SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CONE MILLS CORPORATION
(Exact Name of Issuer as specified in its charter)
North Carolina 56-0367025
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1201 Maple Street
Greensboro, North Carolina 27405
(Address of Principal Executive Offices) (Zip Code)
CONE MILLS CORPORATION
1994 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
(Full title of the plan)
TERRY L. WEATHERFORD, SECRETARY
Cone Mills Corporation
1201 Maple Street
Greensboro, North Carolina 27405
(Name and Address of agent for service)
(910) 379-6246
(Telephone Number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Offering Aggregate
to be Amount to be Price Offering Amount of
Registered Registered Per Share* Price* Registration Fee
Common Stock,
par value
$.10 per 100,000 $12.8125 $1,287,500 $441.81*
share shares
*Pursuant to Rule 457(h), the average of the high and low prices
of the Common Stock as reported on the New York Stock Exchange on
May 16, 1994, has been used to calculate the amount of the
registration fee.
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This Registration Statement on Form S-8 covers 100,000 shares of
the Common Stock, par value $.10 per share, (the "Common Stock") of
Cone Mills Corporation (the "Registrant") issuable upon exercise of
options to be granted under the Registrant's 1994 Stock Option Plan
for Non-Employee Directors (the "Plan").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject to the informational requirements of
the Securities Exchange Act of 1934 (the "Exchange Act"), and in
accordance therewith files reports and other information with the
Securities and Exchange Commission. The following documents have
previously been filed by the Registrant with the Commission and are
incorporated herein by reference as of their respective dates:
a) the Annual Report on Form 10-K of Cone Mills
Corporation for the fiscal year ended January 2, 1994
(dated March 23, 1994).
b) the Quarterly Report on Form 10-Q of Cone Mills
Corporation for the quarter ended April 3, 1994 (dated May
18, 1994).
c) the description of the Common Stock of the Company set
forth under "Item 1. Description of Registrant's Securities
to be Registered" in the Company's Amendment No. 1 on Form
8 to its Registration Statement on Form 8-A with respect to
the Common Stock, File No. 1-3634 (dated June 17, 1992).
All documents that are hereafter filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates
that all shares of the Common Stock issuable pursuant to the Plan
have been issued or which deregisters any shares then remaining
unissued, shall be deemed to be incorporated herein by reference and
to be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the securities registered
hereunder are being passed upon for the Registrant by Neil W.
Koonce, Esq., Vice President and General Counsel for the Company.
Item 6. Indemnification of Directors and Officers.
Article 6 of the Company's Restated Articles of Incorporation,
as amended, provides:
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Article 6. INDEMNIFICATION
(a) Indemnification in Actions Other Than Actions by the
Corporation or by a Person Suing Derivatively. When by reason of
the fact that he is or was serving as a director, officer, employee
or agent of the Corporation or while serving in any such or like
capacity at the request of the Corporation in any other corporation,
partnership, joint venture or other enterprise, any person is or was
a party or threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative, or investigative (except any action, suit or
proceeding brought by the Corporation or by any person seeking
derivatively to enforce any liability of such person to the
Corporation), such person shall be indemnified or reimbursed by the
Corporation for the expenses (including attorneys' fees) which he
actually and reasonably incurred and for any liabilities which he
may have incurred in consequence of such action, suit or proceeding,
subject to the following conditions:
(1) If, with respect to any action, suit or proceeding, or
with respect to any claim, matter or issue therein, such person
is wholly successful on the merits, or if the proceeding
involving such person is an administrative or investigative
proceeding and does not result in his indictment or a fine or
penalty imposed upon him, then the Corporation shall reimburse
him for the expenses (including attorneys' fees) which he
actually and reasonably incurred in consequence of his defense
of or participation in such action, suit or proceeding, or of
any claim, issue or matter therein.
