<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
CUTTER & BUCK INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
WASHINGTON 91-1474587
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
MARTIN J. MARKS
2701 FIRST AVENUE, SUITE 500 2701 FIRST AVENUE, SUITE 500
SEATTLE, WASHINGTON 98121 SEATTLE, WASHINGTON 98121
(Address of Principal Executive Offices, (206) 622-4191
including zip code) (Name, address and telephone number,
including
area code, of agent for service)
</TABLE>
CUTTER & BUCK INC. 1999 NONEMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
(Full Title of Plan)
------------------------
Copies to:
GREGORY L. ANDERSON
WILLIAM W. LIN
Lane Powell Spears Lubersky LLP
1420 Fifth Avenue, Suite 4100
Seattle, Washington 98101-2338
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock, no par value........... 150,000 $16.0625 $2,409,375 $669.81
</TABLE>
(1) Together with an indeterminate number of additional shares of Common Stock
which may be necessary to adjust the number of shares of Common Stock
reserved for issuance pursuant to the Plans as the result of any future
stock split, stock dividend or similar adjustment of the outstanding Common
Stock of the Registrant.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended
(the "Securities Act"). The price per share is estimated to be $16.0625
based on the average of the high ($16.375) and low ($15.75) sales prices for
the Common Stock on October 5, 1999 as reported on the Nasdaq National
Market.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
INTRODUCTION
This Registration Statement on Form S-8 is filed by Cutter & Buck Inc. (the
"Registrant" or "Company"), a Washington corporation, relating to 150,000 shares
of its common stock, no par value (the "Common Stock"), issuable to nonemployee
directors of the Company under the Cutter & Buck Inc. 1999 Nonemployee Director
Stock Incentive Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to Part 1
of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Not filed as part of this Registration Statement pursuant to Note to Part 1
of Form S-8.
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's latest Annual Report on Form 10-K for the year ended
April 30, 1999 filed with the Commission on June 21, 1999, and the
Registrant's latest prospectus (Registration No. 333-81145) pursuant to
Rule 424(b)(1) filed with the Commission on July 23, 1999;
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d)of the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the fiscal year covered by the Annual
Report on Form 10-K referred to in (a) above, including the Registrant's
Quarterly Report on Form 10-Q for the quarter ended July 31, 1999 filed
with the Commission on September 14, 1999, the amendment to the
Registrant's Quarterly Report on Form 10-Q/A filed with the Commission on
September 15, 1999, and the Registrant's definitive proxy statement filed
with the Commission on August 23, 1999; and
(c) The description of the Company's Common Stock contained in Amendment No.
1 to the Company's Registration Statement on Form S-3 (Registration No.
333-81145) filed with the Commission on July 20, 1999, including any
amendment or report filed for the purpose of updating such description.
All reports and other documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof and prior
to the filing of a post-effective amendment which indicates that the securities
offered hereby have been sold or which deregisters the securities covered hereby
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
2
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the validity of the common stock
offered hereby are being passed upon by Lane Powell Spears Lubersky LLP,
Seattle, Washington. Members of that firm beneficially owned 3,750 shares of the
Registrant's common stock as of October 6, 1999.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act authorize a court to award, or a corporation's board of
directors to grant, indemnification to directors and officers on terms
sufficiently broad to permit indemnification under certain circumstances for
liabilities arising under the Securities Act. Article XI of the Registrant's
Restated Articles of Incorporation provides for indemnification of the
Registrant's directors, officers and employees and agents to the fullest extent
permitted by Washington law.
Section 23B.08.320 of the Washington Business Corporation Act authorizes a
corporation to limit a director's liability to the corporation or its
shareholders for monetary damages for acts or omissions as a director, except in
certain circumstances involving intentional misconduct, self-dealing or illegal
corporate loans or distributions, or any transactions from which the director
personally receives a benefit in money, property or services to which the
director is not legally entitled. Article X of the Registrant's Restated
Articles of Incorporation contains provisions implementing, to the fullest
extent permitted by Washington law, such limitations on a director's liability
to the Registrant and its shareholders.
