As filed with the Securities and Exchange Commission on January 23, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NOBILITY HOMES, INC.
(Exact Name of registrant as specified in its charter)
Florida 59-1166102
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
3741 S.W. 7th Street, P.O. Box 1659, Ocala, Florida 34478
(Address of principal executive offices) (zip code)
NOBILITY HOMES, INC.
STOCK INCENTIVE PLAN
(Full title of the Plan)
Terry E. Trexler
President
Nobility Homes, Inc.
3741 S.W. 7th Street, P.O. Box 1659
Ocala, Florida 34478
(Name and address of agent for service)
(352) 732-5157
(Telephone number, including area code, of agent for service)
Copy to:
Linda Y. Kelso, Esq.
Foley & Lardner
200 Laura Street
Jacksonville, Florida 32202
(904) 359-2000
Calculation of Registration Fee
Proposed
Title of each Proposed maximum
class of Amount to maximum aggregate Amount of
securities to be offering offering registration
be registered registered(1) per share(2) price(2) fee(2)
Common Stock, 300,000 $19.31 $5,023,437.50 $1,481.91
$0.10 par shares
value
(1) Plus an indeterminate number of shares which may be issued as a
result of anti-dilution provisions contained in the Plan.
(2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of
1933, as amended, the amounts shown are based (i) on 25,000 shares subject
to outstanding options having an exercise price of $12.75 per share,
(ii) 100,000 shares subject to outstanding options having an exercise
price of $13.25 per share, and (iii) 175,000 shares reserved for future
grants under the plan, the registration fee for which has been calculated
on the basis of the average of the bid and asked prices of the
registrant's Common Stock as reported on the Nasdaq National Market on
January 16, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities
and Exchange Commission are hereby incorporated herein by reference:
(a) The registrant's Annual Report on Form 10-K for the
year ended November 2, 1996.
(b) The registrant's quarterly reports on Form 10-Q for
the quarters ended February 1, 1997, May 3, 1997 and August 2,
1997.
(c) The description of the registrant's Common Stock, par
value $0.10 per share set forth under the caption "Description
of Capital Stock" in the Company's Registration Statement on
Form S-3 (No. 333-09857) filed under the Securities Act of 1933;
and
All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates
that all shares of Common Stock being offered hereby have been sold or
which deregisters all shares of Common Stock then remaining unsold shall
be deemed incorporated by reference in this registration statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
The Florida Business Corporation Act (the "Florida Act") permits a
Florida corporation to indemnify a present or former director or officer
of the corporation (and certain other persons serving at the request of
the corporation in related capacities) for liabilities, including legal
expenses, arising by reason of service in such capacity if such person
shall have 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 in any
criminal proceeding if such person had no reasonable cause to believe his
conduct was unlawful. However, in the case of actions brought by or in the
right of the corporation, no indemnification may be made with respect to
any matter as to which such director or officer shall have been adjudged
liable, except in certain limited circumstances.
The registrant's Bylaws provides that the registrant shall indemnify
directors and executive officers to the fullest extent now or hereafter
permitted by the Florida Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4A. Nobility Homes, Inc. Stock Incentive Plan
4B. Form of Option Award Agreement for Key Employees
5. Opinion of Foley & Lardner as to the legality of the securities
to be issued
23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit
5)
23B. Consent of Price Waterhouse LLP
24. Power of Attorney (included on the signature page of this
registration statement)
Item 9. Undertakings
The undersigned hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, as amended (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 the time shall be deemed to be the initial bona fide
offering thereof.
(3) 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 Section 15(d) of the Exchange Act 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.
(4) 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.
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 Articles of Incorporation or
Bylaws of the registrant 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 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 the 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 Securities Act and will be governed by
the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Ocala, State of Florida, on
January 21, 1998.
NOBILITY HOMES, INC.
By /s/ Terry E. Trexler
Terry E. Trexler, President
SPECIAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears on the Signature Page to this registration statement constitutes
and appoints Terry E. Trexler and Thomas W. Trexler, and each or any of
them, his or her true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities to sign any and all
amendments (including post-effective amendments to this registration
statement and any and all registration statements filed pursuant to Rule
462(b) under the Securities Act of 1933), and to file the same, with all
exhibits and other documents in connection therewith, with the Securities
and Exchange Commission, and grants unto 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 to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact
and agents or his or her 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.
Date: January 21, 1998 /s/ Terry E. Trexler
Terry E. Trexler
Chairman of the Board of Directors,
President and Chief Executive Officer
(Principal Executive Officer)
Date: January 21, 1998 /s/ Thomas W. Trexler
Thomas W. Trexler
Executive Vice President (Principal
Financial Officer)
Date: January 21, 1998 /s/ Lynn J. Cramer
Lynn J. Cramer
Treasurer (Principal Accounting Officer)
Date: January 21, 1998 /s/ Richard C. Barberie
Richard C. Barberie, Director
Date: January 15, 1998 /s/ Robert Holliday
Robert Holliday, Director
Date: January 21, 1998 /s/ Robert P. Saltsman
Robert P. Saltsman, Director
<PAGE>
EXHIBIT INDEX
4A. Nobility Homes, Inc. Stock Incentive Plan
4B. Form of Option Award Agreement for Key Employees
5. Opinion of Foley & Lardner as to the legality of the securities
to be issued
23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit
5)
23B. Consent of Price Waterhouse LLP
24. Power of Attorney (included on the signature page of this
registration statement)
NOBILITY HOMES, INC.