(2) If, with respect to any action, suit or proceedings,
or with respect to any claim, issue or matter therein, such
person is wholly successful in his defense otherwise than solely
on the merits, the Corporation shall reimburse him for the
expenses (including attorneys' fees) which he actually and
reasonably incurred, in consequence of his defense or
participation in such action, suit or proceeding, or of any
claim, issue or matter therein, if
(A) The Board of Directors, by vote of a majority of
a quorum consisting of directors who were not parties to
such action, suit or proceeding, shall approve such
reimbursement, or
(B) If no such quorum be obtainable, by vote of a
majority of the members of the Board of Directors then in
office, acting pursuant to a written opinion of independent
legal counsel. For this purpose, the General Counsel of
the Corporation or members of his staff shall not be deemed
to be "independent legal counsel", or
(C) In any event, by vote of the holders of a
majority of the shares entitled to vote at a meeting of the
shareholders.
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(3) If, with respect to any action, suit or proceedings,
or with respect to any claim, issue or matter therein, such
person is not wholly successful or is unsuccessful in his
defense, or if the proceeding to which he is a party results in
his indictment, or in a fine or penalty imposed upon him then
the Corporation shall reimburse him for the expenses (including
attorneys' fees) which he actually and reasonably incurred and
the amount of any judgment, money decree, fine, penalty or
settlement for which he may have become liable, in either of the
following instances:
(A) The Board of Directors, by vote of a majority of
a quorum consisting of directors who are not parties to
such action, suit or proceedings, shall have determined
that such person 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, that he also had no
reasonable cause to believe his conduct was unlawful, and
the Corporation shall have given such information to the
shareholders of the Corporation with respect thereto as is
required by applicable law.
The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of
guilty or nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in
good faith and in a manner which he reasonably believed to
be in the best interests of the Corporation, or, with
respect to any criminal action, that he had no reasonable
cause to believe that his conduct was unlawful.
(B) A plan for such payment is submitted to the
shareholders for action at an annual or special meeting of
the shareholders, and the plan is approved by the holders
of a majority of the shares entitled to vote at such
meeting, excluding shares held directly or indirectly by
any persons to be benefited if the plan is approved.
Whenever the Board of Directors is required by this Article
to determine the facts requisite to awarding reimbursement
or indemnification, their determination as to such facts
shall be conclusive in the absence of fraud.
(b) Indemnification in Actions by the Corporation or by Any
Person Suing Derivatively. When because of his duties or activities
while serving as a director, officer, employee or agent of the
Corporation or while serving in any such or like capacity at the
request of the Corporation in any other corporation, partnership,
joint venture or other enterprise, any person is a party to an
action, suit or proceeding by the Corporation or by any person suing
derivatively on behalf of the Corporation to establish his liability
to the Corporation arising out of his alleged dereliction of duty to
the Corporation, such person shall
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be entitled to reimbursement or indemnification from the Corporation
only to the extent permitted, and only pursuant to the procedure
authorized, by the General Statutes of North Carolina or otherwise by law.
(c) General Provisions Relating to Indemnification Under
this Article:
(1) In this Article 6 the term "officer" shall include any
dominant shareholder engaged to perform services for the
Corporation, whether as employee or independent contractor; and
the term "dominant shareholder" shall mean a shareholder of the
Corporation who by virtue of his share holdings has legal power,
either directly or indirectly or through another corporation or
series of corporations, domestic or foreign, to elect a majority
of the directors of the Corporation.
(2) In this Article 6 the term "person" shall include the
heirs, executor, administrator, or other legal representative of
such person.
(3) Expenses incurred or to be incurred by a person in
defending or participating in any action, suit or proceedings
referred to in subsection (a) may be paid by the Corporation in
advance of the final disposition of such action, suit or
proceeding if authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of
such person to repay such amount, unless it shall ultimately be
determined that he is entitled to be indemnified by the
Corporation as authorized by this Article.
