<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1998.
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
--------------------
SHAW INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
GEORGIA 58-1032521
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
P.O. Drawer 2128
616 East Walnut Avenue
Dalton, Georgia 30722
(Address of principal executive offices)
SHAW INDUSTRIES, INC. NONQUALIFIED RETIREMENT SAVINGS PLAN
(Full title of the Plan)
BENNIE M. LAUGHTER, Esq.
Vice President, Secretary and General Counsel
Shaw Industries, Inc.
616 East Walnut Avenue
Dalton, Georgia 30722
(Name and address of agent for service)
(706) 278-3812
(Telephone number, including Area Code,
of Agent for Service)
--------------------
Copies of Communications to:
GABRIEL DUMITRESCU, Esq.
Powell, Goldstein, Frazer & Murphy LLP
Sixteenth Floor
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
(404) 572-6600
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------------
TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
REGISTERED REGISTERED UNIT PRICE FEE
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Shaw Industries, Inc. Nonqualifed $1,000,000(1) 100% (2) $1,000,000(2) $295.00(2)
Retirement Savings Plan
Obligations..........................
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) The Shaw Industries, Inc. Nonqualified Retirement Savings Plan
Obligations are unsecured obligations of the Registrant to pay
benefits in the future in accordance with the terms of the Shaw
Industries, Inc. Nonqualified Retirement Savings Plan (the "Plan") for
a select group of eligible employees.
(2) Estimated solely for the purpose of determining the registration fee.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
I-1
<PAGE> 3
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents previously filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated herein
by reference:
(1) Annual Report on Form 10-K for the year ended January 3, 1998
(Commission File No. 1-6853);
(2) Quarterly Report on Form 10-Q for the quarter ended April 4, 1998
(Commission File No. 1-6853);
(3) Quarterly Report on Form 10-Q for the quarter ended July 4, 1998
(Commission File No. 1-6853);
(4) Quarterly Report on Form 10-Q/A for the quarter ended July 4, 1998
(Commission File No. 1-6853)
(5) Current Report on Form 8-K, as filed with the Commission on
February 2, 1998 (Commission File No. 1-6853);
(6) Current Report on Form 8-K, as filed with the Commission on April
20, 1998 (Commission File No. 1-6853);
(7) Current Report on Form 8-K, as filed with the Commission on June
26, 1998 (Commission File No. 1-6853);
(8) Current Report on Form 8-K, as filed with the Commission on
August 24, 1998 (Commission File No. 1-6853);
(9) Current Report on Form 8-K, as filed with the Commission on
August 28, 1998 (Commission File No. 1-6853); and
(10) Current Report on Form 8-K/A, as filed with the Commission on
September 2, 1998 (Commission file No. 1-6853).
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date hereof and prior to the date
upon which this offering is terminated shall be deemed to be incorporated by
reference herein and to be part hereof from the date any such document is filed.
II-1
<PAGE> 4
ITEM 4. DESCRIPTION OF SECURITIES.
The Nonqualified Retirement Savings Plan Obligations (the
"Obligations") are unsecured general obligations of the Registrant to pay
benefits in the future in accordance with the terms of the Registrant's
Nonqualified Retirement Savings Plan (the "Plan").
Under the Plan, a participant may elect to defer a portion of his or
her annual compensation otherwise payable to the participant. Deferred amounts
will be credited with rates of return selected by the participant, including a
Registrant stock fund rate of return, in accordance with investment elections
made by a participant.
Benefits under the Plan are generally payable upon termination of
employment, retirement or death. The form of payment will be selected by the
administrator of the Plan and will be in either a lump sum or annual or more
frequent installments. Benefits will be paid in cash.
Under the Plan, a participant's right to the Obligations cannot be
assigned, alienated, sold, garnished, transferred, pledged, or encumbered except
by a written designation of a beneficiary under the Plan or by the laws of
descent and distribution. The Obligations are not convertible into another
security of the Registrant. No trustee has been appointed having the authority
to take action with respect to the Obligations and each participant will be
responsible for acting independently with respect to, among other things, the
making of investment elections and giving of notices.
The Registrant may modify, amend or terminate the Plan at any time. No
such modifications or amendment shall have the effect of retroactively changing
or depriving any participants of benefits already accrued under the Plan.
All benefits provided under the Plan will be paid from the general
assets of the Registrant and no separate fund has been established to secure
payment. Notwithstanding the foregoing, the Registrant has established a grantor
trust to assist it in funding the Obligations and any payments made to a
participant or to a beneficiary of a participant from the trust will relieve the
Registrant from any further obligations under the Plan to the extent of such
payments.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Powell, Goldstein, Frazer & Murphy LLP, Atlanta, Georgia, has rendered
an opinion regarding the legality of the Obligations registered hereby. Robert
R. Harlin, a partner of that firm, is also a member of the Registrant's Board of
Directors.
