OPTION AWARD AGREEMENT ("Agreement") dated as of _____________, between
BURLINGTON INDUSTRIES, INC., a Delaware corporation (the "Company"), and the
other party signatory hereto (the "Participant").
WHEREAS, the Participant is a key employee of the Company or one of its
subsidiaries, joint ventures or affiliates and, upon the terms and subject to
the conditions hereinafter set forth, the Company desires to provide the
Participant with an incentive to remain in its employ and to increase
Participant's interest in the success of the Company by granting Participant the
option awards herein described (the "Awards") pursuant to the Company's 1995
Equity Incentive Plan (the "Plan");
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Incorporation of Plan; Definitions.
Awards granted hereunder are subject in their entirety to the terms and
conditions of the Plan, which are incorporated herein by reference. The terms
used in this Agreement that are not defined herein shall have the definitions
assigned to them in the Plan.
2. Options.
(a) Grant of Options. The Company hereby grants to the
Participant, effective as of the date hereof (the "Grant Date"),
options (the "Options") to purchase the number of shares of Common
Stock of the Company specified on Exhibit A hereof, such Options to be
exercisable at the exercise price per share (the "Option Price") set
forth on Exhibit A. The shares issuable upon exercise of Options are
hereinafter referred to as the "Option Shares".
(b) Vesting. The Options shall vest and become exercisable on
the date or dates set forth on Exhibit A hereto (the "Vesting Date"),
unless previously vested, forfeited or adjusted in accordance with the
provisions of Section 7 or 8 hereof. The Options shall not be
exercisable following the date which shall be the tenth anniversary of
the Grant Date (the "Option Term").
(c) Exercise of Options; Restrictions on Stock Purchased.
(i) Notice. Subject to the conditions set forth
below, the Participant may exercise all or any portion of the
Options (to the extent vested) by giving written notice to the
Company's Director of Benefits or Director of Compensation and
Benefits at 000-000-0000. The date of exercise of the Options
with respect to the number of shares of Common Stock specified
in the notice shall be the date on which the conditions
provided in paragraph (ii) below and Sections 3 and 6 herein
are satisfied.
(ii) Payment. Prior to the delivery to the
Participant of a certificate evidencing shares of Common Stock
in respect of which all or a portion of the Options shall have
been exercised (which certificate shall bear a legend
evidencing such limitations on transfer, if any, as may be
applicable to such shares (a "Certificate")), the Participant
shall have paid to the Company the Option Price of all shares
of Common Stock purchased pursuant to such exercise of the
Options in cash or via a broker-assisted cashless exercise
transaction, or, with the consent of the Committee (which
consent shall be granted in the sole discretion of the
Committee), in shares of Common Stock already owned by the
Participant (valued at the then Fair Market Value), through
withholding of Common Stock subject to the Option with a value
equal to the exercise price, in other property acceptable to
the Committee or in any combination of cash, shares of Common
Stock or such other property, or such other manner of
settlement of the Option Price as the Committee shall
determine.
(iii) Other Provisions. Notwithstanding the
foregoing, the Committee may also permit the exercise of
Options through such other procedures as the Committee shall
in its discretion approve.
(d) Status of Options. The Options granted hereby are not
intended to qualify as Incentive Stock Options.
3. Registration of Shares.
No Award which is exercisable or payable in shares of Common
Stock and granted under this Agreement shall be exercisable or payable, nor
shall any shares of Common Stock be issued pursuant to the exercise or vesting
of any Award granted under this Agreement, unless the shares of Common Stock
subject to such Award have been registered under the Securities Act or the
Company has determined that an exemption from registration under the Securities
Act is available and applicable.
4. Restrictions on Transfer.
Subject to Section 8(b) of the Plan, Options shall not be
transferable prior to vesting other than by will or the laws of descent and
distribution, by a qualified legal representative in the event of disability or
incompetence, or pursuant to a qualified domestic relations order as defined in
the Code and Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), or the rules thereunder.
