-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, AaP7rsYHwmIr5IiwCW5kfdw1o4O6el+TUD8Dfh8l5EgvLFdvln6uZT/smKGst+5J EtO4f9bP+LKZjnbvElZr2g== 0000897069-98-000010.txt : 19980126 0000897069-98-000010.hdr.sgml : 19980126 ACCESSION NUMBER: 0000897069-98-000010 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19980123 EFFECTIVENESS DATE: 19980123 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NOBILITY HOMES INC CENTRAL INDEX KEY: 0000072205 STANDARD INDUSTRIAL CLASSIFICATION: MOBILE HOMES [2451] IRS NUMBER: 591166102 STATE OF INCORPORATION: FL FISCAL YEAR END: 1027 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-44769 FILM NUMBER: 98511374 BUSINESS ADDRESS: STREET 1: 3741 S W 7TH STREET CITY: OCALA STATE: FL ZIP: 34474 BUSINESS PHONE: 9047325157 MAIL ADDRESS: STREET 1: P O BOX 1659 CITY: OCALA STATE: FL ZIP: 34478-1659 S-8 1 NOBILITY HOMES, INC.'S FORM S-8 As filed with the Securities and Exchange Commission on January 23, 1998 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 NOBILITY HOMES, INC. (Exact Name of registrant as specified in its charter) Florida 59-1166102 (State or other jurisdiction (I.R.S. Employer of incorporation) Identification No.) 3741 S.W. 7th Street, P.O. Box 1659, Ocala, Florida 34478 (Address of principal executive offices) (zip code) NOBILITY HOMES, INC. STOCK INCENTIVE PLAN (Full title of the Plan) Terry E. Trexler President Nobility Homes, Inc. 3741 S.W. 7th Street, P.O. Box 1659 Ocala, Florida 34478 (Name and address of agent for service) (352) 732-5157 (Telephone number, including area code, of agent for service) Copy to: Linda Y. Kelso, Esq. Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 (904) 359-2000 Calculation of Registration Fee Proposed Title of each Proposed maximum class of Amount to maximum aggregate Amount of securities to be offering offering registration be registered registered(1) per share(2) price(2) fee(2) Common Stock, 300,000 $19.31 $5,023,437.50 $1,481.91 $0.10 par shares value (1) Plus an indeterminate number of shares which may be issued as a result of anti-dilution provisions contained in the Plan. (2) Pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, the amounts shown are based (i) on 25,000 shares subject to outstanding options having an exercise price of $12.75 per share, (ii) 100,000 shares subject to outstanding options having an exercise price of $13.25 per share, and (iii) 175,000 shares reserved for future grants under the plan, the registration fee for which has been calculated on the basis of the average of the bid and asked prices of the registrant's Common Stock as reported on the Nasdaq National Market on January 16, 1998. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by the registrant with the Securities and Exchange Commission are hereby incorporated herein by reference: (a) The registrant's Annual Report on Form 10-K for the year ended November 2, 1996. (b) The registrant's quarterly reports on Form 10-Q for the quarters ended February 1, 1997, May 3, 1997 and August 2, 1997. (c) The description of the registrant's Common Stock, par value $0.10 per share set forth under the caption "Description of Capital Stock" in the Company's Registration Statement on Form S-3 (No. 333-09857) filed under the Securities Act of 1933; and All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock being offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold shall be deemed incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities. Not Applicable. Item 5. Interests of Named Experts and Counsel. Not Applicable. Item 6. Indemnification of Directors and Officers. The Florida Business Corporation Act (the "Florida Act") permits a Florida corporation to indemnify a present or former director or officer of the corporation (and certain other persons serving at the request of the corporation in related capacities) for liabilities, including legal expenses, arising by reason of service in such capacity if such person shall have acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and in any criminal proceeding if such person had no reasonable cause to believe his conduct was unlawful. However, in the case of actions brought by or in the right of the corporation, no indemnification may be made with respect to any matter as to which such director or officer shall have been adjudged liable, except in certain limited circumstances. The registrant's Bylaws provides that the registrant shall indemnify directors and executive officers to the fullest extent now or hereafter permitted by the Florida Act. Item 7. Exemption from Registration Claimed. Not Applicable. Item 8. Exhibits. 4A. Nobility Homes, Inc. Stock Incentive Plan 4B. Form of Option Award Agreement for Key Employees 5. Opinion of Foley & Lardner as to the legality of the securities to be issued 23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit 5) 23B. Consent of Price Waterhouse LLP 24. Power of Attorney (included on the signature page of this registration statement) Item 9. Undertakings The undersigned hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, as amended (the "Securities Act"), each such post- effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at the time shall be deemed to be the initial bona fide offering thereof. (3) That, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (4) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the Articles of Incorporation or Bylaws of the registrant or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by the director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Ocala, State of Florida, on January 21, 1998. NOBILITY HOMES, INC. By /s/ Terry E. Trexler Terry E. Trexler, President SPECIAL POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears on the Signature Page to this registration statement constitutes and appoints Terry E. Trexler and Thomas W. Trexler, and each or any of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments to this registration statement and any and all registration statements filed pursuant to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits and other documents in connection therewith, with the Securities and Exchange Commission, and grants unto said attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated. Date: January 21, 1998 /s/ Terry E. Trexler Terry E. Trexler Chairman of the Board of Directors, President and Chief Executive Officer (Principal Executive Officer) Date: January 21, 1998 /s/ Thomas W. Trexler Thomas W. Trexler Executive Vice President (Principal Financial Officer) Date: January 21, 1998 /s/ Lynn J. Cramer Lynn J. Cramer Treasurer (Principal Accounting Officer) Date: January 21, 1998 /s/ Richard C. Barberie Richard C. Barberie, Director Date: January 15, 1998 /s/ Robert Holliday Robert Holliday, Director Date: January 21, 1998 /s/ Robert P. Saltsman Robert P. Saltsman, Director EXHIBIT INDEX 4A. Nobility Homes, Inc. Stock Incentive Plan 4B. Form of Option Award Agreement for Key Employees 5. Opinion of Foley & Lardner as to the legality of the securities to be issued 23A. Consent of Foley & Lardner (included in Opinion filed as Exhibit 5) 23B. Consent of Price Waterhouse LLP 24. Power of Attorney (included on the signature page of this registration statement) EX-4 2 EXHIBIT 4A NOBILITY HOMES, INC. STOCK INCENTIVE PLAN NOBILITY HOMES, INC. STOCK INCENTIVE PLAN Table of Contents Page Article I Purpose . . . . . . . . . . . . . . . . . . . . . . . . . 