation
right. Upon the exercise of any Option or stock appreciation
right, any applicable taxes which the Corporation is required to
withhold shall be paid to the Corporation and any information
which the Corporation deems necessary shall be supplied to the
Corporation.
12. Issuance of Restricted Stock
Promptly following the award to an employee by the
Committee of an allotment of restricted stock or the exercise by an
employee of a Non-Qualified Option or related stock appreciation
right entitling the holder to restricted stock, the Corporation
shall issue to the employee one or more certificates representing
the shares allotted. The recipient shall thereupon become a
stockholder of the Corporation with respect to all of the shares
represented by such certificate or certificates; and unless the
Committee has otherwise specified, such recipient shall have all
of the rights of a stockholder with respect to all such shares,
including the right to vote such shares and to receive dividends,
but subject to the terms, restrictions and conditions specified
by the Committee. The certificate or certificates representing
restricted stock shall be inscribed with a legend referring to
this Plan and the agreement under which such restricted stock is
issued, and such certificate or certificates, along with blank
stock powers, shall be deposited in escrow under an escrow
agreement specified by the Committee, to be held by the escrow
agent for delivery to the holder only when and to the extent that
the restrictions specified by the Committee shall lapse or be
removed. Upon the occurrence of an event such as those specified
in paragraph 17, if the holder of restricted shares which are
being held in escrow shall by reason of such event become
entitled to new or additional or different securities, such new,
additional or different securities shall likewise be deposited in
escrow, with blank stock powers or other instruments of transfer,
to be held subject to the same restrictions specified for the
restricted stock originally allotted. The Committee may make such
provision as it deems appropriate in an allotment of restricted
stock with respect to the possible termination of the employment
of the holder before the restrictions shall otherwise lapse or be
removed.
<PAGE> 11 of 19
13. Agreement to Serve
Each individual receiving the grant of an Option or an
allotment of restricted stock hereunder shall, as one of the
terms of the grant or allotment, agree that he will remain in the
service of the Corporation or one of its Subsidiaries for a
period of at least two years from the date of grant or allotment.
Such service shall (subject to the provisions of paragraph 15
hereof and to the terms of any contract between the Corporation
or any such Subsidiary and such employee) be at the pleasure of
the Board of Directors of the Corporation or such Subsidiary and
at such compensation as such Board of Directors or any committee
thereof shall determine from time to time. Unless otherwise
specified by the Committee, any termination of such individual's
service during such period that is either (i) by the Corporation
or such Subsidiary for cause or (ii) voluntary on the part of the
individual and without the written consent of the Corporation or
such Subsidiary shall be deemed a violation by the individual of
such agreement. In the event of such violation, any Option or
Options and any related stock appreciation rights, to the extent
not theretofore exercised, and any rights to restricted stock, to
the extent the restrictions have not theretofore lapsed or been
removed, held by him under the Plan, shall forthwith terminate.
Retirement at the normal retirement date as prescribed from time
to time by the Corporation or such Subsidiary shall be deemed to
be a termination of employment with consent.
14. Non-Transferability of Restricted Stock, Stock Options and
Stock Appreciation Rights
No stock Option or stock appreciation right granted under
the Plan and no restricted stock allotted under the Plan (before
the restrictions have lapsed or been removed) shall be
transferable otherwise than by will or the laws of descent and
distribution, and an Option or stock appreciation right may be
exercised, during the lifetime of the holder thereof, only by
him. An Option, stock appreciation right or restricted stock
transferred by will or the laws of descent and distribution shall
remain subject to all of the terms of this Plan and the agreement
governing such Option, stock appreciation right or restricted
stock.
<PAGE> 12 of 19
15. Termination of Employment of Holder of Stock Option
In the event of the termination of the employment of the
holder of a Stock Option, other than by reason of death, unless
his Option shall have been previously terminated pursuant to the
provisions of paragraph 13 above or unless otherwise provided in
his option agreement, he may exercise his Option and any related
stock appreciation right at any time within three months after
such termination, but in no event after the expiration of the
term of the Option, if and to the extent he was entitled to
exercise such Option or stock appreciation right at the date of
such termination. Options granted under the Plan shall not be
affected by any change of duties or position so long as the
holder continues to be an employee of the Corporation or of a
Subsidiary. Nothing in the Plan or in any Option or stock
appreciation right granted pursuant to the Plan or in any
allotment of restricted stock under the Plan shall confer on any
individual any right to continue in the employ of the Corporation
or any of its Subsidiaries or interfere in any way with the right
of the Corporation or any of its Subsidiaries to terminate his
employment at any time.
16. Death of Holder of Stock Option
In the event of the death of the holder of an Option while
in the employ of the Corporation or of a Subsidiary, or while he
is still entitled to exercise the Option as provided in paragraph
15 hereof, unless otherwise provided in his option agreement, the
Option and any related stock appreciation right theretofore
granted to him may be exercised by a legatee or legatees of the
option holder under his last will, or by his personal
representatives or distributees, at any time within a period of
one year after his death, but in no event after the expiration of
the term of such option, if and to the extent that he was
entitled to exercise such option or stock appreciation right at
the date of his death.
