<PAGE> 1
As filed with the Securities and Exchange Commission dated August 17, 1995
Registration No. 33-
----------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
INSTEEL INDUSTRIES, INC.
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(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0674867
------------------------------- ---------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1373 BOGGS DRIVE, MOUNT AIRY, NORTH CAROLINA 27030
-------------------------------------------- ----------
(Address of Principal Executive Offices) (Zip Code)
1994 EMPLOYEE STOCK OPTION PLAN OF
INSTEEL INDUSTRIES, INC.
------------------------
(Full title of the plan)
HOWARD O. WOLTZ, JR., CHAIRMAN OF THE BOARD
INSTEEL INDUSTRIES, INC.
1373 BOGGS DRIVE
MOUNT AIRY, NORTH CAROLINA 27030
(910) 786-2141
---------------------------------------------------
(Name, address and telephone number, including area code,
of agent for service)
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED PER SHARE PRICE FEE
---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock 750,000 $7.50 $5,625,000 $1,939.66
(No Par Value) shares
</TABLE>
------------------------------
Approximate date of commencement of proposed sale of
securities pursuant to the plan:
AS SOON AS PRACTICABLE AFTER THIS REGISTRATION STATEMENT
BECOMES EFFECTIVE.
<PAGE> 2
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:
(a) The Company's Annual Report on Form 10-K for the year
ended September 30, 1994, which contains, either directly or by
incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been
filed.
(b) All other reports that have been filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 since the
end of the fiscal year covered by the Annual Report on Form 10-K
referred to in (a), above.
(c) The description of the Company's Common Stock (No Par
Value) is incorporated by reference to the Company's registration
statement on Form S-1 SEC File No. 33-4929).
All reports and other documents subsequently filed by the
Company pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of
1934, as amended, prior to the filing of a post-effective amendment, which
indicates that all securities offered hereby have been sold or which
deregisters all securities remaining unsold, shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
The Company will provide, without charge, upon request of
an optionee, a copy of the information incorporated by reference herein.
Requests should be addressed to Mr. Gary D. Kniskern, Secretary,
Insteel Industries, Inc., 1373 Boggs Drive, Mount Airy, North Carolina 27030;
telephone (910) 786-2141.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the General Statutes of
North Carolina prescribe the conditions under which indemnification may be
obtained by a present or former director or officer who incurs expenses or
liability as a consequence of a legal proceeding arising out of his activities
as a director or officer.
II-1
<PAGE> 3
Mandatory Statutory Indemnification. Under the statutes, a
North Carolina corporation must indemnify a director or officer who is wholly
successful on the merits or otherwise in defending a proceeding in which he was
involved by virtue of his being a director or officer of the corporation. This
mandatory indemnification covers reasonable expenses and attorneys' fees.
Permissive Statutory Indemnification. A North Carolina
corporation may, but is not required by statute to, indemnify its directors and
officers who conduct themselves in good faith and meet a reasonable belief test
regarding the challenged conduct. If he was acting in his official capacity,
the director or officer must have believed the challenged conduct was in the
corporation's best interest; if he was acting otherwise, he must meet the test
that he reasonably believed his conduct was not opposed to the corporation's
best interest. Notwithstanding those tests, however, statutory indemnification
is prohibited where the individual is held liable to the corporation or where
he is held liable on the basis of an improperly received personal benefit.
Court-Ordered Indemnification. A director or officer may
enforce his or her right to mandatory indemnification and, if the court
determines the individual to be entitled to the mandatory indemnification, the
court must also order the corporation to pay the reasonable expenses incurred
to enforce the right, including counsel fees. The statutes authorize the court
to provide indemnification in any case regardless of whether the individual has
met the tests applicable to permissive statutory indemnification upon a finding
that the individual "is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances." [G.S. 55-8-54(2)] This relief is
limited to reasonable expenses when there is liability to the corporation by
the individual.
Voluntary Indemnification. Notwithstanding the limits on
statutory indemnification, a North Carolina corporation may voluntarily agree
to indemnify its directors and officers by provisions in the articles of
incorporation, the bylaws, a contract or a resolution of the Board of Directors
against any liability, subject to the limitation that an individual cannot be
indemnified on account of his activities which were at the time taken known or
believed by him to be clearly in conflict with the best interests of the
corporation. A North Carolina corporation may, also, obtain insurance to
protect its directors and officers from personal liability.
