Registration No.
_______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________________
Delaware 22-1970303
- -------------------------------------------------------------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1830 Route 130
Burlington, New Jersey 08016
----------------------------
(Address of Principal Executive Offices)
COHOES FASHIONS, INC. EMPLOYEES'
401(k) SAVINGS PLAN
- -------------------------------------------------------------------------------
(Full title of the plan)
Paul C. Tang, Esq.
General Counsel
Burlington Coat Factory Warehouse Corporation
1830 Route 130
Burlington, New Jersey 08016
- -------------------------------------------------------------------------------
(Name and address of agent for service)
(609) 387-7800
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
_______________________________________________________________________________
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Proposed Proposed
Maximum Maximum
Offering Aggregate Amount of
Title of Securities Amount to be Price per Offering Registration
to be Registered Registered Share (2) Price (2) Fee (2)
- -------------------------------------------------------------------------------
Common Stock 50,000 $16.8125 $840,625 $233.70
par value $1.00
per share
- -------------------------------------------------------------------------------
</TABLE>
(1) This Registration Statement also relates to an indeterminate number of
additional shares of Common Stock that may be issuable as a result of stock
splits, stock dividends or similar transactions.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and Rule 457(c). The maximum aggregate offering
price is based on 50,000 shares available for issuance under the 401(k)
Profit Sharing Plan, multiplied by the average of the high and low sales prices
of such securities on the New York Stock Exchange on May 17, 1999.
Page 1 of 57<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference: (i) the Registrant's Annual
Report on Form 10-K for the fiscal year ended May 30, 1998; (ii) the
Registrant's Quarterly Reports on Form 10-Q for the quarters ended August 29,
1998, November 28, 1998 and February 27, 1999; and (iii) the description of the
Registrant's Common Stock, par value $1.00 per share (the "Common Stock"),
contained in the Registrant's Registration Statement on Form 8-A dated
November 19, 1984 and the section entitled "Description of Capital Stock" of the
Company's prospectus dated June 9, 1983 filed pursuant to Rule 424(b) of the
Securities Act.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior
to the filing of a post-effective amendment which deregisters all securities
then remaining unsold, shall be deemed incorporated by reference herein and
to be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any other
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. See instructions to Item 4.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation requires the Registrant
to indemnify its directors and officers to the fullest extent permitted by
Delaware law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Page 2 of 57<PAGE>
ITEM 8. EXHIBITS
Exhibit Page No.
------- --------
4 Cohoes Fashions, Inc. Employees' 401(k) Savings Plan
(As Amended and Restated Effective as of January 1, 1999) 8
5 Opinion and Consent of Paul C. Tang, Esq. 51
24.1 Consent of Paul C. Tang, Esq. included in
Exhibit 5
24.2 Consent of Deloitte & Touche LLP 53
25 Power of Attorney 55
ITEM 9 . REQUIRED UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate, represent
a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) 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;
Provided, however, that paragraphs (a) (1) (i) and (a) (1) (ii)
do not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3
and the information required
Page 3 of 57<PAGE>
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13 or section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed a new
registration statement relating to the securities offered herein, 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 the purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at the time shall be deemed the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the 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 of whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
Page 4 of 57<PAGE>
Pursuant to the requirements of the Securities Act of 1933, the plan has
duly caused this registration statement to be signed on its behalf by the
undersigned, hereunto authorized, in the City of Burlington, State of New
Jersey, on this 19th day of May, 1999.
Cohoes Fashions, Inc. Employees'
401(k) Savings Plan
* *
By:_______________________________ By:______________________________________
Henrietta Milstein, Trustee Monroe G. Milstein, Trustee
Cohoes Fashions, Inc. Employees' Cohoes Fashions, Inc. Employees'
401(k) Savings Plan 401(k) Savings Plan
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 Burlington, State of New Jersey, on May 19, 1999.
Burlington Coat Factory Warehouse Corporation
(Registrant)
*
By:_________________________________________
Monroe G. Milstein, President
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 date indicated.
Name Title
---- -----
*
_____________________________ Chairman of the Board of Directors,
Monroe G. Milstein President and Chief Executive
Officer (principal executive officer)
*
_____________________________ Vice President, Secretary and Director
Henrietta Milstein
*
_____________________________ Vice President and Director
Andrew R. Milstein
Page 5 of 57<PAGE>
Name Title
---- -----
*
______________________ Vice President and Director
Stephen E. Milstein
*
______________________ Vice President and Director
Mark A. Nesci
*
______________________ Controller (Principal Accounting Officer)
Robert L. LaPenta, Jr.
*
______________________ Director
Harvey Morgan
*
______________________ Director
Irving Drillings
*By: /s/ Paul C. Tang
-----------------
Paul C. Tang
(Attorney-in-fact)
Date: May 19, 1999
Page 6 of 57<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
- ----------- ----------- --------
4 Cohoes Fashions, Inc. Employees' 401(k) Savings
Plan (As Amended and Restated Effective as of
January 1, 1999) 8
5 Opinion and Consent of Paul C. Tang, Esq. 51
24.1 Consent of Paul C. Tang, Esq. included in
Exhibit 5
24.2 Consent of Deloitte & Touche LLP 53
25 Power of Attorney 55
Page 7 of 57<PAGE>
EXHIBIT 4
---------
Page 8 of 57
COHOES FASHIONS, INC.
EMPLOYEES' 401(k) SAVINGS PLAN
As Amended and Restated Effective as of January 1, 1999
(with certain other effective dates as noted herein)
January 1999
Page 9 of 57<PAGE>
COHOES FASHIONS, INC.
EMPLOYEES' 401(k) SAVINGS PLAN
As Amended and Restated Effective as of January 1, 1999
(with certain other effective dates as noted herein)
TABLE OF CONTENTS
-----------------
Page
----
Definitions................................................................3
ARTICLE I PARTICIPATION....................................................7
ARTICLE II PARTICIPANT DEFERRAL CONTRIBUTIONS..............................8
ARTICLE III EMPLOYER MATCHING CONTRIBUTIONS................................10
ARTICLE IV ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS........................14
ARTICLE V CONTRIBUTION LIMITATIONS.........................................17
ARTICLE VI INVESTMENT OF FUNDS.............................................19
ARTICLE VII PAYMENTS FROM ACCOUNTS.........................................24
ARTICLE VIII PAYMENTS FROM ACCOUNTS........................................26
ARTICLE IX LOANS...........................................................32
ARTICLE X ADMINISTRATION...................................................34
ARTICLE XI TRUSTEE.........................................................35
ARTICLE XII TERMINATION AND AMENDMENT......................................35
ARTICLE XIII MISCELLANEOUS.................................................36
ARTICLE XIV TOP HEAVY PROVISIONS...........................................37
Page 10 of 57<PAGE>
COHOES FASHIONS, INC.
EMPLOYEES' 401(k) SAVINGS PLAN
As Amended and Restated Effective as of January 1, 1999
(with certain other effective dates as noted herein)
The Cohoes Fashions, Inc. Employees' 401(k) Savings Plan (the "Plan") was
established by the Board of Directors of Cohoes Fashions, Inc., effective as of
September 1, 1995, for the exclusive benefit of eligible employees of the
Company and their beneficiaries. The Plan was previously amended and
restated, (A) effective as of September 1, 1997, primarily for the purpose
of (i) changing the Plan Year to the calendar year, commencing January 1,
1998, (ii) implementing certain changes required by the Small Business Job
Protection Act of 1996, and (iii) making certain minor changes to conform
with administrative practice, and (B) effective as of January 1, 1999 (with
certain other effective dates as noted therein) primarily for the purpose of (i)
increasing the amount which may be cashed out without a Participant's
consent to $5,000, effective as of January 1, 1998, (ii) establishing the
"Stable Value Fund" as the Plan's default investment fund, effective as of
September 1, 1998, (iii) excluding for vesting purposes Years of Service
completed by a Participant prior to attainment of age 18, (iv) providing a
90-day eligibility requirement for eligibility to make Salary Deferrals, (v)
providing that the amount, if any of the Employer matching contribution for
any Plan Year is made at the sole discretion of the Company, (vi) providing
that forfeitures on and after January 1, 1999 will be applied towards future
Employer matching contributions, (vii) making certain minor changes to conform
to administrative practice and (viii) implementing, as of various other
effective dates, certain additional changes required by the Uniformed Services
Employment and Reemployment Rights Act of 1994, the Small Business Job
Protection Act of 1996, the Taxpayer Relief Act of 1997 and the Internal
Page 11 of 57<PAGE>
Revenue Service Restructuring and Reform Act of 1998. Effective June 1,
1999, the Plan is hereby amended and restated to add the Stock Fund as an
additional Investment Fund available to Participants.
Since the statutory effective dates with respect to the Plan of
certain changes required by the Small Business Job Protection Act of 1996 and
the Taxpayer Relief Act of 1997 precede the Effective Date of this amendment
and restatement of the Plan, it is the intent of the Committee that certain
provisions of the Plan be retroactively applied as of the dates preceding
the Effective Date. Accordingly, the following sections of this amendment
and restatement of the Plan are retroactively amended as follows:
(a) Sections 2.4, 3.2, 3.3 and 8.10 are effective as of January 1,
1997;
(b) the provisions of Sections 8.5 and 8.7 concerning the cash-out
of a Participant's benefit without the consent of the Participant
are effective as of January 1, 1998.
Except as otherwise expressly provided, the provisions of the Plan, as set
forth in this document and as may be amended from time to time, establish the
rights and obligations with respect to Participants on and after the Effective
Date. Rights and obligations under the Plan with respect to any Employee who
terminated employment with the Employer for any reason prior to the Effective
Date shall be determined in accordance with the provisions of the Plan as in
effect on the date of such termination.