II-2
<PAGE> 5
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 14-2-850 et seq. of the Georgia Business Corporation Code and
Article VIII of the Amended and Restated Articles of Incorporation of the
Registrant set forth the extent to which the Registrant's directors and officers
may be indemnified by the Registrant against liability that they may incur while
serving in such capacity. These provisions generally provide that the directors
and officers of the Registrant will be indemnified by the Registrant against any
losses incurred in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the Registrant) by reason of the
fact that he is or was a director or officer of the Registrant or served with
another corporation, partnership, joint venture, trust or other enterprise at
the request of the Registrant if such director or officer acted in a manner he
reasonably believed to be in or not opposed to the best interest of the
Registrant, and with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. Under these provisions, the Registrant may
provide advances for expenses incurred in defending any such action, suit or
proceeding, upon receipt of an undertaking by or on behalf of such officer or
director to repay such advances unless it is ultimately determined that he is
entitled to indemnification by the Registrant.
The Registrant maintains an insurance policy insuring the Registrant
and its directors and officers against certain liabilities, including
liabilities under the Securities Act of 1933.
The Plan provides that to the extent permissible by law, no fiduciary
under the Plan shall be liable for any loss resulting from a participant's
exercise of, or failure to exercise, an investment election. The Company must
indemnify the administrator of the Plan and the Investment Committee against
losses and expenses arising out of the performance of their duties, except for
those resulting from their willful neglect or willful misconduct.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein:
Exhibit
Number Description
3(a) Amended and Restated Articles of Incorporation. [Incorporated
herein by reference to Exhibit 3(a) to Registrant's
Registration Statement on Form S-3 filed with the Commission
on December 28, 1993 (File No. 33-51719).]
3(b) By-laws. [Incorporated herein by reference to Exhibit 3(b) to
Registrant's Registration Statement on Form S-3 filed with the
Commission on December 28, 1993 (File No. 33-51719).]
II-3
<PAGE> 6
4(a) Amended and Restated Articles of Incorporation, filed as
Exhibit 3(a), and By-laws of Registrant, filed as Exhibit
3(b), are incorporated herein by reference.
4(b) Rights Agreement dated as of April 10, 1989 between Registrant
and NationsBank, N.A., as successor to Citizens and Southern
Trust Company (Georgia), N.A., as Rights Agent. [Incorporated
herein by reference to Exhibit 1 to Registrant's Current
Report on Form 8-K filed with the Commission on May 5, 1989
(File No. 1-6853).]
4(c) Form of Shaw Industries, Inc. Nonqualified Retirement Savings
Plan.
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23(b) Consent of Arthur Andersen LLP.
24 Power of Attorney (see signature pages to this Registration
Statement).
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii)
do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933,
II-4
<PAGE> 7
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.
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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 to the questions 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-5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dalton,
State of Georgia, on July 30, 1998.
SHAW INDUSTRIES, INC.
By:/s/ Bennie M. Laughter
--------------------------------------
Bennie M. Laughter
Vice President and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints WILLIAM C. LUSK, JR. and BENNIE M. LAUGHTER, and
each of them as his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite necessary to be done in and about the premises, as
fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or either
of them, or their or his substitute or substitutes, may lawfully do or cause to
be done by virtue hereof.
II-6
<PAGE> 9
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>
/s/ Robert E. Shaw Chairman of the Board, Chief Executive July 30, 1998
- ------------------------------------ Officer and Director (Principal Executive
Robert E. Shaw Officer)
/s/ Kenneth G. Jackson Vice President and Chief Financial Officer July 30, 1998
- ------------------------------------ (Principal Financial and Accounting
Kenneth G. Jackson Officer)
/s/ J.C. Shaw Chairman Emeritus and Director July 30, 1998
- ------------------------------------
J.C. Shaw
/s/ W. Norris Little President and Chief Operating Officer and July 30, 1998
- ------------------------------------ Director
W. Norris Little
/s/ William C. Lusk, Jr. Director July 30, 1998
- ------------------------------------
William C. Lusk, Jr.
/s/ Thomas G. Cousins Director July 30, 1998
- ------------------------------------
Thomas G. Cousins
/s/ S. Tucker Grigg Director July 30, 1998
- ------------------------------------
S. Tucker Grigg
/s/ Robert R. Harlin Director July 30, 1998
- ------------------------------------
Robert R. Harlin
/s/ J. Hicks Lanier Director July 30, 1998
- ------------------------------------
J. Hicks Lanier
</TABLE>
II-7
<PAGE> 10
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Robert J. Lunn Director July 30, 1998
- ------------------------------------
Robert J. Lunn
/s/ R. Julian McCamy Director July 30, 1998
- ------------------------------------
R. Julian McCamy
</TABLE>
II-8
<PAGE> 11
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
3(a) Amended and Restated Articles of Incorporation. [Incorporated
herein by reference to Exhibit 3(a) to Registrant's
Registration Statement on Form S-3 filed with the Commission
on December 28, 1993 (File No. 33-51719).]