1 Article II Definitions . . . . . . . . . . . . . . . . . . . . . . . 1 2.1 Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 1 2.2 Award . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.3 Award Agreement . . . . . . . . . . . . . . . . . . . . . 1 2.4 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.5 Committee . . . . . . . . . . . . . . . . . . . . . . . . 1 2.6 Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 1 2.7 Fair Market Value . . . . . . . . . . . . . . . . . . . . 1 2.8 Incentive Stock Option . . . . . . . . . . . . . . . . . . 1 2.9 Insider . . . . . . . . . . . . . . . . . . . . . . . . . 1 2.10 Key Employee . . . . . . . . . . . . . . . . . . . . . . . 1 2.11 Non-Employee Director . . . . . . . . . . . . . . . . . . 2 2.12 Non-Qualified Stock Option . . . . . . . . . . . . . . . . 2 2.13 Option . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.14 Participant . . . . . . . . . . . . . . . . . . . . . . . 2 2.15 Performance Award . . . . . . . . . . . . . . . . . . . . 2 2.16 Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.17 Rule 16b-3 . . . . . . . . . . . . . . . . . . . . . . . . 2 2.18 Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 2 2.19 Stock Appreciation Rights . . . . . . . . . . . . . . . . 2 2.20 Ten Percent Shareholder . . . . . . . . . . . . . . . . . 2 Article III Administration . . . . . . . . . . . . . . . . . . . . 2 3.1 Committee . . . . . . . . . . . . . . . . . . . . . . . . 2 3.2 Indemnification . . . . . . . . . . . . . . . . . . . . . 3 Article IV Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4.1 Number of Shares Available . . . . . . . . . . . . . . . . 3 4.2 Shares Subject to Terminated Awards . . . . . . . . . . . 3 4.3 Adjustments . . . . . . . . . . . . . . . . . . . . . . . 3 Article V Stock Options and Stock Appreciation Rights . . . . . . . 4 5.1 Grant of Option . . . . . . . . . . . . . . . . . . . . . 4 5.2 Stock Appreciation Rights . . . . . . . . . . . . . . . . 5 5.3 Compliance With Code Section 162(m) . . . . . . . . . . . 5 Article VI Other Share-Based Awards . . . . . . . . . . . . . . . . . 5 6.1 Grant of Other Awards . . . . . . . . . . . . . . . . . . 5 Article VII Terms Applicable to All Awards Granted Under the Plan . 5 7.1 Award Agreement . . . . . . . . . . . . . . . . . . . . . 5 7.2 Awards May Be Granted Separately or Together; No Limitations on Other Awards . . . . . . . . . . . . . . . 6 7.3 Acceleration . . . . . . . . . . . . . . . . . . . . . . . 6 7.4 Limitations on Transfer of Awards . . . . . . . . . . . . 6 7.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 6 7.6 Rights and Status of Recipients . . . . . . . . . . . . . 6 7.7 Awards Not Includable for Benefit Purposes . . . . . . . . 6 7.8 Share Certificates; Representation by Participants; Registration Requirements . . . . . . . . . . . . . . . . 7 Article VIII Amendment and Termination . . . . . . . . . . . . . . 7 8.1 Amendment . . . . . . . . . . . . . . . . . . . . . . . . 7 8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . 7 Article IX General Provisions . . . . . . . . . . . . . . . . . . . . 7 9.1 Effective Date of the Plan . . . . . . . . . . . . . . . . 7 9.2 Unfunded Status of Plan . . . . . . . . . . . . . . . . . 7 9.3 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . 8 NOBILITY HOMES, INC. STOCK INCENTIVE PLAN Article I Purpose 1.1 The purpose of the Nobility Homes, Inc. Stock Incentive Plan ("Plan") is to assist Nobility Homes, Inc. (the "Company") and its Affiliates in attracting and retaining highly competent individuals to serve as Key Employees and Non-Employee Directors who will contribute to the Company's success, and in motivating such persons to achieve long-term objectives which will inure to the benefit of all shareholders of the Company. Article II Definitions 2.1 Affiliate means (a) any corporation that is defined as a subsidiary corporation in Section 424(f) of the Code, or (b) any corporation that is defined as a parent corporation in Section 424(e) of the Code. 2.2 Award means any award made under the Plan. 2.3 Award Agreement means a written agreement or other document specifically setting forth the terms and conditions of an Award. 2.4 Code means the Internal Revenue Code of 1986, as amended from time to time. Any reference to a particular section of the Code shall include any subsequently enacted successor provision thereto. 2.5 Committee means a committee of the Board of Directors of the Company designated by such Board to administer the Plan, which committee shall be composed of not less than two directors, each of whom shall qualify as an "outside director," as defined in Section 162(m) of the Code, in the event that and so long as the Company shall be subject to such provision, and as a "Non-Employee Director" within the meaning of Rule 16b-3, in the event that and so long as the Company shall have a class of securities registered under Section 12 of the Exchange Act. 2.6 Exchange Act means the Securities Exchange Act of 1934, as amended. 2.7 Fair Market Value means, with respect to any property (including, without limitation, any Shares or other securities), the fair market value of such property determined by such methods as shall be established from time to time by the Committee. 2.8 Incentive Stock Option means an Option designated as an incentive stock option as defined in Code Section 422. 2.9 Insider means a Participant who is subject to Section 16 of the Exchange Act. 2.10 Key Employee means any officer or other key employee of the Company or of any Affiliate who is in a position to make a significant contribution to the management, growth, or profitability of the business of the Company or any Affiliate, as determined by the Committee. 