-2-
Page 12 of 57<PAGE>
Definitions:
- -----------
The following words and phrases shall have the meanings provided below,
except as othersise required by the context. As used in the Plan, the masculine
pronoun shall be deemed to include the feminine, and the singular number, the
plural, unless a different meaning is clearly indicated by the context.
"Accounts" means the Company Account, Deferral Account, Rollover
Account, and Transfer Account as applicable, maintained for a Participant
or inactive Participant (as defined in Section 1.4).
"Affiliate" means the Company and any corporation which is a member
of a controlled group of corporations (as defined in Code section 414(b))
which includes the Company, or any trade or business (whether or not
incorporated) which is under common control (within the meaning of Code
section 414(c)) with the Company.
"Board of Directors" means the Board of Directors of the Company.
"Break in Service" means a Plan Year during which a Participant fails
to complete at least 501 Hours of Service. For purposes of determining
whether a Break in Service has occurred, a Participant who is absent from
employment because of a Leave of Absence, pregnancy, the birth of the
Participant's child, the placement of a child with the Participant for
adoption, or the need to care for such child during the period immediately
following such birth or placement shall be given credit for each Hour of
Service which otherwise would normally have been credited to such
Participant but for such absence. If the Committee is unable to determine
the number of such hours, eight Hours of Service shall be credited per day
of absence. No more than 501 Hours of Service shall be credited to a
Participant under this paragraph because of such Leave of Absence,
pregnancy or placement. Hours of Service shall not be credited to a
Participant under this paragraph unless such Participant furnishes to
the Committee such timely information as the Committee may require to
establish that the absence from employment is for reasons described
above and to establish the number of days for which there was such an
absence. Hours of Service credited under this paragraph shall be
credited only for the Plan Year in which the absence begins, if the
Participant would be prevented from incurring a Break in Service in such
Plan Year solely because the period of absence is treated as Hours of
Service or, in any other case, in the immediately following Plan Year.
"Code" means the Internal Revenue Code of 1986, as may be amended
from time to time, and the regulations and rulings promulgated thereunder.
"Committee" means the committee appointed by the Board of Directors
pursuant to Section 10.1.
"Company" means Cohoes Fashions, Inc., or any successor entity.
-3-
Page 13 of 57<PAGE>
"Company Account" means the separate account maintained for each
Participant to which Employer matching contributions and related
earnings are credited under ARTICLE III.
"Compensation" means the total annual wages and salary (not in excess
of $160,000, as may be adjusted by the Secretary of the Treasury from time
to time) of an Employee from the Employer, but excluding other
contributions to this Plan or contributions to other employee benefit
plans of the Employer.
"Deferral Account" means the separate account maintained for each
Participant to which a Participant's deferral contributions and related
earnings are credited under ARTICLE II.
"Effective Date" means January 1, 1999.
"Eligible Employee" means each Employee who meets the eligibility
requirements for Plan participation under ARTICLE I. Notwithstanding the
foregoing, for purposes of Sections 2.4 and 2.5, an Eligible Employee
includes an Employee whose eligibility to make contributions to the
Plan has been suspended because of a hardship withdrawal pursuant to
Section 8.9.
"Employee" means an individual in the regular emloyment of the
Employer, but excluding a non-resident alien with no U.S.-source
income, and an employee covered by a collective bargaining unit
whose retirement benefits were the subject of good faith bargaining
between the Employer and the employee's representative representing
such unit unless agreed upon between such representative and Employer.
The term "Employee" shall also not include any person who performs
services for an Employer under an agreement or arrangement (which may be
written, oral and/or evidenced by the Employer's payroll practice) with the
individual or with another organization that provides the services of the
individual to the Employer, pursuant to which the person is treated as
an independent contractor or is otherwise treated as an employee of an
entity other then the Employer, irrespective of whether the individual
is treated as an employee of the Employer under common law employment
principles or pursuant to the provisions of Code section 414(m), 414(n)
or 414(o).
"Employer" means the Company or a Participating Affiliate.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time, and the regulations and rulings
promulgated thereunder.
"Highly Compensated Employee" means (a) any Employee who is a 5% owner
(as defined in Code section 416(i)(1)) at any time during the current year
or the immediately preceding year, or (b) during the year immediately
preceding the current year, had compensation (as defined in Code section
414(q)(4) from the Employer in excess of $80,000 (as adjusted pursuant
to Code section 415(d), except that the base period for determining
any such adjustment shall be the calendar quarter ending September 30,
1996). Notwithstanding the foregoing, at the election of the Company, the
-4-
Page 14 of 57<PAGE>
determination of Highly Compensated Employees pursuant to (b) above,
shall be limited to those Employees who are in the "top paid group" (as
defined in Code section 414(q)(3)) for such preceding year.
"Hour of Service" means each hour for which an Employee either is
directly or indirectly paid, or entitled to payment by the Employer or
an Affiliate. The number of Hours of Service, and the period to which
such hours shall be credited, will be determined in accordance with
Department of Labor regulations section 2530.200b-2. An hour for which
an Employee is paid at an overtime or premium rate shall be included
only as a single hour. An Employee with respect to whom the Employer
or an Affiliate does not maintain records reflecting the mnumber of
hours for which he is paid shall be credited with 45 Hours of Service
for each week or part thereof he is paid or entitled to be paid by the
Employer or an Affiliate.
"Investment Funds" means each of the investment funds as may be
authorized by the Committee from time to time for the investment of Plan
assets.
"Key Employee" means an individual described in Code section
416(i)(1).
"Leave of Absence" means a period of absence from employment because
(i) an Employer grants an Employee a leave of absence for a specified
period of time (not to exceed two years) and such leaves are granted on a
nondiscriminatory basis; (ii) an Employee is on active military duty; or
(iii) the Employee is temporarily laid off by an Employer.
Notwithstanding anything contained in the Plan to the contrary,
effective as of December 12, 1994, contributions, benefits and service
credit with respect to qualifieided military service will be provided in
accordance with Code section 414(u).
"Participant" means an Eligible Employee participating in the Plan in
accordance with ARTICLE I.
"Participating Affiliate" means an Affiliate to which the Board of
Directors has extended the Plan and which adopts the Plan as a
participating employer by action of its board of directors or other
governing body.
"Plan" means the Cohoes Fashions, Inc. Employees' 401(k) Savings Plan,
as set forth herein (including any Appendices hereto), and as it may be
amended from time to time.
"Plan Year" means the calendar year.
"Retirement" means the later of (i) a Participant's termination of
employment with the Employer on or after age 65 (other than on account
of a transfer of employment to an Affiliate) or (ii) the fifth anniversary
of the date on which he commenced participation in the Plan.
"Rollover Account" means the separate account maintained for a
Participant to which the Participant's rollover contributions and related
earnings are credited under Section 4.1.
-5-
Page 15 of 57<PAGE>
"Stock" means Burlington Coat Factory Warehouse Corporation
("Burlington Coat") common stock, par value $1.00 per share.
"Stock Fund" means the Investment Fund which is invested in Stock.
"Tender Offer" means any offer to acquire the Stock which is subject
to either section 13(e) or 14(d) of the Securities Exchange Act of 1934,
as amended, and which under the applicable rules and regulations is
required to be the subject of a filing with the Securities and Exchange
Commission on either Schedule 13E-4 or Schedule 14D-9.
"Total Disability" means the incapacity of a Participant, either
mental or physical, resulting in his inability to perform the usual
duties of his employment with his Employer, such incapacity to be
deemed to exist when so declared by the Committee in its judgment and
discretion, supported by the written opinion of at least one physician
approved by the Committee.
"Transfer Account" means the separate account maintained for a
Participant to which amounts transferred on behalf of a Participant and
related earnings are credited under Section 4.2.
"Trust Agreement" means the agreement between the Trustee and the
Company pursuant to which the Trust Fund is established and maintained, as
provided in ARTICLE XI.
"Trustee" means the trustee under the Trust Agreement.
"Trust Fund" means the trust under the Plan established pursuant to
the Trust Agreement, as provided for in ARTICLE XI.
"Valuation Date" means each business day, and such other date as may
be determined by the Committee in its sole discretion.
"Year of Service" means a Plan Year during which a Participant
completes at least 1,000 Hours of Service; provided, that (i) an
Employee who is credited with at least 1,000 Hours of Service in both
his first twelve (12) consecutive months of employment and the Plan Year
which begins during such twelve (12) month period shall be credited
with two (2) Years of Service at the end of such Plan Year and (ii)
Years of Service completed by the Participant prior to his attainment of
age eighteen (18) shall be disregarded.
-6-
Page 16 of 57<PAGE>
ARTICLE I
PARTICIPATION
-------------
1.1 Participation in the Plan shall be offered only to Eligible Employees
of the Employer. Each Employee shall become an Eligible Employee immediately
following the attainment of age 21 and the earlier of (A) the completion of
90 days of continuous employment (during which the Employee completes at
least 250 Hours of Service) or (B) the completion of one Year of Service. Once
an Employee has become an Eligible Employee, he will continue to be an
Eligible Employee until he ceases to be an Employee.
1.2 Each Eligible Employee on the Effective Date who was a Participant in
the Plan immediately prior to the Effective Date shall continue as a
Participant on the Effective Date. Each other Eligible Employee shall
become a Participant in the Plan upon satisfaction of the requirements of
Section 1.3.
