RESTRICTED STOCK AWARD AGREEMENT ("Agreement") dated as of June 5,
2000, 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
restricted stock awards herein described (the "Awards") pursuant to the
Company's Amended and Restated (1990), 1992, 1995 and/or 1998 Equity Incentive
Plans (the "Plans");
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
1. Incorporation of Plan; Definitions.
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Awards granted hereunder are subject in their entirety to the terms and
conditions of the Plans, 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 Plans.
2. Award.
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(a) Grant of Restricted Shares. The Company hereby grants to
the Participant the number of shares of Common Stock ("Restricted
Shares") specified on the attached Exhibit or Exhibits hereof. Such
grant shall be effective as of the date hereof (the "Share Grant
Date").
(b) Book Entry Account. The Restricted Shares are being issued
in restricted book entry form in the Participant's name and shall be
held for the account of the Participant until such time as the
Restricted Shares vest hereunder. Upon such vesting (and upon
satisfaction of any obligation with respect to withholding taxes), the
restrictions shall be removed from the Participant's account and the
shares shall be maintained in the book entry account or, upon request,
a Certificate representing such shares shall be delivered to the
Participant.
(c) Vesting. The Restricted Shares granted hereunder shall
become nonforfeitable on the Vesting Date or Dates set forth on the
Exhibit or Exhibits hereto, unless previously vested, forfeited or
adjusted in accordance with the provisions of Section 7 or 8 hereof.
3. Registration of Shares.
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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.
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Subject to the terms of the Plans, Restricted Shares 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.
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(a) Stockholder Rights. Other than as provided herein and in
the Plans, the Participant shall have all rights of a holder of Common
Stock as to the Restricted 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 and Restricted Shares issued hereunder or a stock distribution
to Participant as the holder of such shares and Restricted Shares shall
be subject to the same restrictions as the shares and Restricted Shares
issued hereunder and all references to shares and Restricted Shares
issued hereunder shall be deemed to include such additional shares of
Common Stock.
6. Withholding of Taxes.
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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 Plans.
7. Consequences of Termination of Employment.
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(a) Termination of Employment Defined. For purposes of this
Award and the Plans, 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 occurs prior to the Vesting Date of the
Participant's Restricted Shares and 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, all of the unvested Restricted Shares shall vest
immediately upon the effectiveness of such termination.
(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 is without Cause or the
Participant voluntarily terminates with Good Reason, a pro
rata portion of the unvested Restricted Shares (determined on
the basis of the number of full months of employment completed
prior to the date of termination during the period beginning
on the Grant Date and ending on the Vesting Date) shall vest
and be paid to the Participant immediately. Any portion of the
Restricted Shares which are not vested after application of
this clause (i) shall be deemed cancelled as of the date of
such termination, and the Company shall have no further
obligation with respect thereto.
(ii) If such termination is for Cause or the
Participant voluntarily terminates without Good Reason, any
unvested Restricted Shares shall be deemed cancelled as of the
date of such termination and the Company shall have no further
obligation with respect thereto.
(iii) If at any time during the period ending one
year after the Vesting Date of any award of Restricted Stock
hereunder, 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
Restricted Stock 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 Plans, and
(2) any gain (the difference between the fair market value of
one Unit or share of Common Stock on the date of grant and the
fair market value on the Vesting Date, times the number of
Restricted Shares issued) realized from the vesting of all or
a portion of any Restricted Share 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 (i)(D) 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.
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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.
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(a) Effect of Reorganization. Subject to the provisions of
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, and (ii) 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 Plans and this Agreement, and resolve any dispute
hereunder, shall be final, conclusive and binding on all persons.
12. Amendment of this Agreement.
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This Agreement may be amended only by a writing signed by both parties.
13. Miscellaneous.
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(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 Plans, nor shall Participant
have a right to receive payment of an Award in any form other than as
the Committee shall approve. Neither the Plans 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.
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This Agreement shall be construed in accordance with and
governed by the internal laws of the State of Delaware.
(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 by signing the Exhibit hereto, both as of the date and year first
above written.
BURLINGTON INDUSTRIES, INC.
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Vice President, Human Relations
and Corporate Communications
