burl-ex1045_498.htm



Exhibit 10.45 

 

Burlington Holdings, Inc.

2006 Management Incentive Plan

 

Burlington Stores, Inc.

Non-Qualified Stock Option Agreement

 

This agreement evidences a stock option granted by Burlington Stores, Inc. (formerly Burlington Holdings, Inc.), a Delaware corporation (the “Company”), to the undersigned (the “Employee”), pursuant to, and subject to the terms of the Burlington Holdings, Inc. 2006 Management Incentive Plan (as amended and restated, the “Plan”), which is incorporated herein by reference and of which the Employee hereby acknowledges receipt.  For the purpose of this Agreement, the “Grant Date” shall mean _____________.  Capitalized terms not otherwise defined herein shall have the meanings set forth in the Plan.

 

1.Grant of Option.  This agreement evidences the grant by the Company on the Grant Date to the Employee of an option to purchase (the “Option”), in whole or in part, on the terms provided herein and in the Plan, the following shares of Common Stock of the Company (the “Shares”) as set forth below.

_________ shares of Common Stock (the “Options”), subject to adjustment as provided in the Plan.

Exercise Price: [$____]

The Option evidenced by this agreement is not intended to qualify as an incentive stock option under Section 422 of the Internal Revenue Code (the “Code”).

2.Vesting and Exercisability.


	
 
	
(a)
	
Vesting of Options. Except as otherwise specifically provided herein, the Options shall vest according to the following schedule:





	
 
	
(i)
	
25% on the first anniversary of the Grant Date;





	
 
	
(ii)
	
25% on the second anniversary of the Grant Date; 





	
 
	
(iii)
	
25% on the third anniversary of the Grant Date; and 





	
 
	
(iv)
	
25% on the fourth anniversary of the Grant Date.




All Options shall become exercisable in the event the Employee is terminated by the Company or a subsidiary without Cause or resigns for Good Reason within the two year period immediately following a Change of Control (as that term is defined herein).  Notwithstanding anything in this agreement or in the Plan to the contrary, for purposes of this agreement, “Cause” and “Good Reason” shall have the meaning provided in the terms of that certain employment agreement between 


			
	
 

 

 
	
 
	
 




 



the Company or one of its subsidiaries and the Employee effective at the time of the Employee’s termination of employment with the Company or its subsidiary.


	
 
	
(b)
	
Exercisability of Option.  Subject to the terms of the Plan, Options may be exercised in whole or in part at any time following such time as such Option vests.  The latest date on which an Option may be exercised (the “Final Exercise Date”) is the date which is the tenth anniversary of the Grant Date, subject to earlier termination in accordance with the terms and provisions of the Plan and this Agreement.




3.Exercise of Option. Each election to exercise this Option shall be subject to the terms and conditions of the Plan and shall be in writing, signed by the Employee or by his or her executor or administrator or by the person or persons to whom this Option is transferred by will or the applicable laws of descent and distribution (the “Legal Representative”), and made pursuant to and in accordance with the terms and conditions set forth in the Plan.

4.Cessation of Employment.  Unless the Administrator determines otherwise, the following will apply if the Employee’s Employment ceases:


	
 
	
(a)
	
Options that have not vested will terminate immediately; and





	
 
	
(b)
	
Subject to the terms of Section 6(a)(3) of the Plan, the vested Options will remain exercisable for the shorter of (i) a period of 60 days from the date such Employee’s Employment ceases, (ii) 365 days from the date such Employee’s Employment ceases in the case of cessation of Employment as a result of Employee’s death or Disability or (iii) the period ending on the Final Exercise Date, and will thereupon terminate.




5.Legends, Retention of Shares, etc.  Shares of Common Stock issued upon exercise of the Option shall bear such legends as may be determined by the Administrator prior to issuance.  Unvested Shares purchased by the Employee upon an exercise of the Option may be retained by the Company until such Shares vest.

6.Transfer of Option. This Option is not transferable by the Employee.

7.Effect on Employment.  Neither the grant of this Option, nor the issuance of Shares upon exercise of this Option shall give the Employee any right to be retained in the employ of the Company or its Affiliates, affect the right of the Company or its Affiliates to discharge or discipline the Employee at any time or affect any right of Employee to terminate his employment at any time.