Exculpation of Directors from Liability. The articles of
incorporation of a North Carolina corporation may exonerate directors (but not
officers) from monetary liability for acts performed by them in their official
capacity as directors. This exculpation may not include conduct that the
director knew or believed was clearly in conflict with the best interests of
the corporation, liability for unlawful distributions, transactions from which
he derived an improper personal benefit or acts undertaken prior to the
effective date of the adoption of the exculpation provision.
The Company's bylaws contain broad indemnification provisions
covering both directors and officers of the Company. The Company's articles of
incorporation contain the provision eliminating monetary liability of directors
to the extent permitted by law. The Company has purchased insurance providing
for indemnification of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-2
<PAGE> 4
ITEM 8. EXHIBITS.
There are filed as a part of this registration statement the
following exhibits:
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<S> <C>
4 Instruments Defining Rights of Security Holders: Copy of 1994 Employee Stock Option Plan of
Insteel Industries, Inc.
5 Opinion Re Legality: Opinion of Womble Carlyle Sandridge & Rice, PLLC.
23(a) Consents of Experts and Counsel: The consent of Deloitte & Touche LLP, independent accountants of
the Company.
23(b) Consents of Experts and Counsel: The consent of Womble Carlyle Sandridge & Rice, PLLC, is
included in their opinion filed as Exhibit 5.
</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.
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 any material change to
such information in the registration statement;
II-3
<PAGE> 5
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that
is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X
are not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the
latest quarterly report that is specifically incorporated by reference
in the prospectus to provide such interim financial information.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-4
<PAGE> 6
SIGNATURES
THE REGISTRANT. 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 Mount Airy, State of
North Carolina, on this 15 day of August, 1995.
INSTEEL INDUSTRIES, INC.
By: H. O. Woltz, III
-------------------------
H. O. Woltz III
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
(i) Principal Executive Officer
HOWARD O. WOLTZ III Chief Executive August 15, 1995
------------------- Officer
Howard O. Woltz III
(ii) Principal Financial and
Accounting Officer
MICHAEL C. GAZMARIAN Chief Financial Officer August 15, 1995
-------------------- and Treasurer
Michael C. Gazmarian
(iii) A Majority of the Board of Directors
HOWARD O. WOLTZ, JR August 15, 1995
--------------------
Howard O. Woltz, Jr.
H. O. WOLTZ III August 15, 1995
---------------
H. O. Woltz III
</TABLE>
II-5
<PAGE> 7
<TABLE>
<CAPTION>
SIGNATURE DATE
--------- ----
<S> <C>
THOMAS J. CUMBY August 15, 1995
---------------------------
Thomas J. Cumby
LOUIS E. HANNEN August 15, 1995
----------------------------
Louis E. Hannen
FRANCES H. JOHNSON August 15, 1995
-------------------------
Frances H. Johnson
CHARLES B. NEWSOME August 15, 1995
------------------------
Charles B. Newsome
JOSEPH D. NOELL, III August 15, 1995
-----------------------------
Joseph D. Noell, III
W. ALLEN ROGERS, II August 15, 1995
---------------------------
W. Allen Rogers, II
C. RICHARD VAUGHAN August 15, 1995
------------------------
C. Richard Vaughan
JOHN E. WOLTZ August 15, 1995
------------------------------
John E. Woltz
</TABLE>
II-6
<PAGE> 8
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8 OF
INSTEEL INDUSTRIES, INC.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
4 Instruments Defining Rights of Security Holders: Copy of 1994 Employee Stock
Option Plan of Insteel Industries, Inc.
5 Opinion Re Legality: Opinion of Womble Carlyle Sandridge & Rice, PLLC.
23(a) Consents of Experts and Counsel: The consent of Deloitte & Touche LLP,
independent accountants of the Company.
23(b) Consents of Experts and Counsel: The consent of Womble Carlyle Sandridge
& Rice, PLLC, is included in their opinion filed as Exhibit 5.
</TABLE>
<PAGE> 1
EXHIBIT 4
1994 EMPLOYEE STOCK OPTION PLAN
OF
INSTEEL INDUSTRIES, INC.
<PAGE> 2
1994 EMPLOYEE STOCK OPTION PLAN OF
INSTEEL INDUSTRIES, INC.
