BURLINGTON INDUSTRIES EQUITY INC.
AMENDED AND RESTATED
1992 EQUITY INCENTIVE PLAN
1. Purpose. The Burlington Industries Equity Inc. 1992 Equity Incentive
Plan (the "Plan") is intended to enhance the ability of Burlington Industries
Equity Inc., a Delaware corporation (the "Company"), to attract, retain and
motivate key executives and employees of the Company, its affiliates or
subsidiaries, by providing such persons with an opportunity to obtain a
proprietary interest in the Company and by rewarding them for their contribution
to the company. The Company believes that providing key executives and employees
with such opportunities and rewards serves the best interests of the company's
shareholders.
2. Definitions. As used herein:
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"Award" means Options, Restricted Shares, Stock Appreciation Rights and Phantom
Shares.
"Beneficiary" or "Beneficiaries" means the person or persons designated by a
Participant pursuant to the provisions of the Agreement (as defined in Section
6) to receive payments or rights pursuant to such Agreement upon the
Participant's death. If no Beneficiary is so designated by a Participant or if
no Beneficiary is living at the time a payment is due pursuant to such
Agreement, payments shall be made to the estate of such Participant. The
Agreement shall provide a Participant with the right to change the designated
Beneficiaries from time to time by written instrument executed by the
Participant and filed with the Committee in accordance with such rules as may be
specified by the Committee.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
"Committee" means the committee of the Board described in Section 4.
"Common Stock" means the common stock of the Company, par value $ 0.01 per
share, or such other class or kind of shares or other securities as may be
applicable under Section 12.
"Effective Date" shall be the date on which the Plan is approved by the holders
of a majority of the outstanding shares of Common Stock of the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, as such act, rules or regulations may be
amended from time to time.
"Fair Market Value" means the fair market value of a share of Common Stock, as
determined in good faith by the Committee, using such methodology as it may deem
appropriate.
"Free-Standing Stock Appreciation Right" means a Stock Appreciation Right not
granted in tandem with an Option.
"Grant Date" means, with respect to any Award, the date on which such Award was
granted.
"Incentive Stock Option" means an Option which is intended to qualify as an
incentive stock option under Section 422(b) of the Code.
"Initial Value" means the initial value, if any, of a Phantom Share or
Free-Standing Stock Appreciation Right as determined at the time of grant by the
Committee in its discretion and as set forth in the applicable Agreement.
"Non-qualified Stock Option" means an Option which is not intended to qualify as
an Incentive Stock Option.
"Option" means an option to purchase shares of Common Stock, subject to the
terms and conditions provided for in Section 7.
"Option Price" means the exercise price of an Option, as determined at the time
of grant by the Committee in its discretion and as set forth in the applicable
Agreement; provided, however, that the Option Price for an Incentive Stock
Option shall be no less than 100 percent of the Fair Market Value of a share of
Common Stock as of the Grant Date; and provided, further, that the Option Price
of any Incentive Stock Option shall be subject to the terms set forth in Section
7(a)(iii) hereof.
"Participant" means a key employee of the Company, or one of its subsidiaries or
affiliates, who is designated by the Committee to receive an Award under the
Plan.
"Phantom Share" means a right whose value is determined with reference to the
value of Common Stock or such other measure as may be approved by the Committee,
subject to the terms and conditions provided for in Section 10.
"Restricted Shares" means restricted shares of Common Stock, subject to the
terms and conditions provided for in Section 9.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and
regulations thereunder, as such law, rules and regulations may be amended from
time to time.
"Stock Appreciation Right" means a right to receive appreciation, if any, in the
Fair Market Value of shares of Common Stock, subject to the terms and conditions
provided for in Section 8.
"Tandem Stock Appreciation Right" means a Stock Appreciation Right granted in
tandem with an Option.
"Window Period" means the 10-business day period in each fiscal quarter of the
Company commencing on the third business day following the release for
publication of the Company's quarterly or annual sales and earnings for the next
preceding fiscal quarter or year, as the case may be, and ending on the twelfth
business day following such date of release.