STOCK INCENTIVE PLAN
<PAGE>
NOBILITY HOMES, INC.
STOCK INCENTIVE PLAN
Table of Contents
Page
Article I Purpose . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article II Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
2.1 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 1
2.2 Award . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.3 Award Agreement . . . . . . . . . . . . . . . . . . . . . 1
2.4 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.5 Committee . . . . . . . . . . . . . . . . . . . . . . . . 1
2.6 Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 1
2.7 Fair Market Value . . . . . . . . . . . . . . . . . . . . 1
2.8 Incentive Stock Option . . . . . . . . . . . . . . . . . . 1
2.9 Insider . . . . . . . . . . . . . . . . . . . . . . . . . 1
2.10 Key Employee . . . . . . . . . . . . . . . . . . . . . . . 1
2.11 Non-Employee Director . . . . . . . . . . . . . . . . . . 2
2.12 Non-Qualified Stock Option . . . . . . . . . . . . . . . . 2
2.13 Option . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.14 Participant . . . . . . . . . . . . . . . . . . . . . . . 2
2.15 Performance Award . . . . . . . . . . . . . . . . . . . . 2
2.16 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.17 Rule 16b-3 . . . . . . . . . . . . . . . . . . . . . . . . 2
2.18 Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2.19 Stock Appreciation Rights . . . . . . . . . . . . . . . . 2
2.20 Ten Percent Shareholder . . . . . . . . . . . . . . . . . 2
Article III Administration . . . . . . . . . . . . . . . . . . . . 2
3.1 Committee . . . . . . . . . . . . . . . . . . . . . . . . 2
3.2 Indemnification . . . . . . . . . . . . . . . . . . . . . 3
Article IV Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Number of Shares Available . . . . . . . . . . . . . . . . 3
4.2 Shares Subject to Terminated Awards . . . . . . . . . . . 3
4.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . . 3
Article V Stock Options and Stock Appreciation Rights . . . . . . . 4
5.1 Grant of Option . . . . . . . . . . . . . . . . . . . . . 4
5.2 Stock Appreciation Rights . . . . . . . . . . . . . . . . 5
5.3 Compliance With Code Section 162(m) . . . . . . . . . . . 5
Article VI Other Share-Based Awards . . . . . . . . . . . . . . . . . 5
6.1 Grant of Other Awards . . . . . . . . . . . . . . . . . . 5
Article VII Terms Applicable to All Awards Granted Under the Plan . 5
7.1 Award Agreement . . . . . . . . . . . . . . . . . . . . . 5
7.2 Awards May Be Granted Separately or Together; No
Limitations on Other Awards . . . . . . . . . . . . . . . 6
7.3 Acceleration . . . . . . . . . . . . . . . . . . . . . . . 6
7.4 Limitations on Transfer of Awards . . . . . . . . . . . . 6
7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7.6 Rights and Status of Recipients . . . . . . . . . . . . . 6
7.7 Awards Not Includable for Benefit Purposes . . . . . . . . 6
7.8 Share Certificates; Representation by Participants;
Registration Requirements . . . . . . . . . . . . . . . . 7
Article VIII Amendment and Termination . . . . . . . . . . . . . . 7
8.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 7
8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . 7
Article IX General Provisions . . . . . . . . . . . . . . . . . . . . 7
9.1 Effective Date of the Plan . . . . . . . . . . . . . . . . 7
9.2 Unfunded Status of Plan . . . . . . . . . . . . . . . . . 7
9.3 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 8
<PAGE>
NOBILITY HOMES, INC.
STOCK INCENTIVE PLAN
Article I Purpose
1.1 The purpose of the Nobility Homes, Inc. Stock Incentive Plan
("Plan") is to assist Nobility Homes, Inc. (the "Company") and its
Affiliates in attracting and retaining highly competent individuals to
serve as Key Employees and Non-Employee Directors who will contribute to
the Company's success, and in motivating such persons to achieve long-term
objectives which will inure to the benefit of all shareholders of the
Company.
Article II Definitions
2.1 Affiliate means (a) any corporation that is defined as a
subsidiary corporation in Section 424(f) of the Code, or (b) any
corporation that is defined as a parent corporation in Section 424(e) of
the Code.
2.2 Award means any award made under the Plan.
2.3 Award Agreement means a written agreement or other document
specifically setting forth the terms and conditions of an Award.
2.4 Code means the Internal Revenue Code of 1986, as amended from
time to time. Any reference to a particular section of the Code shall
include any subsequently enacted successor provision thereto.
2.5 Committee means a committee of the Board of Directors of the
Company designated by such Board to administer the Plan, which committee
shall be composed of not less than two directors, each of whom shall
qualify as an "outside director," as defined in Section 162(m) of the
Code, in the event that and so long as the Company shall be subject to
such provision, and as a "Non-Employee Director" within the meaning of
Rule 16b-3, in the event that and so long as the Company shall have a
class of securities registered under Section 12 of the Exchange Act.
2.6 Exchange Act means the Securities Exchange Act of 1934, as
amended.
2.7 Fair Market Value means, with respect to any property
(including, without limitation, any Shares or other securities), the fair
market value of such property determined by such methods as shall be
established from time to time by the Committee.