1. Purpose.
The purpose of the 1994 Employee Stock Option Plan of Insteel
Industries, Inc. (the "Plan") is to encourage and enable selected key
employees of Insteel Industries, Inc. (the "Corporation") to acquire or to
increase their holdings of common stock of the Corporation (the "Common Stock")
in order to promote a closer identification of their interests with those of
the Corporation and its shareholders, thereby further stimulating their efforts
to enhance the efficiency, soundness, profitability, growth and shareholder
value of the Corporation. This purpose will be carried out through the
granting of incentive stock options ("Incentive Options") and nonqualified
stock options ("Nonqualified Options"). Incentive Options and Nonqualified
Options shall be referred to herein collectively as "Options."
2. Administration of the Plan.
The Plan shall be administered by a committee (the
"Committee") consisting of two or more members of the Board of Directors of the
Corporation (the "Board"), as appointed by the Board, each of whom shall be
eligible to administer the Plan pursuant to the disinterested administration
requirements of Rule 16b-3(c)(2)(i) (or any successor rule) under the
Securities Exchange Act of 1934 (the "Act"). Any action of the Committee may
be taken by a written instrument signed by all of the members of the Committee
and any action so taken by written consent shall be as fully effective as if it
had been taken by a majority of the members at a meeting duly held and called.
Subject to the provisions of the Plan, the Committee shall have full and final
authority, in its discretion, to take any action with respect to the Plan
including, without limitation, the following: (i) to determine the individuals
to receive Options, the nature of each Option as an Incentive Option or a
Nonqualified Option, the times when Options shall be granted, the number of
shares to be subject to each Option, the Option Price (determined in accordance
with Paragraph 6), the Option Period (determined in accordance with Paragraph
7), and the time or times when each Option shall be exercisable; (ii) to
prescribe the form or forms of the agreements evidencing any Options granted
under the Plan; (iii) to establish, amend and rescind rules and regulations for
the administration of the Plan; and (iv) to construe and interpret the Plan,
the rules and regulations, and the agreements evidencing Options granted under
the Plan, and to make all other determinations deemed necessary or advisable
for administering the Plan.
3. Effective Date; Term of the Plan.
The effective date of the Plan shall be September 23, 1994.
Options may be granted under the Plan on or after the effective date, but not
after September 22, 2004.
4. Shares of Common Stock Subject to the Plan.
The number of shares of Common Stock that may be issued
pursuant to Options shall not exceed in the aggregate 750,000 shares of
authorized but unissued Common Stock. The Corporation hereby reserves
sufficient authorized shares to provide for the exercise of such Options. Any
shares subject to an Option which, for any reason, expires or is terminated
unexercised as to
<PAGE> 3
such shares may again be subjected to an Option granted under the Plan. If
there is any change in the shares of Common Stock because of a merger,
consolidation or reorganization involving the Corporation or a related
corporation, or if the Board declares a stock dividend or stock split
distributable in shares of Common Stock, or if there is a change in the capital
structure of the Corporation or a related corporation affecting the Common
Stock, the number of shares of Common Stock reserved for issuance under the
Plan shall be correspondingly adjusted, and the Committee shall make such
adjustments to Options or to any provisions of this Plan as the Committee deems
equitable to prevent dilution or enlargement of Options.
5. Eligibility.
An Option may be granted only to an individual who satisfies
the following eligibility requirements on the date the Option is granted:
(a) The individual is an employee of the Corporation or a
related corporation. For this purpose, an individual shall be
considered to be an "employee" only if there exists between the
individual and the Corporation or a related corporation the legal and
bona fide relationship of employer and employee. In determining
whether such a relationship exists, the regulations of the United
States Treasury Department relating to the determination of the
employment relationship for the purpose of collection of income tax on
wages at the source shall be applied.
(b) The individual falls within the classification of key
employees of the Corporation or a related corporation. For this
purpose, "key employees" are those employees of the Corporation who
the Committee determines are in a position materially to affect the
profits of the Corporation or such related corporation by reason of
the nature and extent of each such employee's duties,
responsibilities, personal capabilities, performance and potential.
(c) With respect to the grant of an Incentive Option, the
individual does not own, immediately before the time that the
Incentive Option is granted, stock possessing more than ten percent of
the total combined voting power of all classes of stock of the
Corporation or a related corporation; provided, that an individual
owning more than ten percent of the total combined voting power of all
classes of stock of the Corporation or a related corporation may be
granted an Incentive Option if the price at which such Option may be
exercised is greater than or equal to 110 percent of the fair market
value of the shares on the date the Option is granted and the period
of the Option does not exceed five years. For this purpose, an
individual will be deemed to own stock which is attributed to him
under Section 424(d) of the Internal Revenue Code of 1986, as amended
(the "Code").
