<PAGE>
As filed with the Securities and Exchange Commission on July 9, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------
REGISTRATION STATEMENT ON
FORM S-8
UNDER THE SECURITIES ACT OF 1933
---------------------
THE ROWE COMPANIES
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
Nevada 54-0458563
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)
1650 Tysons Boulevard, Suite 710, McLean, Virginia 22102
(Address of principal executive offices) (Zip Code)
</TABLE>
THE ROWE COMPANIES
AMENDED AND RESTATED
1993 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
Dave M. Muchnikoff, P.C.
Craig M. Scheer, Esq.
Silver, Freedman & Taff, L.L.P.
(a limited liability partnership including professional corporations)
7/th/ Floor - East Tower
1100 New York Avenue, NW
Washington, DC 20005
(Name and address of agent for service)
(202) 414-6100
(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Amount to be offering price aggregate Amount of
Title of securities to be registered registered/(1)/ per share offering price registration fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value
$1.00 per share 2,000,000 shares /(2)/ $20,717,586/(2)/ $5,760/(2)/
===================================================================================================================
</TABLE>
_____________________
/(1)/ Pursuant to Rule 416 under the Securities Act of 1933, as amended, the
Registration Statement covers, in addition to the number of shares set
forth above, an indeterminate number of shares which, by reason of certain
events specified in the Plan, may become subject to the Plan.
/(2)/ Pursuant to Rule 457(h), of the 2,000,000 shares being registered hereby
(i) 116,235 shares are subject to options with an exercise price of
$8.5625 per share ($995,263 in the aggregate); (ii) 31,500 shares are
subject to options with an exercise price of $10.000 per share ($315,000
in the aggregate); (iii) 2,000 shares are subject to options with an
exercise price of $12.8750 per share ($25,750 in the aggregate); (iv)
10,000 shares are subject to options with an exercise price of $13.2500
per share ($132,500 in the aggregate); (v) 323,000 shares are subject to
options with an exercise price of $10.1250 per share ($3,270,375 in the
aggregate); and (vi) the remaining 1,517,265 shares which have not been
awarded to date are being registered based upon the average of the high
and low prices of the Common Stock on the New York Stock Exchange of
$10.53125 per share on July 6, 1999.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The purpose of this Registration Statement on Form S-8 is to register
additional shares of the common stock, par value $1.00 per share (the "Common
Stock"), of The Rowe Companies (the "Company"), authorized for issuance under
the Company's Amended and Restated 1993 Stock Option and Incentive Plan (the
"Plan"). The contents of the Company's previously filed Registration Statement
on Form S-8 (File No. 33-70486) relating to the Plan (the "Initial Registration
Statement") are incorporated herein by reference, except for Items 3 and 8 of
Part II of the Initial Registration Statement.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents previously or concurrently filed by the Company with
the Commission are hereby incorporated by reference in this Registration
Statement and the prospectus to which this Registration Statement relates (the
"Prospectus"):
(a) the Company's Annual Report on Form 10-K for the fiscal year ended November
29, 1998 (File No. 1-10226) filed pursuant to the Securities and Exchange
Act of 1934, as amended (the "Exchange Act");
(b) all reports filed by the Company pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the Annual Report
referred to above; and
(c) the description of the Common Stock contained in the Company's Registration
Statement on Form S-1 (File No. 33-74504) filed with the Commission on
January 7, 1994, and all amendments thereto or reports filed for the purpose
of updating such description.
All documents subsequently filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference into this Registration Statement and the
Prospectus to be a part hereof and thereof from the date of the filing of such
documents. Any statement contained in the documents incorporated, or deemed to
be incorporated, by reference herein or therein shall be deemed to be modified
or superseded for purposes of this Registration Statement and the Prospectus to
the extent that a statement contained herein or therein or in any other
subsequently filed document which also is, or is deemed to be, incorporated by
reference herein or therein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Registration Statement and the
Prospectus.
The Company shall furnish without charge to each person to whom the
Prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents incorporated by reference, other than exhibits to
such documents (unless such exhibits are specifically incorporated by reference
to the information that is incorporated). Requests should be directed to:
Arthur H. Dunkin, Secretary-Treasurer, The Rowe Companies, 1650 Tysons
Boulevard, Suite 710, McLean, Virginia 22102, telephone number (703) 847-8670.
All information appearing in this Registration Statement and the Prospectus
is qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
<PAGE>
Item 8. Exhibits.
--------
<TABLE>
<CAPTION>
Regulation
S-K Reference to Prior
Exhibit Filing or Exhibit
Number Document Number Attached Hereto
- ---------- --------------------------------------- -----------------------------------
<C> <S> <C>
4.1 Articles of Incorporation of The Rowe Incorporated herein by reference to
Companies the Company's Registration
Statement on Form S-1
(Registration No. 33-74504),
filed January 27, 1994
4.2 Certificate of Amendment, dated Attached as Exhibit 4.2
March 30, 1999, of Articles of
Incorporation of The Rowe Companies
4.3 Bylaws of The Rowe Companies Attached as Exhibit 4.3
4.4 Specimen form of common Incorporated herein by
stock certificate of reference to the Company's
The Rowe Companies Registration Statement on Form 8-A
(File No. 1-10226),
filed January 27, 1994
5 Opinion of Silver, Attached as Exhibit 5
Freedman & Taff, L.L.P.
23.1 Consent of BDO Seidman LLP Attached as Exhibit 23.1
23.2 Consent of Silver, Included in Exhibit 5
Freedman & Taff, L.L.P.
24 Power of Attorney Contained on Signature Page
99 The Rowe Companies Amended and Attached as Exhibit 99
Restated 1993 Stock Option and
Incentive Plan
</TABLE>
<PAGE>
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 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 McLean, Commonwealth of Virginia, on July 9,
1999.
THE ROWE COMPANIES,
a Nevada corporation
By: /s/ Gerald M. Birnbach
----------------------------
Gerald M. Birnbach, Chairman of the Board,
President and Director
(Duly Authorized Representative)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gerald M. Birnbach, his true and lawful attorney-
in-fact and agent, with full power of substitution and re-substitution, for him
and in his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent full power and authority to do and perform each
and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming said attorney-in-fact and agent or his substitutes or substitute 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 below by the following persons in the
capacities and on the date indicated.
