As filed with the Securities and Exchange Commission on February 28, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------------
FORM S-8
Registration Statement
Under
The Securities Act of 1933
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BONTEX, INC.
(Exact name of registrant as specified in its charter)
Virginia 54-0571303
(State of other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Bontex Drive
Buena Vista, Virginia 24416
(540) 261-2181
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
-----------------------------
BONTEX, INC.
KEY EMPLOYEE STOCK OPTION PLAN
(full title of the Plan)
-----------------------------
JAMES C. KOSTELNI
President and Chief Executive Officer
BONTEX, INC.
One Bontex Drive
Buena Vista, Virginia 24416
(540) 261-2181
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
<PAGE>
-----------------------------
Copy to:
NICHOLAS C. CONTE, ESQ.
NICOLE C. DANIEL, ESQ.
WOODS, ROGERS & HAZLEGROVE, P.L.C.
First Union Tower, Suite 1400
10 South Jefferson Street
Roanoke, Virginia 24011
(540) 983-7537
<TABLE>
<CAPTION>
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Calculation of Registration Fee
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Amount to be Proposed Proposed
Registered (1) Maximum Maximum
Title of Securities Offering Price Aggregate Amount of
to be Registered per Share (2) Offering Price Registration Fee
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Common Stock,
$.10 par value 60,000 shares $2.407 $144,420 $38.13
================================================================================================
(1) Subject to being increased pursuant to antidilution provisions of the
Employees' Stock Option Plan to reflect automatically, when applicable,
any subsequent stock split, stock dividend or similar event.
(2) Estimated solely for the purpose of calculating registration fee. Based
on the average of the high and low prices of Company common stock
reported on the Nasdaq Stock Market on February 23, 2000.
================================================================================================
</TABLE>
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EXPLANATORY NOTE
This Registration Statement relates to 60,000 shares of Bontex, Inc.
Common Stock, $.10 par value, to be offered and sold pursuant to the Bontex,
Inc. Key Employee Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference in this registration
statement:
(a) Our Annual Report on Form 10-K for the fiscal year ended June 30,
1999.
(b) Our Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1999, and December 31, 1999.
(c) The description of our $.10 par value common stock contained in
our Registration Statement on Form 10 dated December 19, 1972
(Georgia Bonded Fibers), including any amendments filed for the
purpose of updating such description.
(d) The description of our preferred stock purchase rights contained
in our registration statement on Form 8-A filed with the
Securities and Exchange Commission on January 12, 1998 under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date hereof and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
offered hereby then unsold, shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS OF THE
COMPANY.
Section 13.1-692.1 of the Code of Virginia, 1950, as amended, places a
limitation on the liability of officers and directors of a corporation in any
proceeding brought by or in the right of the corporation or brought by or on
behalf of shareholders of the corporation. The damages assessed against an
officer or director arising out of a single transaction, occurrence, or course
of conduct shall not exceed the greater of $100,000 or the amount of cash
compensation received by the officer or director from the corporation during the
12 months immediately preceding the act or omission for which liability was
imposed. The statute also authorizes the corporation, in its articles of
incorporation or, if approved by the shareholders, in its bylaws, to provide for
a different specific monetary limit on, or to eliminate entirely, liability. The
liability of an officer or director shall not be limited if the officer or
director engaged in willful misconduct or a knowing violation of the criminal
law or any federal or state securities law. The Company's Articles of
Incorporation contain a provision which eliminates, to the full extent that the
laws of the Commonwealth of Virginia permit, the liability of an officer or
director of the Company to the corporation or its shareholders for monetary
damages for any breach of duty as a director or officer.
The Company's Articles of Incorporation also require the Company to
indemnify any director or officer who is or was a party to a proceeding,
including a proceeding by or in the right of the corporation, by reason of the
fact that he is or was such a director or officer or is or was serving at the
request of the Company as a director, officer, employee or agent of another
entity. Directors and officers of the Company are entitled to be indemnified
against all liabilities and expenses incurred by the director or officer in the
proceeding, except such liabilities and expenses as are incurred because of his
or her willful misconduct or knowing violation of the criminal law. Unless a
determination has been made that indemnification is not permissible, a director
or officer also is entitled to have the Company make advances and reimbursement
for expenses prior to final disposition of the proceeding upon receipt of a
written undertaking from the director or officer to repay the amounts advanced
or reimbursed if it is ultimately determined that he or she is not entitled to
indemnification. The Board of Directors of the Company also has the authority to
extend to employees, agents, and other persons serving at the request of the
Company the same indemnification rights held by directors and officers, subject
to all of the accompanying conditions and obligations.
