As filed with the Securities and Exchange Commission on August 20, 1999
Registration No.
================================================================================
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. 1998 Equity Incentive Plan
---------------------------------------------------------------
(Full title of the plan)
Alice Washington Grogan, Esq.
Corporate Secretary and Associate General Counsel
3330 West Friendly Avenue
Greensboro, NC 27410
---------------------------------------------------------------
(Name and address of agent for service)
(336) 379-2000
---------------------------------------------------------------
(Telephone number, including area code of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
- ------------------------------ -------------------------- --------------------------- --------------------------- ------------------
Proposed Proposed
maximum maximum
offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered (1) per unit (2) price (2) fee (3)
- ------------------------------ -------------------------- --------------------------- --------------------------- ------------------
<S> <C> <C> <C> <C>
Common Stock 2,700,000 $6.6889256 $18,060,099 $5,020.71
par value
$.01 per share
</TABLE>
(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 August 19, 1999. the maximum offering price per unit
is the aggregate offering price divided by the total number of shares
of Common Stock being registered pursuant to this Registration
Statement.
(3) The fee with respect to these shares has been calculated pursuant to
Rules 457(h)(l) and 457 (c) of the Securities Act as follows: (a) in
the case of shares of Common Stock which may be purchased upon the
exercise of outstanding options, the fee is calculated on the basis of
the price at which the options may be exercised, and (b) in the case of
shares of Common Stock which may hereafter be issued or for which
options may be 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 August 19, 1999, a date within five business
days prior to the date of filing of this Registration Statement.
<PAGE>
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 October 3, 1998.
(b) all other reports filed by the Company pursuant
to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"), since October 3, 1998.
(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.
<PAGE>
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Alice Washington Grogan, Esq., Associate General Counsel of
the Company, received under the Burlington Industries, Inc.
1998 Equity Incentive Plan options to purchase 4,900 shares of
the Company's Common Stock.
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.
2
<PAGE>
Article VI of the Restated Certificate of Incorporation of the
Company provides that the Company shall indemnify any person
who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the
Company) by reason of the fact that he is or was a director,
officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer,
employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the company, and, with
respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful. Article VI further
provides that the Company shall indemnify any person who was
or is or a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the
right of the Company to procure a judgment in its favor by
reason of the fact that he is or was a director, officer,
employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including
attorney's fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Company and except that no indemnification shall be made in
respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Company unless
and only to the extent that the Court of Chancery of the State
of Delaware or the court in which such action or suit was
brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
To the extent that a director, officer, employee or agent of
the Company has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in
either of the two immediately preceding paragraphs, or in
defense of any claim issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith. Also, any such indemnification (unless ordered by a
court) shall be made by the Company only as authorized in the
specific case
3
<PAGE>
upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set
forth in the foregoing provisions of Article VI. Such
determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who are not
parties to such action, suit or proceeding, or (ii) if such a
quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal
counsel in a written opinion or (iii) by the stockholders.
Expenses (including attorney's fees) incurred by an officer or
director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the
Company in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it
shall ultimately be determined that he is not entitled to be
indemnified by the Company pursuant to Article VI or as
otherwise authorized by law. Such expenses incurred by other
employees and agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems
appropriate.
The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of Article VI are
not deemed exclusive of any other rights to which those
seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
The Company is authorized under Article VI to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against
any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether
or not the Company would have the power to indemnify him
against such liability under the provisions of the DGCL. The
Company maintains a directors' and officers' liability
insurance policy.
For purposes of Article VI, references to the Company include,
in addition to the resulting corporation, any constituent
corporation (including any constituent of a constituent)
absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to
indemnify its directors, officers, employees or agents so that
any person who is or was a director, officer, employee or
agent of such constituent corporation, or is or was serving at
the request of such constituent corporation as a director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall
stand in the same position under the provisions of Article VI
4
<PAGE>
with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its
separate existence had continued.
For purposes of Article VI, references to "other enterprises"
include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to
any employee benefit plan; and references to "serving at the
request of" the Company shall include any service as a
director, officer, employee or agent of the Company which
imposes duties on, or involves service by, such director,
officer, employee or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to
be in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of" the Company, as
referred to in Article VI.
The indemnification and advancement of expenses provided by,
or granted pursuant to, Article VI, unless otherwise provided
when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and
administrators of such a person.