2.11 Non-Employee Director means a member of the Board of Directors of the Company who is not an employee of the Company or any Affiliate. 2.12 Non-Qualified Stock Option means an Option that is not an Incentive Stock Option as defined in Code Section 422. 2.13 Option means any option to purchase Shares granted pursuant to the Plan. 2.14 Participant shall mean any Key Employee or any Non-Employee Director receiving an Award. 2.15 Performance Award means the right to receive a payment (measured by (i) the Fair Market Value of a specified number of Shares at the end of the Award period or (ii) the increase in the Fair Market Value of a specified number of Shares during the Award period or (iii) a fixed cash amount payable at the end of the Award period) contingent upon the extent to which certain predetermined performance targets have been met during an Award period. 2.16 Plan means the Nobility Homes, Inc. Stock Incentive Plan as set forth herein, and as the same may be amended from time to time. 2.17 Rule 16b-3 means Rule 16b-3 as promulgated by the Securities and Exchange Commission under Section 16(b) of the Exchange Act, as such rule may be amended from time to time, and any successor rule. 2.18 Shares mean the shares of common stock of the Company and such other securities or property as may become subject to Awards pursuant to an adjustment made under Section 4.3 of the Plan. 2.19 Stock Appreciation Rights mean Awards granted in accordance with Article V. 2.20 Ten Percent Shareholder means a person owning common stock of the Company or an Affiliate possessing more than ten percent (10%) of the total combined voting power of all classes of stock of the Company as defined in Section 422 of the Code. Article III Administration 3.1 Committee. The Plan shall be administered by the Board of Directors of the Company (the "Board"). Subject to the terms of the Plan and applicable law, the Board shall have full power and authority to: (i) designate persons to be Participants; (ii) determine the type, amount, duration, and other terms and conditions of Awards to be granted to each Participant (including whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards, or other property and whether, to what extent, and under what circumstances cash, Shares, other securities, other Awards, other property, and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the holder thereof or of the Committee); (iii) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan with respect to any Participant; (iv) waive any conditions or other restrictions with respect to (including, without limitation, conditions regarding the exercise of a Option), amend, alter, suspend, discontinue, or terminate any Award granted to any Participant, prospectively or retroactively, but no such action shall impair the rights of any Participant without his or her consent except as provided in Section 4.3, and correct any defect, supply any omission, or reconcile any inconsistency in any Award or Award Agreement granted to a Participant in the manner and to the extent it shall deem desirable to carry the Plan into effect; (v) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan with respect to Participants; and (vi) make any other determination and take any other action that the Committee deems necessary or desirable for the administration of the Plan granted to a Participant. To the extent permitted by applicable law, the Board may, in its discretion, delegate to the Committee or, with respect to Awards to Participants other than Participants who are Insiders, another committee of the Board or one or more senior officers of the Company, any or all of the authority and responsibility of the Board with respect to Awards under the Plan. To the extent that the Board has delegated such authority and responsibility, all references to the Board herein shall include the Committee or such other committee or one or more officers. Unless otherwise expressly provided in the Plan, all determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Board, may be made at any time, and shall be final, conclusive, and binding upon all persons. Anything in the Plan to the contrary notwithstanding, no term of this Plan relating to Incentive Stock Options shall be interpreted, amended or altered, nor shall any discretion or authority granted under the Plan be so exercised, so as to disqualify any outstanding Incentive Stock Option under Section 422 of the Code, without the consent of the affected Participant. 3.2 Indemnification. No member or former member of the Board shall be liable for any action or inaction or determination made in good faith with respect to the Plan or any Award. To the maximum extent permitted by applicable law and by the Company's Articles of Incorporation and Bylaws, each such person shall be indemnified and held harmless by the Company against any cost or expense and liability (including any sum paid in settlement of a claim with the approval of the Company), arising out of any act or omission to act in connection with the Plan. Costs and expenses to be indemnified hereunder shall include reasonable attorney's fees and expenses as incurred, provided that the person being indemnified agrees to repay in full amounts advanced hereunder in the event of a final determination by a court that such person is not entitled to indemnification hereunder. Article IV Shares 4.1 Number of Shares Available. Subject to Section 4.3, the maximum number of Shares which may be issued under the Plan and as to which Awards may be granted is 300,000 Shares. 