Virginia Code Section 13.1-700.1 permits a court, upon application of a
director or officer, to review the Company's determination as to a director's or
officer's request for advances,
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reimbursement or indemnification. If it determines that the director or officer
is entitled to such advances, reimbursement or indemnification, the court may
order the Company to make advances and/or reimbursement for expenses or to
provide indemnification, in which case the court shall also order the Company to
pay the officer's or director's reasonable expenses incurred to obtain the
order. With respect to a proceeding by or in the right of the corporation, the
court may order indemnification to the extent of the officer's or director's
reasonable expenses if it determines that, considering all the relevant
circumstances, the officer or director is entitled to indemnification even
though he or she was adjudged liable, and may also order the Company to pay the
officer's and director's reasonable expenses incurred to obtain the order.
The Company has the power to purchase and maintain insurance on behalf
of any person who is or was a director, officer, employee or agent of the
Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another entity, against any liability asserted
against or incurred by such person, in any such capacity or arising from his or
her status as such, whether or not the Company would have the power to indemnify
such person against such liability under the Articles of Incorporation.
The Company maintains a directors' and officers' legal liability
insurance policy in the amount of $5,000,000, issued by Federal Insurance
Company. The policy provides coverage up to 100% of its face amount, subject to
certain deductible or retention amounts. In general, the policy insures:
o the Company's directors and officers against losses by reason of
their wrongful acts, and/or
o the Company against claims against the directors and officers by
reasons of their wrongful acts for which the Company is required
to indemnify or pay, all as such terms are defined in the policy
and subject to the terms, conditions and exclusions contained
therein.
ITEM 7: EXEMPTION FROM REGISTRATION.
Not applicable.
ITEM 8: EXHIBITS.
The exhibits to the Registration Statement are listed in the
Exhibit Index elsewhere herein.
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ITEM 9: UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement: (i) to include any
prospectus required by Section 10(a)(3) of the
Securities Act; (ii) to reflect in the prospectus
any facts or events arising after the effective
date of the Registration Statement (or the most
recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than a 20% change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; (iii) to include
any material information with respect to the plan
of distribution not previously disclosed in the
Registration Statement or material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the Registration
Statement is on Form S-3, Form S-8 or Form F-3, and
the information required to be included in the
post-effective amendment to those paragraphs is
contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by
reference in this Registration Statement.
(2) that, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new Registration
Statement relating to the securities offered
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.
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(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant
to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the Registration Statement
shall be deemed to be a new Registrant 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer, or
controlling persons of the Registrant in the successful
defense of any action, suit or proceedings) 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 to question whether such
indemnification by it is against public policy as expressed
in the Securities Act and will be governed by the final
adjudication of such issue.
EXHIBITS
Exhibit No. Description
4(a) Amended and Restated Articles of Incorporation of the
Company, as amended (incorporated herein by reference to
Exhibit No. (iii) of Form 10-Q for the fiscal quarter
ended December 31, 1996)
4(b) Amended and Restated Bylaws of Bontex, Inc. (incorporated
herein by reference to Exhibit No. 3(i) of Form 10-Q for
quarter ended March 31, 1998)
4(c) Key Employee Stock Option Plan of Bontex, Inc.
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5 Opinion of Woods, Rogers & Hazlegrove, P.L.C. with respect
to legality of securities registered
23(a) Consent of Woods, Rogers & Hazlegrove, P.L.C. (included in
Exhibit (5))
23(b) Consent of KPMG LLP
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 Buena Vista, Commonwealth of Virginia, on February
28, 2000.
BONTEX, INC.