5. Rights as a Stockholder.
(a) Stockholder Rights. The Participant shall have no rights
as a stockholder with respect to any shares of Common Stock issuable
hereunder until a certificate or certificates evidencing such shares
shall have been issued to or in the name of the Participant, and no
adjustment shall be made for dividends or distributions or other rights
in respect of any share for which the record date is prior to the date
upon which the Participant shall become the holder of record thereof.
With respect to shares so issued to or in the name of the Participant,
the Participant shall have all rights of a holder of Common Stock as to
such shares, including the right to receive dividends and the right to
vote in accordance with the Company's Certificate of Incorporation.
(b) Dividends and Distributions. Any shares of Common Stock
received by the Participant as a result of a stock dividend on the
shares issued hereunder or a stock distribution to Participant as the
holder of such shares shall be subject to the same restrictions as the
shares issued hereunder and all references to shares issued hereunder
shall be deemed to include such additional shares of Common Stock.
6. Withholding of Taxes.
The Company and its subsidiaries shall have the right, before a
certificate for any shares of Common Stock is delivered to the Participant, to
require the Participant in connection with any Award to remit to the Company or
the applicable subsidiary employer an amount sufficient to satisfy any Federal,
state or local tax withholding requirements. Prior to the determination by the
Company or its subsidiary of such withholding liability, such individual may
make an irrevocable election to satisfy, in whole or in part, such obligation to
remit taxes by directing the Company to withhold shares of Common Stock that
would otherwise be received by the Participant. Such election may be denied by
the Committee in its discretion or may be made subject to certain conditions
specified by the Committee, including, without limitation, conditions intended
to avoid the imposition of liability against the Participant under Section 16(b)
of the Exchange Act. In addition, in the discretion of the Committee, the
Company may make available for delivery a lesser number of shares, in
satisfaction of such taxes, assessments or other governmental charges. At the
discretion of the Committee, the Participant acknowledges that the Company may
deduct or withhold amounts owing with respect to taxes under this Award from any
payment or distribution to Participant whether or not pursuant to the Plan.
7. Consequences of Termination of Employment.
(a) Termination of Employment Defined. For purposes of this
Award and the Plan, the employment of the Participant shall be deemed
terminated if the Participant is no longer employed as a salaried
employee by the Company or any of its subsidiaries, joint ventures or
affiliates.
(b) Death, Retirement or Permanent Disability; Change of
Control. If termination is without Cause or the Participant terminates
voluntarily for Good Reason and such termination, in either case, takes
place within two years after the occurrence of a Change of Control or
if termination occurs by reason of death, Retirement or Permanent
Disability and such termination occurs prior to the Vesting Date of the
Participant's Options, all of the unvested Options shall vest and
become exercisable immediately upon the effectiveness of such
termination. All vested Options shall be exercisable for the period of
one year following any termination by reason of death, three years
following any termination after a Change of Control described in this
paragraph (b), and the shorter of five years or the remainder of the
Option Term following Permanent Disability or Retirement, and, if not
so exercised, shall expire.
(c) Termination For or Without Cause; Voluntary Termination
With or Without Good Reason; Forfeiture in Event of Certain Activities.
If the Participant's employment is terminated for or without Cause or
if the Participant voluntarily terminates employment with or without
Good Reason (and any such termination does not occur within two years
after a Change of Control), or if Participant engages in certain
activities described below, then the following shall result; provided,
however, that the Committee may, in its sole discretion, accelerate the
vesting of any Awards (and payment thereunder) which would otherwise be
forfeited as described below:
(i) If such termination occurs prior to the date that
an Option (or any portion thereof) has become vested, the
unvested portion of such Option shall be deemed cancelled as
of the date of such termination without payment therefor and
the Company shall have no further obligation with respect
thereto.
(ii) If such termination is a voluntary termination
without Good Reason and occurs on or following the date an
Option (or any portion thereof) has become vested, vested
Options then outstanding shall continue to remain outstanding
and be subject to the applicable provisions of the Plan,
except that such Options must be exercised during the shorter
of the 90-day period following such termination or the
remainder of the Option Term.