4.2 Shares Subject to Terminated Awards. The (i) Shares covered by any unexercised portions of terminated Options, and (ii) Shares subject to any Awards which are otherwise surrendered by the Participant and as to which Shares no Participant has received any payment or other benefit of ownership with respect thereto, may again be subject to new Awards. In the event the exercise price of an Option is paid in whole or in part through the delivery of Shares or the surrender of an unexercised Option, the gross number of Shares issuable in connection with the exercise of the Option shall not again be available for the grant of Awards under the Plan. Shares used to measure the amount payable to a Participant in respect of an earned Performance Award and Shares issued in payment of Performance Awards which are denominated in cash amounts shall not again be available for the grant of Awards under the Plan. 4.3 Adjustments. In the event that the Board shall determine that any dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of securities of the Company, or other similar corporate transaction or event affects the Shares such that an adjustment is determined by the Board to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Board may, in such manner as it may deem equitable, adjust as to Participants any or all of (i) the number and type of Shares subject to the Plan and which thereafter may be made the subject of Awards, including Incentive Stock Options and Stock Appreciation Rights, (ii) the number and type of Shares subject to outstanding Awards, and (iii) the grant, purchase, or exercise price with respect to any Award, or, if deemed appropriate, make provisions for a cash payment to the holder of an outstanding Award. In addition, in the event the Company or any Affiliate shall assume outstanding awards or the right or obligation to make future awards in connection with the acquisition of another business or another corporation or business entity, the Board may make such adjustments, not inconsistent with the terms of the Plan, in the terms of Awards granted to Participants as it shall deem appropriate in order to achieve reasonable comparability or other equitable relationship between the assumed awards and the Awards granted to Participants. The Committee also may make such other adjustments as it deems necessary to take into consideration any other event (including accounting changes) if the Board determines that such adjustment is appropriate to avoid distortion in the operation of the Plan. However, in each case, no adjustment with respect to Awards of Incentive Stock Options shall be authorized hereunder to the extent that such authority would cause the Plan to violate Section 422(b)(1) of the Code, and in each case, Awards shall only be subject to such adjustments as shall be necessary to maintain the proportionate interest of the Participant and preserve, without exceeding, the value of the Awards. Article V Stock Options and Stock Appreciation Rights 5.1 Grant of Option. The Board is hereby authorized to grant Options to Key Employees and Non-Employee Directors with such terms and conditions, in either case not inconsistent with the provisions of the Plan, as the Board shall determine. (a) Exercise Price. The exercise price per Share purchasable under an Option shall be determined at the time of grant and shall be not less than 100% of the Fair Market Value of the Share on the date of grant of such Option; provided, however if an Incentive Stock Option is granted to a Ten Percent Shareholder, the exercise price per share shall be no less than 110% of the Fair Market Value of a Share on the date of grant. (b) Exercisability and Method of Exercise. An Option Award may contain such performance targets and waiting periods, and shall become exercisable in such manner and within such period or periods and in such installments or otherwise, as shall be determined at the time of grant. The Board of Directors shall also determine the method by which, and the form (including, without limitation, cash, Shares, other securities, other Awards, or other property, or any combination thereof, having a Fair Market Value on the exercise date equal to the relevant exercise price), in which payment of the Option exercise price may be made (including payment in accordance with a cashless exercise program under which, if so instructed by the Participant, Shares may be issued directly to the Participant's broker or dealer upon receipt of the purchase price in cash from the broker or dealer). (c) Incentive Stock Options. The terms of any Incentive Stock Option granted under the Plan shall comply in all respects with the provisions of Code Section 422 and any regulations promulgated thereunder. Non-Employee Directors are not eligible to be granted Incentive Stock Options under the Plan. (d) Incentive Stock Option Limitations. To the extent that the aggregate Fair Market Value (determined as of the time of grant) of the Shares with respect to which Incentive Stock Options are exercisable for the first time by a Key Employee Participant during any calendar year under the Plan and/or any other stock option plan of the Company or any Affiliate exceeds $100,000, such Options shall be treated as Options which are not Incentive Stock Options. Should any of the foregoing provisions not be necessary in order for the Options to quality as Incentive Stock Options, or should any additional provisions be required, the Board of Directors may amend the Plan accordingly, without the necessity of obtaining the approval of the shareholders of the Company, except as otherwise required by law. 5.2 Stock Appreciation Rights. The Board is hereby authorized to grant Stock Appreciation Rights to Key Employees and Non-Employee Directors, in such amounts and having such grant price, term, methods of exercise, methods of settlement (including whether Stock Appreciation Rights will be settled in cash, Shares, other securities, other Awards, or other property, or any combination thereof), and any other terms and conditions as it shall determine. 5.3 Compliance With Code Section 162(m). Notwithstanding any other provision of the Plan, the maximum number of Shares with respect to which Options and Stock Appreciation Rights, in the aggregate, may be awarded to any individual Key Employee Participant is 150,000 Shares. For purposes of this limitation, Shares subject to Options and Stock Appreciation Rights which are cancelled shall be counted against the maximum number of Shares with respect to which Options and Stock Appreciation Rights may be awarded to any individual Key Employee under the Plan, and if the Exercise Price of Options or the base amount of Stock Appreciation Rights is changed (other than pursuant to an adjustment under Section 4.3 hereof), the transaction shall be treated as a cancellation of the Option or Stock Appreciation Right and a grant of a new Option or Stock Appreciation Right, as the case may be. The Board at any time may in its sole discretion limit the number of Options and/or Stock Appreciation Rights that can be exercised in any taxable year of the Company, to the extent necessary to prevent the application of Section 162(m) of the Code (or any similar or successor provision), provided that the Committee may not postpone the earliest date on which Options or Stock Appreciation Rights can be exercised beyond the last day of the stated term of such Options or Stock Appreciation Rights. Article