<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 29, 1998.
REGISTRATION NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
HUGHES SUPPLY, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
FLORIDA 59-0559446
(State or Other Jurisdiction of Incorporation (I.R.S. Employer Identification Number)
or Organization)
</TABLE>
20 NORTH ORANGE AVENUE
SUITE 200
ORLANDO, FLORIDA 32801
(Address of Principal Executive Offices) (Zip Code)
HUGHES SUPPLY, INC.
AMENDED
SENIOR EXECUTIVES'
LONG-TERM INCENTIVE
BONUS PLAN
(Full Title of the Plan)
J. STEPHEN ZEPF
TREASURER AND CHIEF FINANCIAL OFFICER
HUGHES SUPPLY, INC.
20 NORTH ORANGE AVENUE
SUITE 200
ORLANDO, FLORIDA 32801
(Name and Address of Agent for Service)
(407) 841-4755
(Telephone Number, Including Area Code, of Agent for Service)
---------------------
COPIES OF COMMUNICATIONS TO:
<TABLE>
<S> <C>
BENJAMIN P. BUTTERFIELD, ESQ. MARK A. LOEFFLER, ESQ.
GENERAL COUNSEL AND SECRETARY POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
HUGHES SUPPLY, INC. SIXTEENTH FLOOR
20 NORTH ORANGE AVENUE, SUITE 200 191 PEACHTREE STREET, N.E.
ORLANDO, FLORIDA 32801 ATLANTA, GEORGIA 30303
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $1.00
per share................... 50,000 Shares $31.59375 $1,579,688 $467
- ----------------------------------------------------------------------------------------------------------------
Rights to Purchase Series A
Junior Participating
Preferred Stock, no par
value per share(3).......... 50,000 Rights N/A N/A N/A
================================================================================================================
</TABLE>
(1) Representing shares to be issued by Hughes Supply, Inc. (the "Registrant")
in connection with the Amended Senior Executives' Long-Term Incentive Bonus
Plan (the "Plan").
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h)(1) under the Securities Act.
(3) The rights to purchase the Series A Junior Participating Preferred Stock
(the "Rights") will be attached to and trade with shares of the Registrant's
Common Stock. Value attributable to such Rights, if any, will be reflected
in the market of the shares of the Registrant's Common Stock.
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in this Part I will be
sent or given to employees as specified by Rule 428(b)(1) of the Securities Act.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 30, 1998 (File No. 001-08772);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1998 (File No. 001-08772);
(3) The Registrant's Current Report on Form 8-K as filed with the
Commission on May 22, 1998 (File No. 001-08772);
(4) The description of the Registrant's Common Stock contained on the
Registrant's statement on Form 8-A as filed with the Commission pursuant to
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (File No. 001-08772); and
(5) The description of the Rights contained on the Registrant's
statement on Form 8-A as filed with the Commission pursuant to Section 12
of the Exchange Act (File No. 001-08772).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
thereof from the date of filing such documents.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 607.0850 of the Florida Business Corporation Act permits, and in
some cases requires, the Registrant as a Florida corporation to indemnify a
director, officer, employee, or agent of the Registrant, or any person serving
at the request of the Registrant in any such capacity with respect to another
entity, against certain expenses and liabilities incurred as a party to any
proceeding, including, among others, a proceeding under the Securities Act,
brought against such person by reason of the fact that such person is or was a
director, officer, employee, or agent of the Registrant or is or was serving in
such capacity with respect to another entity at the request of the Registrant.
With respect to actions, other than in the right of the Registrant, such
indemnification is permitted if such person acted in good faith and in a manner
such person reasonably believed to be in, or not opposed to, the best interests
of the Registrant, and with respect to any criminal action or proceeding, if
such person had no reasonable cause to believe his or her conduct was unlawful.
Termination of any such action by judgment, order, settlement or conviction or a
plea of nolo contendere, or its equivalent shall not, of itself, create a
presumption that such person did not act in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
Registrant, or with respect to any criminal action or proceeding, had reasonable
cause to believe that his or her conduct was unlawful.