(iii) If termination is without Cause or if the
Participant voluntarily terminates with Good Reason and such
termination occurs on or following the date an Option (or any
portion thereof) has become vested, vested Options then
outstanding shall continue to remain outstanding and be
subject to the applicable provisions of the Plan and this
Agreement, except that such Options must be exercised within
the shorter of three years following such termination or the
remainder of the Option Term.
(iv) If at any time during the period ending one year
after the last date the Option Award hereunder is exercisable
under the terms of this Agreement, Participant is terminated
for Cause or engages in any activity in competition with any
activity of the Company, or any activity inimical, contrary or
harmful to the interests of the Company as determined by the
Committee, in the case of officers or division presidents, or
by the management salary committee, in the case of other
Participants, including, but not limited to (a) conduct
related to Participant's employment, for which either criminal
or civil penalties against Participant could be sought, (b)
violation of Company policies, including, without limitation,
a knowing violation of the Company's xxxxxxx xxxxxxx policy,
(c) within the one-year period following termination of
employment with the Company, accepting employment with or
serving as a consultant, advisor or in any other capacity to a
person or entity (including self- employment or ownership)
that is in competition with or acting against the interests of
the Company, including employing or recruiting any present,
former or future employee of the Company, (d) disclosing or
misusing any confidential or proprietary information or
material concerning the Company, or (e) participating in, or
assisting, a hostile takeover attempt of the Company, then (1)
this Option Award shall terminate effective as of the date on
which Participant first enters into such activity (the
"Forfeiture Date"), unless terminated sooner by operation of
another term or condition of this Agreement or the Plan, and
(2) any gain (the difference between the exercise price and
the fair market value of one share of Common Stock on the date
of exercise, times the number of Options exercised) realized
from exercising all or a portion of any Option Award within
the one-year period immediately preceding the Forfeiture Date,
shall be immediately paid by Participant to the Company
(irrespective of subsequent market increase or decrease).
(d) By accepting this Agreement, Participant consents to a
deduction from any amounts the Company owes Participant from time to
time (including amounts owed as wages or other compensation, fringe
benefits or vacation pay, as well as any other amounts owed to
Participant by the Company), to the extent of the amounts Participant
owes the Company under paragraph (c)(iv) above. Whether the Company
elects to make any deduction or set-off in whole or in part, if the
Company does not recover by means of deduction or set-off the full
amount owed it, calculated as set forth above, Participant agrees to
pay immediately the unpaid balance to the Company.
(e) Definitions. For purposes of this Section 7, the following
definitions shall be applicable:
(i) A termination for "Cause" means a termination of
employment with the Company or any of the Company's
subsidiaries or joint ventures which, as determined by the
Committee, is by reason of (x) the commission by the
Participant of a felony or a perpetration by the Participant
of a dishonest act, material misrepresentation or common law
fraud against the Company or any subsidiary, joint venture or
other affiliate thereof, (y) any other act or omission which
is injurious to the financial condition or business reputation
of the Company or any subsidiary, joint venture or other
affiliate thereof, or (z) the willful failure or refusal of
the Participant to substantially perform the material duties
of the Participant's position with the Company or any of the
Company's subsidiaries, joint ventures or affiliates;
(ii) "Good Reason" means, with respect to the
Participant, (x) "good reason" as defined in an employment
agreement applicable to the Participant, or (y) if the
Participant does not have an employment agreement that defines
"good reason", (A) a failure to promptly pay compensation due
and payable to the Participant in connection with his or her
employment, (B) a material adverse change in the Participant's
position with the Company or any of the Company's
subsidiaries, joint ventures or affiliates, or (C) the
assignment to the Participant of duties materially and
adversely inconsistent with the Participant's position at the
time of such assignment with the Company or any of the
Company's subsidiaries, joint ventures or other affiliates;
(iii) "Permanent Disability" shall be defined in the
same manner as such term or a similar term is defined in the
long-term disability policy maintained by the Company or any
of the Company's subsidiaries or joint ventures for the
Participant and in effect on the date of the Participant's
termination of employment with the Company or any of the
Company's subsidiaries, joint ventures or other affiliates;
provided, however, that the relevant condition must continue
for six consecutive months before being deemed a "Permanent
Disability"; and
(iv) "Retirement" means resignation or termination of
employment after attainment of the Participant's sixty-fifth
birthday, unless the Committee determines otherwise in its
sole discretion.