8.Certain Important Tax Matters.  The Employee expressly acknowledges that the Employee’s rights hereunder, including the right to be issued Shares upon exercise of Options, are subject to the Employee promptly paying to the Company in cash (or by such other means as may be acceptable to the Administrator in its discretion) all taxes required to be withheld.  The Employee also authorizes the Company or its subsidiaries to withhold such amount from any amounts otherwise owed to the Employee.


			
	
 

 

 
	
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9.Provisions of the Plan.  This Option is subject in its entirety to the provisions of the Plan, which are incorporated herein by reference.  A copy of the Plan as in effect on the date of the grant of this Option has been furnished to the Employee.  By exercising all or any part of this Option, the Employee agrees to be bound by the terms of the Plan and this Option.  In the event of any conflict between the terms of this Option and the Plan, the terms of this Option shall control. 

10.General.  For purposes of this Option and any determinations to be made by the Administrator hereunder, the determinations by the Administrator shall be binding upon the Employee and any transferee.

11.Definitions.  The following terms have the following meanings:

“Change of Control” shall mean the occurrence of (a) any consolidation or merger of the Company with or into any other corporation or other Person, or any other corporate reorganization or transaction (including the acquisition of capital stock of the Company), whether or not the Company is a party thereto, in which the stockholders of the Company immediately prior to such consolidation, merger, reorganization or transaction, own capital stock either (i) representing directly, or indirectly through one or more entities, less than fifty percent (50%) of the economic interests in or voting power of the Company or other surviving entity immediately after such consolidation, merger, reorganization or transaction or (ii) that does not directly, or indirectly through one or more entities, have the power to elect a majority of the entire board of directors of the Company or other surviving entity immediately after such consolidation, merger, reorganization or transaction, (b) any transaction or series of related transactions, whether or not the Company is a party thereto, after giving effect to which in excess of fifty percent (50%) of the Company’s voting power is owned directly, or indirectly through one or more entities, by any Person and its “affiliates” or “associates” (as such terms are defined in the rules adopted by the Securities and Exchange Commission under the Securities Exchange Act of 1934, as in effect from time to time); or (c) a sale, lease or other disposition of all or substantially all of the assets of the Company.

“Person” shall mean any individual, partnership, corporation, company, association, trust, joint venture, limited liability company, unincorporated organization, entity or division, or any government, governmental department or agency or political subdivision thereof.

12.Governing Law.  All questions concerning the construction, validity and interpretation of this agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the choice of law principles thereof. 

13.Entire Agreement; Amendment.  This agreement, together with the Plan, contains the entire agreement between the parties hereto with respect to the subject matter contained herein, and supersedes all prior agreements or prior understandings, whether written or oral, between the parties relating to such subject matter.  The Administrator shall have the right, in its sole discretion, to modify or amend this agreement from time to time in accordance with and as provided in the Plan.  This agreement may also be modified or amended by a writing signed by both the Company and the Employee.  The Company shall give written notice to the Employee of any such modification or amendment of this agreement as soon as practicable after the adoption thereof. 


			
	
 

 

 
	
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14.Compliance with Laws.  The issuance of the Option (and the Shares upon exercise of the Option) pursuant to this agreement shall be subject to, and shall comply with, any applicable requirements of any foreign and U.S. federal and state securities laws, rules and regulations (including, without limitation, the provisions of the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and in each case any respective rules and regulations promulgated thereunder) and any other law or regulation applicable thereto.  The Company shall not be obligated to issue the Option or any of the Shares pursuant to this agreement if any such issuance would violate any such requirements.  

15.Section 409A.  Notwithstanding anything herein or in the Plan to the contrary, the Option is intended to be exempt from the applicable requirements of Section 409A of the Code and shall be limited, construed and interpreted in accordance with such intent. 

16.Severability.  The invalidity or unenforceability of any provisions of this agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this agreement in such jurisdiction or the validity, legality or enforceability of any provision of this agreement in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.

 

In Witness Whereof, the undersigned Company and Employee each have executed this Non-Qualified Stock Option Agreement as of the date indicated below.

 


	
The Company:
	
BURLINGTON STORES, INC. 




 

 

By: ____________________________

Name:

Title:

Date:

The Employee:

________________________________

Name:

Date:


			
	
 

 

 
	
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