3. Shares Available for Grant. The number of shares of Common Stock
that may be used to settle Awards under the Plan shall not exceed 8% of the
number of issued and outstanding shares of Common Stock as of the closing, and
after giving effect to, the initial public offering of Common Stock (including
the exercise of the underwriters' over-allotment option) pursuant to the
Company's Registration Statement (No. 33-45149) filed with the Securities and
Exchange Commission. Notwithstanding the foregoing, (i) in calculating the
number of shares of Common Stock outstanding for this purpose, any right to
convert any stock, bond, note or other right or instrument into Common Stock
shall be deemed to have been exercised; (ii) any Awards granted under the Plan
that constitute replacements or substitutions for awards granted under the Plan
or any other plan of the Company, its affiliates and subsidiaries, or any entity
or business that is acquired by the Company, its affiliates or subsidiaries,
shall not be counted for the purpose of calculating the number of shares of
Common Stock issued or issuable in connection with Awards that are granted under
the Plan nor considered newly granted Awards for purposes of Section 14; (iii)
the aggregate number of shares of Common Stock subject to Incentive Stock
Options which may be granted under the Plan shall not exceed 1,200,000; and (iv)
any Awards that have been forfeited or canceled or have expired without the
relevant Participant having received value therefor, such as the forfeiture of a
Participant's unvested Option upon termination of his service (an "Expired
Award") shall not be counted for purposes of determining the number of shares of
Common Stock issued or issuable in connection with Awards granted under the
Plan. For purposes of clause (iv) above, neither (A) any Award tendered to the
Company or withheld by the Company to satisfy tax-withholding requirements nor
(B) any Restricted Share that is forfeited, canceled or expires and with respect
to which a Participant received any dividends or "benefits of ownership" (within
the meaning of the rules under Section 16(b) of the Exchange Act), shall be
deemed an Expired Award.
Shares of Common Stock issued under the Plan may be authorized and
unissued shares or issued and re-acquired shares, as the Committee may from time
to time determine.
4. Administration. The Plan shall be administered by the Committee,
which shall be appointed by the Board and which shall consist of two or more
members of the Board who, during the time of their service as members of the
Committee, qualify with respect to the Plan as "disinterested directors", within
the meaning of Rule 16b-3 under the exchange Act. The Committee shall have the
authority to interpret and construe the provisions of the Plan and of any
agreements under the Plan and make determinations pursuant to any Plan provision
or agreement. Each interpretation, determination or other action made or taken
pursuant to the Plan by the Committee shall be final, conclusive and binding on
all persons.
5. Grant or Offer of Awards. The Committee shall, from time to time,
select and make grants of Awards of offers for the sale of Awards to
Participants.
6. Agreement. The terms and conditions of each grant of Awards shall be
embodied in a written agreement (the "Agreement") in a form approved by the
Committee which shall contain terms and conditions not inconsistent with the
Plan and which shall incorporate the Plan by reference. Each Agreement shall:
(a) state the Grant Date of the Award, the number of shares issuable in
connection with the Award or the number of Phantom Shares, Free-Standing Stock
Appreciation Rights or Restricted Shares related to the Award, as the case may
be, and (i) in the case of Options (and any related Tandem Stock Appreciation
Rights), the Option Price, (ii) in the case of Restricted Shares, the purchase
price, if any, for such Restricted Shares or (iii) in the case of Phantom Shares
and Free-Standing Stock Appreciation Rights, the Initial Value thereof, if
applicable, and the maximum number of shares of Common Stock that may be issued
in connection therewith; (b) specify any applicable vesting schedule; (c) in the
case of Options, state whether the Option is intended to qualify as an Incentive
Stock Option; (d) provide that Restricted Shares shall only be transferrable
after they vest and that all other Awards shall not be transferable by the
Participant otherwise than by will or the laws of descent and distribution or
pursuant to a qualified domestic relations order as such term is defined in the
Code or Title I of the Employee Retirement Income Security Act of 1974, as
amended, or the rules thereunder, and during the Participant's lifetime shall
only be exercisable by or paid to the Participant; (e) provide that shares of
Common Stock acquired pursuant to such Award shall not be transferred for six
months following the Grant Date of such Award; (f) provide for the treatment of
Awards in the event of the termination of the Participant's employment; (g) in
the case of a Stock Appreciation Right, provide that such Stock Appreciation
Right may be exercised only during a Window Period and may only be exercised six
months or more after its Grant Date; (h) in the case of a Phantom Share, provide
that such Phantom Share will be payable only on a fixed date (at least six
months after the Grant Date) set forth in the Agreement or (at the Committee's
discretion and subject to such terms as the Committee may impose) incident to
the Participant's death, disability, retirement or termination of employment;
(i) provide such other additional or alternative terms as may, in the
Committee's discretion, be advisable to comply with the exemptive relief
provided by Rule 16b-3 under the Exchange Act; (j) provide such other terms and
conditions, not inconsistent with the Plan, as the Committee may deem advisable;
(k) be signed by the recipient of the Award and a person designated by the
Committee; and (l) be delivered to the recipient of the Award.