1.3 At the time an Employee becomes an Eligible Employee, he will be
provided with a written application for participation in the Plan, as
described in ARTICLE II, and an explanation of the Plan. Each Eligible
Employee who files a salary deferral election with the Committee shall
become a Participant in the Plan as soon as administratively feasible
following the date on which his properly completed application is received
by the Committee.
1.4 A Participant who (a) ceases to be an Employee or (b) enters the
military service of the United States, shall be an inactive Participant.
Any interest of such inactive Participant in the Investment Funds shall be
allowed to remain, subject to ARTICLE VIII.
-7-
Page 17 of 57<PAGE>
ARTICLE II
PARTICIPANT DEFERRAL CONTRIBUTIONS
----------------------------------
2.1 Subject to Sections 2.4 and 2.5 and ARTICLE V, a Participant may
elect to defer prospectively by payroll deduction from 1% to 15% of his
Compensation in 1/2% increments.
2.2 A Participant may change or suspend his deferral contributions at any
time, effective as of the next administratively feasible payroll date (but
in no event later than one month after such Participant requests such a change
or suspension), by timely delivering the appropriate form to the Committee.
2.3 The Employer shall contribute to the Plan, on behalf of each
Participant who elects pursuant to Section 2.1 to defer a percentage of his
Compensation, an amount in cash equal to the amount deferred by the
Participant. All such contributions, together with any related earnings, shall
be credited to the Participant's Deferral Account.
2.4 (a) If the actual deferral percentage (as defined in paragraph (c)
below) of Compensation paid during the Plan Year, or within 2 1/2 months
thereafter attributable to services performed in such Plan Year, for
Participants who are Highly Compensated Employees is more than the amount
permitted under the deferral limitations set forth in paragraph (b) below,
the deferral contributions of such Highly Compensated Employees shall be reduced
by the amount of "excess contributions" (as determined in accordance with Code
section 401(k)(8)(B)). The reduction of the deferral contributions of Highly
Compensated Employees shall be allocated among such Highly Compensated
Employees in the order of the highest dollar amounts of deferral contribution
until such deferral limitations are satisfied. The Employer shall attempt to
distribute to such Participants any such excess contributions, and any
related earnings, no later than 2 1/2 months following the Plan Year in which
such excess contributions are made. In addition, if the Employer believes
-8-
Page 18 of 57<PAGE>
that contributions would be in excess of the deferral limitations set forth
in paragraph (b) below, the Employer may in its sole discretion suspend, in
whole or part, deferral contributions to the Plan made on behalf of
Participants who are Highly Compensated Employees. In such case the amounts
which would ordinarily be deferred in a payroll period shall be paid directly
to such Participants.
(b) The actual deferral percentage for any Plan Year of all Eligible
Employees who are Highly Compensated Employees shall not exceed, alternatively:
(i) 125% of the prior Plan Year's actual deferral percentage for all Eligible
Employees during such prior Plan Year who were not Highly Compensated Employees;
or (ii) 200% of the prior Plan Year's actual deferral percentage for all
Eligible Employees during such prior Plan year who were not Highly Compensated
Employees; provided, that soley for purposes of clause (ii) above, the actual
deferral percentage for all Eligible Employees who are Highly Compensated
Employees does not exceed the prior Plan Year's actual deferral percentage for
all Eligible Employees during such prior Plan Year who were not Highly
Compensated Employees by more than two percentage points, or such other amount
that the Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 2.4, the actual deferral
percentage for a specified group of Eligible Employees for the applicable
Plan Year shall be the average of the ratios, calculated separately for each
Eligible Employee in such group, of (i) the amount of contributions under
all plans of the Employer which are subject to Code section 401(k) (other
than plans which may not be permissively aggregated) to the Deferral
Account and Company Account (to the extent taken into account for purposes of
the actual deferral percentage test) made on behalf of each Eligible Employee
for such Plan Year to (ii) the Eligible Employee's Compensation for such Plan
Year. For purposes of determining the actual deferral percentage test,
-9-
Page 19 of 57<PAGE>
deferral contributions and Employer matching contributions must be made before
the last day of the 12-month period immediately following the Plan Year to
which contributions relate.
(d) If a reduction in the amount of deferral contributions on behalf
of a Participant is required because of the application of paragraph (a)
above, the reduction shall be treated as taxable earnings to the Participant
for the pay period in which the reduction occurs, and the Employer shall
withhold any taxes required by law on such taxable earnings.
(e) If a distribution of excess deferral contributions (and related
earnings) is required because of the application of paragraph (a) above, the
Employer shall withhold any taxes required by law on such distribution.
2.5 Notwithstanding anything contained herein to the contrary, the maximum
amount of contributions credited to the Deferral Account on behalf of a
Participant in any calendar year may not exceed $10,000 (as may be adjusted
by the Secretary of the Treasury to reflect increases in the cost of living),
and any such contributions made to the Deferral Account in excess of such
amount (as adjusted), plus any related earnings on such excess amount may be
distributed to the Participant no later than April 15 following the close of the
calendar year in which such excess contributions are made.
ARTICLE III
EMPLOYER MATCHING CONTRIBUTIONS
-------------------------------
3.1 Subject to the provisions of Sections 3.2 and 3.3 and ARTICLE V, each
Employer shall contribute in cash to the Plan for each Plan Year an amount
equal to that percentage of each Participant's deferral contributions, if
any, made pursuant to Section 2.1 on behalf of each Participant, as
determined by the Company in its sole discretion, provided, that nothing
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herein shall ogligate the Company to determine to make any matching
contribution for any Plan Year; and provided further, that the Company may, in
its discretion, contribute Stock, valued at its fair market value, in lieu of
cash for all or any part of its contribution, if any, under this Section 3.1.
Employer matching contributions, if any, shall be credited as soon as
practicable after, and as of, the end of each Plan Year with respect to which
such contribution is to be made to the Company Accounts of Participants who are
in the employ of an Employer on the last day of such Plan Year.
Notwithstanding the foregoing, the Company may, in its sole discretion and on a
nondiscriminatory basis, contribute matching contributions to the Plan at such
other times during thePlan Year as it determines, and credit such contributions
to the Company Accounts of the Participants at such time regardless of whether
such Participants are in the employ of an Employer on the last day of such Plan
Year.
3.2 (a) If the contribution percentage (as defined in paragraph (c)
below) of Compensation for Participants who are Highly Compensated Employees
is more than the amount permitted under the special limitations set forth in
paragraph (b) below, the Employer matching contributions of such Highly
Compensated Employees shall be reduced by the amount of "excess aggregate
contributions" (as determined in accordance with Code section 401(m)(6)(B)).
The reduction of the Employer matching contributions of Highly Compensated
Employees shall be allocated among such Highly Compensated Employees in the
order of the highest dollar amounts of Employer matching contributions credited
until such special limitations are satisfied. Any excess Employer matching
contributions made to the Trust Fund (plus any related earnings) shall, to the
extent possible, be distributed to such Participants before the end of the Plan
Year following the Plan Year in which such excess Employer matching
contributions are made. In addition, if the Employer or the Committee
determines that Employer matching contributions would be in excess of the
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special limitations set forth in paragraph (b) below, the Employer may,
in its sole discretion, suspend, in whole or in part, deferral contributions
to the Plan made on behalf of Participants who are Highly Compensated
Employees and, therefore, related Employer matching contributions with respect
to such Participants (in which case the deferral contributions that would
ordinarily be contributed to the Trust Fund on such Participants' behalf in
a payroll period shall be paid directly to such Participants).
(b) The contribution percentage for any Plan Year of all Eligible
Employees who are Highly Compensated Employees shall not exceed,
alternatively: (i) 125% of the prior Plan Year's contribution percentage
for all Eligible Employees during such prior Plan Year who were not Highly
Compensated Employees, or (ii) 200% of the prior Plan Year's contribution
percentage for all Eligible Employees during such prior Plan Year who were
not Highly Compensated Employees; provided, that solely for purposes of
clause (ii) above, the contribution percentage for all Eligible Employees
who are Highly Compensated Employees does not exceed the prior Plan Year's
contribution percentage for all Eligible Employees during such prior Plan
Year who were not Highly Compensated Employees by more than two percentage
points, or such other amount that the Secretary of the Treasury shall prescribe.
(c) For purposes of this Section 3.2, the contribution percentage for a
specified group of Eligible Employees for the applicable Plan Year shall be
the average of the ratios, calculated separately for each Eligible Employee
in such group, of (i) the amount of Employer matching contributions under all
plans of the Employer which are subject to Code section 401(m) (other than
plans which may not be permissively aggregated) made on behalf of each
Eligible Employee for such Plan Year (to the extent not taken into account for
purposes of the actual deferral percentage test) to (ii) the Eligible Employee's
Compensation for such Plan Year. Fur purposes of determining the contribution
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percentage test, Employer matching contributions will be considered made for a
Plan Year if made before the last day of the 12-month period immediately
following the Plan Year to which contributions relate.
(d) If a distribution of excess Employer matching contributions (and
related earnings) is required because of the application of (a) above, the
Employer shall withhold any taxes required by law on such distribution.
(e) In the event an active Participant is requiredc to reduce his
deferral contributions to the Plan as a result of the application of the
provisions of Section 2.4(a), the Employer matching contribution under Section
3.1(a) made on behalf of the Participant for the remainder of the Plan Year
shall be applied to the reduced amount of deferral contributions.