Officers and directors of the Registrant are covered by insurance (with
certain exceptions and certain limitations) that indemnifies them against losses
and liabilities arising from certain alleged "wrongful acts," including alleged
errors or misstatements, or certain other alleged wrongful acts or omissions
constituting neglect or breach of duty.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ----------- ----------------------------------------------------------------------------------------------
<C> <S>
5.1 Opinion of Lane Powell Spears Lubersky LLP regarding the legality of the Common Stock being
registered
10.22 Cutter & Buck Inc. 1999 Nonemployee Director Stock Incentive Plan
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Lane Powell Spears Lubersky LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
</TABLE>
ITEM 9. UNDERTAKINGS.
A. The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
3
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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
this registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement;
Provided, however, that paragraphs A.(1)(i) and A.(1)(ii) above do not apply
if the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Seattle, State of Washington, on the 6th day of
October, 1999.
CUTTER & BUCK INC.
/s/ MARTIN J. MARKS
--------------------------------------
By: Martin J. Marks,
PRESIDENT AND TREASURER
5
<PAGE>
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Harvey N. Jones and Martin J. Marks, and each of them, his true and lawful
attorneys-in-fact and agents, each with full power of substitution to execute in
the name and on the behalf of each person, individually and in each capacity
stated below, and to file, any and all amendments to this registration
statement, including any and all post-effective amendments, and any related Rule
462(b) registration statement and any amendment thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 6th day of October, 1999.
<TABLE>
<C> <S>
SIGNATURE TITLE
/s/ HARVEY N. JONES Chairman, Chief Executive Officer and
- -------------------------------------- Director (Principal Executive Officer)
Harvey N. Jones
/s/ MARTIN J. MARKS President, Chief Operating Officer,
- -------------------------------------- Treasurer, Secretary and Director
Martin J. Marks
/s/ STEPHEN S. LOWBER Vice President and Chief Financial
- -------------------------------------- Officer (Principal Financial and
Stephen S. Lowber Accounting Officer)
/s/ MICHAEL S. BROWNFIELD Director
- --------------------------------------
Michael S. Brownfield
/s/ FRANCES M. CONLEY Director
- --------------------------------------
Frances M. Conley
/s/ LARRY C. MOUNGER Director
- --------------------------------------
Larry C. Mounger
/s/ JAMES C. TOWNE Director
- --------------------------------------
James C. Towne
</TABLE>
6
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER DESCRIPTION PAGE
- --------- ------------------------------------------------------------------------------------------- -----------
<C> <S> <C>
5.1 Opinion of Lane Powell Spears Lubersky LLP regarding the legality of the Common Stock being
registered................................................................................. 8
10.22 Cutter & Buck Inc. 1999 Nonemployee Director Stock Incentive Plan.......................... 9
23.1 Consent of Ernst & Young LLP, Independent Auditors......................................... 14
23.2 Consent of Lane Powell Spears Lubersky LLP (included in opinion filed as Exhibit 5.1)...... N/A
24.1 Power of Attorney (see signature page)..................................................... N/A
</TABLE>
7
<PAGE>
EXHIBIT 5.1
October 6, 1999
Cutter & Buck Inc.
2701 First Avenue, Suite 500
Seattle, Washington 98121
Dear Sir or Madam:
We have acted as counsel for Cutter & Buck, Inc. (the "Company") in
connection with the preparation and filing with the Securities and Exchange
Commission of the registration statement on Form S-8 (the "Registration
Statement") relating to 150,000 shares of common stock, no par value per share,
of the Company (the "Common Stock") being offered pursuant to the Company's 1999
Nonemployee Director Stock Incentive Plan (the "Plan").