With respect to any action threatened, pending or completed in the right of
the Registrant to procure a judgment in its favor against any such person, the
Registrant may indemnify any such person against expenses actually and
reasonably incurred by him or her in connection with the defense or settlement
of such action or suit, including the appeal thereof, if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the Registrant, except that no indemnification shall be
made in respect of any claim, issue or matter as to which any such person shall
have been adjudged to be liable for negligence or misconduct in the performance
of his or her duties to the Registrant unless the court in which the action was
brought determines that despite the adjudication of liability, but in view of
all the circumstances in the case, such person is fairly and reasonably entitled
to indemnity for such expenses.
II-1
<PAGE> 4
Section 607.0850 also provides that if any such person has been successful
on the merits or otherwise in defense of any action, suit or proceeding, whether
brought in the right of the Registrant or otherwise, such person shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith.
If any director or officer does not succeed upon the merits or otherwise in
defense of an action, suit or proceeding, then unless pursuant to a
determination made by a court, indemnification by the Registrant shall be made
only as authorized in the specific case upon a determination that
indemnification of the director or officer is proper because he or she has met
the applicable standard of conduct. Any such determination may be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who are not parties to such action, suit or
proceeding;
(b) If such a quorum is not obtainable, or, even if obtainable, by a
majority vote of a committee duly designated by the board of directors (in
which directors who are parties may participate) consisting solely of two
or more directors not at the time parties to the proceeding;
(c) By independent legal counsel selected by the board of directors
prescribed in paragraph (a) or the committee prescribed in paragraph (b);
or if a quorum of the directors cannot be obtained for paragraph (a) or the
committee cannot be designated under paragraph (b), selected by a majority
vote of the full board of directors (in which directors who are parties may
participate); or
(d) By the shareholders by a majority vote of a quorum consisting of
shareholders who were not parties to the proceeding or, if no such quorum
is obtainable, by a majority vote of shareholders who were not parties to
such proceeding.
Section 607.0850 also contains a provision authorizing corporations to
purchase and maintain liability insurance on behalf of its directors and
officers. For some years the Registrant has maintained an insurance policy which
insures directors and officers of the Registrant against amounts the directors
or officers are obligated to pay in respect of their respective legal liability,
whether actual or asserted, for any negligent act, any error, any omission or
any breach of duty which, subject to the applicable limits and terms of the
policy, include damages, judgments, settlements, costs of investigation, and
costs, charges and expenses incurred in the defense of actions, suits or
proceedings or appeals thereto, subject to the exceptions, limitations and
conditions set forth in the policy.
II-2
<PAGE> 5
ITEM 8. EXHIBITS
The following items are filed as exhibits to this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <C> <S>
4.1 -- Restated Articles of Incorporation of the Registrant, as
amended (Incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1997 as filed with the Commission.)
4.2 -- Form of Articles of Amendment to Restated Articles of
Incorporation of the Registrant (Incorporated by reference
to Exhibit 99.2 to the Registrant's Registration Statement
on Form 8-A dated May 22, 1998 as filed with the
Commission.)
4.3 -- Composite By-laws of Registrant, as amended (Incorporated by
reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 30, 1998
as filed with the Commission.)
4.4 -- Form of Common Stock Certificate representing shares of the
Registrant's common stock, $1.00 par value (Incorporated by
reference to Exhibit 4.1 of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended July 31, 1997 as
filed with the Commission.)
4.5 -- Rights Agreement dated as of May 20, 1998 between Hughes
Supply, Inc. and American Stock Transfer & Trust Company
(Incorporated by reference to Exhibit 99.2 to the
Registrant's Registration Statement on Form 8-A dated May
22, 1998 as filed with the Commission.)
5.1 -- Opinion of Benjamin Butterfield, Esq.
23.1 -- Consent of Price Waterhouse LLP.
24.1 -- Power of Attorney (included in the signature page in Part II
of the Registration Statement).
99.1 -- Hughes Supply, Inc. Amended Senior Executives' Long-Term
Incentive Bonus Plan.
</TABLE>
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change 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 a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 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
II-3
<PAGE> 6
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.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Exchange Act of 1933, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or 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 the time shall be deemed to be
the initial bona fide offering thereof.
(c) 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 Commission such
indemnification is against public policy as expressed in the Securities Act of
1933 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.
II-4
<PAGE> 7
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, hereunto duly
authorized, in the City of Orlando, State of Florida, on this 29th day of June,
1998.
HUGHES SUPPLY, INC.