2.8 Incentive Stock Option means an Option designated as an
incentive stock option as defined in Code Section 422.
2.9 Insider means a Participant who is subject to Section 16 of the
Exchange Act.
2.10 Key Employee means any officer or other key employee of the
Company or of any Affiliate who is in a position to make a significant
contribution to the management, growth, or profitability of the business
of the Company or any Affiliate, as determined by the Committee.
2.11 Non-Employee Director means a member of the Board of Directors
of the Company who is not an employee of the Company or any Affiliate.
2.12 Non-Qualified Stock Option means an Option that is not an
Incentive Stock Option as defined in Code Section 422.
2.13 Option means any option to purchase Shares granted pursuant to
the Plan.
2.14 Participant shall mean any Key Employee or any Non-Employee
Director receiving an Award.
2.15 Performance Award means the right to receive a payment
(measured by (i) the Fair Market Value of a specified number of Shares at
the end of the Award period or (ii) the increase in the Fair Market Value
of a specified number of Shares during the Award period or (iii) a fixed
cash amount payable at the end of the Award period) contingent upon the
extent to which certain predetermined performance targets have been met
during an Award period.
2.16 Plan means the Nobility Homes, Inc. Stock Incentive Plan as set
forth herein, and as the same may be amended from time to time.
2.17 Rule 16b-3 means Rule 16b-3 as promulgated by the Securities
and Exchange Commission under Section 16(b) of the Exchange Act, as such
rule may be amended from time to time, and any successor rule.
2.18 Shares mean the shares of common stock of the Company and such
other securities or property as may become subject to Awards pursuant to
an adjustment made under Section 4.3 of the Plan.
2.19 Stock Appreciation Rights mean Awards granted in accordance
with Article V.
2.20 Ten Percent Shareholder means a person owning common stock of
the Company or an Affiliate possessing more than ten percent (10%) of the
total combined voting power of all classes of stock of the Company as
defined in Section 422 of the Code.
Article III Administration
3.1 Committee. The Plan shall be administered by the Board of
Directors of the Company (the "Board"). Subject to the terms of the Plan
and applicable law, the Board shall have full power and authority to: (i)
designate persons to be Participants; (ii) determine the type, amount,
duration, and other terms and conditions of Awards to be granted to each
Participant (including whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, Shares, other
securities, other Awards, or other property and whether, to what extent,
and under what circumstances cash, Shares, other securities, other Awards,
other property, and other amounts payable with respect to an Award shall
be deferred either automatically or at the election of the holder thereof
or of the Committee); (iii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan with
respect to any Participant; (iv) waive any conditions or other
restrictions with respect to (including, without limitation, conditions
regarding the exercise of a Option), amend, alter, suspend, discontinue,
or terminate any Award granted to any Participant, prospectively or
retroactively, but no such action shall impair the rights of any
Participant without his or her consent except as provided in Section 4.3,
and correct any defect, supply any omission, or reconcile any
inconsistency in any Award or Award Agreement granted to a Participant in
the manner and to the extent it shall deem desirable to carry the Plan
into effect; (v) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the
proper administration of the Plan with respect to Participants; and (vi)
make any other determination and take any other action that the Committee
deems necessary or desirable for the administration of the Plan granted to
a Participant. To the extent permitted by applicable law, the Board may,
in its discretion, delegate to the Committee or, with respect to Awards to
Participants other than Participants who are Insiders, another committee
of the Board or one or more senior officers of the Company, any or all of
the authority and responsibility of the Board with respect to Awards under
the Plan. To the extent that the Board has delegated such authority and
responsibility, all references to the Board herein shall include the
Committee or such other committee or one or more officers. Unless
otherwise expressly provided in the Plan, all determinations,
interpretations, and other decisions under or with respect to the Plan or
any Award shall be within the sole discretion of the Board, may be made at
any time, and shall be final, conclusive, and binding upon all persons.
Anything in the Plan to the contrary notwithstanding, no term of this Plan
relating to Incentive Stock Options shall be interpreted, amended or
altered, nor shall any discretion or authority granted under the Plan be
so exercised, so as to disqualify any outstanding Incentive Stock Option
under Section 422 of the Code, without the consent of the affected
Participant.
3.2 Indemnification. No member or former member of the Board shall
be liable for any action or inaction or determination made in good faith
with respect to the Plan or any Award. To the maximum extent permitted by
applicable law and by the Company's Articles of Incorporation and Bylaws,
each such person shall be indemnified and held harmless by the Company
against any cost or expense and liability (including any sum paid in
settlement of a claim with the approval of the Company), arising out of
any act or omission to act in connection with the Plan. Costs and
expenses to be indemnified hereunder shall include reasonable attorney's
fees and expenses as incurred, provided that the person being indemnified
agrees to repay in full amounts advanced hereunder in the event of a final
determination by a court that such person is not entitled to
indemnification hereunder.
Article IV Shares
4.1 Number of Shares Available. Subject to Section 4.3, the
maximum number of Shares which may be issued under the Plan and as to
which Awards may be granted is 300,000 Shares.