Article VII of the Restated Certificate of Incorporation of
the Company provides that a director of the Company shall not
be personally liable to the Company or its stockholders for
momentary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty
of loyalty to the Company or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section
174 of the DGCL, or (iv) for any transaction from which the
director derived any improper personal benefit. Any repeal or
modification of Article VII shall not adversely affect any
right or protection of a director of the Company existing at
the time of such repeal or modification.
The Board of Directors of the Company adopted resolutions on
October 23, 1990, indemnifying each officer and director of
the Company (other than any officer or director whose
principal employment is with an entity other than the Company
or any subsidiary thereof) against any and all expenses,
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with any
present or future threatened, pending or completed claim,
action, suit or proceeding, whether civil, criminal,
administrative or investigative, by reason of such officer or
director serving in such capacity and further authorizing the
payment of expenses incurred by any such indemnified person in
defending any threatened, pending or completed claim, action,
suit or proceeding in advance of the final disposition thereof
upon receipt of an undertaking to repay such expenses if it
shall ultimately be determined that such indemnified party was
not entitled to be indemnified by the Company for such
purposes; provided that such indemnification shall not apply
to any
5
<PAGE>
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.
<TABLE>
<CAPTION>
Exhibit No. Description
<S> <C>
4.1 Form of Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on form 8-B, as filed with the Commission on
June 3, 1994)
5 Opinion of Alice Washington Grogan, Esq., Associate General Counsel
of the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Alice Washington Grogan, Esq. (included in Exhibit 5)
</TABLE>
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.
(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
6
<PAGE>
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.
7
<PAGE>
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 20, 1999.
BURLINGTON INDUSTRIES, INC.
By /s/ George W. Henderson, III
-------------------------------
George W. Henderson, III
Chairman of the Board and
Chief Executive Officer
(Principal Executive Officer)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ----------- ----- ----
<S> <C> <C>
/s/ George W. Henderson, III Chairman of the Board and July 20, 1999
- ---------------------------- Chief Executive Officer
George W. Henderson, III (Principal Executive Officer)
/s/ Charles E. Peters, Jr. Senior Vice President and July 20, 1999
- -------------------------- Chief Financial Officer
Charles E. Peters, Jr. (Principal Financial and
Accounting Officer)
/s/ Jerald A. Blumberg Director July 20, 1999
- ----------------------
Jerald A. Blumberg
/s/ John D. Englar Director July 20, 1999
- ------------------
John D. Englar
/s/ David I. Margolis Director July 20, 1999
- ---------------------
David I. Margolis
8
<PAGE>
/s/ John G. Medlin, Jr. Director July 20, 1999
- -----------------------
John G. Medlin, Jr.
/s/ Nelson Schwab III Director July 20, 1999
- ---------------------
Nelson Schwab III
/s/ Abraham B. Stenberg Director July 20, 1999
- -----------------------
Abraham B. Stenberg
/s/ Theresa M. Stone Director July 20, 1999
- --------------------
Theresa M. Stone
/s/ W. Barger Tygart Director July 20, 1999
- --------------------
W. Barger Tygart
</TABLE>
9
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
------- -----------
<S> <C>
4.1 Form of Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on form 8-B, as filed with the Commission on
June 3, 1994)
5 Opinion of Alice Washington Grogan, Esq., Associate General Counsel
of the Company
23.1 Consent of Ernst & Young LLP
23.2 Consent of Alice Washington Grogan, Esq. (included in Exhibit 5)
</TABLE>
10
[GRAPHIC APPEARS HERE]
BURLINGTON INDUSTRIES, INC. Legal Department
P.O. Box 21207
Greensboro, North Carolina 27420
August 19, 1999
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 Associate 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 2,700,000 shares of the Corporation's Common Stock,
$0.01 par value per share (the "Common Stock"), to be offered pursuant to
Burlington Industries, Inc 1998 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 genuiness of all signatures, the
authenticity of all documents submitted to be 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.
<PAGE>
Securities and Exchange Commission
August 19, 1999
Page Two
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/ Alice Washington Grogan
---------------------------
Alice Washington Grogan
Associate General Counsel
AWG:cm
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. 1998 Equity Incentive Plan of
our report dated October 28, 1998, 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 October 3, 1998, filed with the
Securities and Exchange Commission.
We also consent to the incorporation by reference therein of our report dated
October 28, 1998 with respect to the financial statement schedule of Burlington
Industries, Inc. for the years ended October 3, 1998, September 27, 1997 and
September 28, 1996 included in its Annual Report (Form 10-K) for 1998 filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Greensboro, North Carolina
August 19, 1999