VI Other Share-Based Awards 6.1 Grant of Other Awards. Other Awards, valued in whole or in part by reference to, or otherwise based on, Shares, including but not limited to Performance Awards and restricted stock, may be granted either alone or in addition to or in conjunction with other Awards for such consideration, if any, and in such amounts and having such terms and conditions as the Board may determine. Article VII Terms Applicable to All Awards Granted Under the Plan 7.1 Award Agreement. No person shall have any rights under any Award granted under the Plan unless and until the Company and the Participant to whom such Award shall have been granted shall have executed and delivered an Award Agreement or received any other Award acknowledgment authorized by the Board of Directors expressly granting the Award to such person and containing provisions setting forth the terms of the Award. If there is any conflict between the provisions of an Award Agreement and the terms of the Plan, the terms of the Plan shall control. 7.2 Awards May Be Granted Separately or Together; No Limitations on Other Awards. Awards may be granted either alone or in addition to, in tandem with, or in substitution for any other Award or any award granted under any other plan of the Company or any Affiliate, and the terms and conditions of an Award need not be the same with respect to each Participant. 7.3 Acceleration. The Board is authorized in its discretion to accelerate the exercisability of any Option or the vesting of any Award held by a Participant, including, without limitation, upon a change of control of the Company as determined by the Board, the sale by the Company of all or substantially all its assets to an unrelated party, or the liquidation and dissolution of the Company. 7.4 Limitations on Transfer of Awards. Except as determined otherwise by the Board, the rights and interest of a Participant under the Plan may not be assigned, alienated, sold, or transferred other than by will or the laws of descent and distribution or pursuant to a qualified domestic relations order as defined by the Code or Title I of the Employee Retirement Income Security Act, as amended, or the rules thereunder; provided, however, that a Participant may at the discretion of the Board, be entitled (i) to designate a beneficiary or beneficiaries to exercise his or her rights, to receive any property distributable, with respect to any Award upon the death of the Participant, and (ii) to transfer an Award other than an Incentive Stock Option without consideration to such Participant's children, grandchildren and/or spouse (or to one or more trusts for the benefit of any such family members or to one or more partnerships in which any such family members are the only partners). Except as determined otherwise by the Committee or except to the extent that a transfer of an Award has been permitted hereunder by the Committee, during the lifetime of a Participant, only the Participant personally, or if permissible under applicable law, such individual's guardian or legal representative, may exercise rights under the Plan. No Award, and no right under any such Award, may be pledged, alienated, attached, or otherwise encumbered, and any purported pledge, alienation, attachment, or encumbrance thereof shall be void and unenforceable against the Company or any Affiliate. 7.5 Taxes. The Company shall be entitled to withhold (or secure payment from the Participant in lieu of withholding) the amount of any withholding or other tax required by law to be withheld or paid by the Company in connection with such Participant's Award, and the Company may defer payment or issuance of the cash or Shares upon the grant, exercise or vesting of an Award unless indemnified to its satisfaction against any liability for any such tax. The Board of Directors may prescribe in each Award Agreement one or more methods by which the Participant will be permitted or required to satisfy his or her tax withholding obligation, which methods may include, without limitation, the payment of cash by the Participant to the Company and the withholding from the Award, at the appropriate time, of a number of Shares sufficient, based upon the Fair Market Value of such Shares, to satisfy such tax withholding requirements. 7.6 Rights and Status of Recipients. No employee shall have any right to be granted an Award. Neither the Plan nor any action taken hereunder shall be construed as giving any employee any right to be retained in the employ of the Company or any Affiliate, and the grant of an Award to a Non-Employee Director shall not confer any right on such Non-Employee Director to continue as a Director of the Company. 7.7 Awards Not Includable for Benefit Purposes. Income recognized by a Participant pursuant to the Plan shall not be included in the determination of benefits under any employee pension benefit plan (as such term is defined in Section 3(2) of the Employee Retirement Income Security Act of 1974, as amended) or group insurance or other benefit plans applicable to the Participant which are maintained by the Company or any Affiliate, except as may be provided under the terms of such plans or determined by resolution of the Board of Directors of the Company. 7.8 Share Certificates; Representation by Participants; Registration Requirements. All certificates for Shares delivered pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Committee (or the Board of Directors in the case of an Award granted to a Non-Employee Director) may deem advisable under the Plan or the rules, regulations, and other requirements of the Securities Exchange Commission and any applicable federal or state securities laws, and legends may be put on any such certificates to make appropriate reference to such restrictions. The Committee may require each Participant to represent to the Company in writing that such Participant is acquiring Shares without a view to the distribution thereof. Each Award shall be subject to the requirement that, if at any time (i) the registration or qualification of Shares relating to such Award on any securities exchange or under any state or federal securities laws, or (ii) the approval of any securities exchange or regulatory body is necessary or desirable as a precondition thereto, the Award or the issuance of Shares in connection therewith may not be consummated unless such listing, registration, qualification or approval shall have been effected. Article VIII Amendment and Termination 8.1 Amendment. The Board of Directors of