8. Certain Adjustments; Disputes.
(a) Effect of Reorganization. Subject to the provisions of
Section 14 of the Plan and Section 7 hereof, in the event that (i) the
Company is merged or consolidated with another corporation, (ii) all or
substantially all the assets of the Company are acquired by another
corporation, person or entity, (iii) the Company is reorganized,
dissolved or liquidated, or (iv) the division or subsidiary for which
the Participant performs services is sold, merged, consolidated,
reorganized or liquidated (each such event in (i), (ii), (iii), or (iv)
being hereinafter referred to as a "Reorganization Event"), or (v) the
Board shall propose that the Company enter into a Reorganization Event,
then the Committee shall make adjustments to provide each Participant
with a benefit equivalent to that to which the Participant would have
been entitled had such Reorganization Event not occurred.
(b) Dilution and other Adjustments. In the event of a stock
dividend, stock split, recapitalization, exchange of shares, warrants
or rights offering to purchase Common Stock at a price substantially
below fair market value or other similar event affecting the Common
Stock, the Committee shall make any or all of the following adjustments
that in its discretion it deems necessary or advisable to provide the
Participant with a benefit equivalent to that to which Participant
would have been entitled had such event not occurred: (i) adjust the
number of Awards granted to the Participant, (ii) adjust the Option
Price of any Options, and (iii) make any other adjustments, or take
such action, as the Committee, in its discretion, deems appropriate.
Such adjustments shall be conclusive and binding for all purposes.
(c) Disputes. The Committee's authority to interpret and
construe the Plan and this Agreement, and resolve any dispute
hereunder, shall be final, conclusive and binding on all persons.
9. Amendment of this Agreement.
This Agreement may be amended only by a writing signed by both parties.
10. Miscellaneous.
(a) No Rights to Grants or Continued Service. Except as
expressly provided for herein, the Participant shall have no claim or
right to be granted an Award under the Plan, nor shall Participant have
a right to receive payment of an Award in any form other than as the
Committee shall approve. Neither the Plan nor any action taken
hereunder shall be construed as giving the Participant any right to be
retained in the employ or service of the Company.
(b) Governing Law. This Agreement shall be construed in
accordance with and governed by the internal laws of the State of New
York.
(c) Binding Obligation; Survival; Assignment. The Participant
hereby represents that this Agreement has been duly executed and
delivered by the Participant and constitutes a legal, valid and binding
obligation of the Participant, enforceable against the Participant in
accordance with its terms.
(d) Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand or sent by
certified or registered mail, return receipt requested, postage
prepaid, addressed, if to the Participant, to his or her attention at
the mailing address set forth at the foot of this Agreement (or to such
other address as shall have been specified to the Company in writing)
and, if to the Company, to it at 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxx Xxxxxxxx 00000, Attention: Corporate Secretary. All such notices
shall be conclusively deemed to be received and shall be effective, if
sent by hand delivery, upon receipt, or if sent by registered or
certified mail, on the fifth day after the day on which such notice is
mailed.
(e) Other Matters. This Agreement and the other related
agreements expressly referred to herein set forth the entire agreement
and understanding between the parties hereto and supersede all prior
agreements and understandings relating to the subject matter hereof.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all such counterparts
shall together constitute one and the same agreement. The headings of
sections and subsections herein are included solely for convenience of
reference and shall not affect the meaning of any of the provisions of
this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Participant has executed this
Agreement, both as of the date and year first above written.
BURLINGTON INDUSTRIES, INC. PARTICIPANT
By___________________________ _____________________________
Xxxxx X. Xxxx Name:
Vice President, Human Relations Address:
and Public Relations
