Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BURLINGTON INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 56-1584586
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3330 West Friendly Avenue, Greensboro, NC 27410
(Address of Principal Executive Offices) (Zip Code)
Burlington Industries, Inc. 1995 Equity Incentive Plan
(Full title of the plan)
Barbara K. Eisenberg, Esq.
Vice President and Secretary
3330 West Friendly Avenue
Greensboro, NC 27410
(Name and address of agent for service)
(910) 379-2000
(Telephone number, including area code, of agent for service)
Calculation of Registration Fee
_______________________________________________________________________________
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price per offering registration
to be registered registered (1) unit (2) price (2) fee (3)
_______________________________________________________________________________
Common Stock, 3,255,284 $ 12.28 $ 39,982,244.50 $ 13,787
par value
$.01 per share
(1) Pursuant to Rule 416 promulgated under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares of Common Stock stated above, such
additional shares of Common Stock to be offered or issued to prevent
dilution as a result of future stock dividends or stock splits.
(2) The aggregate offering price is the sum of the aggregate offering price
of shares of Common Stock, calculated as set forth in note (3), which
may be purchased upon the exercise of outstanding options, calculated on
the basis of the price at which the options may be exercised, and in the
case of shares of Common Stock which may hereafter be issued or for
which options may hereafter be issued, calculated on the basis of the
average of the high and low prices of the Common Stock on the New York
Stock Exchange on July 26, 1996. The maximum offering price per unit is
the aggregate offering price divided by the total number of shares of
Common Stock being registered pursuant to this Registration Statement.
(3) The fee with respect to these shares has been calculated pursuant to
Rules 457(h)(1) and 457(c) of the Securities Act as follows: (a) in the
case of shares of Common Stock which may be purchased upon the exercise
of outstanding options, the fee is calculated on the basis of the price
at which the options may be exercised, and (b) in the case of shares of
Common Stock which may hereafter be issued or for which options may
hereafter be issued, the fee is calculated on the basis of the average
of the high and low prices of the Common Stock on the New York Stock
Exchange on July 26, 1996, a date within five business days prior to the
date of filing of this Registration Statement.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
_____________________________
* The information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities Act and the "Note" to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Burlington Industries, Inc. (the
"Company") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference in this Registration
Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1995.
(b) All other reports filed by the Company pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), since September 30, 1995.
(c) The description of the Company's Common Stock in the
Company's Registration Statement on Form 8-A, filed with the
Commission on April 23, 1992, including any amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all
securities offered hereunder have been sold or which deregisters
all securities then remaining unsold hereunder, shall be deemed
to be incorporated by reference in this Registration Statement
and to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Robert A. Wicker, Esq., General Counsel of the Company, received
under the Burlington Industries, Inc. 1995 Equity Incentive Plan
options to purchase 25,000 shares of the Company's Common Stock and
performance units to receive an amount whose value is determined
with reference to attaining stated performance goals for a certain
performance period, payable in cash and up to a maximum of 6,881
shares of the Company's Common Stock.
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Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Reference is made to Section
145 of the Delaware General Corporation Law (the "DGCL"), which
provides that a corporation may indemnify any person, including any
officer or director, who is, or is threatened to be made, a party to
any threatened, pending or completed legal action, suit or
proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by
reason of the fact that such person is or was an officer, director,
employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding, if such
officer, director, employee or agent acted in good faith and in a
manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal
action or proceeding, had no reasonable cause to believe that his
conduct was unlawful. A Delaware corporation also may indemnify any
such person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or
in the right of the corporation against expenses under substantially
the same conditions, except that no indemnification is permitted
without judicial approval if such person is adjudged to be liable to
the corporation. Where any such person is successful on the merits
or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses that such person
actually and reasonably incurred.
Reference is also made to Section 102(b)(7) of the DGCL, which
enables a corporation in its original certificate of incorporation
or in an amendment thereto to eliminate or limit the personal
liability of a director to the corporation or its stockholders for
monetary damages for violations of the director's fiduciary duty,
except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL or (iv) for
any transaction from which such director derived an improper
personal benefit.