the Company may amend, alter, suspend, discontinue, or terminate the Plan at any time; provided, however, that no amendment, alteration, suspension, discontinuation or termination of the Plan shall in any manner (except as otherwise provided in this Article VIII) adversely affect any Award, without the consent of the Participant. The Board of Directors of the Company is authorized to amend the Plan and to make any modifications to Award Agreements to comply with Rule 16b-3 and Section 162(m) of the Code, and to make any other amendments or modifications deemed necessary or appropriate to better accomplish the purposes of the Plan in light of any amendments made to Rule 16b-3 and Section 162(m) of the Code. 8.2 Termination. The Plan shall terminate at the close of business on the tenth anniversary of the effective date, provided, however, the Board of Directors of the Company shall have the right and the power to terminate the Plan at any time prior thereto. No Award shall be granted under the Plan after such termination, but such termination shall not have any other effect, and any Award outstanding at the time of such termination may be exercised after termination at any time prior to the expiration date of such Award to the same extent such Award would have been exercisable had the Plan not terminated. Article IX General Provisions 9.1 Effective Date of the Plan. The Plan shall be effective as of the date of its adoption by the Board of Directors of the Company, subject to approval of the Plan by the Company's shareholders within one year thereafter by a majority of the votes cast at a duly held meeting of the shareholders of the Company at which a quorum representing a majority of all outstanding stock is present, either in person or by proxy. In the event that the Plan is not so approved within such one-year period, all Awards granted under the Plan shall be null and void. 9.2 Unfunded Status of Plan. The Plan shall be unfunded and shall not create (or be construed to create) a trust or a separate fund or funds. The Plan shall not establish any fiduciary relationship between the Company and any Participant or other person. To the extent any person holds any right by virtue of a grant under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Company. 9.3 Miscellaneous. The Plan and all determinations made and actions taken pursuant to the Plan shall be governed by the laws of the state of Florida and applicable federal laws. Section headings are used in the Plan for convenience only, do not constitute a part of the Plan, and shall not be deemed in any way to be relevant to the interpretation of the Plan or any provision thereof. Whenever possible, each provision in the Plan and every Award shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Plan or any Award shall be held to be prohibited by or invalid under applicable law, then (i) such provision shall be deemed amended to accomplish the objectives of the provision as originally written to the fullest extent permitted by law and (ii) all other provisions of the Plan and every other Award shall remain in full force and effect. EX-4 3 EXHIBIT 4B NOBILITY HOMES, INC. STOCK INCENTIVE PLAN KEY EMPLOYEE OPTION AWARD AGREEMENT THIS AGREEMENT is made and entered into as of the date set forth on the signature page hereof by and between NOBILITY HOMES, INC., a Florida corporation ("Company"), and the individual whose signature is set forth on the signature page hereof (the "Optionee"). W I T N E S S E T H WHEREAS, the Company has adopted the Nobility Homes, Inc. Stock Incentive Plan ("Plan"), the terms of which, to the extent not stated herein, are specifically incorporated by reference in this Agreement; WHEREAS, the purpose of the Plan is to permit Awards under the Plan to be granted to Key Employees of the Company, and the Plan provides for Award Agreements to further specify the terms and conditions under which such individuals may receive such Awards; WHEREAS, the Optionee is now serving as a Key Employee of the Company or an Affiliate in a key capacity and the Company desires him or her to remain in such capacity, and to secure or increase his or her ownership of Shares in order to increase his or her incentive and personal interest in the success and growth of the Company; and WHEREAS, defined terms used herein and not otherwise defined herein shall have the meanings set forth in the Plan. NOW, THEREFORE, in consideration of the premises and of the covenants and agreements herein set forth, the parties hereby mutually covenant and agree as follows: 1. Option Grant. (a) Subject to the terms and conditions set forth herein, the Company hereby grants to the Optionee an option (the "Option") to purchase from the Company all or any part of the aggregate number of Shares (hereinafter referred to as the "Option Stock") set forth on the signature page hereof, at the purchase price per Share set forth on the signature page hereof. The Option shall not be an Incentive Stock Option for purposes of Section 422 of the Code. The Option may not be exercised prior to the Initial Exercise Date set forth on the signature page hereof or after the Expiration Date set forth thereon, except that other than as provided herein, the Option shall not be exercisable after (i) the termination of the Optionee's employment with the Company or any Affiliate of the Company or (ii) Optionee's position with the Company or any Affiliate ceases to be that of a manager or a position higher than manager (collectively, "Employment"). (b) The Option may be exercised in whole or in part by notice in writing to the Company. The aggregate purchase price for the Shares for which the Option is exercised shall be paid to the Company at the time of exercise in cash, Shares registered in the name of the Optionee that have been held by Optionee for more than six months, or by a combination thereof, all as provided on the signature page hereof. If the purchase price may be paid wholly or partly in Shares, any Shares tendered in payment thereof shall be free of all adverse claims and duly endorsed in blank by the Optionee or accompanied by stock powers duly endorsed in blank. Shares tendered shall be valued at Fair Market Value on the date on which the Option is exercised. Payment of the aggregate purchase price for the Shares for which the option is exercised may also be made in whole or in part by delivery (including by facsimile) to the Company of an executed irrevocable option exercise form together with irrevocable instructions, in a form acceptable to the Company, to a broker-dealer to sell or margin a sufficient portion of the Option Stock and deliver the sale or loan proceeds directly to the Company to pay for the exercise price. 