By:s/James C. Kostelni
James C. Kostelni
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated as of February 28, 2000.
Signature Date:
s/James C. Kostelni February 28, 2000
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James C. Kostelni
Chairman of the Board, President and
Chief Executive Officer
Director
s/Jeffrey C. Kostelni February 28, 2000
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Jeffrey C. Kostelni
Treasurer and
Chief Financial Officer
Director
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s/Charles W. J. Kostelni February 28, 2000
- ------------------------ -----------------
Charles W. J. Kostelni
Corporate Controller and
Corporate Secretary
s/Larry E. Morris February 28, 2000
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Larry E. Morris
Technical Sales Director
s/Patricia S. Tischio February 28, 2000
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Patricia S. Tischio
Director
s/William J. Binnie February 28, 2000
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William J. Binnie
Director
s/William B. D'Surney February 28, 2000
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William B. D'Surney
Director
s/Frank B. Mayorshi February 28, 2000
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Frank B. Mayorshi
Director
s/Joseph F. Raffetto February 28, 2000
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Joseph F. Raffetto
Director
s/Robert J. Weeks February 28, 2000
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Robert J. Weeks
Director
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EXHIBIT INDEX
Exhibit No. Description
4(a) Amended and Restated Articles of Incorporation of the
Company, as amended (incorporated herein by reference to
Exhibit No. (iii) of Form 10-Q for the fiscal quarter
ended December 31, 1996)
4(b) Amended and Restated Bylaws of Bontex, Inc. (incorporated
herein by reference to Exhibit No. 3(i) of Form 10-Q for
quarter ended March 31, 1998)
4(c) Key Employee Stock Option Plan of Bontex, Inc.
5 Opinion of Woods, Rogers & Hazlegrove, P.L.C. with respect
to legality of securities registered
23(a) Consent of Woods, Rogers & Hazlegrove, P.L.C. (included in
Exhibit (5))
23(b) Consent of KPMG LLP
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Exhibit 4(c)
BONTEX, INC.
KEY EMPLOYEE STOCK OPTION PLAN
October 28, 1999
<PAGE>
BONTEX, INC.
KEY EMPLOYEE STOCK OPTION PLAN
1. PURPOSE:
The purpose of this Plan is to promote the interests of Bontex, Inc.
(the "Corporation") and its stockholders by aiding in attracting, retaining and
motivating officers and other key employees of the Corporation and its
affiliates. The Plan is designed to accomplish these objectives by providing
such officers and key employees with an opportunity to acquire a proprietary
interest in the Corporation by means of options and thereby benefit from
appreciation in value of the shares of the Corporation's Common Stock. This
opportunity should provide additional incentives for such officers and key
employees to continue to use their best efforts and superior performances to
promote the best interests of the Corporation, for their own benefit and for the
benefit of the stockholders.
2. DEFINITIONS:
The following words and phrases as used herein shall have the meanings
set forth below:
2.1 "Board" shall mean the Board of Directors of the Corporation.
2.2 "Change in Control" shall mean a change in control of a nature that
would be required to be reported (assuming such event has not been "previously
reported") in response to Item 1(a) of the Current Report on Form 8-K, as in
effect on the date hereof, pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended ("Exchange Act"); provided that,
notwithstanding the foregoing and without limitation, such a change in control
shall be deemed to have occurred at such time as (i) any person is or becomes
the "beneficial owner" (as defined in Rule 13d-3 or Rule 13d-5 under the
Exchange Act as in effect on the
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date hereof), directly or indirectly, of 20% or more of the combined voting
powers of the Corporation's voting securities; (ii) the incumbent Board ceases
for any reason to constitute at least the majority of the Board, provided that
any person becoming a director subsequent to the date hereof whose election, or
nomination for election by the Corporation's stockholders, was approved by a
vote of at least 75% of the directors comprising the incumbent Board (either by
a specific vote or by approval of the proxy statement of the Corporation in
which such person is named as a nominee for director, without objection to such
nomination) shall be, for purposes of this clause (ii) considered as though such
person were a member of the incumbent Board; (iii) all or substantially all of
the assets of the Corporation are sold, transferred or conveyed by any means,
including but not limited to, direct purchase or merger, if the transferee is
not controlled by the Corporation, control meaning the ownership of more than
75% of the combined voting power of such entity's voting securities; or (iv) the
Corporation is merged or consolidated with another corporation or entity and as
a result of such merger or consolidation less than 75% of the outstanding voting
securities of the surviving or resulting corporation or entity shall be owned in
the aggregate by the former stockholders of the Corporation. Notwithstanding
anything in the foregoing to the contrary, no change in control shall be deemed
to have occurred for purposes of this Agreement by virtue of any transaction (i)
which results in the Optionee or a group of Persons which includes the Optionee,
acquiring, directly or indirectly, 20% or more of the combined voting power of
the Corporation's voting securities; or (ii) which results in the Corporation,
any affiliate of the Corporation or any profit-sharing plan, employee stock
ownership plan or employee benefit plan of the Corporation or any of its
affiliates (or any trustee of or fiduciary with respect to any such plan acting
in such capacity) acquiring, directly or
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indirectly, 20% or more of the combined voting power of the Corporation's voting
securities; or (iii) which results in the heirs, successor or assigns of Hugo N.
