As filed with the Securities and Exchange Commission on June 6, 2000
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BURLINGTON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-1584586
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3330 West Friendly Avenue, Greensboro, NC 27410
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(Address of Principal Executive Offices) (Zip Code)
Award Agreement
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(Full title of the plan)
Alice Washington Grogan, Esq.
Corporate Secretary and Associate General Counsel
3330 West Friendly Avenue
Greensboro, NC 27410
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(Name and address of agent for service)
(336) 379-2000
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(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed
Proposed maximum
Title of maximum aggregate Amount of
securities Amount to be offering price offering registration
to be registered Registered (1) per share (2) price (2) fee (3)
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Common Stock, 150,000 $3.4375 $515,625 $136.13
par value
$.01 per share
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Notes:
(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares of Common Stock stated above, such
additional shares of Common Stock to be offered or issued to prevent
dilution as a result of future stock dividends or stock splits.
(2) The aggregate offering price is the sum of the aggregate offering price of
shares of Common Stock, calculated as set forth in note (3), which may be
purchased upon the exercise of outstanding options, calculated on the basis
of the price at which the options may be exercised, and in the case of
shares of Common Stock which may hereafter be issued, calculated on the
basis of the average of the high and low prices of the Common Stock on the
New York Stock Exchange on June 1, 2000. The maximum offering price per
unit is the aggregate offering price divided by the total number of shares
of Common Stock being registered pursuant to this Registration Statement.
(3) The fee with respect to these shares has been calculated pursuant to Rules
457(h)(l) and 457(c) of the Securities Act as follows: (a) in the case of
shares of Common Stock which may be purchased upon the exercise of
outstanding options, the fee is calculated on the basis of the price at
which the options may be exercised, and (b) in the case of shares of Common
Stock which may hereafter be issued, the fee is calculated on the basis of
the average of the high and low prices of the Common Stock on the New York
Stock Exchange on June 1, 2000, a date within five business days prior to
the date of filing of this Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* The information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the "note" to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Burlington Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended October 2, 1999.
(b) all other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since October 2, 1999.
(c) The description of the Company's Common Stock in the Company's
Registration Statement on Form 8-A, filed with the Commission on
April 23, 1992, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all securities then
remaining unsold hereunder, shall be deemed to be incorporated by
reference in this Registration Statement and to be part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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None.
Item 6. Indemnification of Directors and Officers.
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The Company is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law (the "DGCL"), which provides
that a corporation may indemnify any person, including any officer or
director, who is, or is threatened to be made, a party to any
threatened, pending or completed legal action, suit or proceeding,
whether civil, criminal, administrative or investigative (other than an
action by or in the right of such corporation), by reason of the fact
that such person is or was an officer, director, employee or agent of
such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, if such officer,
director, employee or agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best
interests and, with respect to any criminal action or proceeding, had
no reasonable cause to believe that his conduct was unlawful. A
Delaware corporation also may indemnify any such person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation against
expenses under substantially the same conditions, except that no
indemnification is permitted without judicial approval if such person
is adjudged to be liable to the corporation. Where any such person is
successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the
expenses that such person actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which enables
a corporation in its original certificate of incorporation or in an
amendment thereto to eliminate or limit the personal liability of a
director to the corporation or its stockholders for monetary damages
for violations of the director's fiduciary duty, except (i) for any
breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the DGCL or (iv) for any transaction from which
such director derived an improper personal benefit.
Article VI of the Restated Certificate of Incorporation of the Company
provides that the Company shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the Company) by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or
other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if
he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the company, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create
a presumption that the person did not act in good faith and in a manner
which he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action
or proceeding, had reasonable cause to believe that his conduct was
unlawful. Article VI further provides that the Company shall indemnify
any person who was or is or a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by reason of
the fact that he is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Company and except that no
indemnification shall be made in respect to any claim, issue or matter
as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Court of Chancery of the
State of Delaware or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person
is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in either of the two
immediately preceding paragraphs, or in defense of any claim issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith. Also, any such indemnification (unless ordered by a court)
shall be made by the Company only as authorized in the specific case
upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in the foregoing provisions of
Article VI. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who
are not parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a
written opinion or (iii) by the stockholders.
Expenses (including attorney's fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Company in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he is not entitled to
be indemnified by the Company pursuant to Article VI or as otherwise
authorized by law. Such expenses incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
The indemnification and advancement of expenses provided by or granted
pursuant to the other subsections of Article VI are not deemed
exclusive of any other rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity
while holding such office.