(4) Whenever the Corporation, whether by action of the
Board of Directors or by the shareholders, shall reimburse or
indemnify a director, officer, agent or employee as permitted by
this Article, the determination shall be made with respect to
the particular case and the particular applicant for indemnity
or reimbursement.
(5) The indemnification authorized by this Article shall
not be deemed exclusive of any other rights to indemnification
or reimbursement which are or may hereafter be permitted by law.
(d) Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation or who is or
was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation
would have the power, pursuant to law or pursuant to this Article,
to indemnify him against such liability.
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Article XI of the Company's Bylaws, as amended, provides:
Article XI. INDEMNIFICATION
Section 11-1. Extent. In addition to the indemnification
otherwise provided for by law or by the Articles of Incorporation
the Corporation, the Corporation shall indemnify and hold harmless
its directors and officers against all liability and litigation
expense, including reasonable attorneys' fees, arising out of their
status as directors or officers or their activities in any of such
capacities or in any capacity in which any of them is or was
serving, at the Corporation's request, in another corporation,
partnership, joint venture, trust or other enterprise and the
Corporation shall indemnify and hold harmless its directors,
officers, and employees who are deemed to be fiduciaries of the
Corporation's employee pension and welfare benefit plans as defined
under the Employee Retirement Income Security Act of 1974, as
amended ("ERISA fiduciaries"), against all liability and litigation
expense, including reasonable attorneys' fees, arising out of their
status or activities as ERISA fiduciaries; provided, however, that
the Corporation shall not indemnify a director or officer against
liability or litigation expense that he may incur on account of his
activities that at the time taken were known or reasonably should
have been known by him to be clearly in conflict with the best
interests of the Corporation, and the Corporation shall not
indemnify an ERISA fiduciary against any liability or litigation
expense that he may incur on account of his activities that at the
time taken were known or reasonably should have been known by him to
be clearly in conflict with the best interests of the employee
benefit plan to which the activities relate. The Corporation shall
also indemnify the director, officer or ERISA fiduciary for
reasonable costs, expenses and attorneys' fees in connection with
the enforcement of rights to indemnification granted herein, if it
is determined in accordance with Section 11-2 of this Article that
the director, officer or ERISA fiduciary is entitled to
indemnification hereunder.
Section 11-2. Determination. Any indemnification under Section
11-1 shall be paid by the Corporation in any specific case only
after a determination that the director, officer or ERISA fiduciary
did not act in a manner, at the time the activities were taken, that
was known or reasonably should have been known by him to be clearly
in conflict with the best interests of the Corporation, or the
employee benefit plan to which the activities relate, as the case
may be. Such determination shall be made (a) by the affirmative
vote of a majority (but not less than two) of directors who are or
were not parties to such action, suit or proceeding or against whom
any such claim is asserted ("disinterested directors") even though
less than a quorum, or (b) if a majority (but not less than two) of
disinterested directors so direct, by independent legal counsel in a
written opinion, or (c) by the vote of a majority of all of the
voting shares other than those owned or controlled by directors,
officers or ERISA
<PAGE>
fiduciaries who were parties to such action, suit or proceeding or
against whom such claim is asserted, or by a unanimous vote of all
of the voting shares, or (d) by a court of competent jurisdiction.
Section 11-3. Advanced Expenses. Expenses incurred by a
director, officer or ERISA fiduciary in defending a civil or
criminal claim, action, suit or proceeding may, upon approval of a
majority (but not less than two) of the disinterested directors,
even though less than a quorum, or, if there are less than two
disinterested directors, upon unanimous approval of the Board of
Directors, be paid by the Corporation in advance of the final
disposition of such claim, action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director, officer or ERISA
fiduciary to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified against such
expenses by the Corporation.
Section 11-4. Corporation. For purposes of this Article,
references to directors, officers or ERISA fiduciaries of the
"Corporation" shall be deemed to include directors, officers and
ERISA fiduciaries of Cone Mills Corporation, its subsidiaries, and
all constituent corporations absorbed into Cone Mills Corporation or
any of its subsidiaries by a consolidation or merger.