7. Terms of Options.
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(a) Terms of Options Generally. Options may be granted to any
Participant to purchase such number of shares of Common Stock as the
Committee shall determine in exchange for payment of the Option Price
in cash, or, in the discretion of the Committee and to the extent
provided in the applicable Agreement, in shares of Common Stock already
owned by the Participant, in other property acceptable to the Committee
or in any combination of cash, shares of Common Stock or such other
property, or in such other manner of settlement of the Option Price as
the Committee shall determine. Options granted under the Plan shall
comply with the terms and conditions set forth in this Section 7.
(i) Vesting. Each Option shall vest and become
exercisable as determined by the Committee and as set forth
in the applicable Agreement.
(ii) Duration of Options. Each Option shall be
effective for such term as shall be determined by the
Committee and set forth in the Agreement; provided, however,
that no Option shall be exercisable beyond the tenth
anniversary of the Grant Date of such Option.
(iii) Incentive Stock Options Granted to Certain
Shareholders. No Incentive Stock Option may be issued
pursuant to the terms of the Plan to any individual who, at
the time the Option is granted, owns stock possessing more
than 10 percent of the total combined voting power of all
classes of stock of the company or any of its subsidiaries,
unless (A) the Option Price determined as of the Grant Date
is at least 110 percent of the Fair Market Value on the Grant
Date of the shares of Common Stock subject to such Option and
(B) the Incentive Stock Option is not exercisable more than
five years from the Grant Date thereof.
(b) Effect of Exercise on Related Tandem Stock Appreciation
Rights. The exercise of an Option shall result in the cancellation of
any related Tandem Stock Appreciation Rights on a share-for-share
basis.
(c) Limitation on Exercise. The Option shall not be
exercisable unless the offer and sale of the Common Stock subject to
the Option has been registered under the Securities Act, or the Company
had determined that an exemption from registration under the Securities
Act is available and applicable to the offer and sale of the Common
Stock subject to the Option.
(d) Delivery of Certificate. As soon as practicable following
the exercise of an Option, a certificate in the Participant's name
evidencing the appropriate number of shares of Common Stock issued in
connection with such exercise shall be delivered to the participant.
8. Terms of Stock Appreciation Rights.
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(a) Terms of Stock Appreciation Rights Generally. Each Stock
Appreciation Right granted under the Plan shall comply with the terms
and conditions set forth in this Section 8.
(i) Grants of Stock Appreciation Rights. Each Tandem
Stock Appreciation Right shall relate to a specific Option
granted under the Plan and in the case of Incentive Stock
Options may be granted only concurrently with the Option to
which it relates. In the case of Non-qualified Stock Options,
Tandem Stock Appreciation Rights may be granted at any time
prior to the exercise, termination or expiration of such
Option. Free-Standing Stock Appreciation Rights may be granted
by the Committee at any time to any Participant.
(ii) Vesting, Exercise and Duration of Stock
Appreciation Rights. A Tandem Stock Appreciation Right shall
be exercisable by a Participant only at such times as the
Option to which it relates may be exercised, shall be
forfeited when the related Option is forfeited and may expire
no later than the expiration of the related Option. Each
Free-Standing Stock Appreciation Right shall vest and become
exercisable as determined by the Committee and as set forth in
the applicable agreement.
(iii) Value of Stock Appreciation Rights. A vested
Stock Appreciation Right shall entitle a Participant to
receive from the Company, upon exercise of the right, an
amount (payable in the manner described in Section 8(c)) equal
to the Fair Market Value on the exercise date of the Stock
Appreciation Right of the total number of shares of Common
Stock for which the Stock Appreciation Right is exercised,
less (A) in the case of Tandem Stock Appreciation Rights, the
Option Price that the Participant would have otherwise been
required to pay to purchase such shares had the Option been
exercised with respect to such shares or (B) in the case of a
Free-Standing Stock Appreciation Right, the Initial Value.
(iv) Number of Shares Covered by a Tandem Stock
Appreciation Right. In no case may the number of shares of
Common Stock covered by a Tandem Stock Appreciation Right
exceed the number of shares of Common Stock covered by the
related Option.
(b) Effect of Exercise of Tandem Stock Appreciation Right on
Related Option. The exercise of a Tandem Stock Appreciation Right shall
automatically result in the cancellation of the related Option on a
share-for-share basis, and the shares of Common Stock which were
related to such Option shall not again be available for future grants
or sales of Awards.