/s/ Gerald M. Birnbach /s/ Richard E. Cheney
- ------------------------------------- ---------------------------
Gerald M. Birnbach, Chairman of the Richard E. Cheney, Director
Board, President and Director
(Principal Executive Officer)
Date: July 9, 1999 Date: July 9, 1999
<PAGE>
/s/ Arthur H. Dunkin /s/ Harvey I. Ptashek
- ------------------------------------- ---------------------------
Arthur H. Dunkin, Secretary-Treasurer and Harvey I. Ptashek,
Director (Principal Accounting and Director
Financial Officer)
Date: July 9, 1999 Date: July 9, 1999
_________________ _________________
/s/ Charles T. Rosen /s/ Keith J. Rowe
- ------------------------------------- ---------------------------
Charles T. Rosen, Director Keith J. Rowe, Director
Date: July 9, 1999 Date: July 9, 1999
_________________ _________________
/s/ Sidney J. Silver /s/ Allan Tofias
- ------------------------------------- ---------------------------
Sidney J. Silver, Director Allan Tofias, Director
Date: July 9, 1999 Date: July 9, 1999
_________________ _________________
/s/ Gerald O. Woodlief
- -------------------------------------
Gerald O. Woodlief, Director
Date: July 9, 1999
_________________
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number
-------
<S> <C>
Exhibit 4.2 Certificate of Amendment, dated March 30, 1999, of Articles of
Incorporation of The Rowe Companies
Exhibit 4.3 Bylaws of The Rowe Companies
Exhibit 5 Opinion of Silver, Freedman & Taff, L.L.P.
Exhibit 23.1 Consent of BDO Seidman, LLP
Exhibit 23.2 Consent of Silver, Freedman & Taff, L.L.P. (contained in Exhibit 5)
Exhibit 24 Power of Attorney (contained on signature page)
Exhibit 99 The Rowe Companies Amended and Restated 1993 Stock Option and
Incentive Plan
</TABLE>
<PAGE>
EXHIBIT 4.2
CERTIFICATE OF AMENDMENT OF ARTICLES OF INCORPORATION
(After Issuance of Stock)
ROWE FURNITURE CORPORATION
--------------------------
Name of Corporation
Gerald M. Birnbach and Arthur H. Dunkin of
- ------------------ ----------------
President Secretary
Rowe Furniture Corporation do hereby certify:
- --------------------------
Name of Corporation
That the Board of Directors of said corporation at a meeting duly convened,
held on the 30/th/ day of March , 1999, adopted a resolution to amend the
------ -------- ----
original articles as follows:
FIRST: The name of the Corporation is The Rowe Companies.
The first sentence of Article Fourth is hereby amended to read as follows:
FOURTH: The amount of the total authorized capital stock of the
corporation shall be FIFTY MILLION DOLLARS (50,000,000) consisting of
one (1) class of FIFTY MILLION (50,000,000) shares of common voting
stock, par value $1.00 per share.
The number of shares of the corporation outstanding and entitled to vote on
an amendment to the Articles of Incorporation is 12,291,608; that the said
----------
change(s) and amendment have been consented to and approved by a majority vote
of the stockholders holding at least a majority of each class of stock
outstanding and entitled to vote thereon.
/s/ Gerald M. Birnbach
----------------------
President
/s/ Arthur H. Dunkin
--------------------
Secretary
State of VIRGINIA
--------
County of ARLINGTON
---------
On MARCH 31, 1999, personally appeared before me, a Notary Public,
Gerald M. Birnbach and Arthur H. Dunkin who acknowledged that they executed the
- ---------------------------------------
above instrument.
/s/ Marlene A. Negli
--------------------
Signature of Notary
<PAGE>
EXHIBIT 4.3
BYLAWS
------
THE ROWE COMPANIES
------------------
(A NEVADA CORPORATION)
ARTICLE I
---------
STOCKHOLDERS
- ------------
Section 1. The stockholders of this corporation shall be those who appear
on the books of the corporation as holder of one or more shares of any class of
stock of the corporation.
Section 2. The annual meeting of the stockholders shall be held annually
during the month of April of each year at such place and at such hour as may be
provided by the Board of Directors or in the stated notice of the meeting.
At such annual meetings there shall be an election of the Board of
Directors for the ensuing year and the transaction of any business which may
properly come before the meeting.
If in any year the annual meeting shall not be held during the month of
April, a meeting shall be held as soon as practicable thereafter and upon the
same notice as required for an annual meeting, at which time the Board of
Directors shall be elected and such other business may be transacted as might
have been transacted at the annual meeting.
Notice of meetings of stockholders shall be given to the extent and in the
manner required by the Nevada General Corporation Law, Title 7, Chapter 78, of
the Nevada Revised Statutes, or as it may be amended from time to time hereafter
(said provisions being hereinafter sometimes called "Act"), and notice of either
stockholders' meetings or directors' meetings may be waived to the extent and in
the manner provided in said Act.
Section 3. A special meeting of the stockholders may be called by the
Chairman of the Board of Directors, the President, the Board of Directors, the
holders of not less than one-tenth (1/10) of all the shares entitled to vote at
the meeting, or such other officers or persons as may be authorized in the
Articles of Incorporation.
Section 4. Any action required under the law of Nevada to be taken at a
meeting of the stockholders of the corporation, or any action which may be taken
at a meeting of the stockholders, may be taken at a meeting of the stockholders,
may be taken without a meeting if a consent in writing setting forth the action
so taken shall be signed by all of the stockholders entitled to vote with
respect to the subject matter thereof.
Such consent shall have the same force and effect as a unanimous vote of
stockholders and may be stated as such in any article or document filed with the
State Corporation Commission or others.
Section 5. For the purpose of determining stockholders entitled to notice
of or to vote at any meeting of stockholders, or any adjournment thereof, or
entitled to receive
<PAGE>
payment of any dividend, or in order to make a determination of stockholders for
any other proper purpose, the Board of Directors may provide that the stock
transfer books shall be closed for a stated period, but not to exceed in any
case fifty (50) days. In lieu of closing the stock transfer books, the Board of
Directors may fix in advance a date as the record date for any such
determination of stockholders, such date in any case to be not more than fifty
(50) days prior to the date on which the particular action requiring such
determination of stockholders is to be taken.