4.2 Shares Subject to Terminated Awards. The (i) Shares covered by
any unexercised portions of terminated Options, and (ii) Shares subject to
any Awards which are otherwise surrendered by the Participant and as to
which Shares no Participant has received any payment or other benefit of
ownership with respect thereto, may again be subject to new Awards. In
the event the exercise price of an Option is paid in whole or in part
through the delivery of Shares or the surrender of an unexercised Option,
the gross number of Shares issuable in connection with the exercise of the
Option shall not again be available for the grant of Awards under the
Plan. Shares used to measure the amount payable to a Participant in
respect of an earned Performance Award and Shares issued in payment of
Performance Awards which are denominated in cash amounts shall not again
be available for the grant of Awards under the Plan.
4.3 Adjustments. In the event that the Board shall determine that
any dividend or other distribution (whether in the form of cash, Shares,
other securities, or other property), recapitalization, stock split,
reverse stock split, reorganization, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of securities of the
Company, or other similar corporate transaction or event affects the
Shares such that an adjustment is determined by the Board to be
appropriate in order to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan, then the
Board may, in such manner as it may deem equitable, adjust as to
Participants any or all of (i) the number and type of Shares subject to
the Plan and which thereafter may be made the subject of Awards, including
Incentive Stock Options and Stock Appreciation Rights, (ii) the number and
type of Shares subject to outstanding Awards, and (iii) the grant,
purchase, or exercise price with respect to any Award, or, if deemed
appropriate, make provisions for a cash payment to the holder of an
outstanding Award. In addition, in the event the Company or any Affiliate
shall assume outstanding awards or the right or obligation to make future
awards in connection with the acquisition of another business or another
corporation or business entity, the Board may make such adjustments, not
inconsistent with the terms of the Plan, in the terms of Awards granted to
Participants as it shall deem appropriate in order to achieve reasonable
comparability or other equitable relationship between the assumed awards
and the Awards granted to Participants. The Committee also may make such
other adjustments as it deems necessary to take into consideration any
other event (including accounting changes) if the Board determines that
such adjustment is appropriate to avoid distortion in the operation of the
Plan. However, in each case, no adjustment with respect to Awards of
Incentive Stock Options shall be authorized hereunder to the extent that
such authority would cause the Plan to violate Section 422(b)(1) of the
Code, and in each case, Awards shall only be subject to such adjustments
as shall be necessary to maintain the proportionate interest of the
Participant and preserve, without exceeding, the value of the Awards.
Article V Stock Options and Stock Appreciation Rights
5.1 Grant of Option. The Board is hereby authorized to grant
Options to Key Employees and Non-Employee Directors with such terms and
conditions, in either case not inconsistent with the provisions of the
Plan, as the Board shall determine.
(a) Exercise Price. The exercise price per Share purchasable under
an Option shall be determined at the time of grant and shall be not less
than 100% of the Fair Market Value of the Share on the date of grant of
such Option; provided, however if an Incentive Stock Option is granted to
a Ten Percent Shareholder, the exercise price per share shall be no less
than 110% of the Fair Market Value of a Share on the date of grant.
(b) Exercisability and Method of Exercise. An Option Award may
contain such performance targets and waiting periods, and shall become
exercisable in such manner and within such period or periods and in such
installments or otherwise, as shall be determined at the time of grant.
The Board of Directors shall also determine the method by which, and the
form (including, without limitation, cash, Shares, other securities, other
Awards, or other property, or any combination thereof, having a Fair
Market Value on the exercise date equal to the relevant exercise price),
in which payment of the Option exercise price may be made (including
payment in accordance with a cashless exercise program under which, if so
instructed by the Participant, Shares may be issued directly to the
Participant's broker or dealer upon receipt of the purchase price in cash
from the broker or dealer).
(c) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Code Section 422 and any regulations promulgated thereunder.
Non-Employee Directors are not eligible to be granted Incentive Stock
Options under the Plan.
(d) Incentive Stock Option Limitations. To the extent that the
aggregate Fair Market Value (determined as of the time of grant) of the
Shares with respect to which Incentive Stock Options are exercisable for
the first time by a Key Employee Participant during any calendar year
under the Plan and/or any other stock option plan of the Company or any
Affiliate exceeds $100,000, such Options shall be treated as Options which
are not Incentive Stock Options. Should any of the foregoing provisions
not be necessary in order for the Options to quality as Incentive Stock
Options, or should any additional provisions be required, the Board of
Directors may amend the Plan accordingly, without the necessity of
obtaining the approval of the shareholders of the Company, except as
otherwise required by law.
5.2 Stock Appreciation Rights. The Board is hereby authorized to
grant Stock Appreciation Rights to Key Employees and Non-Employee
Directors, in such amounts and having such grant price, term, methods of
exercise, methods of settlement (including whether Stock Appreciation
Rights will be settled in cash, Shares, other securities, other Awards, or
other property, or any combination thereof), and any other terms and
conditions as it shall determine.
5.3 Compliance With Code Section 162(m). Notwithstanding any other
provision of the Plan, the maximum number of Shares with respect to which
Options and Stock Appreciation Rights, in the aggregate, may be awarded to
any individual Key Employee Participant is 150,000 Shares. For purposes
of this limitation, Shares subject to Options and Stock Appreciation
Rights which are cancelled shall be counted against the maximum number of
Shares with respect to which Options and Stock Appreciation Rights may be
awarded to any individual Key Employee under the Plan, and if the Exercise
Price of Options or the base amount of Stock Appreciation Rights is
changed (other than pursuant to an adjustment under Section 4.3 hereof),
the transaction shall be treated as a cancellation of the Option or Stock
Appreciation Right and a grant of a new Option or Stock Appreciation
Right, as the case may be. The Board at any time may in its sole
discretion limit the number of Options and/or Stock Appreciation Rights
that can be exercised in any taxable year of the Company, to the extent
necessary to prevent the application of Section 162(m) of the Code (or any
similar or successor provision), provided that the Committee may not
postpone the earliest date on which Options or Stock Appreciation Rights
can be exercised beyond the last day of the stated term of such Options or
Stock Appreciation Rights.