2. Nontransferability of Option. Except as may be permitted otherwise pursuant to the Plan, this Option is not transferable other than by will or by the laws of descent and distribution. The Option may be exercised during the life of the Optionee only by the Optionee (or his/her legal representative). 3. Securities Law Restrictions. The Optionee agrees and acknowledges with respect to any Option Stock that has not been registered under the Securities Act of 1933, as amended (the "Act"), that (i) the Optionee will not sell or otherwise dispose of such Shares except pursuant to an effective registration statement under the Act and any applicable state securities laws, or in a transaction which, in the opinion of counsel for the Company, is exempt from such registration, and (ii) a legend will be placed on the certificates for the Option Stock to such effect. 4. Exercise of Option. (a) Except as provided herein, the Option shall be exercisable only prior to the Expiration Date, and then only as set forth in the following table: Cumulative Fraction of Shares Optioned Years From Grant Date Which Is Exercisable (b) If the Optionee's Employment is terminated because of death or Total Disability (as such terms are defined below) on or after the Initial Exercise Date, the Optionee or, in the case of his or her death, his or her Beneficiary (as defined herein) shall be entitled to exercise the Option, in the full amount granted without regard to any restrictions on exercise set forth in paragraph (a), above, until the Expiration Date. If such a termination occurs prior to the Initial Exercise Date, the Optionee, or in the case of his or her death, his or her Beneficiary, shall be entitled to exercise the Option to the extent, if any, as the Board of Directors or Committee may determine. (c) If the Optionee's Employment is terminated on or after the Initial Exercise Date for any reason other than Cause (as defined below), death or Total Disability, the Optionee shall be entitled to exercise the Option, to the extent exercisable pursuant to paragraph (a), above, until 3 months after such termination. If such a termination occurs prior to the Initial Exercise Date, the Optionee shall be entitled to exercise the Option during such 3-month period to the extent, if any, as the Board of Directors or Committee may determine. (d) If the Optionee's Employment is terminated for Cause, the Optionee shall have no right to exercise any portion of any Option not yet exercised as of the date of such termination for Cause. (e) As used herein, (i) "Total Disability" means permanent and total disability within the meaning of Code Section 22(e)(3), and (ii) "Cause" means, as determined by the Board of Directors, the Optionee's willful failure to perform his or her duties or intentional dishonest or intentional illegal conduct in connection with his or her Employment. 5. Acceleration. (a) In the event of a Change of Control (as defined below) any Options shall be immediately exercisable (without regard to any limitation imposed by the Plan or this Agreement at the time the Option was granted, which permits all or any part of the Option to be exercised only after the lapse of time), and will remain exercisable until the expiration of the Option. "Change of Control" for this purpose means: (i) the adoption of a plan of reorganization, merger, share exchange or consolidation of the Company with one or more other corporations or other entities as a result of which the holders of the Shares as a group would receive less than fifty percent (50%) of the voting power of the capital stock or other interests of the surviving or resulting corporation or entity; (ii) the adoption of a plan of liquidation or the approval of the dissolution of the Company; (iii) the approval by the Board of Directors of an agreement providing for the sale or transfer (other than as security for obligations of the Company or any subsidiary) of substantially all of the assets of the Company; (iv) the acquisition of more than thirty percent (30%) of the outstanding Shares by any person within the meaning of Rule 13(d)(3) under the Securities Exchange Act of 1934, as amended, if such acquisition is not preceded by a prior expression of approval by the Board; or (v) one- third or more of the members of the Board of Directors of the Company are not Continuing Directors (a "Continuing Director" means any member of the Board of Directors of the Company who was elected as a director at the Company's 1996 annual meeting of shareholders, and any director who is recommended for election, or is elected to fill a vacancy, as a director by a majority of the Continuing Directors then on such Board). 6. Beneficiary. (a) The person whose name appears on the signature page hereof after the caption "Beneficiary" or any successor designated by the Optionee in accordance herewith (the person who is the Optionee's Beneficiary at the time of his or her death herein referred to as the "Beneficiary") shall be entitled to exercise the Option, to the extent it is exercisable, after the death of the Optionee. The Optionee may from time to time revoke or change his or her Beneficiary without the consent of any prior Beneficiary by filing a new designation with the Committee. The last such designation received by the Committee shall be controlling; provided, however, that no designation, or change or revocation thereof, shall be effective unless received by the Committee prior to the Optionee's death, and in no event shall any designation be effective as of a date prior to such receipt. (b) If no such Beneficiary designation is in effect at the time of an Optionee's death, or if no designated Beneficiary survives the Optionee or if such designation conflicts with law, the Optionee's estate shall be entitled to exercise the Option, to the extent it is exercisable after the death of the Optionee. If the Board of Directors or Committee is in doubt as to the right of any person to exercise the Option, the Company may refuse to recognize such exercise, without liability for any interest or dividends on the Option Stock, until the Board of Directors or Committee determines the person entitled to exercise the Option, or the Company may apply to any court of appropriate jurisdiction and such application shall be a complete discharge of the liability of the Company therefor. 