3.3 If both the actual deferral percentage and the actual contribution
percentage of Highly Compensated Employees exceeds 1.25 multiplied by the actual
deferral percentage and contribution percentage of Highly Compensated Employees,
multiple use will occur. In the event of multiple use, if one or more Highly
Compensated Employees participate in a plan(s) subject to both the actual
deferral percentage and contribution percentage tests and the sum of the two
exceeds the "aggregate limit," then the average contribtion percentage of those
Highly Compensated Employees who also participate in a salary deferral
arrangement will be reduced (beginning with the Highly Compensated Employee
whose dollar amount of contribution is the highest), so that the limit is not
exceeded. For the purposes of this Section, "aggregate limit" shall mean the
sum of (i) 125% of the greater of the actual deferral percentage or the average
contribution percentage for non-Highly Compensated Employees for the Plan Year
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and (ii) the lesser of 200% of, or two percentage points plus, the smaller of
such actual deferral percentage or average contribution percentage.
ARTICLE IV
ROLLOVER CONTRIBUTIONS; DIRECT TRANSFERS
----------------------------------------
4.1 Subject to the provisions of the Plan and to rules of uniform
application to be promulgated by the Committee, an Eligible Employee, or
Employee who is not yet an Eligible Employee, may make a contribution to the
Plan in cash which qualifies as a "rollover amount," "rollover contribution,"
or "eligible rollover distribution" under Code section 403(a)(4), 408(d)(3)
or 402(f)(2)(A), respectively. An Employee who wishes to make such a
contribution shall timely file with the Committee a written notice requesting
approval for such contribution, affirming that his contribution qualifies as a
rollover amount, rollover contribution or eligible rollover distribution.
Investment of such contribution, as between or among the Investment Funds, as
applicable, shall be as directed by the Employee in accordance with the
provisions of Sections 6.3 and 6.4. In addition to the written notice required
under this Sectin 4.1, the Committee may require documentation from the
Employee, or the applicable trustee, plan sponsor, custodian or other
appropriate person in the form of a statement from the plan administrator of the
plan from which the amount sought be rolled over was distributed that such plan
has received a favorable determination letter from the Internal Revenue Service,
as evidence of the contribution being qualified as a rollover amount, rollover
contribution or eligible rollover contribution, and until such written notice
and documentary evidence satisfactory to the Committee have been so provided,
the Committee shall not approve such contrigbution to the Plan. The Committee
shall be fully protected in relying on such written and documentary evidence
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presented by or on behalf of the Employee. Contributions made by the
Employee pursuant to this Section 4.1 shall be credited to the Employee's
Rollover Account.
4.2 Subject to the provisions of the Plan and to rules of uniform
application to be promulgated by the Committee, and in addition to deferral
contributions or rollover contributions to the Plan in accordance with
ARTICLE II and Section 4.1, an Eligible Employee, or Employee who has not yet
become an Eligible Employee, may have transferred directly to the Plan on his
behalf his accrued benefit in another retirement plan qualified under Code
section 401(a) (provided such plan is not described in Code section 401(a)
(11)(B)). An Employee who wishes to have such an amount transferred shall
timely file with a Committee a written notice requesting approval for such
transfer, affirming that the transfer is from a tax-qualified plan. Such
transfer shall be effected directly from the transferor plan without
distribution to the Employee, as soon as practicable after receipt of such
notice and approval by the Committee. Investment of such transferred amount,
as between or among the Investment Funds, as applicable, shall be as directed
by the Employee in accordance with the provisions of Sections 6.3 and 6.4. In
addition to the written notice required under this Section 4.2, the Committee
may require such further documentation from the Employee, or the applicable
trustee, plan sponsor, custodian or other appropriate person, as evidence of the
transfer being from a plan qualified under Code section 401(a), and until such
written notice and documentary evidence satisfactory to the Committee have been
so provided, the Committee shall not approve such transfer to the Plan. The
Committee shall be fully proteted in relying on such written and documentary
evidence presented by or on behalf of the Employee. Transfers made by the
Employee pursuant to this Section 4.2 shall be credited to the Employee's
Transfer Account.
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4.3 Upon the occurrence of an event of distribution as described in Section
8.1, and notwithstanding any other provisions of the Plan to the contrary that
would otherwise limit a distributee's election under this Section 4.3, a
distributee may elect, at the time and in the manner prescribed by the Company,
to have any portion of an eligible rollover distribution paid directly to an
eligible retirement plan specified by the distributee in a direct rollover.
For purposes of this Section 4.3, the following definitions apply:
"Eligible rollover distribution" is any distribution of all or any
portion of the balance to the credit of the distributee, except that
an eligible rollover distribution does not include: any distribution
that is one of a series of substantially equal periodic payments (not
less frequently than annually) made for the life (or life expectancy)
of the distributee or the joint lives (or joint life expectancies) of
the distributee and the distributee's designated beneficiary, or
for a specified period of ten years or more; any hardship distribution
described in Code section 401(k)(2)(B)(i)(IV); and the portion of
any distribution that is not includible in gross income (determined
without regard to the exclusion for net unrealized appreciation
with respect to employer securities).
"Eligible retirement plan" is an individual retirement account
described in Code section 408(a), an individual retirement annuity
described in Code section 408(b), an annuity plan described in Code
section 403(a), or a qualified trust described in Code section 401(a),
that accepts the distributee's eligible rollover distribution.
However, in the case of an eligible rollover distribution to the
surviving spouse, an eligible retirement plan is an individual
retirement account or individual retirement annuity.
"Distributee" includes an Employee or former Employee. In addition,
the Employee's or former Employee's surviving spouse and the
Employee's or former Employee's spouse or former spouse who is
the alternate payee under a qualified domestic relations order, as
defined in Code section 414(p), are distributees with regard to the
interest of the spouse or former spouse.
"Direct rollover" is a payment by the Plan to the eligible
retirement plan specified by the distributee.
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ARTICLE V
CONTRIBUTION LIMITATIONS
------------------------
5.1 (a) Any provision of the Plan to the contrary notwithstanding, no
annual additions to a Participant's Accounts will be made in any Plan Year in
excess of the lesser of $30,000 (as adjusted from time to time by the Secretary
of the Treasury) or 25% of the Participant's "compensation" (within the meaning
of Code sectin 415(c)(3)).
(b) Any provision of the Plan to the contrary notwithstanding, in the
case of a Participant in a defined benefit plan of the Company, his maximum
annual additions shall not exceed the amount which will result in a defined
contribution plan fraction which when added to the defined benefit plan
fraction of such Participant will exceed 1.0 for any Plan Year. Except as
may otherwise be required by law, this Section 5.1(b0 shall no longer apply
after December 31, 1999.
(c) For purposes of applying this Section 5.1, all defined benefit
plans of the Company and any Affiliates (as determined in accordance with Code
section 415(h)), and all defined contribution plans of the Company and any
Affiliates (as determined in accordance with Code sectin 415(h)), including
the Plan, shall be combined or aggregated and the maximum benefit or annual
additions limitation shall be determined on the basis of a Participant's annual
additions and benefits under all such plans.
(d) For purposes of this Section 5.1, (i) annual additions means, for
each Plan Year, (A) a Participant's deferral contributions; plus (B) such
Participant's share of Employer matching contributions; plus (C) any
forfeitures allocated to such Participant's Accounts; (ii) a defined
contribution plan means a plan which provides for an individual account for
each participant and for benefits based solely upon the amount contributed
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to the participant's account, and any income, expenses, gains and losses,
and any forfeitures of accounts of other participants which may be allocated
to such participant's account; (iii) a defined benefit plan means a plan which
is not a defined contribution plan; provided, however, in the case of a defined
benefit plan which provides a benefit derived from employer contributions which
is based partly on the balance of the separate account of a participant, such
plan shall be treated as a defined contribution plan to the extent benefits are
based on the separate account of a participant and as a defined benefit plan
with respect to the remaining portion of the benefits under the plan; (iv) the
defined benefit plan fraction for a participant shall be a fraction the
numerator of which is the lesser of (A) the product of 1.25 multiplied by the
dollar limitation in effect for the plan, or (B) the product of 1.4 multiplied
by an amount equal to 100% of the participant's average compensation for his
high three years projected annual benefit under the plan, if such plan provided
the maximum benefit allowed by law; and (v) the defined contribution plan
fraction for a Participant shall be a fraction the numerator of which is the
sum of the annual additions to the Participant's accounts under a defined
contribution plan of the Company and Affiliates (as determined in accordance
with Code section 415(h)) and the denominator of which is the sum of the
lesser of the following amounts for such Plan Year and for each prior Plan
Year: (A) the product of 1.25 multiplied by the dollar limitation in effect
for such Plan Year, or (B) the product of 1.4 multiplied by the 25% of
Participant's compensation (within the meaning of Code section 415(c)(3)).
(e) If necessary to limit the total annual additions for a Participant
for a Plan Year, the Participant's deferral contributions shall be repaid to
him out of his Deferral Account to the extent necessary to reduce the annual
additions for each Plan Year so that they do not exceed the maximum limitations
pursuant to Section 5.1(a).
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ARTICLE VI
INVESTMENT OF FUNDS
-------------------
6.1 The Employer on a monthly basis, or more frequently, will pay over to
the Trustee, or its agent, contributions made to the Plan to be held in trust
and invested as provided herein and in the Trust Agreement.
6.2 The Trust Fund will be invested in the Investment Funds.
6.3 (a) Each Participant's Company Account, Deferral Account, Rollover
Account, and Transfer Account, as applicable, will be invested in one or more
of the Investment Funds. Each Participant will designate the portion (expressed
as a percentage in multiples of 10%) of his Accounts to be invested in each
Investment Fund. Such designation, once made, may be changed at any time. The
Participant may also transfer the amount equivalent to his interest, or any
partial interest (expressed as a percentage in multiples of 10%), in an
Investment Fund from such Investment Fund to another Investment Fund at any
time. Changes will be made by a Participant's direction in writing to the
Committee, or pursuant to a voice response system approved by the Commiteee,
and will be made effective as soon as possible after receipt of such direction.