Section 11-5. Reliance And Consideration. Any director,
officer or ERISA fiduciary who at any time after the adoption of
this Bylaw serves or has served in any of the aforesaid capacities
or any other capacity for or on behalf of the Corporation shall be
deemed to be doing or to have done so in reliance upon, and as
consideration for, the right of indemnification provided herein.
Such right shall inure to the benefit of the legal representatives
of any such person and shall not be exclusive of any other rights to
which such person may be entitled apart from the provision of this
Bylaw. No amendment, modification or repeal of this Article XI
shall adversely affect the right of any director, officer or ERISA
fiduciary to indemnification hereunder with respect to any
activities occurring prior to the time of such amendment,
modification or repeal.
Section 11-6. Insurance. The Corporation may purchase and
maintain insurance on behalf of its directors, officers, employees
and agents and those persons who were serving at the request of the
Corporation as a director, officer, partner or trustee of, or in
some other capacity in, another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted
against him and incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions
of this Article or otherwise. Any full or partial payment made by
an insurance company under any insurance policy covering any
director, officer, employee or agent made to or on behalf of a
person entitled to indemnification under this Article shall relieve
the Corporation of its liability for indemnification
<PAGE>
provided for in this Article or otherwise to the extent of such
payment, and no insurer shall have a right of subrogation against
the Corporation with respect to such payment.
The North Carolina General Statutes contain provisions
prescribing the extent to which directors and officers shall or may
be indemnified. These statutory provisions are set forth below:
CH. 55 N.C. BUSINESS CORPORATION ACT
Part 5. Indemnification.
Section 55-8-50. Policy Statement and Definitions.
(a) It is the public policy of this State to enable
corporations organized under this Chapter to attract and
maintain responsible, qualified directors, officers, employees
and agents, and, to that end, to permit corporations organized
under this Chapter to allocate the risk of personal liability of
directors, officers, employees and agents through
indemnification and insurance as authorized in this Part.
(b) Definitions in this Part:
(1) "Corporation" includes any domestic or foreign
predecessor entity of a corporation in a merger or
other transaction in which the predecessor's existence
ceased upon consummation of the transaction.
(2) "Director" means an individual who is or was a
director of a corporation or an individual who, while
a director of a corporation, is or was serving at the
corporation's request as a director, officer, partner,
trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture,
trust, employee benefit plan, or other enterprise. A
director is considered to be serving an employee
benefit plan at the corporation's request if his
duties to the corporation also impose duties on, or
otherwise involve services by, him to the plan or to
participants in or beneficiaries of the plan.
"Director" includes, unless the context requires
otherwise, the estate or personal representative of a
director.
(3) "Expenses" means expenses of every kind incurred in
defending a proceeding, including counsel fees.
(4)(a) "Officer", "employee", or "agent" includes, unless the
context requires otherwise, the estate or personal
representative of a person who acted in that capacity.
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(4)(b) "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax
assessed with respect to an employee benefit plan), or
reasonable expenses incurred with respect to a
proceeding.
(5) "Official capacity" means: (i) when used with respect
to a director, the office of director in a
corporation; and (ii) when used with respect to an
individual other than a director, as contemplated in
G.S. 55-8-56, the office in a corporation held by the
officer or the employment or agency relationship
undertaken by the employee or agent on behalf of the
corporation. "Official capacity" does not include
service for an other foreign or domestic corporation
or any partnership, joint venture, trust, employee
benefit plan, or other enterprise.
(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent
in a proceeding.
(7) "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative and whether
formal or informal.
Section 55-8-51. Authority to Indemnify.
