SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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CONE MILLS CORPORATION
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(Exact name of registrant as specified in its charter)
North Carolina 56-0367026
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3101 N. Elm Street, Greensboro, NC 27415-6540
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(Address of Principal Executive Offices) (Zip Code)
CONE MILLS CORPORATION
2000 STOCK COMPENSATION PLAN FOR NON-EMPLOYEE DIRECTORS
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(Full Title of the Plan)
Neil W. Koonce, Vice President, General Counsel and Secretary
Cone Mills Corporation
3101 N. Elm Street
Greensboro, NC 27415-6540
(Name and address of agent for service)
(336) 379-6220
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Amount to be offering price Aggregate registration
securities to be registered registered per Share* Price* fee
- ----------------------------- ------------ -------------- ---------- --------------
<S> <C> <C> <C> <C>
common stock, par value 300,000 $5.84375 $1,753,125 $462.83*
$.10 per share Shares
</TABLE>
*Pursuant to Rule 457(h), the average of the high and low prices of Cone Mills
Corporation's Common Stock as reported on the New York Stock Exchange on
May 12, 2000, have been used to calculate the amount of the registration fee.
<PAGE>
This Registration Statement on Form S-8 covers 300,000 shares of common
stock, par value $.10 per share, (the "Common Stock") of Cone Mills Corporation
(the "Registrant") issuable pursuant to the terms of the Registrant's 2000 Stock
Compensation Plan For Non-Employee Directors (the "Plan") as compensation to a
director of the Registrant who is eligible to receive compensation under the
Plan for service as a director.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's Plan pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (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, 2000.
b) the Quarterly Report on Form 10-Q of Cone Mills Corporation for
the quarter ended April 2, 2000.
c) the description of the Common Stock of the Registrant contained in
Amendment No. 1 on Form 8 to the Registration Statement on Form 8-A dated June
17, 1992 of Cone Mills Corporation filed pursuant to Section 12(b) of the
Exchange Act; the Registration Statement on Form 8-A dated October 29, 1999 of
Cone Mills Corporation, filed pursuant to Section 12(b) of the Exchange Act,
which contains a description of certain rights relating to the Common Stock; and
any amendment or report filed for the purpose of updating such descriptions,
including, without limitation, the Quarterly Report on Form 10-Q of Cone Mills
Corporation for the quarter ended April 2, 2000.
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
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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.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Legal matters in connection with the securities registered hereunder are
being passed upon for the Registrant by Neil W. Koonce, Esq., Vice President,
General Counsel and Secretary for the Registrant.
Item 6. Indemnification of Directors and Officers.
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Article 6 of the Registrant's Restated Articles of Incorporation,
as amended, provides:
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
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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.
(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
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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 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
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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.
Article XI of the Registrant'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 of 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 fiduciaries who were parties to such action,
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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 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:
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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 corporation
absorbed in a merger which, if its separate existence had continued,
would have had the obligation or power to indemnify its directors,
officers, employees, or agents, so that a person who would have been
entitled to receive or request indemnification from such corporation if
its separate existence had continued shall stand in the same position
under this Part with respect to the surviving corporation.
(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.
(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
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or the employment or agency relationship undertaken by the employee or
agent on behalf of the corporation. "Official capacity" does not
include service for any 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.
(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.
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(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 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.
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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 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
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(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 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
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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.
(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.
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The Exhibits to this Form S-8 are listed in the accompanying Index to
Exhibits.
Item 9. Undertakings.
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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
13
<PAGE>
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.
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.
14
<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 15, 2000.