Surmonte acquiring, directly or indirectly, 20% or more of the combined voting
securities.
2.3 "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
2.4 "Committee" shall mean the Compensation Committee of the Board of
Directors, or such other committee of the Board as may be designated by the
Board from time to time, for the purpose of administering this Plan as
contemplated by Section 3 of this document. The composition of the Committee
shall meet the non-employee director requirements of Rule 16b-3 promulgated
pursuant to the Exchange Act. Should any member of the Committee cease to be a
non-employee director under Rule 16b-3(b)(3)(i) or any subsequent rule, he shall
immediately be deemed not to be a member of the Committee for all purposes of
this Plan.
2.5 "Common Stock" shall mean the common stock of the Corporation.
2.6 "Option" shall mean any stock option granted pursuant to this Plan.
2.7 "Optionee" shall mean any person who is the holder of an Option
granted under this Plan.
2.8 "Person" shall mean person within the meaning of Sections 3(a)(9)
and 13(d)(3) of the Exchange Act.
2.9 "Plan" shall mean this Bontex, Inc. Key Employee Stock Option
Plan.
2.10 "Fair Market Value" shall mean the closing sales price of Common
Stock on a nationally recognized stock exchange or, if not traded on such an
exchange, the NASDAQ SmallCap Market, on the date involved if that is a trading
day, or if not, the first trading day prior
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to such day. If said Common Stock is not quoted on the NASDAQ SmallCap Market,
then Fair Market Value shall mean the average between the bid and asked price on
the date involved if that is a trading day, or if not, the first trading day
prior to such day. If there is no such average, the Committee shall determine
Fair Market Value in good faith. In determining such Fair Market Value, the
Committee shall utilize all information which it deems pertinent, including, but
not limited to, actual sale or purchase data, and may engage the services of an
accounting firm to assist in the determination. The Committee shall further
determine Fair Market Value using guidelines promulgated pursuant to the
pertinent provisions of the Code.
3. ADMINISTRATION:
3.1 The Plan shall be administered by the Committee, which may make such
determinations and take such actions in connection with the Plan as it deems
necessary. Such determinations and actions shall be binding and conclusive for
all purposes and upon all persons.
3.2 The Committee may correct any defects, omissions or ambiguities, or
reconcile any inconsistencies, in the Plan, or in any document issued pursuant
to the Plan, in the manner and to the extent it shall deem reasonably desirable.
The Committee shall have full and sole authority to make all administrative,
interpretative and other determinations with respect to the Plan and all such
determinations shall be final and conclusive.
3.3 As provided in Section 6.1 hereof, the Committee shall have full and
sole authority to make all grants to be made hereunder.