In rendering this opinion letter, we have relied as to matters of material
fact upon the representations of members of the Company's management; however,
we have no reason to believe that any such representations are incorrect or
incomplete. We have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as copies and the authenticity of the
originals of such copies. In connection with this letter, we have concerned
ourselves solely with the application of the laws of the State of Washington and
the laws of the United States, and no opinion is expressed herein concerning the
possible effects of the laws of any other jurisdiction.
Subject to the foregoing, we are of the opinion that upon payment to the
Company of the option exercise price for the shares of Common Stock with respect
to the Plan, and upon issuance and delivery of the shares of Common Stock
pursuant to the Plan, the Common Stock will be validly issued, fully paid and
nonassessable.
The opinions contained in this letter are given as of the date hereof, and
we render no opinion as to any matter brought to our attention subsequent to the
date hereof. We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the use of our name wherever
appearing in the Registration Statement, including the prospectus constituting a
part thereof, and any amendments or supplements thereto.
Very truly yours,
/s/ LANE POWELL SPEARS LUBERSKY LLP
LANE POWELL SPEARS LUBERSKY LLP
8
<PAGE>
EXHIBIT 10.22
CUTTER & BUCK INC.
1999 NONEMPLOYEE DIRECTOR STOCK INCENTIVE PLAN
1. PURPOSE OF THE PLAN. The purposes of this 1999 Nonemployee Director
Stock Incentive Plan (the "Plan") are to promote the long-term success of Cutter
& Buck Inc. (the "Company") by creating a long-term mutuality of interests
between the nonemployee directors and shareholders of the Company, to provide an
additional inducement for such directors to remain with the Company, and to
provide a means through which the Company may attract able persons to serve as
directors of the Company.
2. ADMINISTRATION.
a. The Plan shall be administered by the Compensation Committee (the
"Committee") of the Board of Directors of the Company (the "Board").
b. The Committee shall interpret the Plan and prescribe such rules,
regulations and procedures in connection with the operations of the Plan as
it shall deem to be necessary and advisable for the administration of the
Plan consistent with the purposes of the Plan. All questions of
interpretation and application of the Plan, or as to stock options granted
under the Plan, shall be subject to the determination of the Committee,
which shall be final and binding.
c. Notwithstanding the above, the selection of the directors to whom
stock options are to be granted, the timing of such grants, the number of
shares subject to any stock option, the exercise price of any stock option,
the periods during which any stock option may be exercised and the term of
any stock option shall be as hereinafter provided, and the Committee shall
have no discretion as to such matters.
3. SHARES AVAILABLE UNDER THE PLAN. The aggregate number of shares which
may be issued and as to which grants of stock options may be made under the Plan
is 150,000 shares of the common stock of the Company (without taking into effect
any split of such shares), no par value (the "Common Stock"), subject to
adjustment and substitution as set forth in Section 6. If any stock option
granted under the Plan is canceled by mutual consent or terminates or expires
for any reason without having been exercised in full, the number of shares
subject to such option shall again be available for purposes of the Plan. The
shares which may be issued under the Plan may be authorized but unissued shares,
treasury shares, or both.
4. GRANT OF STOCK OPTIONS. On the third business day following the day of
each annual meeting of the shareholders of the Company, each person who is then
a member of the Board and who is not then an employee of the Company or any of
its subsidiaries and is not then an independent consultant (other than in his or
her capacity as a member of the Board) to the Company or any of its subsidiaries
(collectively a "Nonemployee Director") shall be granted, automatically and
without further action by the Board or the Committee, a "nonstatutory stock
option" (i.e., a stock option which does not qualify under Section 422 or 423 of
the Internal Revenue Code of 1986 (the "Code") to purchase 7,500 shares of
Common Stock, subject to adjustment and substitution as set forth in Section 6.
If the number of shares then remaining available for the grant of stock options
under the Plan at any time is not sufficient for each Nonemployee Director then
eligible to be granted an option for 7,500 shares (or the number of adjusted or
substituted shares pursuant to Section 6), then each such Nonemployee Director
shall be granted an option for a number of whole shares equal to the number of
shares then remaining available divided by the number of Nonemployee Directors
then eligible for grant of an option in accordance with this Section 4,
disregarding any fractions of a share.