7. No Rights As Stockholder. The Optionee shall have no rights as a holder of the Option Stock until the issuance of a certificate for the Option Stock. 8. Tax Withholding. (a) It shall be a condition of the obligation of the Company to issue Option Stock to the Optionee or the Beneficiary, and the Optionee agrees, that the Optionee shall pay to the Company upon its demand, such amount as may be requested by the Company for the purpose of satisfying any liability it may have to withhold federal, state, or local income or other taxes incurred by reason of the exercise of the Option. (b) If the purchase price may be paid wholly or partly in Shares, the Optionee may elect to have the Company withhold that number of Shares of Option Stock otherwise issuable to the Optionee upon exercise of the Option or to deliver to the Company a number of Shares, in each case, having a Fair Market Value on the Tax Date (as defined below) equal to the minimum amount required to be withheld as a result of such exercise. The election must be made in writing and must be delivered to the Company prior to the Tax Date. If the number of shares so determined shall include a fractional share, the Optionee shall deliver cash in lieu of such fractional share. As used herein, Tax Date means the date on which the Optionee must include in his or her gross income for federal income tax purposes the fair market value of the Option Stock over the purchase price therefor. 9. Adjustments in Event of Change in Shares. In the event that the Committee shall determine that any dividend or other distribution (whether in the form of Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of securities of the Company, or other similar corporate transaction or event affects the Shares issuable on exercise of the Option, such that an adjustment is determined by the Board of Directors or Committee to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Board of Directors or Committee shall, in such manner as it may deem equitable, promptly adjust the number and type of Shares awarded pursuant to this Agreement, or the terms, conditions, or restrictions of this Agreement; provided, however, that the number of Shares subject to any Award payable or denominated in Shares shall always be a whole number. 10. Powers of Company Not Affected. The existence of the Option shall not affect in any way the right or power of the Company or its shareholders to make or authorize any combinations, subdivision or reclassification of the Shares or any reorganization, merger, consolidation, business combination, exchange of Shares, or other change in the Company's capital structure or its business, or any issue of bonds, debentures or stock having rights or preferences equal, superior or affecting the Option Stock or the rights thereof or dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. Nothing in this Agreement shall confer upon the Optionee any right to continued Employment. 11. Miscellaneous. (a) This Agreement shall be governed and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed therein between residents thereof. (b) This Agreement may not be amended or modified except by the written consent of the parties hereto. (c) The captions of this Agreement are inserted for convenience of reference only and shall not be taken into account in construing this Agreement. (d) This Agreement shall be binding upon and inure to the benefit of the Company and its successors and assigns and shall be binding upon and inure to the personal benefit of the Optionee, the Beneficiary and the personal representative(s) and heirs of the Optionee. IN WITNESS WHEREOF, the Company has caused this instrument to be executed by its duly authorized officer and its corporate seal hereunto affixed, and the Optionee has hereunto affixed his or her hand, all on the day and year set forth below. NOBILITY HOMES, INC. [CORPORATE SEAL] By:___________________________ Its:_____________________ ______________________________ Optionee Name: No. of Shares of Option Stock: Grant Date: Exercise Price Per Share:$ Payment of Purchase Initial Exercise Date: Price: Cash and/or Shares Date of Agreement: Expiration Date: Beneficiary: Address of Beneficiary: Beneficiary Tax Identification No.: EX-5 4 FOLEY & LARDNER'S LEGAL OPINION FOLEY & LARDNER EXHIBIT 5 200 LAURA STREET JACKSONVILLE, FLORIDA 32202 TELEPHONE (904) 359-2000 FACSIMILE (904) 359-8700 January 22, 1998 Nobility Homes, Inc. 3741 S.W. 7th Street P.O. Box 1659 Ocala, Florida 34478 Re: Registration Statement on Form S-8 Relating to Shares of Common Stock Issuable Pursuant to Nobility Homes, Inc.'s Stock Incentive Plan Ladies and Gentlemen: This opinion is being furnished in connection with the Registration Statement on Form S-8 (the "Registration Statement") of Nobility Homes, Inc. (the "Company"), under the Securities Act of 1933, as amended, for the registration of 300,000 shares of common stock par value $0.10 issuable pursuant to the Nobility Homes, Inc. Stock Incentive Plan (the "Plan"). The common stock issuable pursuant to the Plan is referred to herein as the "Shares." We have examined and are familiar with the following: A. Articles of Incorporation of the Company, as amended, as filed in the Office of the Secretary of State of the State of Florida; B. Bylaws, as amended, of the Company; C. The proceedings of the Board of Directors and shareholders of the Company in connection with the adoption of the Plan; and D. Such other documents, Company records and matters of law as we have deemed to be pertinent. Based on the foregoing, it is our opinion that: 1. The Company has been duly incorporated and is validly existing and in good standing under the laws of the State of Florida. 2. The Shares have been duly authorized and when issued in accordance with the terms of the Plan will be duly and validly issued, fully paid and nonassessable. We hereby consent to the inclusion of this opinion as Exhibit 5 in the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules or regulations of the Securities and Exchange Commission promulgated thereunder. FOLEY & LARDNER By: /s/ Linda Y. Kelso Linda Y. Kelso EX-23 5 EXHIBIT 23B EXHIBIT 23B CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated December 30, 1996, which appears on page 14 of the 1996 Annual Report to Shareholders of Nobility Homes, Inc., which is incorporated by reference in Nobility Homes, Inc.'s Annual Report on Form 10-K for the fiscal year ended November 2, 1996. Price Waterhouse LLP Orlando, Florida January 22, 1998 -----END PRIVACY-ENHANCED MESSAGE-----