3.4 Any other provision of the Plan to the contrary notwithstanding, the
Committee is authorized to take such action as it, in its discretion, may deem
necessary or advisable and fair and equitable with regard to Optionees in the
event of: a Change in Control of the Corporation; a
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tender, exchange or similar offer for all or any part of the Common Stock made
by an entity, person or group (other than the Corporation, any affiliate of the
Corporation or any savings, pension or other benefit plan for the benefit of
employees of the Corporation or its affiliates); a merger of the Corporation
into, a consolidation of the Corporation with, or an acquisition of the
Corporation by another corporation; or a sale or transfer of all or
substantially all of the Corporation's assets. Such action, in the Committee's
discretion, may include (but shall not be deemed limited to): establishing,
amending or waiving the forms, terms, conditions or duration of Options granted
hereunder or subject to grant hereunder, so as to provide for earlier, later,
extended or additional terms for exercise of the whole, or any installment
thereof (provided that, except as permitted by the provisions of this Section
and Section 9.1 hereof, in no event will any Option be exercisable within the
first six months of its respective term); alternate forms of payment; or other
modifications. The Committee may take any such actions pursuant to this Section
3.4 by adopting rules or regulations of general applicability to all Optionees,
or to certain categories of Optionees; by amending or waiving terms and
conditions in stock option agreements; or by taking action with respect to
individual Optionees. The Committee may take any such actions before or after
the public announcement of any such Change in Control, tender offer, exchange
offer, merger, consolidation, acquisition or sale or transfer of assets.
4. SHARES AVAILABLE:
4.1 Subject to the provisions of Sections 4.2 and 4.3 hereof, the
aggregate number of shares of Common Stock to be subject to Options under this
Plan shall not exceed 60,000 shares. Such shares shall be made available from
the authorized but unissued shares of Common Stock of the Corporation.
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4.2 Shares subject to an Option, to the extent such shares are
surrendered or withheld to pay the exercise price of the Option, are no longer
available for issuance hereunder. Other shares subject to Options granted under
this Plan, which Options have been canceled or have expired or are unexercised
and no longer outstanding, shall thereupon become available for issuance
pursuant to other Options granted under the Plan. This Section 4.2 shall in all
cases be interpreted in a manner consistent with Rule 16b-3, as amended from
time to time.
4.3 The Committee may, at any time, make or provide for such adjustments
to the Plan, to the number and class of shares available thereunder or to any
outstanding Options as it shall deem appropriate to prevent dilution or
enlargement of the rights of Optionees, including adjustments in the event of
changes in the outstanding Common Stock by reason of stock dividends, stock
splits, distributions to stockholders (other than cash dividends),
recapitalizations, mergers, consolidations, combinations or exchanges of shares,
separations, reorganizations, liquidations and the like. Such adjustments may
include, in the discretion of the Committee, adjustments to the aggregate number
and kind of shares which may be issued pursuant to Options under this Plan, and
the number, kind and price of shares subject to each Option then outstanding.
5. ELIGIBILITY:
5.1 Officers and other full-time, salaried employees of the Corporation
and its affiliates shall be eligible to receive Options under the Plan.
5.2 A director of the Corporation or any of its affiliates who is not
also regular, full-time employee of the Corporation or its affiliates will not
be eligible for Options under the Plan.
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5.3 An employee who has been granted an Option otherwise under the Plan
may be granted additional Options, if the Committee shall so determine.
6. GRANTS:
6.1 Subject to the express provisions of this Plan, the Committee shall
have sole authority to determine the individuals to whom Options shall be
granted, the time or times at which Options shall be granted, the number of
shares of Common Stock to be subject to each Option granted, the period of each
Option and the time or times at or during which an Option may be exercised in
whole or in part, and all such other terms and conditions of such Options
granted as the Committee deems appropriate.
6.2 Each Option granted to an Optionee under this Plan shall, if
required by the Committee, be evidenced by a written agreement to be duly
executed and delivered by or on behalf of the Corporation and the Optionee and
containing provisions not inconsistent with the Plan.
7. OPTION PRICE:
The exercise price under each Option shall be established by the
Committee, but in no event shall it be less than the greater of (i) $2.00 per
share or (ii)100% of the Fair Market Value of the Common Stock on the date the
Option is granted.