Section 6. Unless otherwise provided in the Articles of Incorporation, a
majority of the shares entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of the stockholders. If a quorum is
present, the affirmative vote of a majority of shares represented at the meeting
and entitled to vote on the subject matter shall be the act of the stockholders,
unless the vote of a greater number or voting by classes is required under the
applicable law of Nevada or the Articles of Incorporation, and except that in
elections of directors those receiving the greatest number of votes shall be
deemed elected, even though not receiving a majority. Less than a quorum may
adjourn.
Section 7. Each outstanding share, regardless of class, shall be entitled
to one vote on each matter submitted to a vote at a meeting of the stockholders,
except to the extent that the voting rights of the shares of any class or
classes are limited or denied by the Articles of Incorporation as permitted by
the Act, and except as the Articles of Incorporation may confer on the holders
of shares of any particular class or series the right to more than one vote per
share, either generally or on particular matters. Where the Articles of
Incorporation confer the right to more or less than one vote per share, any
requirement in the Act for the affirmative vote of a specified proportion of the
shares shall be deemed to refer to a like proportion of the votes eligible to be
cast.
A stockholder may vote either in person or by proxy executed in writing by
the stockholder or by his duly authorized attorney in fact and shall have one
vote for each share of stock which he is entitled to vote at such meeting. At
each election for directors, every stockholder entitled to vote at such election
shall have the right to vote in person or by proxy the number of shares owned by
him for as many persons as there are directors to be elected at that time and
for whose election he has a right to vote.
Shares of stock of other corporations owned by this corporation may be
voted in person by the President or a Vice President or by proxy executed by the
President or a Vice President; provided, however, the Board of Directors may by
resolution revoke such authority from time to time and thereby designate some
other agent, attorney in fact, or proxy to vote such shares.
Section 8. All meetings of the stockholders shall be presided over by the
Chairman of the Board of Directors, if such office is filled, or, in the absence
or inability to act of a Chairman of the Board of Directors, by the President,
or, if neither the Chairman of the Board nor the President is present and able
to serve, by any officer, director, or other person designated by the Chairman
of the Board of Directors, if such office is filled, or, if not, by the
President. If no individual is designated, then the Board of Directors shall
designate a Chairman to preside over such meetings. Such meetings shall be
attended by the Secretary of the corporation, who shall act as Secretary of all
such meetings, if
2
<PAGE>
present. If the Secretary is absent at any meeting, the Chairman shall appoint a
Secretary of the meeting. The proceedings of all such meetings shall be verified
by the signature of the Secretary of the meeting approved by the Chairman.
Section 9. At all elections of directors, and in any other case in which
inspectors may act, two inspectors of election shall be appointed by the
Chairman of the meeting, except as otherwise provided by law. The inspectors of
election shall take and subscribe an oath faithfully to execute the duties of
inspectors at such meeting with strict impartiality, and, according to the best
of their ability, shall take charge of the polls and accept the ballots,
proxies, and other related documents, if any, and when the voting is completed,
count and ascertain the number of shares voted and shall make a certificate of
the result thereof. No director or candidate for the office of director shall
be appointed as such inspector. If any inspector appointed be absent or refuse
to act or if his office shall become vacant, the Chairman of the meeting may
choose temporary inspectors of the number required.
ARTICLE II
----------
DIRECTORS
- ---------
Section 1. The business and affairs of the corporation shall be managed by
a Board of Directors subject to any requirement of stockholder action made by
the Act or the Articles of Incorporation.
Section 2. The Board of Directors shall consist of no less than nine (9)
and no more than thirteen (13) directors. The number of directors shall be such
as from time to time shall be fixed by the Board of Directors. Each director
shall hold office until the next election of the class for which such directors
shall have been chosen, and until his successor shall be duly elected and
qualified, or until his death, resignation or removal. Subject to any limitation
imposed by law, directors may be removed only for cause and only by the Board of
Directors or by the affirmative vote of the holders of seventy-five percent
(75%) or more of the outstanding shares of capital stock entitled to vote for
the election of directors. In any event, the stockholders shall annually elect
at least one-fourth (1/4) in number of the Board of Directors. No director need
be a stockholder of the corporation.
Section 3. Any vacancy occurring in the Board of Directors, including a
vacancy resulting from an increase by not more than two in the number of
directors, may be filled by the affirmative vote of a majority of the remaining
directors, through less than a quorum of the Board of Directors.
Section 4. A majority of the number of directors fixed by the Bylaws shall
constitute a quorum for the transaction of business. The act of the majority of
the directors present at a meeting, at which a quorum is present, shall be the
act of the Board of Directors.
Section 5. A meeting of the Board of Directors shall be held immediately
after each annual meeting of the stockholders without other notice than is given
by these Bylaws, at
3
<PAGE>
which meeting there shall be elected at least a Chairman of the Board, a
President, a Treasurer, and a Secretary, who shall hold such offices until the
first meeting of the Board following the next annual meeting of the stockholders
and until their successors are elected and qualify, unless sooner removed by the
Board of Directors.
The Board may also annually, or from time to time as may be deemed
desirable, elect an Executive Vice President or one or more Vice Presidents and
any other officers, agent, or factors, or fill any vacancy as it may deem
necessary, who shall hold office until others are elected and qualify in their
stead, subject to removal by the board at any time, with or without cause.
The same person may hold one or more offices, except that the same person
may not serve as both President and Secretary.
Section 6. Meetings of the Board of Directors, regular or special, may be
held at such times and places as it may designate.
A special meeting may be called at any time by the President or by any
three elected directors.
Regular meetings of the Board of Directors may be held with or without
notice. Notice of special meetings of the Board of Directors shall be mailed or
telegraphed to each director at least three (3) days prior to the date of the
meeting; however, whenever all directors entitled to vote at any meeting
consent, either by (i) a writing on the record of the meeting or filed with the
Secretary, (ii) presence at such meeting and oral consent entered on the
minutes, or (iii) taking part in the deliberations at such meeting without
objection, the doings of such meeting shall be as valid as if done at a meeting
regularly called and noticed. Neither the business to be transacted at nor the
purpose of any regular or special meeting of the Board of Directors need be
specified in the notice or waiver of notice of such meeting.
Section 7. The Board of Directors, by resolution adopted by a majority of
the number of the directors fixed by these Bylaws, may designate two or more
directors to constitute an executive committee, which committee shall have and
may exercise all authority for determination of compensation of officers, and
such other authority as shall be delegated to it by the Board of Directors,
except to approve an amendment of the Articles of Incorporation, a plan of
merger or consolidation, a plan of exchange under which the corporation would be
acquired, the sale, lease or exchange, or the mortgage or pledge for a
consideration other than money, of all, or substantially all, the property and
assets of the corporation otherwise than in the usual and regular course of its
business, the voluntary dissolution of the corporation, or revocation or
voluntary dissolution proceedings.