3(b) By-laws. [Incorporated herein by reference to Exhibit 3(b) to
Registrant's Registration Statement on Form S-3 filed with the
Commission on December 28, 1993 (File No. 33-51719).]
4(a) Amended and Restated Articles of Incorporation, filed as
Exhibit 3(a), and By-laws of Registrant, filed as Exhibit
3(b), are incorporated herein by reference.
4(b) Rights Agreement dated as of April 10, 1989 between Registrant
and NationsBank, N.A., as successor to Citizens and Southern
Trust Company (Georgia), N.A., as Rights Agent. [Incorporated
herein by reference to Exhibit 1 to Registrant's Current
Report on Form 8-K filed with the Commission on May 5, 1989
(File No. 1-6853).]
4(c) Form of Shaw Industries, Inc. Nonqualified Retirement Savings
Plan.
5 Opinion of Powell, Goldstein, Frazer & Murphy LLP.
23(a) Consent of Powell, Goldstein, Frazer & Murphy LLP (included in
Exhibit 5).
23(b) Consent of Arthur Andersen LLP.
24 Power of Attorney (see signature page to this Registration
Statement).
</TABLE>
<PAGE> 1
EXHIBIT 4(C)
SHAW INDUSTRIES, INC.
NONQUALIFIED RETIREMENT SAVINGS PLAN
1998 Powell, Goldstein, Frazer & Murphy LLP
<PAGE> 2
SHAW INDUSTRIES, INC.
NONQUALIFIED RETIREMENT SAVINGS PLAN
THIS INDENTURE made as of _________________, 1998, by SHAW INDUSTRIES,
INC., a corporation duly organized and existing under the laws of the State of
Georgia (hereinafter called the "Primary Sponsor");
WITNESSETH:
WHEREAS, the Primary Sponsor maintains the Shaw Industries, Inc.
Retirement Savings Plan (the "401(k) Plan"), a defined contribution plan under
which participating employees may contribute on a pre-tax basis pursuant to a
qualified cash or deferred arrangement within the meaning of Section 401(k) of
the Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, the limitations of Sections 401(a)(17), 401(k)(3), 402(g) and
415 of the Code may, separately or in combination, limit the amount of pre-tax
employee contributions that otherwise could be made under the 401(k) Plan on
behalf of certain participants; and
WHEREAS, the Primary Sponsor wishes to establish the Shaw Industries,
Inc. Nonqualified Retirement Savings Plan for the purpose of providing, to the
extent possible on a non-qualified and unfunded basis, an opportunity for
selected participants in the 401(k) Plan to continue to accumulate retirement
savings as if such persons had been able to continue to participate in the
401(k) Plan without regard to certain tax limitations.
NOW, THEREFORE, the Primary Sponsor does hereby establish the Shaw
Industries Inc. Nonqualified Retirement Savings Plan (the "Plan"), effective
April 1, 1998, to read as follows:
<PAGE> 3
SHAW INDUSTRIES, INC.
NONQUALIFIED RETIREMENT SAVINGS PLAN
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 1. DEFINITIONS.........................................................................1
SECTION 2. ELIGIBILITY.........................................................................2
SECTION 3. DEFERRAL ELECTIONS..................................................................3
SECTION 4. CREDITING ACCOUNTS..................................................................4
SECTION 5. INDIVIDUAL FUNDS; HYPOTHETICAL INVESTMENT
OF ALLOCATED ACCOUNTS...............................................................4
SECTION 6. DEATH BENEFITS......................................................................4
SECTION 7. PAYMENT OF BENEFITS.................................................................5
SECTION 8. ADMINISTRATION OF THE PLAN..........................................................6
SECTION 9. CLAIM REVIEW PROCEDURE..............................................................7
SECTION 10. LIMITATION OF ASSIGNMENT, PAYMENTS TO
LEGALLY INCOMPETENT DISTRIBUTEE AND
UNCLAIMED PAYMENTS..................................................................8
SECTION 11. LIMITATION OF RIGHTS................................................................9
SECTION 12. AMENDMENT TO OR TERMINATION OF THE PLAN.............................................9
SECTION 13. ADOPTION OF PLAN BY AFFILIATES......................................................9
SECTION 14. MISCELLANEOUS.......................................................................10
</TABLE>
<PAGE> 4
SECTION 1.
DEFINITIONS
Whenever used herein, the masculine pronoun shall be deemed to include
the feminine, and the singular to include the plural, unless the context clearly
indicates otherwise. The following words and phrases shall have the meanings set
forth below:
1.1. "Account" means the bookkeeping account established and
maintained by the Plan Administrator to reflect the interest of a Member under
the Plan.
1.2. "Accrued Benefit" means the balance of the Member's Account.
1.3. "Affiliate" means (a) any corporation which is a member of the
same controlled group of corporations (within the meaning of Code Section
414(b)) as is a Plan Sponsor and (b) any other trade or business (whether or not
incorporated) under common control (within the meaning of Code Section 414(c))
with a Plan Sponsor.