In the event that (i) a Participant's fails to make a designation, or (ii) the
Committee does not receive a Participant's written notice or (iii) no record
exists within the voice response system utllized by the Plan of a Participant's
designation of Investment Funds, the Trustee shall invest any amount it receives
with respect to such Participant, effective as of September 1, 1998, in the
"Stable Value Fund" and the Committee shall take reasonable steps to elicit an
Investment Fund designation from the Participant.
(b) Notwithstanding Section 6.3(a), (i) no more than 35% of a
Participant's Accounts may be invested in the Stock Fund and (ii) (A) any
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transfer of a Participant's interest in any Investment Fund from such
Investment Fund into the Stock Fund and (B) any Participant-directed
investment of any contribution made under the Plan into the Stock Fund
shall only be effecterd to the extent that such transfer or investment does
not result in the value of such Participant's Accounts which is invested in
the Stock Fund exceeding 35% of the value of such Participant's Accounts.
For purposes of determining the limitation under Section 6.3(b)(ii), the
value of a Participant's Accounts as of the Valuation Date immediately
preceding the Valuation Date on which the transfer or investment is to take
place shall be used.
(c) Any transfer or investment requested by a Participant pursuant
to Section 6.3(a) that does not satisfy the requirements of Section 6.3(b) shall
be null and void to the extent that the implementation of such transfer or
investment would cause the value of such Participant's Accounts invested in the
Stock Fund to exceed the 35% limitation described under Section 6.3(b).
(d) Purchases of Stock made pursuant to a Participant's designation
will be made on the open market or with Stock held in the treasury of Burlington
Coat ("Treasury Stock"), and the Participant's Accounts will be credited with
the number of whole and fractional shares of Stock so purchased (net of any
brokerage commissions and fees). Sales of Stock from the Stock Fund will be
made on the open market. Purchases and sales of Stock on the open market will
be reflected at the Trustee's cost, net of any brokerage commissions and fees,
of such purchases and sales. Purchases made with Treasury Stock will be
reflected at the closing sales price for Stock on the day preceding the day on
which (i) a Participant directs the Trustee to transfer amounts from an
Investment Fund to the stock Fund on his behalf or (ii) Participant deferral
contributions under Article II or Employer matching contributions under Article
III are contributed to the Plan and invested in the Stock Fund in accordance
with a Participant's investment designation made pursuant to Section 6.3(a)
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(or if no Stock is traded on either such day, on the next day on which open
market trades in Stock occur).
6.4 Each Participant shall have an interest in each Investment Fund
in which he has elected to have invested all or any part of his deferral
contributions under Section 2.1, his Employer matching contributions under
Section 3.1, his rollover contributions under Section 4.1 and his transfer
amounts under Section 4.2 Each such Participant's interest at any time in
the Investment Funds shall be equal to the sum of such contributions and
transfer amounts, adjusted from time to time to reflect his proportionate
share of the income and losses realized by such Investment Funds and of
the net appreciation or depreciation in the value of such Investment Funds.
The Committee shall maintain accounts to reflect the interest of each
Participant in each Investment Fund including, with respect to the Stock
Fund, a record of the number of shares of Stock allocated to the Participant's
Accounts and the cost basis of each such share of Stock. As of each
Valuation Date, the Committee shall ascertain from the Trustee the value of
each Investment Fund and shall on such basis determine the value of the
interests of Participants. Each Participant will be furnished a statement
of his Accounts at least quarterly. Any cash dividends and cash proceeds
from any other distributions received with respect to a Participant's
interest in the Stock Fund will be reinvested in additional shares of Stock.
The determinations of the Trustee and the Committee shall be conclusive.
6.5 (a) Before each annual and special meeting of the shareholders of
Burlington Coat, and at such other times when shareholder action is required,
the Trustee shall send to each Participant and beneficiary having an investment
in the Stock Fund the proxy or consent solicitation materials that are sent to
Burlington Coat's shareholders of record. Each such Participant shall have
the right to instruct the Trustee confidentially as to the method of voting
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the shares of Stock allocated to his Account as of the record date for
determining the shares of Stock that are entitled to vote at the meeting of
shareholders or that are entitled to give or withhold consent to corporate
action. Full and fractional shares of Stock held in the Stock Fund and
allocated to a Participant's Account shall be voted by the Trustee in accordance
with the instructions received from such Participant. The Trustee shall not
vote shares of Stock for which voting instructions are not received from
Participants. Management and others may solicit such Participants' voting
rights under the same proxy rules applicable to all shareholders. Burlington
Coat shall ensure that the requisite voting forms, together with all information
distributed to shareholders of Burlington Coat in general regarding the exercise
of voting rights, are furnished to the Trustee and by the Trustee to
Participants within a reasonable time before such voting rights are to be
exercised with respect to Stock held in the Trust Fund.
(b) In the event that a Tender Offer is made generally to shareholders
of Burlington Coat to purchase Stock, the following procedures shall apply and
the following actions shall be taken with respect to the Stock held in the
Trust Fund:
(i) The Trustee or its authorized delegate shall, in a timely
manner, give to each Participant having, at that time, an
investment in the Stock Fund notice of the terms and conditions of
such Tender Offer.
(ii) Each participant shall instruct the Trustee, in accordance
with procedures established by the Committee or Trustee and designed
to protect the confidentiality of the Participants' exercise of the
Tender Offer rights under this Section 6.5(b) in accordance with
Department if Labor regulation section 2550.404(c)-1, to accept or
decline such Tender Offer with respect to all or any portion of
the shares of Stock allocated to the Participant's Account.
(iii) The response of the Trustee to a Tender Offer, as to
whether the Tender Offer is accepted or rejected, shall be made in
accordance with instructions of the Participants given to the
Trustee on forms provided for that purpose by the Trustee. The
Trustee shall reject the Tender Offer with respect to shares for
which the Trustee does not receive instructions from a Participant.
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(iv) In the event the Trustee is instructed to tender shares
of Stock pursuant to the terms of a Tender Offer but less than all of
the shares of Stock for which the Trustee receives instructions
pursuant to Section 6.5(b)(ii) are accepted for tender pursuant to
such Tender Offer, the Trustee shall tender the percentage of shares
of Stock from each Participant's Account for which the Trustee
received instructions to tender pursuant to Section 6.5(b)(ii)
(rounded to the nearest whole share) which bears the same ratio as
the total shares accepted for tender bears to the total number of
shares for which the Trustee originally received instructions to
tender pursuant to Section 6.5(b)(ii). The proceeds of any sale
pursuant to this Section 6.5(b)(iv) shall be allocated to the Accounts
from which the shares were sold. If any Tender Offer is accepted
(in whole or in part) pursuant to this Section 6.5(b), the Trustee
shall have the power to transfer Stock in order to effect such
acceptance with no further direction from the Participant or the
Committee.
(c) Each Participant shall have right to instruct the Trustee
confidentially as to whether and how stock options, warrants or other
similar rights relating to Stock allocated to the Participant's Account
should be exercised. The Committee or the Trustee shall establish
procedures to notify timely each such Participant regarding such rights and
the terms and conditions for exercising such rights. If the Trustee fails
to receive timely instructions from the Participant, such rights shall
not be exercised.
(d) For purposes of this Section 6.5, references to Participants
include their beneficiaries and, pursuant to Section 8.7, alternate payees
for whom a separate Account has been established pursuant to the terms of
a qualified domestic relations order. References to the Trustee shall
include any independent fiduciary appointed by the Committee pursuant to
Department of Labor regulations section 2550.404c-1 to safeguard the
confidentiality of Participants' exercise of rights under this Section 6.5
where the Committee has determined that such an appointment is warranted.
6.6 All transactions involving Stock, including distributions, purchases
and sales, shall be made only in compliance with applicable federal and state
laws, regulations and rules. All such transactions shall also be subject to
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all restrictions and limitations imposed by Burlington Coat's articles of
incorporation and bylaws as amended from time to time, and by limitations
and restrictions applied by the applicable stock exchange in which shares of
Stock are publicly traded.
ARTICLE VII
VESTING OF INTEREST
-------------------
7.1 A Participant's interest in his Deferral Account, Rollover Account
and Transfer Account, adjusted for his share of income or losses and
appreciation or depreciation therein, shall be fully vested at all times.
7.2 (a) A Participant's interest in his Company Account, adjusted for
the share of income or losses and appreciation or depreciation therein, shall
become vested in accordance with the following schedule based on the
Participant's Years of Service:
Years of Service Vested Percentage
---------------- -----------------
less than 3 0%
3 but less than 4 20%
4 but less than 5 40%
5 but less than 6 60%
6 but less than 7 80%
7 or more 100%
(b) Notwithstanding the foregoing, a Participant's interest in his
Company Account shall become fully and immediately vested upon the first to
occur of the following:
(i) the Participant's Retirement,
(ii) the Participant's Total Disability, or
(iii) the Participant's death.
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Notwithstanding anything contained herein to the contrary, a Participant
shall become fully and immediately vested upon the later of (i) his
attainment of age 65 or (ii) the fifth anniversary of the date on which he
commenced participation in the Plan.