Other Committees with limited authority may be designated by resolution
adopted by a majority of the directors present at a meeting at which a quorum is
present.
Section 8. The Board of Directors may appoint a Transfer Agent or a
Transfer Agent and Registrar of Transfer and may require all certificates for
each applicable class of stock to be authenticated by the Transfer Agent or by
the Transfer Agent and Registrar, as the case may be, or as the Board may
otherwise direct.
4
<PAGE>
Section 9. At a meeting at any time called expressly for that purpose, any
director may be removed, with or without cause, by vote or written consent of
stockholders representing not less than two-thirds of the issued and outstanding
capital stock entitled to vote at an election of directors of the class or
classes by which any such director was elected.
ARTICLE III
OFFICERS --DUTIES AND POWERS
- ----------------------------
Section 1. The President shall be elected by and from the Board of
Directors and shall preside at all meetings of the Board of Directors, unless
there shall be a Chairman of the Board and such individual shall be present, in
which event the Chairman shall preside. In the absence of the Chairman of the
Board of Directors, if any, and the President and Executive Vice-President, if
any, a Chairman of the meeting shall be elected by the meeting.
The President shall ex officio be a member of all committees, shall sign
conveyances of real estate and other instruments in writing by law requiring the
President's signature, and perform such other duties as may be required of him
from time to time by the directors, and shall have the authority, powers, and
duties that are usually given such officer.
Section 2. In case of the absence of the President or of his inability to
act, his duties shall be performed by the Executive Vice-President, if any, who,
in that event, shall execute any of the above powers of the President. In the
event of the absence of both the President and the Executive Vice-President,
then any Vice-President shall execute the above powers of the President. In
case of the absence of the President and all Vice-Presidents, or their inability
to act, the Board of Directors shall designate the officer that shall execute
any of the above powers of the President.
Section 3. The Secretary or Secretary-Treasurer shall attend all meetings
of the stockholders and directors and executive committee of the corporation and
keep a full and accurate account of their proceedings in a book to be kept for
that purpose. He shall, unless and until the Board of Directors appoints
another person or corporation as the Transfer Agent as hereinabove provided, act
as the Transfer Agent of the corporation and maintain the stock books and
addresses of the stockholders of the corporation. He shall be the custodian of
the corporate seal of the corporation and shall affix and attest the seal, as
authorized by the Board of Directors or the Bylaws of this corporation, to all
corporate instruments requiring the seal. He shall also keep such other books,
deeds, contracts, and other valuable papers belonging to the corporation, and
perform such other duties as may be required of him by the President, the Board
of Directors, or the executive committee.
Section 4. The Treasurer or Secretary-Treasurer shall have the custody of
all monies and securities of the corporation and shall deposit the same in the
name and to the credit of the corporation in such depositories as may be
designated by the Board of Directors. He shall keep a full and accurate account
of the receipts and disbursements of
5
<PAGE>
the corporation in books belonging to the corporation, and shall disburse the
funds of the corporation by check or other warrant to be signed as prescribed by
resolution of the Board of Directors. All books and papers in his care shall be
always open to the inspection of the President or any director, as well as of
any person whom the President or Board of Directors may appoint to examine such
books and papers. He shall render such reports to the President or Board of
Directors as may be required of him and shall perform such other duties as may
be incident to his office or as may be required of him by the Board of
Directors.
He may be required by the directors at any time to give bond as the
directors may designate.
Section 5. Any person elected by the Board of Directors as an assistant to
an officer, for example, an Assistant Secretary, shall, unless otherwise
restricted by the Board of Directors and in all cases subordinate to the officer
himself, have and exercise all of the rights, duties, functions and powers of
such officer.
Section 6. In the event of the absence of any officer of the corporation
or his disqualification or inability to act where provision therefore is not
expressly made by these Bylaws, the President may by written order, or the Board
of Directors may by resolution, delegate the powers of such officer to any other
officer or employee of the corporation.
Section 7. Any officer or agent may be removed, with or without cause, at
any time whenever the Board of Directors in its absolute discretion shall
consider that the best interests of the corporation would be served thereby.
Any officer or agent appointed otherwise than by the Board of Directors may be
removed, with or without cause, at any time either by the Board of Directors or
by any officer having authority to appoint whenever the Board of Directors or
such appointing officer in it or his absolute discretion shall consider that the
best interest of the corporation will be served thereby.
ARTICLE IV
----------
SEAL
- ----
Section 1. The seal of this corporation shall be as the impression made
below:
ARTICLE V
CHECKS, DRAFTS, NOTES, ETC.
- ---------------------------
Section 1. All checks, drafts, notes and orders for the payment of money
issued by the corporation shall be signed by such person or persons as the Board
of Directors may from time to time designate, and any endorsement of such paper
in the ordinary course of business shall be similarly made.
6
<PAGE>
ARTICLE VI
----------
NOTICE
- ------
Section 1. Any notice mailed by the corporation to any director or
stockholder shall be sufficient service of such notice when deposited in the
United States mail, addressed to such stockholder or director at the address
furnished by such stockholder or director to the corporation or its Transfer
Agent, in the event an outside Transfer Agent has been appointed, with postage
thereon prepaid.
ARTICLE VII
-----------
STOCKS, NOTES, BONDS, AND DEBENTURES
- ------------------------------------
Section 1. The shares of the corporation shall be evidenced by
certificates of each class of stock issued in numerical order, signed by the
President or a Vice-President and the Secretary or an Assistant Secretary or the
Treasurer or an Assistant Treasurer, or any other officer authorized by these
Bylaws or a resolution of the Board of Directors, and may (but need not) be
sealed with the seal of the corporation or a facsimile thereof. The signature of
the officers upon a certificate may be facsimiles if the certificate is
countersigned by a Transfer Agent or registered by a Registrar other than the
corporation itself or an employee of the corporation.
Section 2. On any bond, note or debenture issued by the corporation which
is countersigned or otherwise authenticated by the signature of a trustee, the
signatures of the officers of the corporation and its seal may be facsimiles.
Section 3. In case any officer who has signed or whose facsimile signature
has been placed upon a stock certificate or a bond, note, or debenture shall
have ceased to be such officer before such certificate or other such document is
issued, it may be issued by the corporation with the same effect as if he were
such officer at the date of its issue.