Article VI Other Share-Based Awards
6.1 Grant of Other Awards. Other Awards, valued in whole or in
part by reference to, or otherwise based on, Shares, including but not
limited to Performance Awards and restricted stock, may be granted either
alone or in addition to or in conjunction with other Awards for such
consideration, if any, and in such amounts and having such terms and
conditions as the Board may determine.
Article VII Terms Applicable to All Awards Granted Under the Plan
7.1 Award Agreement. No person shall have any rights under any
Award granted under the Plan unless and until the Company and the
Participant to whom such Award shall have been granted shall have executed
and delivered an Award Agreement or received any other Award
acknowledgment authorized by the Board of Directors expressly granting the
Award to such person and containing provisions setting forth the terms of
the Award. If there is any conflict between the provisions of an Award
Agreement and the terms of the Plan, the terms of the Plan shall control.
7.2 Awards May Be Granted Separately or Together; No Limitations on
Other Awards. Awards may be granted either alone or in addition to, in
tandem with, or in substitution for any other Award or any award granted
under any other plan of the Company or any Affiliate, and the terms and
conditions of an Award need not be the same with respect to each
Participant.
7.3 Acceleration. The Board is authorized in its discretion to
accelerate the exercisability of any Option or the vesting of any Award
held by a Participant, including, without limitation, upon a change of
control of the Company as determined by the Board, the sale by the Company
of all or substantially all its assets to an unrelated party, or the
liquidation and dissolution of the Company.
7.4 Limitations on Transfer of Awards. Except as determined
otherwise by the Board, the rights and interest of a Participant under the
Plan may not be assigned, alienated, sold, or transferred other than by
will or the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, as amended, or the rules thereunder;
provided, however, that a Participant may at the discretion of the Board,
be entitled (i) to designate a beneficiary or beneficiaries to exercise
his or her rights, to receive any property distributable, with respect to
any Award upon the death of the Participant, and (ii) to transfer an Award
other than an Incentive Stock Option without consideration to such
Participant's children, grandchildren and/or spouse (or to one or more
trusts for the benefit of any such family members or to one or more
partnerships in which any such family members are the only partners).
Except as determined otherwise by the Committee or except to the extent
that a transfer of an Award has been permitted hereunder by the Committee,
during the lifetime of a Participant, only the Participant personally, or
if permissible under applicable law, such individual's guardian or legal
representative, may exercise rights under the Plan. No Award, and no
right under any such Award, may be pledged, alienated, attached, or
otherwise encumbered, and any purported pledge, alienation, attachment, or
encumbrance thereof shall be void and unenforceable against the Company or
any Affiliate.
7.5 Taxes. The Company shall be entitled to withhold (or secure
payment from the Participant in lieu of withholding) the amount of any
withholding or other tax required by law to be withheld or paid by the
Company in connection with such Participant's Award, and the Company may
defer payment or issuance of the cash or Shares upon the grant, exercise
or vesting of an Award unless indemnified to its satisfaction against any
liability for any such tax. The Board of Directors may prescribe in each
Award Agreement one or more methods by which the Participant will be
permitted or required to satisfy his or her tax withholding obligation,
which methods may include, without limitation, the payment of cash by the
Participant to the Company and the withholding from the Award, at the
appropriate time, of a number of Shares sufficient, based upon the Fair
Market Value of such Shares, to satisfy such tax withholding requirements.
7.6 Rights and Status of Recipients. No employee shall have any
right to be granted an Award. Neither the Plan nor any action taken
hereunder shall be construed as giving any employee any right to be
retained in the employ of the Company or any Affiliate, and the grant of
an Award to a Non-Employee Director shall not confer any right on such
Non-Employee Director to continue as a Director of the Company.
7.7 Awards Not Includable for Benefit Purposes. Income recognized
by a Participant pursuant to the Plan shall not be included in the
determination of benefits under any employee pension benefit plan (as such
term is defined in Section 3(2) of the Employee Retirement Income Security
Act of 1974, as amended) or group insurance or other benefit plans
applicable to the Participant which are maintained by the Company or any
Affiliate, except as may be provided under the terms of such plans or
determined by resolution of the Board of Directors of the Company.
7.8 Share Certificates; Representation by Participants;
Registration Requirements. All certificates for Shares delivered pursuant
to any Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee (or the Board of
Directors in the case of an Award granted to a Non-Employee Director) may
deem advisable under the Plan or the rules, regulations, and other
requirements of the Securities Exchange Commission and any applicable
federal or state securities laws, and legends may be put on any such
certificates to make appropriate reference to such restrictions. The
Committee may require each Participant to represent to the Company in
writing that such Participant is acquiring Shares without a view to the
distribution thereof. Each Award shall be subject to the requirement
that, if at any time (i) the registration or qualification of Shares
relating to such Award on any securities exchange or under any state or
federal securities laws, or (ii) the approval of any securities exchange
or regulatory body is necessary or desirable as a precondition thereto,
the Award or the issuance of Shares in connection therewith may not be
consummated unless such listing, registration, qualification or approval
shall have been effected.