(c) For purposes of this Section 7.2, a Participant's Years of
Service shall include his entire Years of Service; provided however:
(i) in the case of a Participant who was not vested in any
portion of his Company Account, his Years of Service shall not
include his Years of Service completed before a Break in
Service if the number of consecutive one-year Breaks in
Service equals or exceeds the greater of five or the
aggregate number of Years of Service, whether or not
consecutive, completed before such Break in Service (such
aggregate number of Years of Service shall not include any
Years of Service not taken into account by reason of any
prior Break in Service); and
(ii) in the case of a Participant who has a Break in Service
of less than 12 months, his Years of Service shall include both
the Years of Service before and after such Break in Service.
7.3 In the event a Participant's employment terminates before his interest
in his Company Account becomes fully vested, the portion of such Account
which is not vested shall be forfeited and, subject to Section 7.5, applied
towards future Employer matching contributions under Section 3.1 in such
manner as shall be determined by the Committee; provided, however, that
any such forfeiture occurring in a Plan Year prior to January 1, 1999 shall
be allocated proportionately to the Company Accounts of the remaining
active Participants in an amount equal to the proportion that each such
Participant's Compensation for such Plan Year bears to the total Compensation
of all such remaining active Participants for the Plan Year in which such
forfeiture occurs.
7.4 Notwithstanding the provisions of Section 7.2, in the event the Plan
shall be terminated or partially terminated, or upon a complete
discontinuance of contributions, the interest of an affected Participant in
his Company Account shall become fully vested.
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7.5 In the case of a former Participant who has received a distribution of
his entire vested benefit under the Plan and forfeited his nonvested
interest in his Accounts by reason of termination of employment for any
reason, and who subsequently becomes a Participant prior to the occurrence
of five consecutive one-year Breaks in Service, he shall be entitled to
repay to the Plan the full amount of such distribution. Upon such repayment,
any interest in such Participant's Accounts which was forfeited at the time of
his termination of employment shall be restored and his right to receive such
interest upon a subsequent termination of employment shall be determined in
accordance with Section 7.2 based upon his total Years of Service at that time,
if applicable. Such restoration shall be made from amounts forfeited under
Section 7.3 in the year in which an Employee's right to such restoration
arises. To the extent that current forfeitures are insufficient to make
such restoration, the Company shall make a special contribution to the Plan to
restore the forfeited amount.
ARTICLE VIII
PAYMENTS FROM ACCOUNTS
----------------------
8.1 The entire vested interest of a Participant in his Accounts shall
become payable in cash upon any of the following events:
(i) the Participant's Retirement;
(ii) the Participant's Total Disability;
(iii) the Participant's death;
(iv) the Participant's other termination of employment with the
Employer (other than on account of a transfer of employment to
an Affiliate);
(v) upon the Participant's request in accordance with Section 8.8,
on or after the Participant's attainment of age 59 1/2; or
(vi) as a hardship withdrawal under Section 8.9.
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8.2 A Participant may, prior to termination of his employment with the
Employer, designate a beneficiary to whom distribution of his interest in
the Trust Fund shall be paid in the event of his death prior to the full
receipt of such interest; provided however, that in the event the
Participant is married on the date of his death, such beneficiary shall be
deemed to be the Participant's surviving spouse. The Participant may elect
to change or revoke his designated beneficiary at any time; provided however,
that in the event prior to such change or revocation such beneficiary is the
Participant's surviving spouse, such election shall not be effective unless
such surviving spouse provides written consent which acknowledges the effect
of such election and is witnessed by a Plan representative or a notary public.
The affirmative designation of any beneficiary and any elected change or
revocation thereof by a Participant shall be made on forms provided by the
Committee and shall not in any event be effective unless and until filed with
the Committee and shall not in any event be effective unless and until filed
with the Committee. If no designated or deemed beneficiary survives the
Participant or inactive Participant, or if an unmarried Participant or
inactive Participant fails to designate a beneficiary under the Plan, the
amount payable upon the death of the Participant or inactive Participant
shall be paid to his estate.
8.3 Upon termination of employment for any reason, any part of a
Participant's interest in his Accounts that has not vested shall be
forfeited and applied in accordance with Section 7.3, and his active
participation under the Plan will terminate subject to the provisions of
Section 8.4. If the value of a Participant's vested interest in his Accounts
at his termination of employment is zero, the Participant shall be deemed to
have received a distribution of such zero vested interest in such Accounts.
8.4 Notwithstanding the foregoing provisions of this ARTICLE VIII,
and subject to Section 8.10, payments will be made from a Participant's
Accounts only upon the approval and direction of the Committee, at the time
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and in the manner determined by the Committee in accordance with the
provisions of the Plan. When the vested interest of a Participant becomes
payable in accordance with the provisions of Section 8.1, the Committee shall
direct the Trustee to pay from the Trust Fund an amount equal to the value of
such vested interest as determined under Sections 6.4 and 6.5 as of the next
Valuation Date. Unless the Participant (or, if applicable, his beneficiary)
does not consent to such payment pursuant to Section 8.5, any such amount shall
be paid to the Participant (or his beneficiary) no later than the earlier of (i)
60 days after the close of the Plan Year in which such Participant's employment
terminates or (ii) the date the payment first becomes administratively
feasible.
8.5 The amounts payable from the Trust Fund shall be paid as a single
sum; provided however, that such single sum payment shall not be made
without the consent of the Participant (or, if applicable, his beneficiary)
if such amount exceeds $5,000; and further provided, that at the election of
the Participant (or, if applicable, his beneficiary) and subject to any
restrictions contained in Section 6.6, the portion of such single sum payment
that is attributable to the Participant's investment in the Stock Fund
may be paid in whole shares of Stock equal in value to all or part of the
Participant's interest in the Stock Fund and any remaining interest in the Stock
Fund shall be paid in cash. Notwithstanding anything contained herein to the
contrary, regardless of the form of payment, all distributions shall comply with
Code section 401(a)(9), including the minimum distribution incidental death
benefit requirement of Code section 401(a)(9)(G).
8.6 If any person who is entitled to receive a payment from the Plan shall
die prior to such payment, the amount remaining to be paid shall be paid in
a single sum to the beneficiary previously designated by the Participant
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whose interest is involved, or, if no such beneficiary survives, to the
estate of the Participant.
8.7 Except as required (i) by a "qualified domestic relations order"
(within the meaning of Code section 414(p)) or (ii) in connection with a
judgment or settlement entered into on or after August 5, 1997, involving
the Plan pursuant to the requirements of Code section 401(a)(13)(C) or as
otherwise required by law, no person shall have the right to assign,
alienate, transfer, hypothecate or otherwise subject to lien his interest
in or his benefit under the Plan, nor shall benefits under the Plan be
subject to the claims of any creditor. Any other provision of the Plan to
the contrary notwithstanding, if the amount payable to an alternate payee
under a qualified domestic relations order is less than or equal to $5,000,
such amount shall be paid as soon as practicable following the qualification
of the order. If such amount exceeds $5,000, it may be paid as soon as
practicable followig the qualification of the order if the alternate payee
consents thereto and if such order provides for such payment; otherwise, it may
not be payable prior to the Participant's "earliest retirement age" (within the
meaning of Code section 414(p)(4)(B)).
8.8 Subject to Section 9.4, upon written application to the Committee,
in such form and manner as the Committee may prescribe, a Participant who
is also an Employee may on or after attainment of age 59 1/2, make a
withdrawal once in each Plan Year from any or all of his Accounts. The
minimum withdrawal a Participant may make under this Section 8.8 shall be
the lesser of $500 or the balance in his Accounts, as applicable.
8.9 (a) Upon written application of a Participant, the Committee shall
determine whether the Participant is entitled to make a hardship withdrawal
from his Deferral Account (excluding earnings on such Account), from the
vested portion of his Company Account, and/or from his Rollover Account or
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Transfer Account, as applicable, subject to the provisions of this
Section 8.9. A hardship entitling a Participant to make a withdrawal will
exist if the Committee determines, pursuant to subsection (b) of this
Section 8.9, that the Participant has an immediate and heavy financial need.
A distribution based upon financial hardship cannot exceed the amount required
to meet the immediate and heavy financial need created by the hardship and not
reasonably available from reserves or other resources of the Participant. The
amount of immediate and heavy financial need may include any amount necessary to
pay any Federal, state or local income taxes or penalties reasonably
anticipated to result from the distribution. The determination of the
existence of financial hardship and the amount required to be distributed to
meet the need created by the hardship shall be made by the Committee, pursuant
to subsection (b) of this Section 8.9, in accordance with uniform and
nondiscriminatory standards. Such withdrawal shall be made in cash upon 30
days' prior written application to the Committee. In no event may the amount
of such hardship withdrawal exceed the amount necessary to constitute security
for repayment of any outstanding loan made pursuant to ARTICLE IX.
(b) For purposes of this Section 8.9:
(i) A distribution will be made on account of an immediate
and heavy financial need of the Participant if the distribution
is on account of (A) medical expenses described in Code section 213(d)
incurred by the Participant, his spouse, or any dependents (as defined
in Code section 152) or necessary for these persons to obtain
medical care described in Code section 213(d); (B) the purchase
(excluding mortgage payments) of a principal residence for the
Participant; (C) the payment of tuition and related educational fees
for the next 12 months of post-secondary education for the Participant,
his spouse, or any dependents; (D) the need to prevent the eviction
of the Participant from, or the foreclosure on the mortgage of, the
Participant's principal residence; or (E) other events or conditions
as prescribed or permitted by the Internal Revenue Service through
publication of documents of general applicability;
(ii) A distribution will be necessary to satisfy an
immediate and heavy financial need of a Participant if (A) the
distribution is not in excess of the amount of the immediate and
heavy financial need of the Participant and (B) the Participant
has obtained all distributions, other than hardship withdrawals,
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and all nontaxable loans available under the Plan and any other plan
maintained by the Company in which the Participant participates; and
(iii) A Participant who receives a hardship withdrawal in
accordance with this Section (A) shall have contributions to his
Deferral Account (as well as other employee elective contributions
under any other plan of the Employer) suspended for 12 months after
receipt of the hardship withdrawal; and (B) the maximum amount of
contributions to his Deferral Account made on behalf of such
Participant under this Plan or any oher plan of the Employer in the
tax year following the tax year in which he receives a hardship
withdrawal shall be the applicable amount described in Section 2.5 for
such tax year reduced by the amount of contributions to his Deferral
Account made on behalf of such Participant in the tax year in which
he receives the hardship withdrawal.