8. TERM OF OPTIONS:
The term of each Option shall be fixed by the Committee, but, subject to
the power of the Committee, among other things, to accelerate or otherwise
adjust the terms for exercise of Options pursuant to Section 3.4 hereof in the
event of the occurrence of any of the events set forth therein, no Option shall
be exercisable later than ten years from the date of grant of the
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Option or earlier than six months from the date of grant of the Option, except
as otherwise provided in Section 9.1.
9. EXERCISE OF OPTIONS:
9.1 Each Option granted under this Plan shall be exercisable in such
number of shares and, subject to the provisions of Section 8, at such time or
times, including periodic installments, as may be determined by the Committee at
the time of the grant. The six months from the date of the grant of the Option
restriction pursuant to Section 8 shall not be applicable to an Optionee in the
event that he dies prior to the expiration of such period. The right to acquire
shares pursuant to Options that are exercisable in installments shall be
cumulative so that when the right to acquire any shares has accrued such shares
or any part thereof may be acquired at any time thereafter until the expiration
or termination of the Option.
9.2 An Option may be exercised by giving written notice of exercise to
the Corporation specifying the number of shares to be purchased and by paying in
full in cash the exercise price. The proceeds received by the Corporation in
cash will be used for general corporate purposes.
9.3 If authorized by the Committee, the exercise price may also be paid
by (i) the delivery of shares of Common Stock with a Fair Market Value equal to
the exercise price, or (ii) a combination of cash and such Common Stock equal to
the exercise price.
9.4 Upon notification of the amount due and prior to, or concurrently
with, the delivery to the Optionee of a certificate representing any shares
purchased pursuant to the exercise of an Option, the Optionee shall promptly pay
to the Corporation any amount necessary to satisfy applicable federal, state or
local tax requirements.
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9.5 An Optionee shall have none of the rights of a shareholder with
respect to the shares subject to any Option until such shares have been issued
and registered on the Corporation's transfer books upon exercise thereof.
10. NON-TRANSFERABILITY:
No Option granted under this Plan shall be transferable other than by
will or the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code, and an Option may be exercised during
the lifetime of the Optionee only by him or by his guardian or legal
representative.
11. TERMINATION OF EMPLOYMENT, RETIREMENT, DEATH OR CANCELLATION:
11.1 In the event that the employment of an Optionee is terminated, for
a reason other than retirement or death, no Option held by such Optionee shall
be exercisable later than three months after such Optionee shall have ceased to
be an employee of the Corporation or one of its affiliates or, if earlier, later
than the expiration date of the Option. The employment relationship, however,
will be treated as continuing intact while the Optionee is on military or sick
leave if the period of such leave does not exceed ninety days, or, if longer, so
long as the Optionee's right to re-employment is guaranteed either by statute or
by contract.
11.2 In the event that an Optionee shall retire or die while employed by
the Corporation or one of its affiliates, Options held by such Optionee may be
exercised by the Optionee or by the person designated in the will of the
Optionee or by the proper legal representative of the Optionee within one year
following the Optionee's death or one year following retirement, but in no event
later than the expiration date of the Option.
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11.3 Notwithstanding the express term of the grant or the foregoing
provisions of this Section 11, Options shall terminate upon the termination of
the employment of the Optionee if the Corporation determines that such
termination is for deliberate, willful or gross misconduct, and the Options
shall terminate (whether or not the employment of the Optionee is terminated) if
the Corporation determines that the Optionee has improperly disclosed
confidential information of the Corporation and the Optionee is so notified.
12. LISTING AND REGISTRATION OF SHARES:
Each Option shall be subject to the requirement that, if at any time the
Committee shall determine in its discretion that the listing, registration or
qualification of the shares subject to such Option upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental regulatory body, is necessary or desirable as a condition of, or in
connection with, the granting of such Option or the issuance or purchase of
shares thereunder, then such Option shall not be granted or exercised in whole
or in part unless such listing, registration, qualification, consent or approval
shall have been effected or obtained free of any conditions not acceptable to
the Committee.
13. EFFECTIVE DATE:
This Plan is subject to approval by the stockholders of the Corporation.
The Plan will become effective on the date so approved. The Committee may, in
its discretion, grant Options conditioned upon the stockholders' subsequent
approval of the Plan.