1.4. "Annual Compensation" means "Annual Compensation," as that
term is defined under the 401(k) Plan for purposes of making contributions
pursuant to a salary deferral election, as the same may be amended from time to
time, without regard to the limit on compensation that may be recognized under
Code Section 401(a)(17) and with the inclusion of compensation deferred by the
Participant pursuant to Plan Section 3.1.
1.5. "Beneficiary" means the person or trust that a Member
designated most recently in writing to the Plan Administrator; provided,
however, that if the Member has failed to make a designation, no person
designated is alive, no trust has been established, or no successor Beneficiary
has been designated who is alive, the term Beneficiary means (a) the Member's
spouse or (b) if no spouse is alive, the Member's surviving children, or (c) if
no children are alive, the Member's parent or parents, or (d) if no parent is
alive, the legal representative of the deceased Member's estate.
1.6. "Board of Directors" means the Board of Directors of the
Primary Sponsor.
1.7. "Code" means the Internal Revenue Code of 1986, as amended.
1.8. "Deferral Amounts" means the amounts of Annual Compensation
contributed to the Plan by a Member pursuant to the Member's election under Plan
Sections 3.1.
1.9. "Effective Date" means, as to the Primary Sponsor, April 1,
1998 and as to each other Plan Sponsor which adopts the Plan with consent of the
Primary Sponsor, the date designated as such by the adopting Plan Sponsor.
1.10. "Eligible Employee" means any Employee of a Plan Sponsor who
is a "highly compensated employee," within the meaning of Code Section 414(q),
as amended.
1.11. "Employee" means any person who is employed by a Plan Sponsor
or an Affiliate for purposes of the Federal Insurance Contributions Act.
1
<PAGE> 5
1.12. "Entry Date" means each entry date under the 401(k) Plan.
1.13. "Individual Funds" means two or more individual subfunds of
the fund of the 401(k) Plan (other than any fund having as its primary
investment participant loans from the 401(k) Plan), as established by the plan
administrator of the 401(k) Plan from time to time into which participants of
the 401(k) Plan may direct the investment of their account under the 401(k)
Plan.
1.14. "Member" means any Eligible Employee or former Eligible
Employee who has become a participant in the Plan, for so long as his benefits
hereunder have not been paid out.
1.15. "Plan Administrator" means the organization or person
designated by the Primary Sponsor to administer the Plan.
1.16. "Plan Sponsor" means individually the Primary Sponsor and any
other Affiliate or other entity which has adopted the Plan with consent of the
Primary Sponsor.
1.17. "Plan Year" means the calendar year.
1.18. "Retirement Age" means the earlier of (1) age 62 if the Member
has completed five years of service, as calculated under the 401(k) Plan, or (2)
age 65.
1.19. "Valuation Date" means each date on which earnings and losses
of the funds held under the 401(k) Plan are allocated to accounts under the
401(k) Plan.
SECTION 2.
ELIGIBILITY
2.1. Date of Participation. Each Eligible Employee shall become a
Member as of the first Entry Date following the latest of the date on which the
Eligible Employee (a) completes an enrollment form prescribed by the Plan
Administrator in which the Eligible Employee elects to participate in the Plan
and (b) completes a distribution form prescribed by the Plan Administrator in
which the Eligible Employee elects, from among the options presented by the Plan
Administrator, the date his benefit will be paid and the form of his
distribution from the Plan; provided, however, that no Eligible Employee may
become a Member of the Plan prior to the date on which the Eligible Employee
could become a member of the 401(k) Plan.
2.2. Cessation of Participation. A Member who ceases to be an
Eligible Employee will no longer be eligible to make further deferrals under the
Plan pursuant to Plan Section 3, but shall continue to be subject to all other
terms of the Plan so long as he remains a Member of the Plan.
2.3. Suspension of Participation. In the event the Member takes a
hardship withdrawal from the 401(k) Plan, the Member shall be suspended from
continued participation under the Plan to the extent required by the 401(k) Plan
as a result of the hardship withdrawal made by such Member.
2
<PAGE> 6
SECTION 3.
DEFERRAL ELECTIONS
3.1. Election of Deferrals. A Member who is an Eligible Employee
for all or any portion of the Plan Year may elect to defer under the Plan a
portion of his Annual Compensation otherwise payable to him for the Plan Year
provided that the Member has made the maximum salary deferral election for the
Plan Year under the 401(k) Plan. The deferrals under this Section 3.1 shall be
in an amount equal to the amount elected by the Member under the 401(k) Plan,
but together with the amount which the Member has contributed to the 401(k) Plan
with respect to such Plan Year, may not exceed the maximum percentage permitted
under the 401(k) plan for nonhighly compensated employees. If specified by the
Plan Administrator, elections to defer Annual Compensation under the Plan must
be made at the same time and/or in the same manner as elections under the 401(k)
Plan so that only the amount of such election which could not be contributed to
the 401(k) Plan due to provisions contained in the 401(k) Plan resulting from
the limitations of Code Sections 401(a)(17), 401(k)(3), 402(g) and 415 shall be
contributed to the Plan.