By: /s/ DAVID H. HUGHES
------------------------------------
David H. Hughes
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David H. Hughes and J. Stephen Zepf, or any of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities to sign any or all amendments to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto each of said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully as to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DAVID H. HUGHES Chairman of the Board and June 29, 1998
- ----------------------------------------------------- Chief Executive Officer
David H. Hughes (Principal Executive Officer)
/s/ J. STEPHEN ZEPF Treasurer and Chief Financial June 29, 1998
- ----------------------------------------------------- Officer (Principal
J. Stephen Zepf Financial and
Accounting Officer)
/s/ A. STEWART HALL, JR. Director June 29, 1998
- -----------------------------------------------------
A. Stewart Hall, Jr.
/s/ VINCENT S. HUGHES Director June 29, 1998
- -----------------------------------------------------
Vincent S. Hughes
/s/ JOHN D. BAKER II Director June 29, 1998
- -----------------------------------------------------
John D. Baker II
/s/ ROBERT N. BLACKFORD Director June 29, 1998
- -----------------------------------------------------
Robert N. Blackford
</TABLE>
II-5
<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ JOHN B. ELLIS Director June 29, 1998
- -----------------------------------------------------
John B. Ellis
/s/ H. CORBIN DAY Director June 29, 1998
- -----------------------------------------------------
H. Corbin Day
</TABLE>
II-6
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------
<C> <C> <S>
4.1 -- Restated Articles of Incorporation of the Registrant, as
amended (Incorporated by reference to Exhibit 3.1 to the
Registrant's Quarterly Report on Form 10-Q for the quarter
ended April 30, 1997 as filed with the Commission.)
4.2 -- Form of Articles of Amendment to Restated Articles of
Incorporation of the Registrant (Incorporated by reference
to Exhibit 99.2 to the Registrant's Registration Statement
on Form 8-A dated May 22, 1998 as filed with the
Commission.)
4.3 -- Composite By-laws of Registrant, as amended (Incorporated by
reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended January 30, 1998
as filed with the Commission.)
4.4 -- Form of Common Stock Certificate representing shares of the
Registrant's common stock, $1.00 par value (Incorporated by
reference to Exhibit 4.1 of the Registrant's Quarterly
Report on Form 10-Q for the quarter ended July 31, 1997 as
filed with the Commission.)
4.5 -- Rights Agreement dated as of May 20, 1998 between Hughes
Supply, Inc. and American Stock Transfer & Trust Company
(Incorporated by reference to Exhibit 99.2 to the
Registrant's Registration Statement on Form 8-A dated May
22, 1998 as filed with the Commission.)
5.1 -- Opinion of Benjamin Butterfield, Esq.
23.1 -- Consent of Price Waterhouse LLP.
24.1 -- Power of Attorney (included in the signature page in Part II
of the Registration Statement.)
99.1 -- Hughes Supply, Inc. Amended Senior Executives' Long-Term
Incentive Bonus Plan.
</TABLE>
II-7
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF HUGHES SUPPLY, INC. APPEARS HERE]
June 29, 1998
Hughes Supply, Inc.
20 North Orange Avenue
Suite 200
Orlando, Florida 32801
Re: Registration Statement on Form S-8
Gentlemen:
I am general counsel of Hughes Supply, Inc., a Florida corporation (the
"Company"). I am furnishing this opinion in connection with the registration
under the Securities Act of 1933, as amended, pursuant to a Registration
Statement on Form S-8 (the "Registration Statement") of an aggregate of 50,000
shares of its common stock, par value $1.00 per share (the "Common Stock"), to
be offered and sold by the Company pursuant to the Hughes Supply, Inc. Amended
Senior Executives' Long-Term Incentive Bonus Plan (the "Plan").
I have examined and am familiar with the Plan, copies of the Restated
Articles of Incorporation and Bylaws of the Company, the Registration Statement,
and such other corporate records and documents as I deemed necessary to form the
basis for the opinion hereinafter expressed.
In my examination of such material, I have assumed the genuineness of
all signatures, the authenticity of all documents submitted to me as originals,
and the conformity to the original documents of all copies submitted to me. As
to questions of fact material to such opinion, I have relied upon statements of
officers and representatives of the Company and others.
Based on the foregoing, it is my opinion that the shares of Common
Stock being registered will, when issued in accordance with the Plan, be validly
issued, fully paid and nonassessable shares of Common Stock of the Company.