(a) Except as provided in subsection (d), a corporation may
indemnify an individual made a party to a proceeding because he
is or was a director against liability incurred in the
proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct in
his official capacity with the corporation, that his
conduct was in its best interests; and (ii) in all
other cases, that his conduct was at least not opposed
to its best interests; and
(3) In the case of any criminal proceeding, he had no
reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit
plan for a purpose he reasonably believed to be in the interests
of the participants in and beneficiaries of the plan is conduct
that satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order,
settlement, conviction, or upon a plea of no contest or its
equivalent is not, of itself, determinative that the director
did not meet the standard of conduct described in this section.
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(d) A corporation may not indemnify a director under this
section:
(1) In connection with a proceeding by or in the right of
the corporation in which the director was adjudged
liable to the corporation; or
(2) In connection with any other proceeding charging
improper personal benefit to him, whether or not
involving action in his official capacity, in which he
was adjudged liable on the basis that personal benefit
was improperly received by him.
(e) Indemnification permitted under this section in connection
with a proceeding by or in the right of the corporation that is
concluded without a final adjudication on the issue of liability
is limited to reasonable expenses incurred in connection with
the proceeding.
(f) The authorization, approval or favorable recommendation by
the board of directors of a corporation of indemnification, as
permitted by this section, shall not be deemed an act or
corporate transaction in which a director has a conflict of
interest, and no such indemnification shall be void or voidable
on such ground.
Section 55-8-52. Mandatory Indemnification.
Unless limited by its articles of incorporation, a corporation
shall indemnify a director who was wholly successful, on the merits
or otherwise, in the defense of any proceeding to which he was a
party because he is or was a director of the corporation against
reasonable expenses incurred by him in connection with the
proceeding.
Section 55-8-53. Advance For Expenses.
Expenses incurred by a director in defending a proceeding may be
paid by the corporation in advance of the final disposition of such
proceeding as authorized by the board of directors in the specific
case or as authorized or required under any provision in the
articles of incorporation or bylaws or by any applicable resolution
or contract upon receipt of an undertaking by or on behalf of the
director to repay such amount unless it shall ultimately be
determined that he is entitled to be indemnified by the corporation
against such expenses.
Section 55-8-54. Court-ordered Indemnification.
Unless a corporation's articles of incorporation provide
otherwise, a director of the corporation who is a party to a
proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the
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court considers necessary may order indemnification if it
determines:
(1) The director is entitled to mandatory indemnification
under G.S. 55-8-52, in which case the court shall also
order the corporation to pay the director's reasonable
expenses incurred to obtain court-ordered
indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant
circumstances, whether or not he met the standard of
conduct set forth in G.S. 55-8-51 or was adjudged
liable as described in G.S. 55-8-51(d), but if he was
adjudged so liable his indemnification is limited to
reasonable expenses incurred.
Section 55-8-55. Determination and Authorization of Indemnification.
(a) A corporation may not indemnify a director under G.S.
55-8-51 unless authorized in the specific case after a
determination has been made that indemnification of the director
is permissible in the circumstances because he has met the
standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subdivision (1),
by majority vote of a committee duly designated by the
board of directors (in which designation directors who
are parties may participate), consisting solely of two
or more directors not at the time parties to the
proceeding;
(3) By special legal counsel (i) selected by the board of
directors or its committee in the manner prescribed in
subdivision (1) or (2); or (ii) if a quorum of the
board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated
under subdivision (2), selected by majority vote of
the full board of directors (in which selection
directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted
under the control of directors who are at the time
parties to the proceeding may not be voted on the
determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as
the determination that indemnification is permissible, except
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that if the determination is made by special legal counsel,
authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under
subsection (b)(3) to select counsel.
Section 55-8-56. Indemnification of Officers, Employees, and Agents.
Unless a corporation's articles of incorporation provide
otherwise:
(1) An officer of the corporation is entitled to mandatory
indemnification under G.S. 55-8-52, and is entitled to
apply for court-ordered indemnification under G.S. 55-8-54,
in each case to the same extent as a director.