3.2. Election, Revocation and Modification of Deferrals. All
elections to participate and defer Annual Compensation shall be effective as of
the first day of the payroll period beginning on or after following the date the
Member's election is processed pursuant to normal administrative procedures and
shall remain in effect until the Member notifies the Plan Administrator, in such
manner and form as the Plan Administrator shall from time to time prescribe,
that the Member wishes to suspend active participation. Once a Member has
completed an enrollment form, the Member may suspend active participation in the
Plan, or change the rate of deferrals of Annual Compensation at the same time
and effective as of the same date as suspensions and changes of elections are
effective under the 401(k) Plan. A Member who suspends active participation
under the Plan may resume active participation in the Plan by making a new
election in such form and manner as the Plan Administrator shall from time to
time prescribe, which election shall be effective as of the date such election
would have been effective under the 401(k) Plan. Notwithstanding the foregoing,
no modification or suspension of an election shall be effective for any bonus
compensation that has been declared or is determinable at the time of the
modification or suspension.
3.3. Effect on Other Plans. The amount of Annual Compensation or
bonus deferred under the Plan shall not be deemed to be earnings or compensation
for the purpose of calculating the amount of a Member's benefits or
contributions under any retirement or deferral plan of a Plan Sponsor or the
basis or amount for any other benefit plan provided by a Plan Sponsor, except to
the extent provided in any such plan. No amount distributed under this Plan
shall be deemed to be earnings or a part of the Member's total compensation when
determining a Member's benefit under any benefit plan established by a Plan
Sponsor, unless otherwise provided in such plan.
3
<PAGE> 7
SECTION 4.
CREDITING ACCOUNTS
4.1. Deferral Amounts. The Plan Sponsor shall credit Deferral
Amounts deferred under Plan Section 3.1 to the Member's Account as of the date
such amounts are withheld from the Member's Annual Compensation.
4.2. Valuation Date. As of each Valuation Date, the Plan Sponsor
shall determine the rate of return of each Individual Fund under the 401(k) Plan
since the next preceding Valuation Date. The portion of the Member's Account
under the Plan hypothetically invested in each Individual Account shall be
credited or charged with the rate of return for such Individual Fund based on
the balance hypothetically invested in such Individual Fund as of the next
preceding Valuation Date, increased by one-half of the contributions
hypothetically invested in such Individual Fund since the next preceding
Valuation Date and reduced by the amount withdrawn from that portion of the
Member's Account as of the next preceding Valuation Date.
SECTION 5.
INDIVIDUAL FUNDS; HYPOTHETICAL
INVESTMENT OF ALLOCATED ACCOUNTS
All deferrals and contributions credited to a Member's Account shall be
hypothetically invested in the same Individual Funds and in the same proportions
as the Member has selected for the investment of the Member's account in the
401(k) Plan (excluding for this purpose the portion of a Member's account under
the 401(k) Plan invested in a loan to the Member). Any elections under the
401(k) Plan regarding investments of the Member's 401(k) Plan Account (other
than elections regarding loans made to the Member from the 401(k) Plan) will
automatically be deemed as elections affecting the hypothetical investment of
the Member's Account under the Plan among Individual Funds.
SECTION 6.
DEATH BENEFITS
6.1. Death Prior to Commencement of Payment. Upon the death of a
Member who dies prior to the date on which he is entitled to the commencement of
payments of his Account, the Member's Beneficiary shall be entitled to the full
value of the Member's Account in a lump sum in cash.
6.2. Payment to Beneficiary. If, subsequent to the death of a
Member, the Member's Beneficiary dies while entitled to receive benefits under
the Plan, the successor Beneficiary, if any, or the Beneficiary listed under
Subsection (a), (b) or (c) of the Plan Section containing the definition of the
term "Beneficiary" shall generally be entitled to receive benefits under the
Plan. However, if the deceased Beneficiary was the Member's spouse at the time
of the Member's death, or if no successor Beneficiary shall have been designated
by the Member and be alive and no Beneficiary listed under Subsection (a), (b)
or (c) of the Plan Section containing the definition
4
<PAGE> 8
of the term "Beneficiary" shall be alive, the Member's unpaid vested Accrued
Benefit shall be paid to the personal representative of the deceased
Beneficiary's estate.
6.3. Payment. Any benefit payable under this Section 6 shall be
paid in accordance with and subject to the provisions of Plan Section 7 after
receipt by the Plan Administrator of notice of the death of the Member.
SECTION 7.