Article VIII Amendment and Termination
8.1 Amendment. The Board of Directors of the Company may amend,
alter, suspend, discontinue, or terminate the Plan at any time; provided,
however, that no amendment, alteration, suspension, discontinuation or
termination of the Plan shall in any manner (except as otherwise provided
in this Article VIII) adversely affect any Award, without the consent of
the Participant. The Board of Directors of the Company is authorized to
amend the Plan and to make any modifications to Award Agreements to comply
with Rule 16b-3 and Section 162(m) of the Code, and to make any other
amendments or modifications deemed necessary or appropriate to better
accomplish the purposes of the Plan in light of any amendments made to
Rule 16b-3 and Section 162(m) of the Code.
8.2 Termination. The Plan shall terminate at the close of business
on the tenth anniversary of the effective date, provided, however, the
Board of Directors of the Company shall have the right and the power to
terminate the Plan at any time prior thereto. No Award shall be granted
under the Plan after such termination, but such termination shall not have
any other effect, and any Award outstanding at the time of such
termination may be exercised after termination at any time prior to the
expiration date of such Award to the same extent such Award would have
been exercisable had the Plan not terminated.
Article IX General Provisions
9.1 Effective Date of the Plan. The Plan shall be effective as of
the date of its adoption by the Board of Directors of the Company, subject
to approval of the Plan by the Company's shareholders within one year
thereafter by a majority of the votes cast at a duly held meeting of the
shareholders of the Company at which a quorum representing a majority of
all outstanding stock is present, either in person or by proxy. In the
event that the Plan is not so approved within such one-year period, all
Awards granted under the Plan shall be null and void.
9.2 Unfunded Status of Plan. The Plan shall be unfunded and shall
not create (or be construed to create) a trust or a separate fund or
funds. The Plan shall not establish any fiduciary relationship between
the Company and any Participant or other person. To the extent any person
holds any right by virtue of a grant under the Plan, such right shall be
no greater than the right of an unsecured general creditor of the Company.
9.3 Miscellaneous. The Plan and all determinations made and
actions taken pursuant to the Plan shall be governed by the laws of the
state of Florida and applicable federal laws. Section headings are used
in the Plan for convenience only, do not constitute a part of the Plan,
and shall not be deemed in any way to be relevant to the interpretation of
the Plan or any provision thereof. Whenever possible, each provision in
the Plan and every Award shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of the Plan
or any Award shall be held to be prohibited by or invalid under applicable
law, then (i) such provision shall be deemed amended to accomplish the
objectives of the provision as originally written to the fullest extent
permitted by law and (ii) all other provisions of the Plan and every other
Award shall remain in full force and effect.
NOBILITY HOMES, INC.
STOCK INCENTIVE PLAN
KEY EMPLOYEE OPTION AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth on
the signature page hereof by and between NOBILITY HOMES, INC., a Florida
corporation ("Company"), and the individual whose signature is set forth
on the signature page hereof (the "Optionee").
W I T N E S S E T H
WHEREAS, the Company has adopted the Nobility Homes, Inc. Stock
Incentive Plan ("Plan"), the terms of which, to the extent not stated
herein, are specifically incorporated by reference in this Agreement;
WHEREAS, the purpose of the Plan is to permit Awards under the Plan
to be granted to Key Employees of the Company, and the Plan provides for
Award Agreements to further specify the terms and conditions under which
such individuals may receive such Awards;
WHEREAS, the Optionee is now serving as a Key Employee of the Company
or an Affiliate in a key capacity and the Company desires him or her to
remain in such capacity, and to secure or increase his or her ownership of
Shares in order to increase his or her incentive and personal interest in
the success and growth of the Company; and
WHEREAS, defined terms used herein and not otherwise defined herein
shall have the meanings set forth in the Plan.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, the parties hereby mutually covenant and
agree as follows:
1. Option Grant.
(a) Subject to the terms and conditions set forth herein, the
Company hereby grants to the Optionee an option (the "Option") to purchase
from the Company all or any part of the aggregate number of Shares
(hereinafter referred to as the "Option Stock") set forth on the signature
page hereof, at the purchase price per Share set forth on the signature
page hereof. The Option shall not be an Incentive Stock Option for
purposes of Section 422 of the Code. The Option may not be exercised
prior to the Initial Exercise Date set forth on the signature page hereof
or after the Expiration Date set forth thereon, except that other than as
provided herein, the Option shall not be exercisable after (i) the
termination of the Optionee's employment with the Company or any Affiliate
of the Company or (ii) Optionee's position with the Company or any
Affiliate ceases to be that of a manager or a position higher than manager
(collectively, "Employment").
(b) The Option may be exercised in whole or in part by notice
in writing to the Company. The aggregate purchase price for the Shares
for which the Option is exercised shall be paid to the Company at the time
of exercise in cash, Shares registered in the name of the Optionee that
have been held by Optionee for more than six months, or by a combination
thereof, all as provided on the signature page hereof. If the purchase
price may be paid wholly or partly in Shares, any Shares tendered in
payment thereof shall be free of all adverse claims and duly endorsed in
blank by the Optionee or accompanied by stock powers duly endorsed in
blank. Shares tendered shall be valued at Fair Market Value on the date
on which the Option is exercised.