9
<PAGE>
5. TERMS AND CONDITIONS OF STOCK OPTIONS. Stock options granted under the
Plan shall be subject to the following terms and conditions:
a. The purchase price at which each stock option may be exercised (the
"Option Price") shall be one hundred percent (100%) of the fair market value
of the shares of Common Stock covered by the stock option on the date of
grant, determined as provided in Section 5.g.
b. The Option Price shall be paid in full upon exercise, in cash in
United States dollars (including check, bank draft or money order);
provided, however, that in lieu of such cash the person exercising the stock
option may pay the Option Price in whole or in part by delivering to the
Company shares of the Common Stock having a fair market value on the date of
exercise of the stock option, determined as provided in Section 5.g, equal
to the Option Price for the shares being purchased; except that (i) any
portion of the Option Price representing a fraction of a share shall in any
event be paid in cash, and (ii) no shares of the Common Stock which have
been held for less than six months may be delivered in payment of the Option
Price of a stock option. Delivery of shares may also be accomplished through
the effective transfer to the Company of shares held by a broker or other
agent. The Company will also cooperate with any person exercising a stock
option who participates in a cashless exercise program of a broker or other
agent under which all or part of the shares received upon exercise of the
stock option are sold through the broker or other agent or under which the
broker or other agent make a loan to such person. Notwithstanding the
foregoing, the exercise of the stock option shall not be deemed to occur and
no shares of Common Stock will be issued by the Company upon exercise of the
stock option until the Company has received payment of the Option Price in
full. The date of exercise of a stock option shall be determined under
procedures established by the Committee, and as of the date of exercise, the
person exercising the stock option shall be considered for all purposes to
be the owner of the shares of Common Stock with respect to which the stock
option has been exercised. Payment of the Option Price with shares shall not
increase the number of shares of the Common Stock which may be issued under
the Plan as provided in Section 3.
c. No stock option shall be exercisable during the first six months of
its term except in case of death as provided in Section 5.e. Subject to the
preceding sentence and subject to Section 5.e, which provides for earlier
termination of a stock option under certain circumstances, each stock option
shall be exercisable for ten years from the date of grant and not
thereafter. A stock option to the extent exercisable at any time may be
exercised in whole or in part.
d. No stock option shall be transferable by the grantee otherwise than
by will, or if the grantee dies intestate, by the laws of descent and
distribution of the state of domicile of the grantee at the time of death.
e. If a grantee ceases to be a director of the Company for any reason,
any outstanding stock options held by the grantee shall be exercisable
according to the following provisions:
(i) If a grantee ceases to be a director of the Company for any
reason other than resignation, removal for cause, or death, any
outstanding stock option held by such grantee shall be exercisable by the
grantee (but only if exercisable by the grantee immediately prior to
ceasing to be director) at any time prior to the expiration date of such
stock option or within three years after the date the grantee ceases to
be a director, whichever is the shorter period;
(ii) If during his term of office as a director a grantee resigns
from the Board or is removed from office for cause, any outstanding stock
option held by the grantee which is not exercisable by the grantee
immediately prior to resignation or removal shall terminate as of the
date of resignation or removal, and any outstanding stock option held by
the grantee which is exercisable by the grantee immediately prior to
resignation or removal shall be exercisable by the grantee at any time
prior to the expiration date of such stock option or within three months
after the date of resignation or removal of the grantee, whichever is the
shorter period;
10
<PAGE>
(iii) Following the death of a grantee during service as a director
of the Company, any outstanding stock option held by the grantee at the
time of death (whether or not exercisable by the grantee immediately
prior to death) shall be exercisable by the person entitled to do so
under the will of the grantee, or, if the grantee shall fail to make
testamentary disposition of the stock option or shall die intestate, by
the legal representative of the grantee at any time prior to the
expiration date of such stock option or within three years after the date
of death of the grantee, whichever is the shorter period; and
(iv) Following the death of a grantee after ceasing to be a director
and during a period when a stock option is exercisable under clause (ii)
above, the stock option shall be exercisable by such person entitled to
do so under the will of the grantee or by such legal representative at
any time prior to the expiration date of the stock option or within one
year after the date of death, whichever is the shorter period.