(d) The individual, being otherwise eligible under this
Paragraph 5, is selected by the Committee as an individual to whom an
Option shall be granted (an "Optionee").
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<PAGE> 4
6. Option Price.
The price per share of Common Stock at which an Option may be
exercised (the "Option Price") shall be the fair market value per share of the
Common Stock on the date the Option is granted, as established by the Committee
and set forth in the terms of the agreement granting the agreement (as provided
in Paragraph 9). For this purpose, the following rules shall apply:
(a) An Option shall be considered to be granted on the
date that the Committee acts to grant the Option, or on any later date
specified by the Committee as the effective date of the Option.
(b) The fair market value per share of the Common Stock
shall be determined in good faith by the Committee and shall be (i)
the price per share of the last sale of such shares on the New York
Stock Exchange as reported in The Wall Street Journal for the date the
Option is granted or, if there are no shares traded on the date of
grant, the last trading day prior to the date of grant, or (ii) if the
Common Stock is not listed and traded on the New York Stock Exchange
or another recognized securities exchange, but is traded on the over
the counter market, then the Option Price shall be the closing sales
price as reported in NASDAQ National Market System on the date the
Option is granted, or, if the Option is not granted on a trading date,
then on the trading date nearest preceding the date the Option is
granted for which closing sales price information is available on the
NASDAQ National Market System; or (iii) if the Common Stock ceases to
be traded on the open market, then in accordance with the applicable
provisions of Section 20.2031-2 of the Federal Estate Tax Regulations,
or in any other manner consistent with the Code and accompanying
regulations.
(c) In no event shall there first become exercisable by
the Optionee in any one calendar year incentive stock options granted
by the Corporation or any related corporation with respect to shares
of Common Stock having an aggregate fair market value (determined at
the time an option is granted) greater than $100,000.
7. Option Period and Limitations on the Right to Exercise Options.
(a) The period during which an Option may be exercised
(the "Option Period") shall be determined by the Committee when the
Option is granted and shall extend from the date on which the Option
is granted to a date not more than ten years from the date on which
the Option is granted. Subject to the restriction contained in the
preceding sentence and as otherwise provided in this Plan, an Option
shall be exercisable on such date or dates, during such period, for
such number of shares, and subject to such conditions as shall be
determined by the Committee and set forth in the agreement evidencing
such Option, subject to the rights granted in Paragraphs 7(c)(iii) and
7(c)(iv) herein to the Committee in specified circumstances to
accelerate the time when Options may be exercised. An Option may not
be exercised before the Plan has been approved by the shareholders of
the Corporation, which approval must occur, if at all, within one year
of the date on which the Plan is adopted by the
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<PAGE> 5
Board. Any Option or portion thereof not exercised before the
expiration of the Option Period shall terminate.
(b) An Option may be exercised by giving written notice
to the Committee or its designee at such time and place as the
Committee shall direct. Such notice shall specify the number of
shares to be purchased pursuant to an Option and the aggregate
purchase price to be paid therefor, and shall be accompanied by the
payment of such purchase price. Such payment shall be in the form of
cash or shares of Common Stock owned by the Optionee at the time of
exercise, or in any combination thereof; provided, that the Committee
may, in its sole and absolute discretion and subject to such terms and
conditions as it deems appropriate, permit all or a portion of the
purchase price to be paid by (i) funds borrowed from the Corporation
pursuant to Paragraph 7(f), (ii) delivery of written notice of
exercise to the Committee and delivery to a broker of written notice
of exercise and irrevocable instructions to promptly deliver to the
Corporation the amount of sale or loan proceeds to pay the Option
Price, or a combination of such methods. Shares tendered in payment
on the exercise of an Option shall be valued at their fair market
value on the date of exercise, which shall be determined in good faith
by the Committee and shall be (i) the price per share of the last sale
of such shares on the New York Stock Exchange as reported in The Wall
Street Journal for the last trading day nearest preceding the date on
which the option is exercised; or (ii) if the Common Stock is not
listed and traded on the New York Stock Exchange or another recognized
securities exchange but is traded in the over the counter market, then
the fair market value shall be the closing sales price of such Common
Stock as reported in the NASDAQ National Market System on the last
trading day nearest preceding the date of exercise; or (iii) if the
shares of the Company cease to be traded on the open market, then in
accordance with the applicable provisions of Section 20.2031-2 of the
Federal Estate Tax Regulations, or in any other manner consistent with
the Code and accompanying regulations. The closing with respect to
the exercise of an Option shall occur on the date specified in the
notice of exercise, and shall take place at the principal place of
business of the Corporation, or such other place as the Committee and
the Optionee shall agree. Notwithstanding the foregoing, the closing
may be delayed in the discretion of the Committee for such time period
as is necessary to enable the Corporation to comply with any federal
and state securities laws applicable to the exercise of the Options
granted hereby.