(2) The corporation may indemnify and advance expenses under
this Part to an officer, employee, or agent of the
corporation to the same extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the
extent, consistent with public policy, that may be provided
by its articles of incorporation, bylaws, general or
specific action of its board of directors, or contract.
Section 55-8-57. Additional Indemnification and Insurance.
(a) In addition to and separate and apart from the
indemnification provided for in G.S. 55-8-51, 55-8-52,
55-8-54, 55-8-55 and 55-8-56, a corporation may in its articles
of incorporation or bylaws or by contract or resolution
indemnify or agree to indemnify any one or more of its
directors, officers, employees, or agents against liability and
expenses in any proceeding (including without limitation a
proceeding brought by or on behalf of the corporation itself)
arising out of their status as such or their activities in any
of the foregoing capacities; provided, however, that a
corporation may not indemnify or agree to indemnify a person
against liability or expenses he may incur on account of his
activities which were at the time taken known or believed by him
to be clearly in conflict with the best interests of the
corporation. A corporation may likewise and to the same extent
indemnify or agree to indemnify any person who, at the request
of the corporation, is or was serving as a director, officer,
partner, trustee, employee, or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise or as a trustee or administrator under an employee
benefit plan. Any provision in any articles of incorporation,
bylaw, contract, or resolution permitted under this section may
include provisions for recovery from the corporation of
reasonable costs, expenses, and attorneys' fees in connection
with the
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enforcement of rights to indemnification granted therein and may
further include provisions establishing reasonable procedures for
determining and enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable
recommendation by the board of directors of a public corporation
of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted in this section, shall not
be deemed an act or corporate transaction in which a director
has a conflict of interest, and no such articles of
incorporation or bylaw provision or contract or resolution shall
be void or voidable on such grounds. The authorization,
adoption, approval, or favorable recommendation by the board of
directors of a nonpublic corporation of any provision in any
articles of incorporation, bylaw, contract or resolution, as
permitted in this section, which occurred prior to July 1, 1990,
shall not be deemed an act or corporate transaction in which a
director has a conflict of interest, and no such articles of
incorporation, bylaw provision, contract or resolution shall be
void or voidable on such grounds. Except as permitted in G.S.
55-8-31, no such bylaw, contract, or resolution not adopted,
authorized, approved or ratified by shareholders shall be
effective as to claims made or liabilities asserted against any
director prior to its adoption, authorization, or approval by
the board of directors.
(c) A corporation may purchase and maintain insurance on behalf
of an individual who is or was a director, officer, employee, or
agent of the corporation, or who, while a director, officer,
employee, or agent of the corporation, is or was serving at the
request of the corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit
plan, or other enterprise, against liability asserted against or
incurred by him in that capacity or arising from his status as a
director, officer, employee, or agent, whether or not the
corporation would have power to indemnify him against the same
liability under any provision of this Chapter.
Section 55-8-58. Application of Part.
(a) If articles of incorporation limit indemnification or
advance for expenses, indemnification and advance for expenses
are valid only to the extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay or
reimburse expenses incurred by a director in connection with his
appearance as a witness in a proceeding at a time when he has
not been made a named defendant or respondent to the proceeding.
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(c) This Part shall not affect rights or liabilities arising
out of acts or omissions occurring before July 1, 1990.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The Exhibits to this Form S-8 are listed in the accompanying
Index to Exhibits.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(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;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change in such
information in the Registration Statement.
Provided, however, that paragraphs (1)(i) and (1)(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 the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
<PAGE>
The undersigned Registrant hereby undertakes that, for the
purposes of determining any liability under the Securities Act of
1933, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Securities Exchange Act of
1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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 of 1933 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 Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of
Greensboro, North Carolina on May 10, 1994.
CONE MILLS CORPORATION
Date: May 10, 1994 By: J. Patrick Danahy
J. Patrick Danahy
President and Chief
Executive Officer
POWER OF ATTORNEY
Each officer or director whose signature appears below hereby
appoints J. Patrick Danahy and John L. Bakane, or either of them,
his true and lawful attorney-in-fact to sign on his behalf as an
individual and in the capacity stated below, any amendment or
post-effective amendment to this Registration Statement which said
attorney-in-fact may deem appropriate or necessary.