CONE MILLS CORPORATION
By: /s/ John L. Bakane
--------------------
John L. Bakane
President and Chief
Executive Officer
POWER OF ATTORNEY
Each officer or director whose signature appears below hereby appoints
John L. Bakane and Neil W. Koonce, 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:
Signature Title Date
- --------- ----- ----
/s/ Dewey L. Trogdon Chairman of the Board May 15, 2000
- --------------------
(Dewey L. Trogdon)
/s/ John L. Bakane Director, President and May 15, 2000
- ------------------ Chief Executive Officer
(John L. Bakane) (Principal Executive Officer)
Gary L. Smith Executive Vice President May 15, 2000
- -------------- and Chief Financial Officer
(Gary L. Smith) (Principal Financial Officer)
/s/ Doris R. Bray Director May 15, 2000
- -----------------
(Doris R. Bray)
15
<PAGE>
/s/ Haynes G. Griffin Director May 15, 2000
- ---------------------
(Haynes G. Griffin)
/s/ Bruce H. Hendry Director May 15, 2000
- -------------------
(Bruce H. Hendry)
/s/Jeanette C. Kimmel Director May 15, 2000
- ---------------------
(Jeanette C. Kimmel)
/s/David T. Kollat Director May 15, 2000
- ------------------
(David T. Kollat)
Director May __, 2000
- ------------------
(Marc H. Kozberg)
/s/ Charles M. Reid Director May 15, 2000
- -------------------
(Charles M. Reid)
/s/ John W. Rosenblum Director May 15, 2000
- ---------------------
(John W. Rosenblum)
/s/ Cyrus C. Wilson Director May 15, 2000
- -------------------
(Cyrus C. Wilson)
/s/ Christopher F. Conlon Controller (Principal May 15, 2000
- -------------------------
(Christopher F. Conlon) Accounting Officer)
16
<PAGE>
EXHIBITS
INDEX TO EXHIBITS
Exhibit
No. DESCRIPTION
* 4.1 Restated Articles of Incorporation of the Registrant
effective August 25, 1993, filed as Exhibit 4.1 to
Registrant's report on Form 10-Q for the quarter
ended October 3, 1993.
*4.1(a) Articles of Amendment of the Articles of
Incorporation of the Registrant effective October 23,
1999, to fix the designation, preferences,
limitations, and relative rights of a series of its
Class B Preferred Stock, filed as Exhibit 4.1(a) to
Registrant's report on Form 10-Q for the quarter
ended October 3, 1999.
*4.1(b) 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).
* 4.1(c) Rights Agreement dated as of October 14, 1999, between
the Registrant and First Union National Bank, as Rights
Agent, with Form of Articles of Amendment with
respect to the Class B Preferred Stock (Series A), the
Form of Rights Certificate, and Summary of Rights
attached, filed as Exhibit 1 to the Registrant's report
on Form 8-A dated October 29, 1999.
*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.
*4.3(a) Letter Agreement dated September 11, 1992, amending
the Note Agreement dated August 13, 1992, between the
Registrant and The Prudential Insurance Company of
America, filed as Exhibit 4.2 to the Registrant's
report on Form 8-K dated March 1, 1995.
*4.3(b) Letter Agreement dated July 19, 1993, amending the
Note Agreement dated August 13, 1992, between the
17
<PAGE>
Exhibit
No. DESCRIPTION
Registrant and the Prudential Insurance Company of
America, filed as Exhibit 4.3 to the Registrant's
report on Form 8-K dated March 1, 1995.
*4.3(c) Letter Agreement dated June 30, 1994, amending the
Note Agreement dated August 13, 1992, between the
Registrant and The Prudential Insurance Company of
America, filed as Exhibit 4.4 to the Registrant's
report on Form 8-K dated March 1, 1995.
*4.3(d) Letter Agreement dated November 14, 1994, amending
the Note Agreement dated August 13, 1992, between the
Registrant and The Prudential Insurance Company of
America, filed as Exhibit 4.5 to the Registrant's
report on Form 8-K dated March 1, 1995.
*4.3(e) Letter Agreement dated as of June 30, 1995, amending
the Note Agreement dated August 13, 1992, between the
Registrant and The Prudential Insurance Company of
America, filed as Exhibit 4.3(e) to the Registrant's
report on Form 10-Q for the quarter ended July 2,
1995.
*4.3(f) Letter Agreement dated as of June 30, 1995, between
the Registrant and The Prudential Insurance Company
of American superseding Letter Agreement, filed as
Exhibit 4.3(e) to the Registrant's report on Form
10-Q for the quarter ended July 2, 1995.