PAYMENT OF BENEFITS
7.1. Termination of Employment. A Member shall be considered to
have terminated employment with the Plan Sponsor or any Affiliate on the date
determined by the Plan Administrator. Transfer of a Member from one Plan Sponsor
to another Plan Sponsor shall not be deemed for any purpose under the Plan to be
a termination of employment by the Member. In the event of a Member's
termination of employment prior to death or the attainment of a Retirement Age,
he will be paid his Accrued Benefit in a lump sum in cash within ninety (90)
days of his termination.
7.2. Retirement.
a) If a Member terminates employment on or after
attaining a Retirement Age, his Accrued Benefit will be paid at such
time and in such manner as specified in any effective distribution
election filed with the Plan Administrator.
b) The Member may specify in such distribution election
to receive, or commence receiving, payment of his Accrued Benefit upon
termination of employment following attaining a Retirement Age. He may
also elect to defer receipt of his Accrued Benefit for five years after
his retirement after attaining a Retirement Age or until he reaches age
70, whichever is later. The Member may specify in such election to
receive payment of his Accrued Benefit in a lump sum in cash or in
approximately equal installment (payable not less frequently than
annually, as specified by the Plan Administrator) payments over a ten
year period.
c) No election shall be effective unless it is received
by the Plan Administrator at least twelve (12) months prior to the date
of the Member's termination of employment. In the event that an
election is invalid because of the provisions of this Section 7.2(c),
the most recent valid election shall be used.
7.3. Calculation of Accrued Benefit. As of the date a Member is
paid, or is to begin receiving payments, the Accrued Benefit of the Member shall
be determined as of the Valuation Date coinciding with or immediately preceding
the date the Member is to be paid, or begin receiving payments, and shall be
increased by any Deferral Amounts credited to the Member's Employee Account
since that Valuation Date. In addition, the Member's Account shall be adjusted
for the rate of return credited or charged pursuant to Plan Section 4 through
the Valuation Date immediately preceding the date the Accrued Benefit is paid.
If a Member has elected to receive installment payments, any portion of the his
Account which has not been paid
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<PAGE> 9
will be adjusted for the rate of return credited or charged pursuant to Plan
Section 4 through the Valuation Date immediately preceding the date of any
payment of such portion.
7.4. Vesting. The Member shall be fully vested in the Accrued
Benefit.
SECTION 8.
ADMINISTRATION OF THE PLAN
8.1. Operation of the Plan Administrator. The Primary Sponsor shall
be the Plan Administrator, unless it appoints a person, committee or other
organization as the Plan Administrator. If an organization is appointed to serve
as the Plan Administrator, then the Plan Administrator may designate in writing
a person who may act on behalf of the Plan Administrator. The Primary Sponsor
shall have the right to remove the Plan Administrator at any time by notice in
writing. The Plan Administrator may resign at any time by written notice or
resignation to the Primary Sponsor. Upon removal or resignation, or in the event
of the dissolution of the Plan Administrator, the Primary Sponsor shall appoint
a successor.
8.2. Duties of the Plan Administrator.
a) The Plan Administrator shall make all payments under
the terms of the Plan.
b) The Plan Administrator shall from time to time
establish rules, not contrary to the provisions of the Plan, for the
administration of the Plan and the transaction of its business. All
elections and designations under the Plan by a Member or Beneficiary
shall be made on forms prescribed by the Plan Administrator. The Plan
Administrator shall have discretionary authority to construe the terms
of the Plan and shall determine all questions arising in the
administration, interpretation and application of the Plan, including,
but not limited to, those concerning eligibility for benefits and it
shall not act so as to discriminate in favor of any person. All
determinations of the Plan Administrator shall be conclusive and
binding on all Employees, Members, and Beneficiaries, subject to the
provisions of the Plan and subject to applicable law.
c) The Plan Administrator shall furnish Members and
Beneficiaries with all disclosures now or hereafter required by ERISA.
The Plan Administrator shall file, as required, the various reports and
disclosures concerning the Plan and its operations as required by ERISA
and by the Code, and shall be solely responsible for establishing and
maintaining all records of the Plan.
d) The statement of specific duties for a Plan
Administrator in this Plan Section is not in derogation of any other
duties that a Plan Administrator has under the provisions of the Plan
or under applicable law.
8.3. Action by the Primary Sponsor or a Plan Sponsor. Any action to
be taken by the Primary Sponsor or a Plan Sponsor shall be taken by resolution
or written direction duly adopted by its board of directors or appropriate
governing body,
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<PAGE> 10
as the case may be; provided, however, that by such resolution or written
direction, the board of directors or appropriate governing body, as the case may
be, may delegate to any officer or other appropriate person of a Plan Sponsor
the authority to take any such actions as may be specified in such resolution or
written direction, other than the power to amend, modify or terminate the Plan
or to determine the basis of any Plan Sponsor contributions.
SECTION 9.