I hereby consent to the reference to me in the Registration Statement
and as an attorney who will pass on the legal matters in connection with the
offering and to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Benjamin P. Butterfield
---------------------------
Benjamin P. Butterfield
General Counsel
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 27, 1998, which appears on page
26 of the 1998 Annual Report to Shareholders of Hughes Supply, Inc., which is
incorporated by reference in the Hughes Supply, Inc. Annual Report on Form 10-K
for the year ended January 30, 1998.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
Orlando, Florida
June 26, 1998
<PAGE> 1
EXHIBIT 99.1
HUGHES SUPPLY, INC.
AMENDED SENIOR EXECUTIVES' LONG-TERM INCENTIVE BONUS PLAN
Adopted by the Board of Directors
January 25, 1996
1. History and Purpose. The Hughes Supply, Inc. Senior Executives'
Long-Term Incentive Bonus Plan (the "Long-Term Plan") was adopted by the
Board of Directors of Hughes Supply, Inc. (the "Company") on March 15, 1995
as an on-going performance based incentive bonus plan to permit the Board
of Directors (the "Board") to provide for incentive compensation to reward
key senior executives for achieving specified Company performance goals.
The Long-Term Plan was approved by the shareholders of the Company at the
Annual Meeting of Shareholders held on May 23, 1995. The Long-Term Plan was
amended by the Board on January 25, 1996 to provide for administration of
the Long-Term Plan by the Senior Executives Long-Term Incentive Bonus Plan
committee and to otherwise amend the Long-Term Plan to permit payments
under the Long-Term Plan to qualify for exemption under Securities and
Exchange commission Rule 16b-3 ("Rule 16b-3").
2. Plan Administration. The Long-Term Plan shall be administered
by the Senior Executives Long-Term Incentive Bonus Plan Committee (the
"Plan Committee") appointed by the Board. The Plan Committee shall consist
of not less than two (2) members of the Board. The Board may from time to
time remove members from, or add members to the Plan Committee. Vacancies
on the Plan Committee, howsoever caused, shall be filled by the Board. The
Plan Committee shall elect one of its members as Chairman, and shall hold
meetings at such times and places as it may determine. Acts of the Plan
Committee taken by a majority of the Plan Committee at a meeting at which a
quorum is present, or acts reduced to or approved in writing by a majority
of the members of the Plan Committee, shall be the valid acts of the Plan
Committee. Each member of the Plan Committee shall be a "disinterested
person" within the meaning of Rule 16b-3.
The interpretation and construction by the Plan Committee of any
provisions of the Long-term Plan or of performance plan adopted thereunder
or incorporated therein shall be final. No member of the Plan Committee
shall be liable for any action or determination made in good faith with
respect to the Long-Term Plan or any performance plan adopted thereunder
or incorporated therein.
3. Operation of the Plan. Under the Long-Term Plan, the Plan
Committee, in its sole discretion, may establish separate performance plans
for separate performance periods, establish performance goals for such
performance periods, designate the participants to participate in such
performance plans, and establish the performance plan bonus payments to
be made to such participants if the required performance goals are
achieved.
<PAGE> 2
4. Performance Periods. The Plan Committee may establish individual
performance plans under the Long-Term Plan for any performance period
consisting of one or more fiscal years of the Company. Any such performance
plan shall be designated by reference to the final Company fiscal year
included in the plan for the performance period including the Company's
three fiscal years up to and including the 1997 fiscal year is designated
under the Long-Term Plan as the "1997 Performance Plan."
5. Performance Goals. With respect to any performance plan adopted
under the Long-Term Plan, the Plan Committee shall determine Company
performance goals which must be met during the performance period of that
performance plan to entitle a participant in that performance plan to
entitle a participant in that performance plan to the payment of a
performance plan bonus payment. Such performance goals may be defined with
respect to earnings criteria, return on investment, or any other measure of
Company performance deemed by the Plan Committee to be relevant to the
Board's long-term goals for the overall operation of the Company.
6. Plan Participants. The Plan Committee shall be solely responsible
for designating the participants under each performance plan from among the
Company's senior executive management employees which the it considers most
instrumental in achieving the required performance goals.
7. Bonus Payments. In establishing a performance plan the Plan
Committee shall also establish the amount of, or method for determining the
amount of, and form of payment of, any performance plan bonus payment which
would become payable to each participant under that performance plan if the
required performance goals are met.