Payment of the aggregate purchase price for the Shares for which
the option is exercised may also be made in whole or in part by delivery
(including by facsimile) to the Company of an executed irrevocable option
exercise form together with irrevocable instructions, in a form acceptable
to the Company, to a broker-dealer to sell or margin a sufficient portion
of the Option Stock and deliver the sale or loan proceeds directly to the
Company to pay for the exercise price.
2. Nontransferability of Option. Except as may be permitted
otherwise pursuant to the Plan, this Option is not transferable other than
by will or by the laws of descent and distribution. The Option may be
exercised during the life of the Optionee only by the Optionee (or his/her
legal representative).
3. Securities Law Restrictions. The Optionee agrees and
acknowledges with respect to any Option Stock that has not been registered
under the Securities Act of 1933, as amended (the "Act"), that (i) the
Optionee will not sell or otherwise dispose of such Shares except pursuant
to an effective registration statement under the Act and any applicable
state securities laws, or in a transaction which, in the opinion of
counsel for the Company, is exempt from such registration, and (ii) a
legend will be placed on the certificates for the Option Stock to such
effect.
4. Exercise of Option.
(a) Except as provided herein, the Option shall be exercisable
only prior to the Expiration Date, and then only as set forth in the
following table:
Cumulative Fraction
of Shares Optioned
Years From Grant Date Which Is Exercisable
(b) If the Optionee's Employment is terminated because of death
or Total Disability (as such terms are defined below) on or after the
Initial Exercise Date, the Optionee or, in the case of his or her death,
his or her Beneficiary (as defined herein) shall be entitled to exercise
the Option, in the full amount granted without regard to any restrictions
on exercise set forth in paragraph (a), above, until the Expiration Date.
If such a termination occurs prior to the Initial Exercise Date, the
Optionee, or in the case of his or her death, his or her Beneficiary,
shall be entitled to exercise the Option to the extent, if any, as the
Board of Directors or Committee may determine.
(c) If the Optionee's Employment is terminated on or after the
Initial Exercise Date for any reason other than Cause (as defined below),
death or Total Disability, the Optionee shall be entitled to exercise the
Option, to the extent exercisable pursuant to paragraph (a), above, until
3 months after such termination. If such a termination occurs prior to
the Initial Exercise Date, the Optionee shall be entitled to exercise the
Option during such 3-month period to the extent, if any, as the Board of
Directors or Committee may determine.
(d) If the Optionee's Employment is terminated for Cause, the
Optionee shall have no right to exercise any portion of any Option not yet
exercised as of the date of such termination for Cause.
(e) As used herein, (i) "Total Disability" means permanent and
total disability within the meaning of Code Section 22(e)(3), and (ii)
"Cause" means, as determined by the Board of Directors, the Optionee's
willful failure to perform his or her duties or intentional dishonest or
intentional illegal conduct in connection with his or her Employment.
5. Acceleration.
(a) In the event of a Change of Control (as defined below) any
Options shall be immediately exercisable (without regard to any limitation
imposed by the Plan or this Agreement at the time the Option was granted,
which permits all or any part of the Option to be exercised only after the
lapse of time), and will remain exercisable until the expiration of the
Option. "Change of Control" for this purpose means: (i) the adoption of
a plan of reorganization, merger, share exchange or consolidation of the
Company with one or more other corporations or other entities as a result
of which the holders of the Shares as a group would receive less than
fifty percent (50%) of the voting power of the capital stock or other
interests of the surviving or resulting corporation or entity; (ii) the
adoption of a plan of liquidation or the approval of the dissolution of
the Company; (iii) the approval by the Board of Directors of an agreement
providing for the sale or transfer (other than as security for obligations
of the Company or any subsidiary) of substantially all of the assets of
the Company; (iv) the acquisition of more than thirty percent (30%) of the
outstanding Shares by any person within the meaning of Rule 13(d)(3) under
the Securities Exchange Act of 1934, as amended, if such acquisition is
not preceded by a prior expression of approval by the Board; or (v) one-
third or more of the members of the Board of Directors of the Company are
not Continuing Directors (a "Continuing Director" means any member of the
Board of Directors of the Company who was elected as a director at the
Company's 1996 annual meeting of shareholders, and any director who is
recommended for election, or is elected to fill a vacancy, as a director
by a majority of the Continuing Directors then on such Board).
6. Beneficiary.
(a) The person whose name appears on the signature page hereof
after the caption "Beneficiary" or any successor designated by the
Optionee in accordance herewith (the person who is the Optionee's
Beneficiary at the time of his or her death herein referred to as the
"Beneficiary") shall be entitled to exercise the Option, to the extent it
is exercisable, after the death of the Optionee. The Optionee may from
time to time revoke or change his or her Beneficiary without the consent
of any prior Beneficiary by filing a new designation with the Committee.
The last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof,
shall be effective unless received by the Committee prior to the
Optionee's death, and in no event shall any designation be effective as of
a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of an Optionee's death, or if no designated Beneficiary survives the
Optionee or if such designation conflicts with law, the Optionee's estate
shall be entitled to exercise the Option, to the extent it is exercisable
after the death of the Optionee. If the Board of Directors or Committee
is in doubt as to the right of any person to exercise the Option, the
Company may refuse to recognize such exercise, without liability for any
interest or dividends on the Option Stock, until the Board of Directors or
Committee determines the person entitled to exercise the Option, or the
Company may apply to any court of appropriate jurisdiction and such
application shall be a complete discharge of the liability of the Company
therefor.