*4.3(g) Letter Agreement dated as of March 30, 1996, between
the Registrant and The Prudential Insurance Company
of America, filed as Exhibit 4.3(g) to the
Registrant's report on Form 10-Q for the quarter
ended March 31, 1996.
*4.3(h) Letter Agreement dated as of January 31, 1997,
between the Registrant and The Prudential Insurance
Company of America, filed as Exhibit 4.3(h) to the
Registrant's report on Form 10-K for the year ended
December 29, 1996.
*4.3(i) Letter Agreement dated as of July 31, 1997, between
18
<PAGE>
Exhibit
No. DESCRIPTION
the Registrant and The Prudential Insurance Company
of America, filed as Exhibit 4.3(i) to the
Registrant's report on Form 10-Q for the quarter
ended September 28, 1997.
*4.3(j) Modification to Note Agreement dated as of February
14, 1998, between the Registrant and The Prudential
Insurance Company of America, filed as Exhibit 4.3(j)
to Registrant's report on Form 10-Q for the quarter
ended March 29, 1998.
*4.3(k) Letter Agreement dated as of September 1, 1999,
amending the Note Agreement dated August 13, 1992,
between the Registrant and The Prudential Insurance
Company of America, filed as Exhibit 4.3(i) on Form
10-Q for the quarter ended October 3, 1999.
*4.3(l) Amendment of 1992 Note Agreement dated as of January
28, 2000, by and among Cone Mills Corporation and The
Prudential Insurance Company of America, together
with all exhibits thereto, filed as Exhibit 9 to the
Registrant's report on Form 8-K dated February 11,
2000.
* 4.4 Credit Agreement dated as of January 28, 2000,
by and among Cone Mills Corporation, as Borrower,
Bank of America, N.A., as Agent and as Lender and
the Lenders party thereto from time to time, together
with all exhibits thereto, filed as Exhibit 1 to the
Registrant's report on Form 8-K dated February 11,
2000.
*4.4(a) Guaranty Agreement dated as of January 28, 2000,
made by Cone Global Finance Corporation, CIPCO
S.C., Inc. and Cone Foreign Trading LLC in favor of
Bank of America, N.A. as Revolving Credit Agent for
the Lenders. The Prudential Insurance Company of
America, SunTrust Bank, Morgan Guaranty Trust
Company of New York, Wilmington Trust Company,
as General Collateral Agent, Bank of America, N.A.,
as Priority Collateral Agent, and Atlantic Financial
Group, Ltd., together with all exhibits thereto, filed as
19
<PAGE>
Exhibit
No. DESCRIPTION
Exhibit 2 to the Registrant's report on Form 8-K
dated February 11, 2000.
*4.4(b) Priority Security Agreement dated as of January 28,
2000, by Cone Mills Corporation and certain of its
subsidiaries, as Grantors, and Bank of America, N.A.,
as Priority Collateral Agent, together with all
exhibits thereto, filed as Exhibit 3 to the
Registrant's report on Form 8-K dated February 11,
2000.
*4.4(c) General Security Agreement dated as of January 28,
2000, by Cone Mills Corporation and certain of its
subsidiaries, as Grantors, and Wilmington Trust
Company, as General Collateral Agent, together with
all exhibits thereto, filed as Exhibit 4 to the
Registrant's report on Form 8-K dated February 11,
2000.
*4.4(d) Securities Pledge Agreement dated as of January 28,
2000, by Cone Mills Corporation in favor of
Wilmington Trust Company, as General Collateral
Agent, together with all exhibits thereto, filed as
Exhibit 5 to the Registrant's report on Form 8-K
dated February 11, 2000.
*4.4(e) CMM Pledge Agreement dated as of January 28, 2000, by
Cone Mills Corporation in favor of Wilmington Trust
Company, as General Collateral Agent, together with
all exhibits thereto, filed as Exhibit 6 to the
Registrant's Report on Form 8-K dated February 11,
2000.