Section 4. Transfer of stock shall be made only upon the books of the
corporation (whether maintained by the corporation or by a Transfer Agent, in
the event one is appointed) and only by the person named in the certificate or
by attorney lawfully constituted in writing and, subject to the provisions of
Section 6 hereof, only upon surrender of the certificate therefor. The Board of
Directors may by resolution make reasonable regulations for the transfer of
stock.
Section 5. Registered stockholders only shall be entitled to be treated by
the corporation as the holders in fact of the stock standing in their respective
names, and the corporation shall not be bound to recognize any equitable or
other claim to or interest in any shares on the part of any other person whether
or not it shall have express or other notice thereof, except as expressly
provided by the laws of Nevada.
Section 6. In case of loss or destruction of any certificate of stock,
another may be
7
<PAGE>
issued in its place upon proof of such loss or destruction, and upon the giving
of a satisfactory bond of indemnity to the corporation in such sum as the
directors may provide.
ARTICLE VIII
------------
BOOKS AND RECORDS
- -----------------
Section 1. The corporation shall keep correct and complete books and
records of account and shall keep minutes of the proceedings of its stockholders
and Board of Directors; and shall keep at its principal office in Nevada, a
certified copy of its Articles of Incorporation and all amendments thereto, a
certified copy of its Bylaws and all amendments thereto, and a stock ledger or
duplicate stock ledger, revised annually, containing the names, alphabetically
arranged, of all persons who are stockholders of the corporation, showing their
places of residence. If known, and the number of shares held by them. If the
stock ledger is maintained by a Transfer Agent or Registrar, the corporation
may, in lieu of the requirement above, keep and maintain a statement setting out
the name of the Transfer Agent or Registrar, and the present and complete
address at which the stock ledger is kept.
Section 2. Any person who shall have been a stockholder of record for at
least six months immediately preceding his demand or who shall be the holder of
record of at lease five percent (5%) of all the outstanding shares of the
corporation, or any person authorized in writing by the holders of at lease five
percent (5%) of all outstanding shares, upon at lease five (5) days written
demand slating the purpose thereof, shall have-the right to examine, in person,
or by agent or attorney, at any reasonable time or times, for any proper
purpose, its books and records of account, minutes, and record of stockholders
and may make copies or extracts therefrom.
Section 3. Upon the written request of any stockholder of the corporation,
the corporation shall mail to each such stockholder its most recently published
financial statements showing in reasonable detail the assets and liabilities and
the results of its operations.
8
<PAGE>
ARTICLE IX
----------
AMENDMENT OF BYLAWS
- -------------------
Section 1. These Bylaws may be altered, amended or repealed and new Bylaws
may be adopted by the Board of Directors; Bylaws made or adopted by the Board of
Directors may be repealed or changed and new Bylaws made by the affirmative vote
of the holders of seventy-five percent (75%) or more of the outstanding shares
of capital stock entitled to vote for the election of directors or by a majority
of the existing Board of Directors.
ARTICLE X
---------
Section 1. Each director and each officer of this corporation (and his
heirs, executors, and administrators) who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, except an
action by or in the right of the corporation, by reason of the fact that such
person is a director or officer of the corporation, shall be indemnified by this
corporation against all expenses and costs, including attorney's fees,
judgments, fines, and amount paid in settlement, actually and reasonably
Incurred by such person in connection with such action, suit, or proceeding if
such person acted in good faith and in a manner which such person reasonably
believed to be in or not opposed to the best interests of the corporation, and
with respect to any criminal action or proceeding, had no reasonable cause to
believe such conduct was unlawful.
Section 2. Each director and each officer of thiscorporation (and his
heirs, executors, and administrators) who was or is a party, or is threatened to
be made a party to any threatened, pending, or completed action or suit by or in
the right of the corporation by reasons of the fact that such person is or was a
director or officer of such corporation, shall be indemnified by this
corporation for all costs and expenses, including reasonable attorney's fees,
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if such person acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best interest
of the corporation, but no indemnification shall be made in respect of any
claim, issue, or matter as to which such person has been adjudged to be liable
for negligence or misconduct in the performance of his duty to the corporation
unless and only to the extent that the court in which such action or suit was
brought determines upon application that, despite the adjudication of liability,
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses as the court deems proper.
Section 3. Any indemnification authorized by Section I or Section 2 above
shall be made in a particular case only upon a determination that
indemnification of the officer or director is proper because such person met the
applicable standard of conduct set forth
9
<PAGE>
above. Such determination shall be made by the Board of Directors, by a majority
vote of a quorum of disinterested directors, or if such a quorum of
disinterested directors cannot be obtained or is obtained and so orders, by
independent legal counsel in a written opinion.
Section 4. The rights to indemnification hereby provided shall be in
addition to any other rights to which any director or officer or other person
may be entitled.
THE ROWE COMPANIES
BYLAWS
AMENDED MARCH 30, 1999
10
<PAGE>
EXHIBIT 5
[LETTERHEAD OF SILVER, FREEDMAN & TAFF, L.L.P.]
July 9, 1999
Board of Directors
The Rowe Companies
1650 Tysons Boulevard
Suite 710
McLean, Virginia 22102
Gentlemen:
We have acted as counsel to The Rowe Companies, a Nevada corporation (the
"Corporation"), in connection with the preparation and filing with the
Securities and Exchange Commission of a registration statement on Form S-8 under
the Securities Act of 1933, as amended (the "Registration Statement"), relating
to 2,000,000 shares of the Corporation's common stock, par value $1.00 per share
(the "Common Stock"), to be offered pursuant to The Rowe Companies Amended and
Restated 1993 Stock Option and Incentive Plan (the "Plan").
In this connection, we have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Plan, the Corporation's
Articles of Incorporation, Bylaws, resolutions of its Board of Directors and
such other documents and corporate records as we deem appropriate for the
purpose of giving this opinion.
Based upon the foregoing, it is our opinion that the shares of Common Stock
covered by the Registration Statement will be, when and if issued, sold and paid
for as contemplated by the Plan, legally issued, fully paid and non-assessable
shares of Common Stock of the Corporation.