A stock option held by a grantee who has ceased to be a director of the
Company shall terminate upon the expiration of the applicable exercise
period, if any, specified in this Section 5.e.
f. All stock options shall be confirmed by an agreement, or an
amendment thereto, which shall be executed on behalf of the Company by the
Chief Executive Officer (if other than the President), the President or any
Vice President and by the grantee.
g. Fair market value of the Common Stock shall be the mean between the
following prices, as applicable, for the date as of which fair market value
is to be determined, as quoted in THE WALL STREET JOURNAL (or in such other
reliable publication as the Committee, in its discretion, may determine to
rely upon): (i) if the Common Stock is listed on the New York Stock
Exchange, the highest and lowest sales prices per share of the Common Stock
as quoted in the NYSE-Composite Transactions listing for such date, (ii) if
the Common Stock is not listed on such exchange, the highest and lowest
sales prices per share of the Common Stock for such date on (or on any
composite index including) the principal United States securities exchange
registered under the 1934 Act on which the Common Stock is listed, or (iii)
if the Common Stock is not listed on any such exchange, the highest and
lowest sales prices per share of the Common Stock for such date on the
National Association of Securities Dealers Automated Quotations System or
any successor system then in use ("NASDAQ"). If there are no such sale price
quotations for the date as of which fair market value is to be determined
but there are such sale price quotations within a reasonable period both
before and after such date, then fair market value shall be determined by
taking a weighted average of the means between the highest and lowest sales
prices per share of the Common Stock as so quoted on the nearest date before
and the nearest date after the date as of which fair market value is to be
determined. The average should be weighted inversely by the respective
numbers of trading days between the selling dates and the date as of which
fair market value is to be determined. If there are no such sale price
quotations on or within a reasonable period both before and after the date
as of which fair market value is to be determined, then fair market value of
the Common Stock shall be the mean between the bona fide bid and asked
prices per share of Common Stock as so quoted for such date on NASDAQ, or if
none, the weighted average of the means between such bona fide bid and asked
prices on the nearest trading date before and the nearest trading date after
the date as of which fair market value is to be determined, if both such
dates are within a reasonable period. The average is to be determined in the
manner described above in this Section 5.g. If the fair market value of the
Common Stock cannot be determined on the basis previously set forth in this
Section 5.g for the date as of which fair market value is to be determined,
the Committee shall in good faith determine the fair market value of the
Common Stock on such date. Fair market value shall be determined without
regard to any restriction other than a restriction which, by its terms, will
never lapse.
h. The obligation of the Company to issue shares of the Common Stock
under the Plan shall be subject to (i) the effectiveness of a registration
statement under the Securities Act of 1933, as
11
<PAGE>
amended, with respect to such shares, if deemed necessary or appropriate by
counsel for the Company, (ii) the condition that the shares shall have been
listed (or authorized for listing upon official notice of issuance) upon
each stock exchange, if any, on which the Common Stock may then be listed
and (iii) all other applicable laws, regulations, rules and orders which may
then be in effect.
Subject to the foregoing provision of this Section 5 and the other
provisions of the Plan, any stock option granted under the Plan shall be subject
to such restrictions and other terms and conditions, if any, as shall be
determined, in its discretion, by the Committee and set forth in the agreement
referred to in Section 5.f, or an amendment thereto.