14. DURATION AND AMENDMENT:
14.1 There is no express limitation upon the duration of the Plan.
10
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14.2 The Board may terminate or may amend the Plan at any time,
provided, however, that the Board may not, without approval of the stockholders
of the Corporation, (i) increase the maximum number of shares for which Options
may be granted under the Plan, (ii) permit the granting of Options at less than
100% of Fair Market Value at time of grant, or (iii) change the class of
employees eligible to receive Options under the Plan. The transactions under
this Plan are intended to comply with Rule 16b-3 (or its successor), as amended
from time to time, promulgated pursuant to the Exchange Act, and the Corporation
may, but shall not be required to, submit any proposed Plan amendment to its
stockholders for their approval to assure continued compliance if such proposed
amendment would, with respect to any participant who is an officer, director or
10% shareholder of the Corporation who is subject to Section 16 of the Exchange
Act ("Control Person"), (i) materially increase the benefits accruing to
participants under the Plan, or (ii) materially increase the number of
securities which may be issued under the Plan (this shall not affect the
prohibition against increasing the maximum number of shares for which Options
may be granted under the Plan pursuant to the previous paragraph without
shareholder approval), or (iii) materially modify the requirements as to
eligibility for participation in the Plan.
15. MISCELLANEOUS:
With respect to any participant who is a Control Person, transactions
under this Plan are intended to comply with Rule 16b-3 (or its successor), as
amended from time to time, promulgated pursuant to the Exchange Act. Therefore,
to the extent any provision of the Plan or action by a person administering the
Plan fails to so comply, it shall be deemed null and void ab initio to the
extent permitted by law and deemed advisable by the Committee.
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As evidence of its adoption of this Plan, the Corporation has caused
this document to be executed on its behalf this 28th day of October, 1999
BONTEX, INC.
By: Charles W. J. Kostelni
Its: Corporate Secretary
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Exhibit 5
NICHOLAS C. CONTE
540 983-7630
INTERNET: [email protected]
February 28, 2000
Board of Directors
Bontex, Inc.
One Bontex Drive
Buena Vista, VA 24416-1500
In Re: Registration Statement on Form S-8: Bontex, Inc.
Key Employee Stock Option Plan
Gentlemen:
We have acted as counsel for you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") pursuant to
the provisions of the Securities Act of 1933, as amended, being filed with the
Securities and Exchange Commission on February 28, 2000, or as soon thereafter
as practicable, in respect of 60,000 shares of Company common stock which may be
sold pursuant to the Bontex, Inc. Key Employee Stock Option Plan and, as such,
have examined the same and the exhibits being filed therewith.
We are generally familiar with your corporate affairs, including your
organization and the conduct of the corporate proceedings relating thereto. We
also have examined such of your corporate records as we have deemed necessary as
the basis for this opinion. Based upon the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the Commonwealth of Virginia.
2. The 60,000 shares of Company common stock which are the subject of
the Registration Statement have been duly and validly authorized, and when
issued, delivered and paid for in accordance with the terms and conditions set
forth in the Registration Statement, will be validly issued, fully paid and
non-assessable.
The foregoing opinion is contingent upon the Registration Statement
becoming effective. We consent to its use as an exhibit to the Registration
Statement and to reference to this firm in the Prospectus, the Registration
Statement and any amendments thereto.
Very truly yours,
WOODS, ROGERS & HAZLEGROVE, P.L.C.
s/Woods, Rogers & Hazlegrove, P.L.C.
Exhibit 23(b)
Accountants' Consent
The Board of Directors
Bontex, Inc.:
We consent to incorporation by reference herein of our report dated August 20,
1999, relating to the consolidated balance sheets of Bontex, Inc. and
subsidiaries as of June 30, 1999 and 1998, and the related consolidated
statements of income (loss) and comprehensive income (loss), changes in
stockholders' equity, and cash flows for each of the years in the three-year
period ended June 30, 1999, which report appears in the June 30, 19999 Annual
Report on Form 10-K of Bontex, Inc. and subsidiaries incorporated by reference
herein.
KPMG LLP
Roanoke, Virginia
February 28, 2000