We hereby consent to the inclusion of our opinion as Exhibit 5 to this
Registration Statement on Form S-8. In giving this consent, we do not admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ SILVER, FREEDMAN & TAFF, L.L.P.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of The Rowe Companies of our report, dated January 8,
1999, on the consolidated financial statements of The Rowe Companies, which
report appears in The Rowe Companies' Annual Report on Form 10-K for the fiscal
year ended November 29, 1998.
/S/ BDO Seidman, LLP
High Point, North Carolina
July 7, 1999
<PAGE>
EXHIBIT 99
Amended and Restated
THE ROWE COMPANIES
1993 Stock Option and Incentive Plan
1. Plan Purpose. The purpose of the Plan is to promote the long-term
------------
interests of the Corporation and its stockholders by providing a means for
attracting and retaining directors, officers and Employees of the Corporation
and its Affiliates. It is intended that designated Options granted pursuant to
the provisions of this Plan to persons employed on a full-time basis will
qualify either as Incentive Stock Options or Non-Qualified Stock Options, as
designated under the terms of the Award. Options granted to persons who are not
full-time Employees will be Non-Qualified Stock Options.
2. Definitions. The following definitions are applicable to the Plan:
-----------
"Affiliate" - means any "parent corporation" or "subsidiary
corporation" of the Corporation, as such terms are defined in Section 424(e) and
(f), respectively, of the Code.
"Award" - means the grant by the Committee of an Incentive Stock Option
or a Non-Qualified Stock Option, or any combination thereof, as provided in the
Plan.
"Code" - means the Internal Revenue Code of 1986, as amended.
"Committee" - means the Committee referred to in Section 3 hereof.
"Continuous Service" - means the absence of any interruption or
termination of service as a director, officer or Employee of the Corporation or
an Affiliate, except that, when used with respect to persons granted an
Incentive Stock Option, means the absence of any interruption or termination of
service as an Employee of the Corporation or an Affiliate. Service shall not be
considered interrupted in the case of sick leave, military leave or any other
leave of absence approved by the Corporation or in the case of transfers between
payroll locations of the Corporation or between the Corporation, its
subsidiaries or its successor.
"Corporation" - means The Rowe Companies, a Nevada corporation.
<PAGE>
"Employee" - means any person, including an officer, who is employed by
the Corporation or any Affiliate.
"ERISA" - means the Employee Retirement Income Security Act of 1974, as
amended.
"Exercise Price" - means the price per Share at which the Shares
subject to an Option may be purchased upon exercise of such Option.
"Incentive Stock Option" - means an option to purchase Shares granted
by the Committee pursuant to Section 6 hereof , which is subject to the
limitation and restriction of Section 8 hereof and is intended to qualify under
Section 422 of the Code. Unless otherwise set forth in the Option Agreement, any
Option which does not qualify as an Incentive Stock Option for any reason shall
be deemed ab initio to be a Non-Qualified Stock Option.
"Market Value" - means the average of the high and low quoted sales
price on the date in question (or, if there is no reported sale on such date, on
the last preceding date on which any reported sale occurred) of a Share on the
Composite Tape for the New York Stock Exchange - Listed Stocks, or, if the
Shares are not listed or admitted to trading on such Exchange, on the principal
United States securities exchange registered under the Securities Exchange Act
of 1934 on which the Shares are listed or admitted to trading, or, if the Shares
are not listed to or admitted to trading on any such exchange, the mean between
the closing high and low asked quotations with respect to a Share on such date
on the NASDAQ Stock Market, or any similar system then in use, or if no such
quotations are available, the fair market value on such date of a Share as the
Committee shall determine.
"Non-Qualified Stock Option" - means an option to purchase Shares
granted by the Committee pursuant to Section 6 hereof, which option is not
intended to qualify or for any reason does not qualify or ceases to qualify as
an Incentive Stock Option under Section 422 of the Code.
"Option" - means an Incentive Stock Option or a Non-Qualified Stock
Option.
"Participant" - means any director, officer or Employee of the
Corporation or any Affiliate who is selected by the Committee to receive an
Award.
<PAGE>
"Plan" - means the 1993 Stock Option and Incentive Plan of the
Corporation, as amended and restated in this document.
"Shares" - means the shares of common stock of the corporation.
3. Administration. The Plan shall be administered by a Committee
--------------
consisting of two or more members, each of whom (i) shall be an "outside
director," as defined under Section 162(m) of the Code and the Treasury
regulations thereunder, and (ii) shall be a "non-employee director," as defined
under Rule 16(b) of the Securities Exchange Act of 1934 or any similar or
successor provision. The members of the Committee shall be appointed by the
Board of Directors of the Corporation. Except as limited by the express
provisions of the Plan, the Committee shall have sole and complete authority and
discretion to (i) select Participants and grant Awards; (ii) determine the
number of Shares to be subject to types of Awards generally, as well as to
individual Awards granted under the Plan; (iii) determine the terms and
conditions upon which Awards shall be granted under the Plan; (iv) prescribe the
form and terms of instruments evidencing such grants; and (v) establish from
time to time regulations for the administration of the Plan, interpret the Plan,
and make all determinations deemed necessary or advisable for the administration
of the Plan.
A majority of the Committee shall constitute a quorum, and the acts of
a majority of the members present at any meeting at which a quorum is present,
or acts approved in writing by a majority of the Committee without a meeting,
shall be acts of the Committee.
4. Participation in Committee Awards. The Committee may select from time
---------------------------------
to time Participants in the Plan from those Employees and directors of the
Corporation or its Affiliates who, in the opinion of the Committee, have the
capacity for contributing to the successful performance of the Corporation or
its Affiliates.
5. Shares Subject to Plan. Subject to adjustment by the operation of
----------------------
Section 9 hereof, the maximum number of Shares with respect to which Awards may
be made under the Plan is 2,968,125; provided, however, that the maximum number
of Shares with respect to which Awards may be made under the Plan shall be
<PAGE>
automatically increased by the number of Shares of stock of the Corporation that
it reserves for issuance under stock options granted in connection with future
acquisitions made by the Corporation, but not to exceed 500,000 Shares. The
shares with respect to which Awards may be made under the Plan may be either
authorized and unissued shares or issued shares heretofore or hereafter
reacquired and held as treasury shares. An Award shall not be considered to have
been made under the Plan with respect to any Option which terminates, and new
Awards may be granted under the Plan with respect to the number of Shares as to
which such termination has occurred. During any calendar year, no Participant
may be granted Awards under the Plan of more than 100,000 Shares, subject to
adjustment as provided in Section 9.