CLAIM REVIEW PROCEDURE
9.1. Denial of Claims. In the event that a Member or Beneficiary is
denied a claim for benefits under a Plan, the Plan Administrator shall provide
to such claimant written notice of the denial that shall set forth:
a) the specific reasons for the denial;
b) specific references to the pertinent provisions of
the Plan on which the denial is based;
c) a description of any additional material or
information necessary for the claimant to perfect the claim and an
explanation of why such material or information is necessary; and
d) an explanation of the Plan's claim review procedure.
9.2. Appeal of Denial. After receiving written notice of the denial
of a claim, a claimant or his representative may:
a) request a full and fair review of such denial by
written application to the Plan Administrator;
b) review pertinent documents (determination of the
pertinence of any document shall be at the discretion of the Plan
Administrator); and
c) submit issues and comments in writing to the Plan
Administrator.
9.3. Written Notice for Review. If the claimant wishes such a
review of the decision denying his claim to benefits under the Plan, he must
submit such written applications to the Plan Administrator within sixty (60)
days after receiving written notice of the denial.
9.4. Hearing. Upon receiving such written application for review,
the Plan Administrator may, but is not required to, schedule a hearing for
purposes of reviewing the claimant's claim, which hearing shall take place not
more than thirty (30) days from the date on which the Plan Administrator
received such written application for review. At least ten (10) days prior to
the scheduled hearing, the claimant and his representative designated in writing
by him, if any, shall receive written notice of the date, time, and place of
such scheduled hearing. The claimant or his representative, if any, may request
that the hearing be rescheduled, for his convenience, on another reasonable date
or at another reasonable time or place.
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<PAGE> 11
9.5. Counsel. All claimants requesting a review of the decision
denying their claim for benefits may employ counsel for purposes of the hearing.
9.6. Decision on Appeal. No later than sixty (60) days following
the receipt of the written application for review, the Plan Administrator shall
submit its decision on the review in writing to the claimant involved and to his
representative, if any; provided, however, a decision on the written application
for review may be extended, in the event special circumstances such as the need
to hold a hearing require an extension of time, to a day no later than one
hundred twenty (120) days after the date of receipt of the written application
for review. The decision shall include specific reasons for the decision and
specific references to the pertinent provisions of the Plan on which the
decision is based.
SECTION 10.
LIMITATION OF ASSIGNMENT, PAYMENTS TO LEGALLY
INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS
10.1. No Alienation. No benefit which shall be payable under the
Plan to any person shall be subject in any manner to anticipation, alienation,
sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to
anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the
same shall be void; and no such benefit shall in any manner be liable for, or
subject to, the debts, contracts, liabilities, engagements or torts of any
person, nor shall it be subject to attachment or legal process for, or against,
such person, and the same shall not be recognized under the Plan, except to such
extent as may be required by law.
10.2. Attempt To Transfer. If any person who shall be entitled to
any benefit under the Plan shall become bankrupt or shall attempt to anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge such benefit under
the Plan, then the payment of any such benefit in the event a Member or
Beneficiary is entitled to payment shall, in the discretion of the Plan
Administrator, cease and terminate and in that event the Plan Administrator
shall apply the same for the benefit of such person, his spouse, children, other
dependents or any of them in such manner and in such proportion as the Plan
Administrator shall determine.
10.3. Minors or Incompetents. Whenever any benefit which shall be
payable under the Plan is to be paid to or for the benefit of any person who is
then a minor or determined to be incompetent by qualified medical advice, the
Plan Administrator need not require the appointment of a guardian or custodian,
but shall be authorized to cause the same to be paid over to the person having
custody of such minor or incompetent, or to cause the same to be paid to such
minor or incompetent without the intervention of a guardian or custodian, or to
cause the same to be paid to a legal guardian or custodian of such minor or
incompetent if one has been appointed or to cause the same to be used for the
benefit of such minor or incompetent.
10.4. Missing Persons. Whenever the Plan Administrator cannot,
within a reasonable time after payments are to commence, locate any person to or
for the benefit of whom such payments are to be made, after making a reasonable
effort to locate such person, the Plan Administrator may direct that the payment
and any remaining payments otherwise due to the Member be cancelled on the
records of the Plan, except that in the event the Member later
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<PAGE> 12
notifies the Plan Administrator of his whereabouts and requests the payments due
to him under the Plan, the Plan Sponsor shall re-credit the Member's account and
provide for payment of the re-credited amount to the Member as soon as
administratively feasible.
SECTION 11.
LIMITATION OF RIGHTS
Membership in the Plan shall not give any Employee any right or claim
except to the extent that such right is specifically fixed under the terms of
the Plan. The adoption of the Plan by any Plan Sponsor shall not be construed to
give any Employee a right to be continued in the employ of a Plan Sponsor or as
interfering with the right of a Plan Sponsor to terminate the employment of any
Employee at any time.
SECTION 12.