Article VI of the Restated Certificate of Incorporation of the
Company provides that the Company shall indemnify any person who was
or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the Company) by reason of the fact that he is or
was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests
of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the
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best interests of the Corporation, and, with respect to any criminal
action or proceeding, had reasonable cause to believe that his
conduct was unlawful. Article VI further provides that the Company
shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or
suit by or in the right of the Company to procure a judgment in its
favor by reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the Company and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
To the extent that a director, officer, employee or agent of the
Company has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in either of the two
immediately preceding paragraphs, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him
in connection therewith. Also, any such indemnification (unless
ordered by a court) shall be made by the Company only as authorized
in the specific case upon a determination that indemnification of
the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct
set forth in the foregoing provisions of Article VI. Such
determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who are not
parties to such action, suit or proceeding, or (ii) if such a quorum
is not obtainable, or, even if obtainable a quorum of disinterested
directors so directs, by independent legal counsel in a written
opinion or (iii) by the stockholders.
Expenses (including attorneys' fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the Company
in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company
pursuant to Article VI or as otherwise authorized by law. Such
expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems
appropriate.
The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of Article VI are not
deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
by-law, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
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The Company is authorized under Article VI to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him
against such liability under the provisions of the DGCL. The Company
maintains a directors' and officers' liability insurance policy.
For purposes of Article VI, references to the Company include, in
addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a
consolidation or merger which, if its separate existence had
continued, would have had power and authority to indemnify its
directors, officers, employees or agents so that any person who is
or was a director, officer, employee or agent of such constituent
corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
shall stand in the same position under the provisions of Article VI
with respect to the resulting or surviving corporation as he would
have with respect to such constituent corporation if its separate
existence had continued.
For purposes of Article VI, references to "other enterprises"
include employee benefit plans; references to "fines" shall include
any excise taxes assessed on a person with respect to any employee
benefit plan; and references to "serving at the request of" the
Company shall include any service as a director, officer, employee
or agent of the Company which imposes duties on, or involves service
by, such director, officer, employee or agent with respect to an
employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of" the Company, as
referred to in Article VI.
The indemnification and advancement of expenses provided by, or
granted pursuant to, Article VI, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be
a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Article VII of the Restated Certificate of Incorporation of the
Company provides that a director of the Company shall not be
personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to
the Company or its stockholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the DGCL, or (iv) for
any transaction from which the director derived any improper
personal benefit. Any repeal or modification of Article VII shall
not adversely affect any right or protection of a director of the
Company existing at the time of such repeal or modification.
The Board of Directors of the Company adopted resolutions on October
23, 1990, indemnifying each officer and director of the Company
(other than any officer or director whose principal employment is
with an entity other than the Company or any subsidiary thereof)
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against any and all expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with any present or future threatened, pending or
completed claim, action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of such officer
or director serving in such capacity and further authorizing the
payment of expenses incurred by any such indemnified person in
defending any threatened, pending or completed claim, action, suit
or proceeding in advance of the final disposition thereof upon
receipt of an undertaking to repay such expenses if it shall
ultimately be determined that such indemnified party was not
entitled to be indemnified by the Company for such purposes;
provided that such indemnification shall not apply to any claim or
proceeding in which the indemnified person shall be adjudged liable
because of willful misfeasance or bad faith or, in the case of a
criminal action or proceeding, in which the indemnified party had
reasonable cause to believe that his conduct was unlawful.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1 Form of Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit
3.1 of the Company's Registration Statement on Form
8-B, as filed with the Commission on June 3, 1994).
5 Opinion of Robert A. Wicker, Esq., Vice President
and General Counsel of the Company.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robert A. Wicker, Esq. (included in
Exhibit 5).
Item 9. 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 to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
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(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that in
the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Greensboro, State of North Carolina, on July 23,
1996.
BURLINGTON INDUSTRIES, INC.