(c) Payment. Payment to a Participant upon the exercise of a
Stock Appreciation Right shall be made as soon as practicable following
such exercise and, in the discretion of the Committee, may be made in
cash, in shares of Common Stock or a combination of cash and shares of
Common Stock; provided, however, that payment shall not be made in
Common Stock unless Common Stock has been registered under the
Securities Act, or the Company has determined that an exemption under
such Act is available and applicable to such exercise and payment in
Common Stock.
(d) Delivery of Certificate. As soon as practicable following
the exercise of a Stock Appreciation Right that is paid in whole or
part in Common Stock, a certificate evidencing the appropriate number
of shares of Common Stock issued in connection with such exercise shall
be delivered to the Participant.
9. Terms of Restricted Shares.
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(a) Terms of Restricted Shares Generally. Restricted Shares
may be granted or offered for sale to any Participant, may be granted
solely in consideration for services rendered or to be rendered to the
Company, or its subsidiaries or affiliates, and may also be granted in
substitution and exchange for "restricted property" (within the meaning
of Section 83 of the Code) held by a Participant. If Restricted Shares
are offered for sale hereunder, the purchase price shall be payable in
cash, or, in the discretion of the Committee and to the extent provided
in the applicable Agreement , in shares of Common Stock already owned
by the participant, in other property or in any combination of cash,
shares of Common Stock or such other property. The Restricted Shares
granted or offered for sale under the Plan shall comply with the terms
and conditions set forth in this Section 9.
(b) Purchase Price; Offering Period. Restricted Shares offered
for sale shall be sold at a purchase price determined at the time of
offering by the Committee in its discretion and as set forth in the
applicable Agreement.
(c) Delivery of Certificate. At the time of grant or sale of
Restricted Shares to a Participant, a certificate evidencing the
appropriate number of shares of Common Stock granted or sold to the
Participant as Restricted Shares shall be issued in the Participant's
name but shall be held by the Company for the account of the
Participant until such time as such Restricted Shares vest hereunder.
Upon such vesting, the certificate evidencing such shares shall be
delivered to the Participant.
(d) Vesting. Each Restricted Share shall vest as determined by
the Committee and as set forth in the applicable agreement.
10. Terms of Phantom Shares.
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(a) Terms of Phantom Shares Generally. Phantom Shares may be
granted to any Participant. The Phantom Shares granted hereunder shall
comply with the terms and conditions set forth in this Section 10.
(i) Measurement of Value of Phantom Shares. A vested
Phantom Share shall entitle the Participant to receive from
the Company, on such date as the Committee may determine in
its discretion and as set forth in the applicable Agreement,
an amount equal to the Fair Market Value of a share of Common
Stock as of such payment date, less the Initial Value of such
Phantom Share (or such other measurement of value as may have
been established by the Committee in its discretion and set
forth in the applicable Agreement).
(ii) Vesting. Each Phantom Share shall vest as
determined by the Committee and as set forth in the
applicable Agreement.
(b) Payment to a Participant with respect to a Phantom Share
shall be made in the discretion of the Committee, in cash, in shares of
Common Stock or a combination of cash and shares of Common Stock;
provided, however, that payment shall not be made in Common Stock
unless Common Stock has been registered under the Securities Act in
connection therewith, or the Company has determined that an exemption
under such Act is available and applicable to such exercise and payment
in Common Stock.
(c) Delivery of Certificate. Upon payment of a Phantom Share
that is paid in whole or part in Common Stock, a certificate evidencing
the appropriate number of shares of Common Stock issued in connection
with such exercise shall be delivered to the Participant.
11. Effectiveness of the Plan. The Plan shall become effective on, and
shall have no force and effect until, the Effective Date.
12. Certain Adjustments.
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(a) Effect of Reorganization. In the event that (i) the
Company is merged or consolidated with another corporation, (ii) all or
substantially all the assets of the Company are acquired by another
corporation, person or entity, (iii) the Company is reorganized,
dissolved or liquidated or (iv) the division or subsidiary for which a
Participant performs services is sold, merged, consolidated,
reorganized or liquidated (each such event in (i), (ii), (iii) or (iv)
being hereinafter referred to as a "Reorganization Event") or (v) the
Board shall propose that the company enter into a Reorganization Event,
then the Committee shall make adjustments to provide each Participant
with a benefit equivalent to that to which he would have been entitled
had such event not occurred.