17. Adjustments Upon Changes in Capitalization
Notwithstanding any other provision of the Plan, the
agreements governing Stock Options, stock appreciation rights and
restricted stock may contain such provisions as the Committee
shall determine to be appropriate for the adjustment of the
number and class of shares subject to each allotment of
restricted stock, Stock Option and stock appreciation right and
the option prices and other terms in the event of changes in the
outstanding Common Stock of the Corporation by reason of stock
dividends, recapitalizations, mergers, separations,
reorganizations, liquidations, consolidations, split-ups,
combinations or exchanges of shares and the like, and, in the
event of any such change in the outstanding Common Stock of the
Corporation, the aggregate number and class of shares available
under the Plan shall be appropriately adjusted by the Committee
in its discretion, and the determination of the Committee shall
be conclusive; provided such adjustments shall conform to any
then applicable provisions of the Code and regulations
thereunder.
<PAGE> 13 of 19
18. Special Provisions Regarding Change in Control
The Board of Directors or the Committee may from time to
time make special provisions for one or more employees respecting
a possible change in control of the Corporation, and to the
extent that any such special provisions made with the consent of
the affected employee may have the effect of accelerating vesting
of stock options granted under the Plan or removal of
restrictions on restricted stock allotted under the Plan or the
effect of preventing an immediate termination of benefits, such
special provisions shall be controlling over and shall be deemed
to be an amendment of any inconsistent terms of the agreement
with the employee respecting such stock options or restricted
stock, and termination of employment by any such employee in
accordance with such special provisions upon a change in control
shall be deemed to be with the consent of the Corporation or
Subsidiary then employing such employee, for the purposes of the
Plan.
19. No Loans to Holders of Stock Options
Neither the Corporation nor any Subsidiary may directly or
indirectly lend money to any individual for the purpose of
assisting him to acquire or carry shares of Common Stock issued
upon the exercise of Stock Options granted under the Plan.
20. Time of Granting or Allotment
The effective date of granting of any Stock Option or
stock appreciation right or the allotment of restricted stock
pursuant to the Plan shall be the date specified by the Committee
at the time it awards such Option or stock appreciation right or
restricted stock, provided that such date shall not be prior to
such date of award. The Committee shall promptly notify the
recipient of an award and a written agreement in form specified
by the Committee shall promptly be duly executed and delivered by
or on behalf of the Corporation and the recipient. Each such
agreement, and any amendment thereof, shall contain such terms
and conditions as the Committee, in its sole discretion, shall
determine, including, in the case of any such agreement relating
to an Incentive Option, any terms and conditions which the
Committee shall determine are necessary or may be desirable in
order to qualify such Incentive Option as an incentive stock
option within the meaning of Section 422A of the Code and any
applicable regulations thereunder adopted by the Treasury
Department. The Committee shall have the right to terminate an
award if the written agreement is not signed by the recipient and
returned to the Corporation within 30 days after the delivery
thereof to the recipient.
<PAGE> 14 of 19
21. Government and Stock Exchange Regulations
The Plan, and the granting and exercise of Options and
stock appreciation rights and the allotment of restricted stock
thereunder, and the obligation of the Corporation to sell and
deliver shares under the Plan shall be subject to all applicable
governmental laws, rules and regulations, and to such approvals
by any governmental agencies as may then be required, and shall
also be subject to all applicable rules and regulations of any
stock exchange upon which the Common Stock of the Corporation may
then be listed.
22. Amendment and Termination
Unless the Plan shall theretofore have been terminated as
hereinafter provided, the Plan shall terminate on, and no Stock
Option or stock appreciation right shall be granted and no
restricted stock shall be allotted after December 31, 1999;
however, awards theretofore made may extend beyond that date. The
Plan may be terminated, modified or amended by the stockholders
of the Corporation. The Board of Directors of the Corporation may
also terminate the Plan at any time and may modify or amend the
Plan in such respects as it shall deem advisable, including any
amendment which the Board of Directors may deem necessary in
order to insure that the Incentive Options granted hereunder
shall qualify as incentive stock options within the meaning of
Section 422A of the Code and any regulations thereunder adopted
by the Treasury Department; provided, however, that the Board of
Directors may not, without further approval by the holders of
outstanding shares of the Corporation having a majority of the
general voting power (i) increase the maximum number of shares as
to which Options or stock appreciation rights may be granted or
restricted stock may be allotted under the Plan except as
provided in paragraph 17, (ii) materially increase the benefits
accruing to participants under the Plan, (iii) permit any member
of the Committee to become eligible for benefits under the Plan,
(iv) extend the term of the Plan or the maximum period during
which any Option or stock appreciation right may be exercised, or
(v) change the provisions governing eligibility of employees to
participate in the Plan. No termination or modification or
amendment of the Plan may, without the consent of the employee to
whom any Option or stock appreciation right shall theretofore
have been granted or to whom restricted stock shall have been
allotted, adversely affect the rights of such employee under such
Option, stock appreciation right or allotment of restricted
stock. With the consent of the employee to whom such Option or
stock appreciation right was granted or to whom such restricted
stock was allotted, an outstanding Option or stock appreciation
right or allotment of restricted stock may be modified or amended
by the Committee in such manner as it may deem appropriate
consistent with the requirements of this Plan applicable to a new
grant of an Option or stock appreciation right or a new allotment
of restricted stock on the date of modification or amendment and,
with respect to Incentive Options, consistent with the applicable
provisions of the Code and regulations thereunder adopted by the
Treasury Department.