(c) No Option shall be exercised unless the Optionee, at
the time of exercise, shall have been an employee continuously since
the date the Option was granted, subject to the following:
(i) An Option shall not be affected by any change
in the terms, conditions or status of the Optionee's
employment, provided that the Optionee continues to be an
employee of the Corporation or a related corporation.
(ii) The employment relationship of an Optionee
may, in
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<PAGE> 6
the discretion of the Committee, be treated as continuing
intact for any period that the Optionee is on military or sick
leave or other bona fide leave of absence, provided that the
period of such leave does not exceed ninety days, and in any
event shall be treated as continuing during such period as the
Optionee's right to reemployment is guaranteed either by
statute or by contract. The employment relationship of an
Optionee may, in the discretion of the Committee, also be
treated as continuing intact while the Optionee is not in
active service because of disability; provided, that shares
acquired by the Optionee pursuant to exercise of an Incentive
Option shall be subject to Sections 421 and 422 of the Code
only if and to the extent that such exercise occurs within
twelve months less one day following the date the Optionee's
employment is considered to be terminated because of such
disability under Section 422. For purposes of this
subparagraph (c)(ii), "disability" shall mean the inability of
the Optionee to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death, or which
has lasted or can be expected to last for a continuous period
of not less than twelve months. The Committee shall determine
whether an Optionee is disabled within the meaning of this
subparagraph.
(iii) If the employment of an Optionee is
terminated because of death or disability, the Option may be
exercised following such termination only to the extent
determined by the Committee in its discretion; provided that
such discretion may include a decision to accelerate the date
for exercising all or any part of the Option which was not
otherwise exercisable on the date of the Optionee's
termination of employment (his "termination date"). In any
such event, the Option must be exercised, if at all, prior to
the earlier of: (A) the first anniversary of the Optionee's
termination date, or (B) the close of the Option Period. In
the event of the Optionee's death, such Option shall be
exercisable by such person or persons as shall have acquired
the right to exercise the Option by will or by the laws of
intestate succession. For purposes of this subparagraph
(c)(iii) and subparagraph (c)(iv) immediately following,
"disability" shall mean a condition with respect to an
Optionee occurring while he is employed by the Corporation and
defined as a "disability" under the Corporation's long term
disability insurance policy which may be in effect from time
to time, as determined by a medical doctor selected or
approved by the Corporation. In the event that there is no
disability insurance policy owned by the Corporation and in
effect, disability shall mean the inability, by reason of
physical or mental infirmity, or both, of an Optionee to
perform his duties as an employee of the Corporation, as
determined by the Committee.
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<PAGE> 7
(iv) If the employment of the Optionee is
terminated for any reason other than death or
disability, his Option may be exercised only to the
extent determined by the Committee in its discretion;
provided, that such discretion may include a decision
to accelerate the date of exercising all or any part
of the Option which was not otherwise exercisable on
the Optionee's termination date. In such event, the
Option must be exercised, if at all, prior to the
earlier of: (A) 90 days following the Optionee's
termination date, or (B) the close of the Option
Period.
(d) An Optionee or his legal representative, legatees or
distributees shall not be deemed to be the holder of any shares
subject to an Option unless and until certificates for such shares are
issued to him or them under the Plan.
(e) Nothing in the Plan shall confer upon the Optionee
any right to continue in the employment of the Corporation or a
related corporation, or to interfere in any way with the right of the
Corporation or a related corporation to terminate the Optionee's
employment at any time.