6. ADJUSTMENT AND SUBSTITUTION OF SHARES. If a dividend or other
distribution shall be declared upon the Common Stock payable in shares of the
Common Stock, then (i) the number of shares of the Common Stock set forth in
Section 4, (ii) the number of shares of the Common Stock then subject to any
outstanding stock options, and (iii) the number of shares of the Common Stock
which may be issued under the Plan but are not then subject to outstanding stock
options on the date fixed for determining the shareholders entitled to receive
such stock dividend or distribution, shall be adjusted by adding thereto the
number of shares of the Common Stock which would have been distributable thereon
if such shares had been outstanding on such date.
If the outstanding shares of the Common Stock shall be changed into or
exchangeable for a different number or kind of shares of stock or other
securities of the Company or another Company, whether through reorganization,
reclassification, recapitalization, stock split up, combination of shares,
merger or consolidation, then there shall be substituted for each share of the
Common Stock set forth in Section 4, for each share of the Common Stock subject
to any then outstanding stock option and for each share of the Common Stock
which may be issued under the Plan but which is not then subject to any
outstanding stock option, the number and kind of shares of stock or other
securities into which each outstanding share of the Common Stock shall be so
changed or for which each such share shall be exchangeable.
In case of any adjustment or substitution as provided for in the first two
paragraphs of this Section 6, the aggregate Option Price for all shares subject
to each then outstanding stock option prior to such adjustment or substitution
shall be the aggregate Option Price for all shares of stock or other securities
(including any fraction) to which such shares shall have been adjusted or which
shall have been substituted for such shares. Any new Option Price per share
shall be carried to at least three decimal places with the last decimal place
rounded upwards to the nearest whole number.
If the outstanding Common Stock shall be changed in value by reason of any
spinoff, split off or split up, or dividend in partial liquidation, dividend in
property other than cash or extraordinary distribution to holders of the Common
Stock, the Committee shall make any adjustments to any then outstanding stock
option which it determines are equitably required to prevent dilution or
enlargement of the rights of grantees which would otherwise result from any such
transaction.
No adjustment or substitution provided for in this Section 6 shall require
the Company to issue or sell a fraction of a share or other security.
Accordingly, all fractional shares or other securities which result from any
such adjustment or substitution shall be eliminated and not carried forward to
any subsequent adjustment or substitution.
Except as provided in this Section 6, a grantee shall have no rights by
reason of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
7. EFFECT OF THE PLAN ON THE RIGHTS OF COMPANY AND SHAREHOLDERS.
Nothing in the Plan, in any stock option granted under the Plan, or in any stock
option agreement shall confer any right to any person to continue as a director
of the Company or interfere in any way with the rights of the shareholders of
the Company or the Board to elect and remove directors.
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8. AMENDMENT AND TERMINATION. The right to amend or to terminate the Plan
at any time are hereby specifically reserved to the Board; provided that no such
termination shall terminate any outstanding stock options granted under the
Plan; and provided further that no amendment of the Plan shall be made without
shareholder approval if shareholder approval of the amendment is at the time
required for stock options under the Plan to qualify for any exemption from
Section 16(b) of the 1934 Act provided by Rule 16b-3, or any successor rule, or
by the rules of any stock exchange on which the Common Stock may then be listed.
No amendment or termination of the Plan shall, without the written consent of
the holder of a stock option theretofore awarded under the Plan, adversely
affect the rights of such holder with respect thereto.
9. EFFECTIVE DATE AND DURATION OF PLAN. The Plan shall become effective
upon approval by the affirmative vote of the holders of a majority of the Common
Stock present in person or by proxy and entitled to vote at a duly called and
convened meeting of such holders, and the first stock options granted hereunder
shall be granted on the third business day thereafter.
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1999 Nonemployee Director Stock Incentive Plan of
Cutter & Buck Inc. of our report dated June 15, 1999, with respect to the
consolidated financial statements and schedule of Cutter & Buck Inc. included in
its Annual Report (Form 10-K) for the year ended April 30, 1999, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
October 6, 1999
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