(b) Dilution and Other Adjustments. In the event of a stock
dividend or split, the Committee shall make any or all of the following
adjustments that in its discretion it deems necessary or advisable to
provide each Participant with a benefit equivalent to that to which he
would have been entitled had such event not occurred: (i) adjust the
number of Awards granted or offered to each Participant and the number
of Awards that may be granted or offered generally pursuant to the
Plan, (ii) adjust the Option Price of any options and the Initial Value
of any Phantom Shares and Free-Standing Stock Appreciation Rights, and
(iii) make any other adjustments, or take such action, as the
Committee, in its discretion, deems appropriate. Such adjustments shall
be conclusive and binding for all purposes. In the event of a change in
the Common Stock which is limited to a change in the designation
thereof to "Capital Stock" or other similar designation, or to a change
in the par value thereof, or from par value to no par value, without
increase or decrease in the number of issued shares, the shares
resulting from any such change shall be deemed to be Common Stock
within the meaning of the plan.
13. Amendment of the Plan. The Board may at any time and from time to
time alter, amend, suspend or terminate the Plan in whole or in part; provided,
however, that any amendment which must be approved by the shareholders of the
Company in order to maintain the continued qualification of the Plan under Rule
16b-3 under the Exchange Act or the approval of which is otherwise required by
law or by the rules of any stock exchange upon which shares of Common Stock are
traded, shall not be effective unless and until such shareholder approval has
been obtained in compliance with such rule or law. No termination or amendment
of the Plan may, without the consent of the participant to whom an Award has
been granted, adversely affect the rights of such participant under such Award.
14. Termination. Unless previously terminated pursuant to Section 13,
the Plan shall terminate on the fifth anniversary of the Effective Date, and no
further Awards may be granted hereunder after such date. Awards then outstanding
may continue to be exercised, vest or be paid in accordance with their terms.
15. Use of Proceeds. The proceeds received by the Company from the sale
of Common Stock pursuant to the sale or exercise of Awards under the Plan shall
be added to the Company's general funds and used for general corporate purposes.
16. Miscellaneous.
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(a) No Rights to Grants or Continued Service. Except as
expressly provided for in the Plan, no Participant shall have any claim
or right to be granted an Award under the Plan. Neither the Plan nor
any action taken hereunder shall be construed as giving any Participant
any right to be retained in the employ or service of the Company.
(b) No Restriction on Right of Company to Effect Corporate
Changes. Nothing in the Plan shall affect the right or power of the
Company or its shareholders to make or authorize any or all adjustment,
recapitalizations, reorganizations or other changes in the Company's
capital structure or its business, or any merger or consolidation of
the company, or any issue of stock or of options, warrants or rights
purchase stock or of bonds, debentures, preferred or prior preference
stocks whose rights are superior to or affect the Common Stock or the
rights thereof or which are convertible into or exchangeable for Common
Stock, or the dissolution or liquidation of the company, or any sale or
transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or
otherwise.
(c) Governing Law. The Plan and all agreement entered into
under the Plan shall be construed in accordance with and governed by
the law of the State of New York.
(d) Withholding. As a condition to the making of any Award,
the vesting of any Award or the lapse of the restrictions pertaining
thereto, the Company may, in the discretion of the Committee, require
the Participant to pay such sum to the Company as may be necessary to
discharge the Company's obligations with respect to any taxes,
assessments or other governmental charges imposed on property or income
received by a Participant pursuant to the Plan. In the discretion of
the Committee, such payment may be in the form of cash or other
property. In the discretion of the Committee, the Company may make
available for deliver a lesser number of shares, in satisfaction of
such taxes, assessments or other governmental charges. At the
discretion of the Committee, the Company may deduct or withhold from
any payment or distribution to a Participant whether or not pursuant to
the Plan. In the discretion of the Committee, the Company may offer
loans to Participants to satisfy withholding requirements on such terms
as the Committee may determine, which loans may be non-interest
bearing.
(e) Shareholder Rights. A Participant shall have no rights as
a shareholder with respect to any shares issued or issuable with
respect to an Award until a certificate or certificates evidencing such
shares shall have been issued to or for the benefit of such
Participant, and no adjustment shall be made for dividends or
distributions or other rights in respect of any share for which the
record date is prior to the date upon which the Participant shall
become the holder of record thereof; provided, however, that a
Participant shall have all rights of a shareholder as to any Restricted
Shares sold or granted to him, including the right to receive dividends
and the right to vote for directors and upon other matters in
accordance with the Company's Certificate of Incorporation; and
provided, further, that the Participant shall not have the right to
transfer, sell, hypothecate, pledge or otherwise alienate any unvested
Restricted Share.
As amended and restated April 26, 2000.