(f) If an Optionee shall exercise an Option with funds
borrowed from the Corporation, the Optionee shall execute a promissory
note in favor of the Corporation for the amount of the Option Price
borrowed. The promissory note shall provide for such repayment terms
as the Committee in its discretion shall establish; provided, that the
rate of interest in effect under the promissory note shall equal or
exceed the rate necessary to prevent application of the unstated
interest rules under Section 483 of the Code. In addition, the
Optionee shall execute an agreement assigning to the Corporation as
security for the promissory note the shares acquired pursuant to the
Option. The security agreement shall provide for the shares to be
held by the Committee until the promissory note is repaid in full;
provided, that if Optionee shall not have repaid the promissory note
in full at the time of his termination of employment with the
Corporation, or if he shall otherwise be in default under the terms of
such promissory note, the Committee shall retain the number of shares
needed to repay the outstanding balance on such note, and shall
deliver a certificate for the remaining shares held by the Committee
to the Optionee.
8. Nontransferability of Options.
Except to the extent, if any, as may be permitted by the Code,
Rule 16b-3 under the Act or any successor statutes or rule:
(a) An Option shall not be transferable other than by
will, the laws of intestate succession or pursuant to a qualified
domestic relations order (as defined by the Code, or Title I of the
Employee Retirement Income Security Act ("ERISA"), or the rules
thereunder). An Option shall be exercisable during the Optionee's
lifetime only by him or by his guardian or legal representative.
- 6 -
<PAGE> 8
(b) If an Optionee is subject to Section 16 of the Act,
shares of Common Stock acquired upon exercise of an Option may not,
without the consent of the Committee, be disposed of by the Optionee
until the expiration of six months after the date the Option was
granted.
9. Certain Definitions.
For purposes of the Plan, the following terms shall have the
meaning indicated:
(a) "Related corporation" means any parent, subsidiary or
predecessor of the Corporation.
(b) "Parent" or "parent corporation" shall mean any
corporation (other than the Corporation) in an unbroken chain of
corporations ending with the Corporation if, at the time as of which a
determination is being made, each corporation other than the
Corporation owns stock possessing fifty percent or more of the total
combined voting power of all classes of stock in another corporation
in the chain.
(c) "Subsidiary" or "subsidiary corporation" means any
corporation (other than the Corporation) in an unbroken chain of
corporations beginning with the Corporation if, at the time as of
which a determination is being made, each corporation other than the
last corporation in the unbroken chain owns stock possessing fifty
percent or more of the total combined voting power of all classes of
stock in another corporation in the chain.
(d) "Predecessor" or "predecessor corporation" means a
corporation which was a party to a transaction described in Section
424(a) of the Code (or which would be so described if a substitution
or assumption under that section had occurred) with the Corporation,
or a corporation which is a parent or subsidiary of the Corporation,
or a predecessor of any such corporation.
(e) In general, terms used in the Plan shall, where
appropriate, be given the meaning ascribed to them under the
provisions of the Code applicable to incentive stock options.
10. Stock Option Agreement.
The grant of any Option under the Plan shall be evidenced by
the execution of an agreement (the "Agreement") between the Corporation and the
Optionee. Such Agreement shall set forth the date of grant of the Option, the
Option Price, and the time or times when and the conditions upon the happening
of which the Option shall become exercisable. Such Agreement shall also set
forth the restrictions, if any, with respect to which the shares to be
purchased thereunder shall be subject, and such other terms and conditions as
the Committee shall determine, which are consistent with the provisions of the
Plan and applicable law and regulations.
- 7 -
<PAGE> 9
11. Restrictions on Shares.
The Committee may impose such restrictions on any shares
issued pursuant to the exercise of Options granted hereunder as it may deem
advisable, including without limitation restrictions under the Securities Act
of 1933, as amended, under the requirements of the New York Stock Exchange and
under any Blue Sky or securities laws applicable to such shares. The Committee
may cause a restrictive legend to be placed on any certificate issued pursuant
to the exercise of an Option granted hereunder in such form as may be
prescribed from time to time by applicable laws and regulations or as may be
advised by legal counsel.
12. Amendment or Termination.
The Plan may be amended or terminated by action of the Board;
provided, that:
(a) Any change in (i) the aggregate number of shares
which may be issued under the Plan (other than changes as described in
Paragraph 4), (ii) the description of the class of employees eligible
to receive Options under the Plan, or (iii) any other amendment which
requires shareholder approval in order to secure an exemption from
Section 16(b) of the Act, shall be made only with the approval of the
shareholders of the Corporation.