AMENDMENT TO OR TERMINATION OF THE PLAN
12.1. Amendment and Termination. The Primary Sponsor or any
successor thereto reserves the right by action of its Board of Directors or its
designee at any time to modify or amend or terminate the Plan. No such
modifications or amendments shall have the effect of retroactively changing or
depriving Members or Beneficiaries of benefits already accrued under the Plan.
Notwithstanding anything contained in the Plan to the contrary, upon termination
of the Plan each Member's Account shall be payable to the Member as soon
thereafter as is reasonably practicable. No Plan Sponsor other than the Primary
Sponsor shall have the right to so modify, amend or terminate the Plan.
Notwithstanding the foregoing, each Plan Sponsor may terminate its own
participation in the Plan.
12.2. Termination by Plan Sponsor. Each Plan Sponsor other than the
Primary Sponsor shall have the right to terminate its participation in the Plan
by resolution of its board of directors or other appropriate governing body and
notice in writing to the Primary Sponsor. Any termination by a Plan Sponsor,
shall not be a termination as to any other Plan Sponsor.
12.3. Termination by Primary Sponsor. If the Primary Sponsor
terminates the Plan, the Plan shall terminate as to all Plan Sponsors.
SECTION 13.
ADOPTION OF PLAN BY AFFILIATES
Any corporation or other business entity related to the Primary Sponsor
by function or operation and any Affiliate, if the corporation, business entity
or Affiliate is authorized to do so by written direction adopted by the Board of
Directors, may adopt the Plan by action of the board of directors or other
appropriate governing body of such corporation, business entity or Affiliate.
Any adoption shall be evidenced by certified copies of the resolutions of the
foregoing board of directors or governing body indicating the adoption by the
adopting corporation, or business
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<PAGE> 13
entity or Affiliate. The resolution shall state and define the effective date of
the adoption of the Plan by the Plan Sponsor. The adopting resolutions shall be
forwarded to the Primary Sponsor.
SECTION 14.
MISCELLANEOUS
14.1. Unfunded Plan. All payments provided under the Plan shall be
paid from the general assets of the applicable Plan Sponsor and no separate fund
shall be established to secure payment. Notwithstanding the foregoing, the
Primary Sponsor may establish a grantor trust to assist it in funding its
obligations under the Plan, and any payments made to a Member or Beneficiary
from such trust shall relieve the Plan Sponsor from any further obligations
under the Plan only to the extent of such payment.
14.2. Withholding. Each Plan Sponsor shall withhold from any
benefits payable under the Plan all federal, state and local income taxes or
other taxes required to be withheld pursuant to applicable law. 14.3. Governing
Law. To the extent not preempted by applicable federal law, the Plan shall be
governed by and construed in accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, the Primary Sponsor has caused this indenture to be
executed as of the date first written above.
SHAW INDUSTRIES, INC.
-----------------------------------------
By:
--------------------------------------
Title:
-----------------------------------
ATTEST:
- ----------------------------------
Title:
----------------------------
[CORPORATE SEAL]
<PAGE> 1
EXHIBIT 5
September 4, 1998
Shaw Industries, Inc.
616 East Walnut Avenue
Dalton, Georgia 30722
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have served as counsel for Shaw Industries, Inc., a Georgia
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, pursuant to a Registration Statement on Form
S-8 (the "Registration Statement") of an aggregate of 55,000 shares (the
"Shares") of common stock, no par value per share, of the Company, to be offered
and sold by the Company pursuant to the Shaw Industries, Inc. Outside Directors
Stock Plan (the "Plan").
We have examined and are familiar with originals or copies (certified,
photostatic or otherwise identified to our satisfaction) of such documents,
corporate records and other instruments relating to the incorporation of the
Company and the adoption of the Plan as we have deemed necessary and advisable.
In all such examinations, we have assumed the genuineness of all
signatures on all originals and copies of documents we have examined, the
authenticity of all documents submitted to us as originals and the conformity to
original documents of all certified, conformed or photostatic copies. As to
questions of fact material and relevant to our opinion, we have relied upon
certificates or representations of Company officials and of appropriate state,
local and federal officials.
We express no opinion as to matters under or involving laws other than
the laws of the State of Georgia.
Based upon and subject to the foregoing and having regard for such
legal considerations as we have deemed relevant, it is our opinion that the
Obligations, when issued by the Company in the manner provided for in the Plan,
will be the valid and binding obligations of the Company, enforceable against
the Company in accordance
<PAGE> 2
Shaw Industries, Inc.
September 4, 1998
Page 2
with their terms, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights, and (ii) to general principles of equity,
whether such enforcement is considered in a proceeding in equity or law.
We hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
POWELL, GOLDSTEIN, FRAZER & MURPHY LLP
<PAGE> 1
EXHIBIT 23(B)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our reports dated
February 20, 1998 included and incorporated by reference in Shaw Industries,
Inc.'s Annual Report on Form 10-K for the year ended January 3, 1998 and to all
references to our Firm in this Registration Statement.
ARTHUR ANDERSEN LLP
Atlanta, Georgia
August 28, 1998