By /s/ GEORGE W. HENDERSON, III
George W. Henderson, III
President and Chief Executive Officer
(Principal Executive Officer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ GEORGE W. HENDERSON, III Director, President and Chief July 23, 1996
George W. Henderson, III Executive Officer (Principal
Executive Officer)
/s/ CHARLES E. PETERS, JR. Senior Vice President and July 23, 1996
Charles E. Peters, Jr. Chief Financial Officer
(Principal Financial Officer)
/s/ AGUSTIN J. DIODATI Vice President and Controller July 23, 1996
Agustin J. Diodati (Principal Accounting Officer)
/s/ JOSEPH F. ABELY, JR. Director July 23, 1996
Joseph F. Abely, Jr.
/s/ JOHN D. ENGLAR Director July 23, 1996
John D. Englar
/s/ FRANK S. GREENBERG Director July 23, 1996
Frank S. Greenberg
/s/ BERNARD A. LEVENTHAL Director July 23, 1996
Bernard A. Leventhal
/s/ DAVID I. MARGOLIS Director July 23, 1996
David I. Margolis
/s/ JOHN G. MEDLIN Director July 23, 1996
John G. Medlin
/s/ NELSON SCHWAB, III Director July 23, 1996
Nelson Schwab, III
/s/ ABRAHAM B. STENBERG Director July 23, 1996
Abraham B. Stenberg
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EXHIBIT INDEX
Exhibit
No. Description
4.1 Form of Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form 8-B, as filed with the Commission on
June 3, 1994).
5 Opinion of Robert A. Wicker, Esq., Vice President and General
Counsel of the Company.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Robert A. Wicker, Esq.(included in Exhibit 5).
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EXHIBIT 5
BURLINGTON INDUSTRIES, INC.
Legal Department
P.O. Box 21207
Greensboro, North Carolina 27420
August 1, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20005
Re: Registration Statement on Form S-8
of Burlington Industries, Inc.
Dear Sir or Madam:
I am Vice President and General Counsel of Burlington Industries, Inc.
(the "Corporation"). In that capacity, I have acted as counsel for the
Corporation in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement") relating to 3,255,284 shares of the Corporation's
Common Stock, $0.01 par value per share (the "Common Stock"), to be offered
pursuant to the Burlington Industries, Inc. 1995 Equity Incentive Plan (the
"Plan"). This opinion is being furnished to you as a supporting document for
such Registration Statement.
I, or attorneys under my supervision, have examined such documents,
legal opinions and precedents, corporate and other records of the Corporation
and certificates of public officials and officers of the Corporation as I have
deemed necessary or appropriate to provide a basis for the opinions set forth
below. In this examination, I have assumed the genuineness of all signatures,
the authenticity of all documents submitted to me as original documents and
conformity to original documents of all documents submitted to me as certified
or photostat copies.
On the basis of the foregoing, I am of the opinion that:
1. The Corporation has been duly incorporated and is a validly existing
corporation in good standing under the laws of the State of Delaware.
2. Upon approval of the New York Stock Exchange listing application with
respect to, and issuance and delivery of shares of Common Stock of the Company
pursuant to the Plan, and upon payment to the Corporation of the option price
for the Common Stock, such shares will be validly issued, fully paid and
nonassessable.
I am qualified to practice law in the State of North Carolina. I do not
express any opinion herein concerning the laws of any jurisdiction other than
the laws of the State of North Carolina, the General Corporation Law of the
State of Delaware and the federal laws of the United States of America as
applied to public companies.
I hereby consent to the use of this opinion and my name in connection
with the Registration Statement filed with the Securities and Exchange
Commission to register the shares of Common Stock as aforesaid.
Sincerely,
/s/ Robert A. Wicker
Robert A. Wicker,
Vice President and General Counsel
Consent of Ernst & Young LLP, Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Burlington Industries, Inc. 1995 Equity Incentive Plan of
Burlington Industries, Inc. of our report dated November 3, 1995, with respect
to the consolidated financial statements of Burlington Industries, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
September 30, 1995 and the related financial statement schedule included
therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young
Greensboro, North Carolina
August 1, 1996