(b) No Option shall be adversely affected by a subsequent
amendment or termination of the Plan.
(c) No Option shall be amended (i) without the consent of
the Optionee, and (ii) if the Option is an Incentive Option, without
the opinion of legal counsel to the Corporation that such amendment
will not constitute a "modification" within the meaning of Section 424
of the Code if the Board determines such an opinion is necessary.
13. Withholding.
The Corporation shall require any recipient of shares pursuant
to an exercise of an Option to pay to the Corporation in cash the amount of any
tax or other amount required by any governmental authority to be withheld and
paid over by the Corporation to such authority for the account of such
recipient.
14. Predecessor Plan.
As of the effective date of the Plan, no further options shall
be granted under the 1985 Insteel Industries, Inc. Employee Incentive Stock
Option Plan, as amended (the "Predecessor Plan"). The Predecessor Plan shall
continue in effect and shall be applicable with respect to all options granted
prior to the effective date under the Predecessor Plan.
- 8 -
<PAGE> 10
15. Section 16(b) Compliance.
It is the intention of the Corporation that the Plan shall
comply in all respects with Rule 16b-3 under the Act, and, if any Plan
provision is later found not to be in compliance with Section 16 of the Act,
the provision shall be deemed null and void, and in all events the Plan shall
be construed in favor of it meeting the requirements of Rule 16b-3 (or
successor rules applicable to the Plan). Notwithstanding anything in the Plan
to the contrary, the Committee, in its sole and absolute discretion, may
bifurcate the Plan so as to restrict, limit or condition the use of any
provision of the Plan to participants who are officers or Directors subject to
Section 16 of the Act without so restricting, limiting or conditioning the Plan
with respect to other participants.
16. Applicable Law.
Except as otherwise provided herein, the Plan shall be
construed and enforced according to the laws of the State of North Carolina.
IN WITNESS WHEREOF, this Employee Stock Option Plan has been
executed in behalf of the Corporation as of the 23rd day of September, 1994.
INSTEEL INDUSTRIES, INC.
By:
---------------------------
President
Attest:
--------------------------------
------------------------
Secretary
[Corporate Seal]
- 9 -
<PAGE> 11
1994 EMPLOYEE STOCK OPTION AGREEMENT
OF
INSTEEL INDUSTRIES, INC.
THIS AGREEMENT, made the ____ day of ____________, 199__,
between INSTEEL INDUSTRIES, INC., a North Carolina corporation (the
"Corporation"), and ______________, an employee of the Corporation or a related
corporation (the "Optionee");
R E C I T A L S :
In furtherance of the purposes of the 1994 Employee Stock
Option Plan of Insteel Industries, Inc. (the "Plan"), the Corporation and the
Optionee hereby agree as follows:
1. The rights and duties of the Corporation and the
Optionee under this Agreement shall in all respects be subject to and governed
by the provisions of the Plan, a copy of which is attached to this Agreement
and the terms of which are incorporated herein by reference.
2. The Corporation hereby grants to the Optionee
pursuant to the Plan, as a matter of separate inducement and agreement in
connection with his employment, the right and option (the "Option") to purchase
all or any part of an aggregate of _____________ (____) shares of the Common
Stock of the Corporation (the "shares"), at the purchase price of $_________
per share. The Option will expire if not exercised in full on or before the
_____ day of _____________________, _____.
3. The Option shall become exercisable on the date or
dates shown on Schedule A to the extent of the number of shares set forth on
Schedule A beside each date. To the extent that an Option which is exercisable
is not exercised, such Option shall accumulate and be exercisable by the
Optionee in whole or in part at any time prior to expiration of the Option.
Upon the exercise of an Option in whole or in part, the Optionee shall pay the
purchase price to the Corporation in accordance with the provisions of
Paragraph 7 of the Plan, and the Corporation shall as soon thereafter as
practicable deliver to the Optionee a certificate or certificates for the
shares purchased.
4. Nothing contained in this Agreement or the Plan shall
require the Corporation or a related corporation to continue to employ the
Optionee for any particular period of time, nor shall it require the Optionee
to remain in the employ of the Corporation or such related corporation for any
particular period of time. Except as otherwise expressly provided in the Plan,
all rights of the Optionee under the Plan with respect to the unexercised
portion of his Option shall terminate immediately upon termination of the
employment of the Optionee with the Corporation or a related corporation.