7. No Rights As Stockholder. The Optionee shall have no
rights as a holder of the Option Stock until the issuance of a certificate
for the Option Stock.
8. Tax Withholding.
(a) It shall be a condition of the obligation of the Company to
issue Option Stock to the Optionee or the Beneficiary, and the Optionee
agrees, that the Optionee shall pay to the Company upon its demand, such
amount as may be requested by the Company for the purpose of satisfying
any liability it may have to withhold federal, state, or local income or
other taxes incurred by reason of the exercise of the Option.
(b) If the purchase price may be paid wholly or partly in
Shares, the Optionee may elect to have the Company withhold that number of
Shares of Option Stock otherwise issuable to the Optionee upon exercise of
the Option or to deliver to the Company a number of Shares, in each case,
having a Fair Market Value on the Tax Date (as defined below) equal to the
minimum amount required to be withheld as a result of such exercise. The
election must be made in writing and must be delivered to the Company
prior to the Tax Date. If the number of shares so determined shall
include a fractional share, the Optionee shall deliver cash in lieu of
such fractional share. As used herein, Tax Date means the date on which
the Optionee must include in his or her gross income for federal income
tax purposes the fair market value of the Option Stock over the purchase
price therefor.
9. Adjustments in Event of Change in Shares. In the event
that the Committee shall determine that any dividend or other distribution
(whether in the form of Shares, other securities, or other property),
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, or
exchange of securities of the Company, or other similar corporate
transaction or event affects the Shares issuable on exercise of the
Option, such that an adjustment is determined by the Board of Directors or
Committee to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available under the
Plan, then the Board of Directors or Committee shall, in such manner as it
may deem equitable, promptly adjust the number and type of Shares awarded
pursuant to this Agreement, or the terms, conditions, or restrictions of
this Agreement; provided, however, that the number of Shares subject to
any Award payable or denominated in Shares shall always be a whole number.
10. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its shareholders to make or authorize any combinations, subdivision or
reclassification of the Shares or any reorganization, merger,
consolidation, business combination, exchange of Shares, or other change
in the Company's capital structure or its business, or any issue of bonds,
debentures or stock having rights or preferences equal, superior or
affecting the Option Stock or the rights thereof or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Optionee any right to continued Employment.
11. Miscellaneous.
(a) This Agreement shall be governed and construed in
accordance with the laws of the State of Florida applicable to contracts
made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and inure to the personal benefit of the Optionee, the Beneficiary
and the personal representative(s) and heirs of the Optionee.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Optionee has hereunto affixed his or her hand, all on the
day and year set forth below.
NOBILITY HOMES, INC.
[CORPORATE SEAL] By:___________________________
Its:_____________________
______________________________
Optionee
Name:
No. of Shares of Option Stock: Grant Date:
Exercise Price Per Share:$
Payment of Purchase Initial Exercise Date:
Price: Cash and/or Shares
Date of Agreement: Expiration Date:
Beneficiary: Address of Beneficiary:
Beneficiary Tax Identification
No.:
FOLEY & LARDNER EXHIBIT 5
200 LAURA STREET
JACKSONVILLE, FLORIDA 32202
TELEPHONE (904) 359-2000
FACSIMILE (904) 359-8700
January 22, 1998
Nobility Homes, Inc.
3741 S.W. 7th Street
P.O. Box 1659
Ocala, Florida 34478
Re: Registration Statement on Form S-8 Relating to Shares of Common
Stock Issuable Pursuant to Nobility Homes, Inc.'s Stock
Incentive Plan
Ladies and Gentlemen:
This opinion is being furnished in connection with the Registration
Statement on Form S-8 (the "Registration Statement") of Nobility Homes,
Inc. (the "Company"), under the Securities Act of 1933, as amended, for
the registration of 300,000 shares of common stock par value $0.10
issuable pursuant to the Nobility Homes, Inc. Stock Incentive Plan (the
"Plan"). The common stock issuable pursuant to the Plan is referred to
herein as the "Shares."
We have examined and are familiar with the following:
A. Articles of Incorporation of the Company, as amended, as filed
in the Office of the Secretary of State of the State of Florida;
B. Bylaws, as amended, of the Company;
C. The proceedings of the Board of Directors and shareholders of
the Company in connection with the adoption of the Plan; and
D. Such other documents, Company records and matters of law as we
have deemed to be pertinent.
Based on the foregoing, it is our opinion that:
1. The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Florida.
2. The Shares have been duly authorized and when issued in
accordance with the terms of the Plan will be duly and validly issued,
fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 in
the Registration Statement. In giving this consent, we do not thereby
admit that we come within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended, or the
rules or regulations of the Securities and Exchange Commission promulgated
thereunder.
FOLEY & LARDNER
By: /s/ Linda Y. Kelso
Linda Y. Kelso
EXHIBIT 23B
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 December 30, 1996, which appears
on page 14 of the 1996 Annual Report to Shareholders of Nobility Homes,
Inc., which is incorporated by reference in Nobility Homes, Inc.'s Annual
Report on Form 10-K for the fiscal year ended November 2, 1996.
Price Waterhouse LLP
Orlando, Florida
January 22, 1998