8. Form of Bonus Payments. Under the Long-Term Plan, the Plan
Committee may specify that all or any portion of a performance plan bonus
payment may be in shares of common stock of the Company.
9. Maximum Number of Shares Awarded under the Long Term Plan; Value of
Shares Awarded. The maximum aggregate number of shares of common stock
which may be paid to participants as performance plan bonus payments under
performance plans adopted under the Long-Term Plan shall be 100,000 shares.
For any payment of a performance plan bonus payment in shares of common
stock, such common stock shall be valued at its fair market value,
determined as the closing price of the common stock on the New Your Stock
Exchange on the last trading day of the performance period for the subject
performance plan (the "Fair Market Value").
10. Term of Plan; Termination. The term of the Long-Term Plan shall be
deemed to have commenced with its adoption by the Board on March 15, 1995
and shall end on the final day of the
2
<PAGE> 3
Company's 2003 fiscal year unless terminated earlier by action of the Board. No
performance plan may be adopted under the Long-Term Plan which shall extend
beyond the stated term of the Long-Term Plan. The Board may terminate the
Long-Term Plan at any time provided that any performance plan adopted prior to
such termination shall continue in effect until the end of the applicable
performance period and the payment of any performance plan bonus payment
required thereunder.
11. Comparable Prior Plans; Incorporation. The Long-Term Plan has
been adopted based, in large measure, upon Company's favorable experience with
similar ad hoc plans adopted in prior years. Because it is anticipated but not
required, that additional performance plans adopted under the Long-Term Plan
will be comparable to these prior plans, the Existing Plans (as hereafter
defined in Section 12) are expressly incorporated in into the Long-Term Plan.
By incorporating the Existing Plans into the Long-Term Plan, the Existing Plans
shall be subject to the aggregate limitation of 100,000 shares of common stock
for bonus payments under the Long-Term Plan.
12. The Existing Plans Incorporated into the Long-Term Plan.
(a) On May 24, 1994 and March 15, 1995, respectively,
the Board established senior executives' long-term incentive bonus plans for
the three fiscal year performance periods ending on January 24, 1997 (the "1997
Performance Plan") and for the three fiscal year performance period ending on
the last day of the fiscal year to be ended January 30, 1998 (the "1998
Performance Plan") (collectively, the "Existing Plans"). Each of the Existing
Plans is incorporated into the Long-Term Plan. The Long-Term Plan approved by
the shareholders at the 1995 Annual Meeting included the Existing Plans
incorporated therein.
(b) Each of the Existing Plans has been established with
performance goals which require continuing growth in the Company's earnings per
share during the applicable performance period. The Chief Executive Officer,
the President, and the Chief Financial Officer are designated as participants
under each of the Existing Plans. The Plan Committee shall have the sole
discretion to interpret and apply the performance goals and to approve any
payment to the participants under the Existing Plans.
(c) Under each of the Existing Plans the plan
participants would receive a performance plan bonus payment, depending upon the
Company's earnings for the applicable performance period, of from 25% to 100%
of base salary for the final year of such performance period. Such performance
plan bonus payment, if any, would be paid 50% in cash and 50% in common stock
following the end of the final year of the performance period. The number of
shares of common stock applicable to such possible aggregate performance plan
bonus payments would be the number of
3
<PAGE> 4
shares, at the Fair Market Value, represented by 50% of the maximum estimated
aggregate amount of such performance plan bonus payments. The Plan Committee
shall have the sole discretion to determine the amount of any performance plan
bonus payment and the amount of any such performance plan bonus payment payable
in stock and the amount of any such bonus plan payment payable in cash under the
Existing Plans.
13. Registration of Plan Bonus Shares. Shares of the Company's
common capital stock to be issued pursuant to the Long-Term Plan will be
registered under the Securities Act of 1933 if such registration is determined,
in the opinion of management of the Company and its legal counsel, to be
required or advisable. It is also the intention of the Company to register the
shares on the New York Stock Exchange.
14. Six Month Holding Period Applicable to Rule 16b-3 Exemption.
In connection with any performance plan bonus payment under the Long-Term Plan
payable in stock the Plan Committee shall advise each participant receiving
such payment in stock of the provisions of subparagraph (1) of paragraph (c) of
Rule 16b-3 which require the participant to hold such shares of stock for a
period of six after the last day of the performance period for which such
payment is made as a condition to the availability of the exemption under Rule
16b-3.
4