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following
persons in the following capacities on May 10, 1994.
<TABLE>
<S> <C> <C>
Signature Title Date
Dewey L. Trogdon Chairman of the Board May 10, 1994
(Dewey L. Trogdon)
J. Patrick Danahy Director, President and May 10, 1994
(J. Patrick Danahy) Chief Executive Officer
(Principal Executive Officer)
John L. Bakane Director, Vice President May 10, 1994
(John L. Bakane) and Chief Financial Officer
(Principal Financial Officer)
Richard S. Vetack Director May 10, 1994
(Richard S. Vetack)
Bud W. Willis, III Director May 10, 1994
(Bud W. Willis, III)
<PAGE>
Signature Title Date
Doris R. Bray Director May 10, 1994
(Doris R. Bray)
Leslie W. Gaulden Director May 10, 1994
(Leslie W. Gaulden)
Jeanette C. Kimmel Director May 10, 1994
(Jeanette C. Kimmel)
Charles M. Reid Director May 10, 1994
(Charles M. Reid)
John W. Rosenblum Director May 10, 1994
(John W. Rosenblum
J. D. Holder Controller (Principal May 10, 1994
(J. D. Holder) Accounting Officer)
<PAGE>
EXHIBITS
<PAGE>
INDEX TO EXHIBITS
Exhibit Sequential
No. DESCRIPTION Page No.
* 4.1 Restated Articles of Incorporation of
the Registrant effective August 25,
1993, filed as Exhibit 4.1 to the
Registrant's report on Form 10-Q for
the quarter ended October 3, 1993.
* 4.2 Amended and Restated Bylaws of
Registrant, effective June 18, 1992,
filed as Exhibit 3.5 to the
Registrant's Registration Statement on
Form S-1 (File No. 33-46907).
* 4.3 Note Agreement dated as of August 13,
1992, between Cone Mills Corporation
and The Prudential Insurance Company of
America, with form of 8% promissory
note attached, filed as Exhibit 4.01 to
the Registrant's report on Form 8-K
dated August 13, 1992.
* 4.4 Credit Agreement dated as of August 13,
1992, among Cone Mills Corporation, the
banks listed therein and Morgan
Guaranty Trust Company of New York, as
Agent, with form of note attached,
filed as Exhibit 4.02 to the
Registrant's report on Form 8-K dated
August 13, 1992.
* 4.5 Specimen Class A Preferred Stock
Certificate, filed as Exhibit 4.5 to
the Registrant's Registration Statement
on Form S-1 (File No. 33-46907).
* 4.6 Specimen Common Stock Certificate,
effective June 18, 1992, filed as
Exhibit 4.7 to the Registrant's
Registration Statement on Form S-1
(File No. 33-46907).
<PAGE>
Exhibit Sequential
No. Page No.
* 4.7 Registration rights agreement dated
as of March 30, 1992, among the
Registrant and the shareholders
listed therein, filed as Exhibits
4.8 to the Registrant's Registration
Statement on Form S-1 (File No.
33-46907).
* 4.8 The 401(k) Program (formerly the
Supplemental Retirement Program) of
Registrant, amended and restated
effective January 1, 1994, filed as
Exhibit 4.9 to the Registrant's
Registration Statement on Form S-8
(File Nos. 33-51951 and 33-51953).
* 4.9 Amended and Restated Employee Equity
Plan Trust Agreement of Registrant,
dated as of August 20, 1992, filed
as Exhibit 4.3 to Registrant's
report on Form 10-K for the year
ended January 3, 1993.
* 4.10 Amended and Restated Trust Agreement
for the Registrant's 1983 ESOP dated
as of August 20, 1992, filed as
Exhibit 4.13 to the Registrant's
report on Form 10-K for the year
ended January 3, 1993.