The Company is authorized under Article VI to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the request
of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Company would have the power to indemnify him against such liability
under the provisions of the DGCL. The Company maintains a directors'
and officers' liability insurance policy.
For purposes of Article VI, references to the Company include, in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had continued,
would have had power and authority to indemnify its directors,
officers, employees or agents so that any person who is or was a
director, officer, employee or agent of such constituent corporation,
or is or was serving at the request of such constituent corporation as
a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in
the same position under the provisions of Article VI with respect to
the resulting or surviving corporation as he would have with respect to
such constituent corporation if its separate existence had continued.
For purposes of Article VI, references to "other enterprises" include
employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of" the Company shall include
any service as a director, officer, employee or agent of the Company
which imposes duties on, or involves service by, such director,
officer, employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted in good faith
and in a manner he reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be
deemed to have acted in a manner "not opposed to the best interests of"
the Company, as referred to in Article VI.
The indemnification and advancement of expenses provided by, or granted
pursuant to, Article VI, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Article VII of the Restated Certificate of Incorporation of the Company
provides that a director of the Company shall not be personally liable
to the Company or its stockholders for momentary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Company or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the DGCL, or (iv) for any transaction from which the
director derived any improper personal benefit. Any repeal or
modification of Article VII shall not adversely affect any right or
protection of a director of the Company existing at the time of such
repeal or modification.
The Board of Directors of the Company adopted resolutions on October
23, 1990, indemnifying each officer and director of the Company (other
than any officer or director whose principal employment is with an
entity other than the Company or any subsidiary thereof) against any
and all expenses, judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with any
present or future threatened, pending or completed claim, action, suit
or proceeding, whether civil, criminal, administrative or
investigative, by reason of such officer or director serving in such
capacity and further authorizing the payment of expenses incurred by
any such indemnified person in defending any threatened, pending or
completed claim, action, suit or proceeding in advance of the final
disposition thereof upon receipt of an undertaking to repay such
expenses if it shall ultimately be determined that such indemnified
party was not entitled to be indemnified by the Company for such
purposes; provided that such indemnification shall not apply to any
claim or proceeding in which the indemnified person shall be adjudged
liable because of willful misfeasance or bad faith or, in the case of a
criminal action or proceeding, in which the indemnified party had
reasonable cause to believe that his conduct was unlawful.
Item 7. Exemption From Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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Exhibit No. Description
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4.1 Form of Restated Certificate of Incorporation
of the Company (incorporated by reference to
Exhibit 3.1 of the Company's Registration
Statement on form 8-B, as filed with the
Commission on June 3, 1994)
5 Opinion of Alice Washington Grogan, Esq.,
Associate General Counsel of the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Alice Washington Grogan, Esq.
(included in Exhibit 5)
24 Power of Attorney
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement 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, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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 Greensboro, State of North Carolina, on June 1, 2000.
BURLINGTON INDUSTRIES, INC.
By /s/ George W. Henderson, III
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George W. Henderson, III
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
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.
Signature Title Date
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/s/ George W. Henderson, III Director, Chairman of the Board June 1, 2000
- ---------------------------- and Chief Executive Officer
George W. Henderson, III (Principal Executive Officer)
/s/ Charles E. Peters, Jr. Senior Vice President and June 1, 2000
- -------------------------- Chief Financial Officer
Charles E. Peters, Jr. (Principal Financial Officer)
/s/ Carl J. Hawk Controller June 1, 2000
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Carl J. Hawk
/s/ Jerald A. Blumberg* Director June 1, 2000
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Jerald A. Blumberg
/s/ John D. Englar Director June 1, 2000
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John D. Englar
/s/ John G. Medlin, Jr.* Director June 1, 2000
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John G. Medlin, Jr.
/s/ Nelson Schwab III* Director June 1, 2000
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Nelson Schwab III
/s/ Abraham B. Stenberg* Director June 1, 2000
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Abraham B. Stenberg
/s/ Theresa M. Stone* Director June 1, 2000
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Theresa M. Stone
/s/ W. Barger Tygart* Director June 1, 2000
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W. Barger Tygart
*by Attorney-in-Fact
EXHIBIT INDEX
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Exhibit
No. Description
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4.1 Form of Restated Certificate of Incorporation
of the Company (incorporated by reference to
Exhibit 3.1 of the Company's Registration
Statement on form 8-B, as filed with the
Commission on June 3, 1994)
5 Opinion of Alice Washington Grogan, Esq.,
Associate General Counsel of the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Alice Washington Grogan, Esq.
(included in Exhibit 5)
24 Power of Attorney