<PAGE> 15 of 19
23. Adoption
This Plan shall become effective upon its adoption by the
favorable vote of the holders of a majority of the outstanding
shares of Common Stock of the Corporation.
<PAGE> 16 of 19
EXHIBIT 5.1
ARTER, HADDEN, JOHNSON & BROMBERG
1717 Main Street, Suite 4100
Dallas, Texas 75201
214/761-2100
Facsimile 214/741-7139
July 27, 1995
Temtex Industries, Inc.
3010 LBJ Freeway, Suite 650
Dallas, Texas 75234
Re: Temtex Industries, Inc.
Registration Statement on Form S-8
Subject: Additional Shares Reserved Under 1990 Stock Plan For
Key Employees of Temtex Industries, Inc. and its
Subsidiaries
Gentlemen:
We have acted as counsel to Temtex Industries, Inc., a
Delaware corporation (the "Company"), in connection with the
preparation of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission on or about July 28, 1995, under the Securities
Act of 1933, as amended (the "Securities Act"), relating to an
additional 100,000 shares of the $0.20 par value common stock (the
"Common Stock") of the Company that may be issued under the 1990
Stock Plan For Key Employees of Temtex Industries, Inc. and its
Subsidiaries (the "Plan") either as a result of the exercise of
stock options ("Options") or allotted as restricted stock
("Restricted Stock").
You have requested the opinion of this firm with respect to
certain legal aspects of the Registration Statement. In connection
therewith, we have examined and relied upon the original, or copies
identified to our satisfaction, of (1) the Certificate of
Incorporation and the Bylaws of the Company, as both have been
amended and restated; (2) minutes and records of the corporate
proceedings of the Company with respect to the Plan, the
Registration Statement and related matters; (3) the Registration
Statement and exhibits thereto, including the Plan, as amended; and
(4) that Registration Statement on Form S-8 filed with the
Securities and Exchange Commission on January 30, 1995 (Reg. No.
33-88980) and incorporated by reference into the Registration
Statement; and (5) such other documents and instruments as we have
<PAGE> 17 of 19
deemed necessary for the expression of the opinions herein
contained. In making the foregoing examinations, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, and the conformity to
original documents of all documents submitted to us as certified or
photostatic copies. We understand that as of the date hereof, no
shares of Restricted Stock have been issued under the Plan. As to
various questions of fact material to this opinion, and as to the
content and form of the Certificate of Incorporation, the Bylaws,
minutes, records, resolutions and other documents or writings of
the Company, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and
instruments furnished to us by the Company, without independent
check or verification of their accuracy.
Based upon our examination, consideration of, and reliance on
the documents and other matters described above, and subject to the
comments and exceptions noted below, we are of the opinion that,
assuming (i) the outstanding Options were duly granted and the
Options to be granted in the future will be duly granted, both in
accordance with the terms of the Plan, (ii) the shares of
Restricted Stock to be granted in the future, if any, will be duly
granted in accordance with the terms of the Plan and the Board of
Directors will determine that the value paid by the recipient
exceeds the aggregate par value of the Restricted Stock issued,
(iii) the Company maintains an adequate number of authorized but
unissued shares and/or treasury shares of Common Stock available
for issuance to those persons who exercise Options granted under
the Plan and (iv) the consideration for the shares of Common Stock
issuable upon the exercise of such Options is actually received by
the Company as provided in the Plan and the particular option
agreement and such consideration exceeds the par value of such
shares, then the shares of Common Stock issued under and in
accordance with the terms of the Plan will be duly and validly
issued, fully paid and nonassessable.
We bring to your attention the fact that this legal opinion is
an expression of professional judgment and not a guaranty of
result. Further, this opinion is rendered as of the date hereof,
and we undertake no, and hereby disclaim any, obligation to advise
you of any changes in or new developments that might affect any
matters or opinions set forth herein.
This opinion is limited in all respects to the General
Corporation Law of the State of Delaware as in effect on the date
hereof; however, we are not members of the Bar of the State of
Delaware and our knowledge of its General Corporation Law is
derived from a reading of the most recent compilation of that
statute available to us without consideration of any judicial or
administrative interpretations thereof.
<PAGE> 18 of 19
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to references to our firm
included in or made a part of the Registration Statement. In
giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
ARTER, HADDEN, JOHNSON & BROMBERG
<PAGE> 19 of 19
CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1990 Stock Plan for Key
Employees of Temtex Industries, Inc. and Its Subsidiaries of our
report dated October 5, 1994, with respect to the consolidated
financial statements and schedules of Temtex Industries, Inc.
included in its Annual Report (Form 10-K) for the year ended August
31, 1994 filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Dallas, Texas
July 25, 1995