6. General Terms and Conditions of Options. The Committee shall have full
---------------------------------------
and complete authority and discretion, except as expressly limited by the Plan,
to grant Options and to provide the terms and conditions (which need not be
identical among Participants) thereof. In particular, the Committee shall
prescribe the following terms and conditions: (i) the Exercise Price of any
Option, which shall not be less than the Market Value per Share at the date of
grant of such Option, (ii) the number of Shares subject to and the expiration
date of any Option, which expiration date shall not exceed ten years from the
date of the grant, (iii) the manner, time and rate (cumulative or otherwise) of
exercise of such Option, and (iv) the restrictions, if any, to be placed upon
such Option or upon Shares which may be issued upon exercise of such Option.
At the time of any Award, the Participant shall enter into an agreement
with the Corporation in a form specified by the Committee, agreeing to the terms
and conditions of the Award and such other matters as the Committee, in its sole
discretion, shall determine (the "Option Agreement").
7. Exercise of Options.
-------------------
(a) An Option granted under the Plan shall be exercisable during the
lifetime of the Participant to whom such Option was granted only by such
Participant and, except as provided in paragraphs (c) and (d) of this Section 7,
no such Option may be exercised unless at the time such Participant exercises
such Option, such Participant has maintained Continuous Service since the date
of grant of such Option.
(b) To exercise an Option under the Plan, the Participant to whom such
Option was granted shall give written notice to the Corporation in form
<PAGE>
satisfactory to the Committee (and, if partial exercises have been permitted by
the Committee, by specifying the number of Shares with respect to which such
Participant elects to exercise such Option) together with full payment of the
Exercise Price, if any and to the extent required. The date of exercise shall be
the date on which such notice is received by the Corporation. Payment, if any is
required, shall be made either (i) in cash (including check, bank draft or money
order) or (ii) if permitted by the Committee in the terms of the Award, by
delivering (A) Shares already owned by the Participant and having a fair market
value equal to the applicable Exercise Price, such fair market value to be
determined in such appropriate manner as may be provided by the Committee or as
may be required in order to comply with or to conform to requirements of any
applicable laws or regulations, or (B) a combination of cash and such Shares. In
addition, the Committee may, in the Option Agreement, also permit Participants
(either on a selective or group basis) to simultaneously exercise Options and
sell the Shares thereby acquired, pursuant to a brokerage "cashless exercise"
arrangement, selected by and approved of in all respects in advance by the
Committee, and use the proceeds from such sale as payment of the Exercise Price
of such Options, all in accordance with Section 220.3(e)(4) of Regulation T, 12
C.F.R., Part 220.
(c) If a Participant to whom an Option was granted shall cease to
maintain Continuous Service for any reason (including total or partial
disability and normal (except as provided below) or early retirement, but
excluding death and termination of employment by the Corporation or any
Affiliate for cause), such Participant may, but only within the period of three
months immediately succeeding such cessation of Continuous Service and in no
event after the expiration date of such Option, exercise such Option to the
extent that such Participant was entitled to exercise such Option at the date of
such cessation, provided, however, that such right of exercise after cessation
of Continuous Service shall not be available to a Participant if the Committee
otherwise determines and so provides in the applicable Option Agreement.
Notwithstanding the foregoing, if a Participant to whom an Option was granted
shall cease to maintain Continuous Service due to normal retirement, and such
Particpant has served the Corporation, or an Affiliate, for at least ten years,
the Participant may, but only during the period of five years immediately
succeeding such cessation of Continuous Service and in no event after the
expiration of such Option, exercise such Option. Notwithstanding anything herein
to the contrary, if the Continuous Service of a Participant to whom an Option
was granted by the Corporation is terminated for cause, all rights under any
Option of such Participant shall expire immediately upon the giving to the
Participant of notice of
<PAGE>
such termination.
(d) In the event of the death of a Participant while in the Continuous
Service of the Corporation or an Affiliate or within the three month or five
year periods referred to in paragraph (c) of this Section 7, whichever is
applicable, the person to whom any Option held by the Participant at the time of
his death is transferred by will or the laws of descent and distribution, or in
the case of an Award other than an Incentive Stock Option, the person to whom
such Option is transferred pursuant to a qualified domestic relations order, as
defined in the Code or Title I of ERISA or the rules thereunder may, but only to
the extent such Participant was entitled to exercise such Option immediately
prior to his death, exercise such Option at any time within a period of one year
succeeding the date of death of such Participant, but in no event later than ten
years from the date of grant of such Option. Following the death of any
Participant to whom an Option was granted under the Plan, the Committee may, as
an alternative means of settlement of such Option, elect to pay to the person to
whom such Option is transferred by will or by the laws of descent and
distribution or pursuant to a qualified domestic relations order as defined in
the Code or Title I of ERISA or the rules thereunder, the amount by which the
Market Value per Share on the date of exercise of such Option shall exceed the
Exercise Price of such Option, multiplied by the number of Shares with respect
to which such Option is properly exercised. Any such settlement of an Option
shall be considered an exercise of such Option for all purposes of the Plan.
8. Incentive Stock Options. Incentive Stock Options may be granted only
-----------------------
to Participants who are Employees. Any provision of the Plan to the contrary
notwithstanding, (i) no Incentive Stock Option shall be granted more than ten
years from the date the Plan is adopted by the Board of Directors of the
Corporation and no Incentive Stock Option shall be exercisable more than ten
years from the date such Incentive Stock Option is granted, (ii) the Exercise
Price of any Incentive Stock Option shall not be less than the Market Value per
Share on the date such Incentive Stock Option is granted, (iii) any Incentive
Stock Option shall not be transferable by the Participant to whom such Incentive
Stock Option is granted other than by will or the laws of descent and
distribution and shall be exercisable during such Participant's lifetime only by
such Participant, (iv) no Incentive Stock Option shall be granted to any
individual who, at the time such Incentive Stock Option is granted, owns stock
possessing more than ten percent of the total combined voting power of all
classes of stock of the Corporation or any Affiliate unless the Exercise Price
of such Incentive Stock Option is at least 110 percent of the Market Value per
Share at the date of grant
<PAGE>
and such Incentive Stock Option is not exercisable after the expiration of five
years from the date such Incentive Stock Option is granted, and (v) the
aggregate Market Value (determined as of the time any Incentive Stock Option is
granted) of the Shares with respect to which Incentive Stock Options are
exercisable for the first time by a Participant in any calendar year shall not
exceed $100,000.