8.10 All distributions made under this ARTICLE VIII shall be paid to the
Participant, beneficiary or alternate payee, with respect to a qualified
domestic relatins order, in cash; provided however, that a Participant,
beneficiary or alternate payee who receives a distribution and who has all or a
portion of his Accounts invested in the Stock Fund may request that all or a
designated portion of such distribution be made in the form of whole shares of
Stock with the remainder, including any fractional share value, to be paid in
cash.
8.11 Any other provision of the Plan to the contrary notwithstanding,
payment of a benefit under the Plan to a Participant (i) who is a 5-percent
owner (as such term is defined Code section 416(i)(1)(B)(i)) and any Participant
(other than such a 5-percent owner) who attains age 70 1/2 prior to January 1,
1999 shall be made, or shall commence, no later than April 1 of the calendar
year following the year in which such Participant attains age 70 1/2 and (ii)
who is not a 5-percent owner and who attains age 70 1/2 after December 31, 1998,
shall be made, or shall commence no later than April 1 of the calendar year
following the later of (A) the calendar year in which the Participant attains
age 70 1/2, or (B) the calendar year in which the Participant terminates
employment with an Employer. Notwithstanding the foregoing, in the case of
a Participant who attains age 70 1/2 during 1998, and who has not terminated
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employment with an Employer, such Participant may elect to defer receiving
distributions until April 1 of the calendar year following the calendar year in
which the Participant terminates employment with an Employer.
ARTICLE IX
LOANS
----------
9.1 Upon application to the Committee in writing, or pursuant to a voice
response system approved by the Committee, a Participant shall be permitted
to borrow from his Accounts in accordance with criteria established by the
Committee on a uniform and nondiscriminatory basis. A Participant shall be
permitted to have no more than two loans outstanding at one time. Any such
loan shall be evidenced by a note.
9.2 The minimum amount that a Participant shall be permitted to borrow
is $500. The maximum aggregate amount of all outstanding loans to a Participant
under this Plan and any other plan of the Employer is the lesser of (i) $50,000
(reduced by the highest outstanding balance of any prior Plan loan during the
one-year period ending on the day before the date the Plan loan is made), or
(ii) 50% of such Participant's accrued vested balances in his Accounts (less
the value of the Participant's Account invested in the Stock Fund).
9.3 Each loan shall be repaid by the Participant through equal payroll
deductions, on a level amortization basis, commencing with the date of the loan,
over a period of not more than 60 months. Notwithstanding the preceding
sentence, the Committee may permit repayment of a loan over a period in excess
of five, but not in excess of twenty, years when the loan is used to acquire
any dwelling unit which within a reasonable time is to be used as a primary
residence of the Participant. Interest on loans shall be charged at a
reasonable rate, as determined by the Committee on a uniform and
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nondiscriminatory basis. Such rate will remain fixed for the term of the loan.
A Participant may prepay the entire balance of his loan at any time without
penalty.
9.4 No distributions pursuant to ARTICLE VIII (other than Section 8.9)
shall be made until the outstanding balance of any loan plus interest thereon
is repaid in full.
9.5 If a loan is in default, the Committee shall liquidate all or any
portion of the Participant's collateral account balance as necessary to
discharge the Participant's obligation under the loan agreement before any
amounts are paid to or on behalf of such Participant. In no event shall such
liquidation occur prior to the time the Participant is entitled to a
distribution under ARTICLT VIII. The following events will be considered a
default:
(a) death or Total Disability of the Participant;
(b) termination of the Plan;
(c) retirement or separation from service by the Participant; and
(d) failure to make any required payment of loan principal and
interest.
9.6 All loans granted under this ARTICLE IX shall be granted in a
uniform and nondiscriminatory manner in accordance with written loan
procedures established by the Committee. To the extent required by law and
under such rules as the Committee shall adopt, loans shall be made
available on a reasonably equivalent basis to any beneficiary or former
Employee (i) who maintains a balance in one of more Accounts under the Plan,
and (ii) who is a party-in-interest with respect to the Plan (within the
meaning of ERISA section 3(14)).
9.7 The Company may amend the terms of, or discontinue, the loan program
as it deems appropriate. The Company or the Committee may also restrict or
suspend the making of loans if it determines that the loan program is having
adverse effects on Plan investment earnings or on Participants in general.
-33-
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ARTICLE X
ADMINISTRATION
--------------
10.1 The Plan shall be administered by a Committee of not less than
three persons appointed by the Board of Directors. The Company shall be the
Plan Administrator and "named fiduciary" (within the meaning of ERISA section
402(a)) and the Committee shall assume the responsibilities and duties set forth
in this ARTICLE X.
10.2 The Committee shall establish rules for the administration of the
Plan. It shall interpret the Plan in its sole discretion and its
determinations shall be conclusive and binding upon all Participants and
their beneficiaries.
10.3 All expenses attributable to the administration of the Plan and the
expenses of the Trustee shall be paid out of the Trust Fund except to the
extent paid by the Employer.
10.4 The Committee shall have the power to assign any of its
responsibilities to subcommittees or members of the Committee and may
designate one or more subcommittees or other persons to carry out any of its
responsibilities.
10.5 The Committee may employ such agents and such clerical and other
services as it may deem advisable in carrying out the provisions of the Plan,
and may consult with counsel, who may be counsel for the Company.
-34-
Page 44 of 57<PAGE>
ARTICLE XI
TRUSTEE
----------
11.1 All assets of the Plan shall be held pursuant to a Trust Agreement
between a Trustee designated by the Board of Directors and the Company. The
Trust Agreement shall provide, among other things, for a Trust Fund, to be
administered by the Trustee, with respect to which all contributions shall
be paid, and the Trustee shall have such rights, powers and duties as the
Board of Directors shall from time to time determine. All assets of the Trust
Fund shall be held, invested and reinvested in accordance with the provisions
of the Plan and the Trust Agreement.
11.2 All Employer contributions to the Plan are expressly conditioned upon
being deductible under Code section 404(a). At no time prior to the
satisfaction of all liabilities with respect to Participants and their
beneficiaries shall any part of the assets of the Plan be used for or
diverted to purposes other than for the exclusive benefit of such persons;
provided however, Employer contributions may be returned to the Employer (a)
within one year after the payment of a contribution, if made by the Employer by
reason of a mistake of fact, or (b) within one year of the disallowance of a
deduction, to the extent a deduction is disallowed for such contribution under
Code section 404(a).
ARTICLE XII
TERMINATION AND AMENDMENT
-------------------------
12.1 The Company expects to continue the Plan indefinitely, but the
continuance of the Plan and the payment of contributions are not assumed as
contractual obligations.
-35-
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12.2 The Plan may be terminated at any time by adoption of resolutions
by the Board of Directors. If the Plan shall be terminated, the Trustee
shall continue to hold, invest and administer the Trust Fund in accordance
with the provisions of the Trust Agreement and shall make distributions
therefrom in accordance with the provisions of the Plan, as then in effect,
pursuant to instructions filed with the Trustee by the Committee upon such
termination or from time to time thereafter. Upon a complete discontinuance
of contributions, or upon termination or partial termination of the Plan, each
affected Participant or beneficiary shall have a nonforfeitable interest in
his Accounts in the Plan.
12.3 The Plan may be amended at any time and from time to time, including
retroactively, by adoption of resolutions by the Board of Directors; provided
however, that no amendment shall reduce the vested percentage of a
Participant's accrued benefit derived from Employer contributions below the
vested percentage thereof on the date such amendment is adopted or becomes
effective, whichever is later; and provided further, that no amendment shall
decrease the accrued benefit of a Participant.
ARTICLE XIII
MISCELLANEOUS
-------------
13.1 Participation or non-participation in the Plan shall have no effect
upon the employment status of any Employee.
13.2 All benefits payable under the Plan shall be paid solely from the
Plan, and the Employer assumes no liability or responsibility with respect to
such payments.
13.3 In the event of any merger or consolidation of the Plan with, or
transfer of any assets or liabilities of the Plan to, any other plan each
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Participant shall be entitled to receive a benefit immediately after such
merger, consolidation, or transfer (computed as if such other plan had then
terminated) which is equal to or greater than the benefit he would have been
entitled to receive immediately before such merger, consolidation, or transfer
(computed as if the Plan had then terminated).
13.4 The Plan shall be construed and enforced in accordance with the laws
of the State of New Jersey, except to the extent preempted by the laws of the
United States.
ARTICLE XIV
TOP HEAVY PROVISIONS
--------------------
The provisions of this ARTICLE XIV shall become applicable only under
the circumstances described hereunder.