* 4.11 Cone Mills Corporation 1983 ESOP as
amended and restated effective March
1, 1993, filed as Exhibit 4.9 to
Registrant's report on Form 10-K for
the year ended January 2, 1994.
5 Opinion of Neil W. Koonce, Esq.,
General Counsel of the Registrant
regarding legality of issuance of
Common Stock.
23.1 Consent of Neil W. Koonce, Esq.
contained in the Opinion, filed as
Exhibit 5 hereto.
23.2 Consent of Robinson, Bradshaw &
Hinson, P.A.
<PAGE>
Exhibit Sequential
No. Page No.
23.3 Consent of McGladery & Pullen,
independent auditor.
*99.1 Cone Mills Corporation 1994 Stock
Option Plan for Non-Employee
Directors filed as Exhibit 10.9 to
the Registrant's report on Form 10-K
for the year ended January 2, 1994.
*99.2 Form of Non-Qualified Stock Option
Agreement under 1994 Stock Option
Plan for Non-Employee Directors of
Registrant filed as Exhibit 10.10 to
Registrant's report on Form 10-K for
the year ended January 2, 1994.
*Incorporated by reference to the statement or
report indicated.
<PAGE>
</TABLE>
EXHIBIT 5
<PAGE>
May 11, 1994
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cone Mills Corporation
Registration Statement on Form S-8
Gentlemen:
I am General Counsel of Cone Mills Corporation, a North
Carolina corporation (the "Registrant"), and have represented the
Registrant in connection with the registration under the Securities
Act of 1933, as amended, of 100,000 shares (the "Shares") issuable
pursuant to the Registrant's 1994 Stock Option Plan for
Non-Employee Directors (the "Plan").
In connection with this opinion, I have examined the
Registrant's Articles of Incorporation and Bylaws, as amended, the
Registration Statement on Form S-8 relating to the foregoing
registration (the "Registration Statement"), the prospectus which
is to be distributed to Plan participants, the Plan and such
corporate records of the Registrant and questions of law as I have
deemed relevant for the purpose of this opinion. Based upon such
review, I am of the opinion that:
1. All necessary corporate action has been taken to authorize
the issuance of the Shares pursuant to the Plan.
2. When duly issued in accordance with the terms of the Plan
as contemplated by the prospectus and the Registration
Statement, the Shares will be validly issued, fully paid
and nonassessable shares of Common Stock of the Company.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the reference to my name under
the caption "Interests of Named Experts and Counsel" in the
Registration Statement contained therein.
Very truly yours,
Neil W. Koonce
General Counsel
<PAGE>
EXHIBIT 23.2
<PAGE>
CONSENT OF
ROBINSON, BRADSHAW & HINSON, P.A.
We hereby consent to the incorporation by reference into this
Registration Statement on Form S-8 of the references to our firm and
opinion with respect to the litigation between Elmore et al. and
Cone Mills Corporation (the "Company") et al. in the Annual Report
on Form 10-K of Cone Mills Corporation for the fiscal year ending
January 2, 1994 (dated march 23, 1994.
This consent is limited to the foregoing reports in each case
as of the date thereof, and shall not be deemed in any way to
constitute an update or restatement of our legal opinion referred
to therein.
ROBINSON, BRADSHAW & HINSON, P.A.
Charlotte, North Carolina
May 18, 1994
<PAGE>
EXHIBIT 23.3
<PAGE>
CONSENT OF INDEPENDENT AUDITOR
We hereby consent to the incorporation by reference into this
Registration Statement on Form S-8 our report, dated February 11,
1994, except for Note 17 as to which the date is March 8, 1994,
which appears on page 40 of the Annual Report on Form 10-K of Cone
Mills Corporation for the fiscal year ended January 2, 1994.
McGLADREY & PULLEN
Greensboro, North Carolina
May 18, 1994
<PAGE>