9. Adjustments Upon Changes in Capitalization. In the event of any change
------------------------------------------
in the outstanding Shares subsequent to the effective date of the Plan by reason
of any reorganization, recapitalization, stock split, stock dividend, or any
change in the corporate structure or Shares of the Corporation, the maximum
aggregate number and class of shares as to which Awards may be granted under the
Plan and the number and class of shares with respect to which Awards theretofore
have been granted under the Plan shall be appropriately adjusted by the
Committee, whose determination shall be conclusive.
10. Effect of Merger on Options. In the event of any merger or
---------------------------
consolidation of the Corporation (other than a merger or consolidation in which
the Corporation is the continuing entity and which does not result in the
outstanding Shares being converted into or exchanged for different securities,
cash or other property, or any combination thereof) pursuant to a plan or
agreement the terms of which are binding upon all stockholders of the
Corporation (except to the extent that dissenting stockholders may be entitled,
under statutory provisions or provisions contained in the articles of
incorporation, to receive the appraised or fair value of their holdings), any
Participant to whom an Option has been granted shall have the right (subject to
the provisions of the Plan and any limitation applicable to such Option),
thereafter and during the term of each such Option, to receive upon exercise of
any such Option an amount equal to the excess of the fair market value on the
date of such exercise of the securities, cash or other property, or combination
thereof, receivable upon such merger, consolidation or combination in respect of
a Share over the Exercise Price of such Option, multiplied by the number of
Shares with respect to which such Option shall have been exercised. Such amount
may be payable fully in cash, fully in one or more of the kind or kinds of
property payable in such merger, consolidation or combination, or partly in cash
and partly in one or more of such kind or kinds of property, all in the
discretion of the Committee.
11. Effect of Change in Control. Each of the events specified in the
---------------------------
following clauses (i) and (ii) of this Section 11 shall be deemed a "change in
control": (i) as a result of, or in connection with, any cash tender offer,
merger or other
<PAGE>
business combination, sale of assets or contested election, or combination of
the foregoing, the persons who were directors of the Corporation shall cease to
constitute a majority of the Board of Directors of the Corporation, or (ii) the
shareholders of the Corporation shall approve an agreement providing either for
a transaction in which the Corporation will cease to be an independent publicly
owned entity or for a sale or other disposition of all or substantially all the
assets of the Corporation. If a change in control shall occur, unless the
Committee shall have otherwise provided in the Option Agreement, all Options
theretofore granted and not fully exercisable shall become exercisable in full
upon the happening of such event and shall remain so exercisable for a period of
sixty days following such date, after which they shall revert to being
exercisable in accordance with their terms; provided, however, that no Option
which has previously been exercised or otherwise terminated shall become
exercisable.
12. Assignments and Transfers. No Award nor any right or interest of a
-------------------------
Participant under the Plan in any Option Agreement may be assigned, encumbered
or transferred except, in the event of the death of a Participant, by will or
the laws of descent and distribution or in the case of an Award other than an
Incentive Stock Option, pursuant to a qualified domestic relations order as
defined in the Code or Title I of ERISA or the rules thereunder.
13. Employee Rights Under the Plan. No director, officer or Employee shall
------------------------------
have a right to be selected as a Participant nor, having been so selected, to be
selected again as a Participant, and no director, officer, Employee or other
person shall have any claim or right to be granted an Award under the Plan or
under any other incentive or similar plan of the Corporation or any Affiliate.
Neither the Plan nor any action taken thereunder shall be construed as giving
any Employee any right to be retained in the employ of the Corporation or any
Affiliate.
14. Delivery and Registration of Stock. The Corporation's obligation to
----------------------------------
deliver Shares with respect to an Award shall, if the Committee so requests, be
conditioned upon the receipt of a representation as to the investment intention
of the Participant to whom such Shares are to be delivered, in such form as the
Committee shall determine to be necessary or advisable to comply with the
provisions of the Securities Act of 1933 or any other Federal, state or local
securities legislation or regulation. It may be provided that any
representation requirement shall become inoperative upon a registration of the
Shares or other action eliminating the necessity of such representation under
such Securities Act or other securities legislation. The
<PAGE>
Corporation shall not be required to deliver any Shares under the Plan prior to
(i) the admission of such Shares to listing on any stock exchange on which
Shares may then be listed, and (ii) the completion of such stock registration or
other qualification of such Shares under any state or Federal law, rule or
regulation, as the Committee shall determine to be necessary or advisable.
15. Withholding Tax. The Corporation shall have the right to deduct from
---------------
all amounts paid in cash with respect to the exercise of an Option under the
Plan any taxes required by law to be withheld with respect to such exercise.
Where a Participant or other person is entitled to receive Shares pursuant to
the exercise of an Option pursuant to the Plan, the Corporation shall have the
right to require the Participant or such other person to pay the Corporation the
amount of any taxes which the Corporation is required to withhold with respect
to such Shares, or, in lieu thereof, to retain, or sell without notice, a number
of such Shares sufficient to cover the amount required to be withheld.
16. Amendment or Termination. The Board of Directors of the Corporation
------------------------
may amend, suspend or terminate the Plan or any portion thereof at any time, but
(except as provided in Section 9 hereof) no amendment shall be made without
approval of the Stockholders of the Corporation which shall (i) materially
increase the aggregate number of Shares with respect to which Awards may be made
under the Plan, (ii) materially increase the aggregate number of Shares which
may be subject to Awards to Participants who are not Employees or (iii) change
the class of persons eligible to participate in the Plan; provided, however,
that no such amendment, suspension or termination shall impair the rights of any
Participant, without his consent, in any Award theretofore made pursuant to the
Plan.
17. Effective Date and Term of Plan. The Plan became effective upon its
-------------------------------
adoption by the Board of Directors of the Corporation and its approval by vote
of the holders of a majority of the outstanding shares of the Corporation
entitled to vote on the adoption of the Plan. This amendment and restatement of
the Plan shall become effective upon its adoption by the Board of Directors
inasmuch as the approval of stockholders in not required pursuant to Section 16
hereof or the requirements of applicable law. The Plan shall continue in effect
for a term of ten years from its original effective date unless sooner
terminated under Section 16 hereof.
RESTATED FOR THE JANUARY 15, 1993, OCTOBER 5, 1993, JANUARY 15, 1994
AND DECEMBER 6, 1994 STOCK SPLITS