14.1 For purposes of this ARTICLE XIV, the Plan shall be "top heavy" if, as
of the determination date (the last day of the preceding Plan Year), the
present value of the cumulative account balances for Key Employees under the
Plan and all other plans in the "required aggregation group" or "permissive
aggregation group," as appropriate, exceeds 60% of the present value of the
cumulative account balances under all such plans for all Employees determined as
of the applicable "valuation date." For purposes of this ARTICLE XIV, (a) of
"required aggregation group" means (i) each qualified plan of any Employer in
which at least one Key Employee participates, and (ii) any other qualified plan
of any Employer which enables a plan described in (i) to meet the requirements
of Code section 401(a)(4) or 410, (b) "permissive aggregation group" means the
required aggregation group of plans plus any other plan or plans of any Employer
which, when considered as a group with the required aggregation group, would
continue to satisfy the requirements of Code sections 410(a)(4) and 410, and (c)
"valuation date" means the most recent Valuation Date within a 12-month period
ending on the determination date. The present value of such account balances
-37-
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shall be computed in accordance with Code section 416(g), and the above
percentage ratio shall be determined by a fraction, the numerator of which is
the sum of the present value of the account balances of Key Employees under
the Plan and all other plans in the aggregation group, and the denominator of
which is the sum of the present value of the account balances under all such
plans, including the Plan, for all Employees. If an individual has not
performed any service for the Employer at any time during the five-year period
ending on a determination date, any accrued benefit of such individual shall not
be taken into account.
14.2 The following provisions shall be applicable only in a Plan Year
with respect to which the Plan becomes top heavy as defined herein and
thereafter to the extent provided herein:
(a) Notwithstanding ARTICLE III, the Employer shall make a special
contribution on behalf of each non-Key Employee who has satisfied the
eligibility requirements of the Plan, whether or not a Participant in the Plan
and who is in service at the end of the Plan Year, with respect to such Plan
Year in an amount which equals the lesser of (i) 3% of his Compensation (as
defined in Code section 414(s), or, to the extent required by the Code and
regulations) or (ii) the largest percentage of Compensation provided under the
Plan for any Key Employee for such Plan Year without regard to this Section
14.2. Any such special Employer contribution shall be credited to such
Participant's Company Account. Notwithstanding the foregoing provisions
of this Section 14.2(a), if a Participant in the Plan is also a participant
in any defined benefit plan of the Employer, then for each Plan Year with
respect to which the Plan is top heavy, such Participant's accrual of a
minimum benefit under such defined benefit plan in accordance with Code
section 416(c) shall be deemed to satisfy the special Employer contribution
requirement of this Section 14.2(a). Employer contributions resulting from a
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salary reduction election by an Employee or matching contributions shall not
be counted toward meeting the required allocations under this Section.
(b) Notwithstanding ARTICLE VII, a Participant's interest in his
Company Account, adjusted for his share of income or losses and appreciation
or depreciation therein, shall become vested in accordance with the following
schedule based on the Participant's Years of Service, if the application of
such schedule would result in the Participant having a greater vested
percentage in his Company Account than he would otherwise have under the terms
of ARTICLE VII of the Plan:
Years of Service Vested Percentage
----------------- -----------------
less than 2 0%
2 but less than 3 20%
3 but less than 4 40%
4 but less than 5 60%
5 but less than 6 80%
6 or more 100%
The minimum allocation required (to the extent not forfeitble under Code
section 416(b)) may not be forfeited under Code section 411(a)(3)(B) or
411(a)(3)(D). If the Plan is no longer top heavy in a later Plan Year, the
foregoing vesting schedule shall continue to apply with respect to employees
with less than three Years of Service except to the extent their benefits have
already vested by application of such schedule.
(c) Notwithstanding the provisions of Section 5.1, if during any
Plan Year an Employee participates in both a defined contribution plan and a
defined benefit plan maintained by the Company which comprise a "top heavy
group", as defined in Code section 416(g)(2)(B), the denominators of the
defined benefit plan fraction and the defined conribution plan fraction, as
described in Section 6.1(d), shall be calculated by substituting "1.0" for
"1.25" each place it appears in such Section; provided however, that this
Section 14.2(b) shall not apply with respect to a plan in the top heavy group
if (i) such plan would satisfy the requirements of Code section 416(h)(2)(A)
-39-
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and (ii) the aggregate accrued benefits and cumulative account balances of
Key Employees under all plans in the top heavy group do not exceed 90% of
the aggregate accrued benefits and cumulative account balances under all such
plans for all Employees.
-40-
Page 50 of 57
EXHIBIT 5
---------
Page 51 of 57<PAGE>
May 19, 1999
Securities and Exchange Commission
450 Fifth Street, NW
Washington, DC 20549
RE: Cohoes Fashions, Inc. Employees'
401(k) Savings Plan
--------------------------------
Ladies and Gentlemen:
I am General Counsel of Burlington Coat Factory Warehouse Corporation
(the "Company"), and I have represented the Company in connection with the
preparation of the Registration Statement on Form S-8 of the Company relating
to 50,000 shares of Common Stock, $1.00 par value per share (the "Shares"), of
the Company being registered for offer and sale pursuant to the Cohoes
Fashions, Inc. Employees' 401(k) Savings Plan (the "Plan"), an employee
benefit plan sponsored by the Company's wholly-owned subsidiary Cohoes
Fashions, Inc. and affiliates thereof.
I have examined the Certificate of Incorporation, as amended, and the
By-Laws of the Company, the Plan and such other corporate documents and records
as I have deemed necessary in order to render the opinion set forth below.
Based upon the foregoing, and subject to the qualification that I am
admitted to the practice of law in the State of New York and the State of New
Jersey and do not purport to be expert in the laws of any jurisdiction other
than the State of New York and the State of New Jersey and the federal laws
of the United States, I am of the opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
2. The Shares being offered under the Plan, when issued in accordance
with and pursuant to the Plan, will be validly issued, fully paid and non-
assessable.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Paul C. Tang
----------------
Paul C. Tang,
General Counsel
PCT/jh
Page 52 of 57<PAGE>
EXHIBIT 24.2
------------
Page 53 of 57<PAGE>
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Burlington Coat Factory Warehouse Corporation and subsidiaries on Form S-8 of
our report dated July 28, 1998, appearing in the Annual Report on Form 10-K of
Burlington Coat Factory Warehouse Corporation and subsidiaries for the year
ended May 30, 1998.
DELOITTE & TOUCHE LLP
Philadelphia, Pennsylvania
May 19, 1999
Page 54 of 57<PAGE>
EXHIBIT 25
----------
Page 55 of 57<PAGE>
POWER OF ATTORNEY
Burlington Coat Factory Warehouse Corporation, a Delaware corporation
(the "Company"), Cohoes Fashions, Inc. Employees' 401(k) Savings Plan and each
of the undersigned officers and directors of the Company, hereby constitute
and appoint Monroe G. Milstein, Henrietta Milstein and Paul C. Tang, jointly
and severally, with full power of substitution and revocation, their true
and lawful attorneys-in-fact and agents, for them and on their behalf and
in their respective names, places and steads, in any and all capacities to
sign, execute and affix their respective seals thereto and file any and all
documents relating to the proposed registration of up to 50,000 (and such
additional amounts as may be authorized by the Board of Directors of the
Company from time to time) shares of Common Stock, $1.00 par value per share,
that may be issued pursuant to purchases made under the Cohoes Fashions,
Inc. Employees' 401(k) Savings Plan, including, without limitation, a
registration statement under the Securities Act of 1933, as amended,
including any amendments thereto on behalf of the Company, with all exhibits
and any and all documents required to be filed with respect thereto with any
regulatory authority, granting unto said attorneys, and each of them, 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 in order to
effectuate the same as fully to all intents and purposes as they might or
could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
This Power of Attorney may be executed in counterparts.
IN WITNESS WHEREOF, Burlington Coat Factory Warehouse
Corporation has caused this Power of Attorney to be executed in its name by
its President and its corporate seal to be affixed and attested by its
Secretary, and the undersigned officers and directors have hereunto set their
hand as of this 16th day of April, 1999.
BURLINGTON COAT FACTORY
WAREHOUSE CORPORATION
By: /s/ Monroe G. Milstein
--------------------------
Monroe G. Milstein, President
[CORPORATE SEAL]
Attest
/s/ Henrietta Milstein
----------------------
Henrietta Milstein,
Secretary
Page 56 of 57<PAGE>
IN WITNESS WHEREOF, the following persons have executed this Power of
Attorney in their respective capacities set forth below as of the 16th day of
April, 1999.
/s/ Monroe G. Milstein /s/ Henrietta Milstein
------------------------------ ---------------------------------
Monroe G. Milstein, Chairman Henrietta Milstein, Vice-
of the Board, President, and President, Secretary and
Chief Executive Officer Director
(Principal Executive Officer)
/s/ Andrew R. Milstein /s/ Stephen E. Milstein
------------------------------- ---------------------------------
Andrew R. Milstein, Vice- Stephen E. Milstein, Vice-
President and Director President and Director
/s/ Mark A. Nesci /s/ Robert L. LaPenta, Jr.
------------------------------- ----------------------------------
Mark A. Nesci, Vice-President Robert L. LaPenta, Jr., Controller
and Director (Principal Accounting Officer)
/s/ Harvey Morgan /s/ Irving Drillings
------------------------------- ----------------------------------
Harvey Morgan, Director Irving Drillings, Director
IN WITNESS WHEREOF, the Cohoes Fashions, Inc. Employees' 401(k) Savings
Plan has duly caused this Power of Attorney to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Burlington, State of
New Jersey, on the 16th day of April, 1999.
By: /s/ Henrietta Milstein By: /s/ Monroe G. Milstein
-------------------------------- -------------------------------
Henrietta Milstein, Trustee Monroe G. Milstein, Trustee
Cohoes Fashions, Inc. Employees' Cohoes Fashions, Inc. Employees'
401(k) Savings Plan 401(k) Savings Plan
Page 57 of 57