5. This Option shall not be transferable (including by
pledge or hypothecation) other than by will, the laws of intestate succession
or pursuant to a qualified domestic relations order (as defined by the Internal
Revenue Code of 1986, Title I of the Employee Retirement Income Security Act,
or the rules thereunder). This Option shall be exercisable during the
Optionee's lifetime only by the Optionee or by his guardian or legal
representative.
6. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective executors,
administrators, next-of-kin, successors and assigns.
<PAGE> 12
IN WITNESS WHEREOF, this Agreement has been executed in behalf
of the Corporation and by the Optionee on the day and year first above written.
INSTEEL INDUSTRIES, INC.
By:________________________________
President
Attest:
_____________________________
Secretary
[Corporate Seal]
OPTIONEE
_____________________________________
Printed Name: _______________________
- 2 -
<PAGE> 13
1994 EMPLOYEE STOCK OPTION AGREEMENT
OF
INSTEEL INDUSTRIES, INC.
SCHEDULE A
Name of Optionee:
Date Option granted:
Date Option expires:
Number of shares subject to Option:
Option Price (per share):
<TABLE>
<CAPTION>
Date Installment Number of Shares Incentive or
First Exercisable in Installment Nonqualified
----------------- -------------------- ------------
<S> <C> <C>
</TABLE>
<PAGE> 1
EXHIBIT 5
WOMBLE CARLYLE SANDRIDGE & RICE
A PROFESSIONAL LIMITED LIABILITY COMPANY
1600 BB&T FINANCIAL CENTER
200 WEST SECOND STREET
WINSTON-SALEM, NORTH CAROLINA 27101
MAILING ADDRESS
POST OFFICE DRAWER 84 OTHER OFFICES:
WINSTON-SALEM, NORTH CAROLINA 27102 __________
TELEPHONE (910) 721-3600
FACSIMILE (910) 721-3660 ATLANTA, GA
ZEB E. BARNHARDT, JR. CHARLOTTE, NC
(910) 721-3505 RALEIGH, NC
August 15, 1995
Insteel Industries, Inc.
1373 Boggs Drive
Mount Airy, North Carolina 27030
Re: Insteel Industries, Inc.
1994 Employee Stock Option Plan
Registration Statement on Form S-8
-----------------------------------
Gentlemen:
We are familiar with the proceedings taken by Insteel
Industries, Inc. (the "Company"), relating to 750,000 shares of the Company's
Common Stock (No Par Value) (the "Shares") that may be offered pursuant to the
1994 Employee Stock Option Plan of Insteel Industries, Inc. (the "Plan"),
currently being registered by the Company. As counsel for the Company, we have
assisted in the preparation of a Registration Statement on Form S-8 (the
"Registration Statement") to be filed by the Company with the Securities and
Exchange Commission relating to the Plan and the Shares.
We have examined and are familiar with the records relating to
the organization of the Company, including its articles of incorporation,
bylaws, and all amendments thereto, and the records of all proceedings taken by
the Board of Directors and shareholders of the Company pertinent to the
rendering of this opinion.
Based on the foregoing, it is our opinion that:
1. The Company is duly established and validly existing
under and by virtue of the laws of the State of North Carolina; and
2. The Shares, when issued upon the due exercise of
options granted under the Plan as stated in the Registration
Statement, will be legally issued, fully paid and nonassessable
securities of the Company.
<PAGE> 2
Insteel Industries, Inc.
August 15, 1995
Page 2
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
Very truly yours,
WOMBLE CARLYLE SANDRIDGE & RICE, a
Professional Limited Liability Company
By: ZEB E. BARNHARDT, JR.
--------------------------------
Zeb E. Barnhardt, Jr.,
Member
ZEB/fc
<PAGE> 1
EXHIBIT 23(a)
DELOITTE &
TOUCHE LLP
------------ ----------------------------------------------
[LOGO] 1100 Carillion Telephone:(704)372-3560
227 West Trade Street
Charlotte, North Carolina 28202-1675
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Insteel Industries, Inc. on Form S-8 of our reports dated October 28, 1994,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
Insteel Industries, Inc. for the year ended September 30, 1994.
DELOITTE & TOUCHE, LLP
-----------------------
Deloitte & Touche, LLP
Charlotte, North Carolina
August 15, 1995
---------------
Deloitte Touche
Tohmatsu
International
---------------