*4.4(f) Deed of Trust, Security Agreement, Fixture Filing,
Assignment of Lease and Rents and Financing
Statement dated as of January 28, 2000, between Cone
Mills Corporation, as Grantor, TIM, Inc., as Trustee,
Wilmington Trust Company, as General Collateral
Agent, and Bank of America, N.A., as Designated
Collateral Subagent, together with all exhibits thereto,
filed as Exhibit 7 to the Registrant's report on Form 8-
K dated February 11, 2000.
20
<PAGE>
Exhibit
No. DESCRIPTION
*4.4(g) Deed of Trust, Security Agreement, Fixture Filing,
Assignment of Lease and Rents and Financing
Statement dated as of January 28, 2000, between Cone
Mills Corporation, as Grantor, TIM, Inc., as Trustee,
and Bank of America, N.A., as Priority Collateral
Agent, together with all exhibits thereto, filed as
Exhibit 8 to the Registrant's report on Form 8-K dated
February 11, 2000.
*4.4(h) Termination Agreement dated as of January 28, 2000,
between the Registrant and Morgan Guaranty Trust
Company of New York, as Agent for various banks
terminating the Credit Agent dated August 7, 1997.
* 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).
* 4.7 Cone Mills Corporation 1983 ESOP as amended and
restated effective December 1, 1994, filed as Exhibit
4.9 to the Registrant's report on Form 10-K for the year
ended January 1, 1995.
*4.7(a) First Amendment to the Cone Mills Corporation 1983
ESOP dated May 9, 1995, filed as Exhibit 4.9(a) to
the Registrant's report on Form 10-K for the year
ended December 31, 1995.
*4.7(b) Second Amendment to the Cone Mills Corporation 1983
ESOP dated December 5, 1995, filed as Exhibit 4.9(b)
to the Registrant's report on Form 10-K for the year
ended December 31, 1995.
*4.7(c) Third Amendment to the Cone Mills Corporation 1983
ESOP dated August 7, 1997, filed as Exhibit 4.8(c) to
the Registrant's report on Form 10-Q for the quarter
21
<PAGE>
Exhibit
No. DESCRIPTION
ended September 28, 1997.
*4.7(d) Fourth Amendment to the Cone Mills Corporation 1983
ESOP dated December 4, 1997, filed as Exhibit 4.8(d)
to the Registrant's report on Form 10-K for the year
ended December 28, 1997.
*4.8 Indenture dated as of February 14, 1995, between
Cone Mills Corporation and Wachovia Bank of
North Carolina, N.A. as Trustee (Bank of New York
is successor Trustee), filed as Exhibit 4.1 to
Registrant's Registration Statement on Form S-3 (File
No. 33-57713).
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 McGladrey & Pullen, LLP, independent
auditor.
*99.1 Cone Mills Corporation 2000 Stock Compensation Plan
for Non-Employee Directors, Filed as Exhibit 10.18 to
the Registrant's report on Form 10-Q for the quarter
ended April 2, 2000.
- -------------------
*Incorporated by reference to the statement or report indicated.
22
Cone Mills Corporation
3101 North Elm Street
P.O. Box 26540
Greensboro, NC 27415-6540
CONE
May 15, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cone Mills Corporation Registration Statement on Form S-8
To whom it may concern:
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 300,000 shares of the common stock of the Registrant (the "Shares") issuable
pursuant to the Registrant's 2000 Stock Compensation 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 Plan Summary that 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 by the Registrant 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 Plan Summary and the Registration Statement, the Shares
will be validly issued, fully paid and nonassessable shares of common stock of
the Registrant.
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,
/s/ Neil W. Koonce
Neil W. Koonce
Vice President, General Counsel
and Secretary
McGLADREY & PULLEN, LLP RSM
- ------------------------ ------------
Certified Public Accountants International
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
We hereby consent to the incorporation by reference into this Registration
Statement on Form S-8 of our report, dated February 11, 2000, which appears
in the Annual Report of Form 10-K of Cone Mills Corporation for the fiscal year
ended January 2, 2000.
/s/McGLADREY & PULLEN, LLP
McGLADREY & PULLEN, LLP
Greensboro, North Carolina
May 15, 2000
