As filed with the Securities and Exchange Commission on June 04, 1996
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________
BRC HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization)
1111 West Mockingbird, Suite 1500
Dallas, Texas
(Address of Principal Executive Offices)
75-1533071
(I.R.S. Employer
Identification No.)
75247
(Zip Code)
_________________________
1995 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
OF BUSINESS RECORDS CORPORATION HOLDING COMPANY
(Full title of the plan)
_________________________
DAVID A. HART, ESQ.
Executive Vice President
BRC HOLDINGS, INC.
1111 West Mockingbird, Suite 1500
Dallas, Texas 75247
(214) 688-1800
(Name, address and telephone
number, including area code,
of agent for service)
Copy to:
JEFFREY M. SONE, ESQ.
Arter & Hadden
1717 Main St., Suite 4100
Dallas, Texas 75201-4605
(214) 761-2100
_________________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Proposed Maximum
Title of Securities Amount to be Proposed Maximum Aggregate Offering Amount of
to be Registered registered (1) Offering price Per Share Price(2) Registration Fee
Common Stock 120,000 Shares (2) $4,325,000 $1,492
($.10 par value)
</TABLE>
(1) The securities to be registered represent shares of Common Stock
issued or reserved for issuance under the 1995 Stock Option Plan for
Non-Employee Directors of Business Records Corporation Holding Company (the
"Plan"). Pursuant to Rule 416, shares of Common Stock of the Company
issuable pursuant to the exercise of options granted or to be granted under
the Plan in order to prevent dilution resulting from any future stock split,
stock dividend or similar transaction are also being registered hereunder.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of
calculating the registration fee as follows: (i) the maximum proposed
offering price at which outstanding options under the Plan (40,000 shares of
Common Stock) may be exercised is $1,500,000 and (ii) the maximum proposed
offering price at which unissued options may be exercised under the Plan
(80,000 shares of Common Stock) is $2,825,000 calculated on the basis of the
high and low price per share of Common Stock on the Nasdaq Stock Market's
National Market on May 28, 1996 ($35.3125), in accordance with Rule 457(c).
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933, as amended (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.
BRC Holdings, Inc. f/k/a Business Record Corporation Holding Company
(the "Registrant" or the "Company") hereby incorporates by reference
in this Registration Statement the following documents previously filed
or to be filed with the Securities and Exchange Commission (the
"Commission"):
(1) the Company's Annual Report on Form 10-K filed with the Commission
for the fiscal year ended December 31, 1995;
(2) the Company's Quarterly Report filed with the Commission on Form
10-Q for the quarter ended March 31, 1996;
(3) the Company's Current Report on Form 8-K filed with the Commission
on May 21, 1996 for that event occurring May 16, 1996;
(4) the description of the Company's common stock, par value $.10 per
share (the "Common Stock"), contained in the Company's Registration
Statement on Form 8-A filed with the Commission under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on
February 16, 1988, including any amendment or report filed for the
purpose of updating such description; and
(5) all documents filed by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
subsequent to the date of this Registration Statement shall be
deemed to be incorporated herein by reference and to be a part
hereof from the date of filing of such documents until such time
as there shall have been filed a post-effective amendment that
indicates that all securities offered under the Registration
Statement have been sold or that deregisters all securities
remaining unsold at the time of such amendment.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that
the statement contained herein or in any subsequently filed document that
also is or is deemed to be incorporated by reference herein, or in any
document forming any part of the Section 10(a) Prospectus to be delivered
to participants in connection with, modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Article "Ninth" of the Certificate of Incorporation contains provisions
which eliminate the personal liability of the Company's directors for
monetary damages resulting from breaches of their fiduciary duty to the
fullest extent permitted by Delaware General Corporation Law (the "DGCL").
Article VI of the Company's Bylaws contain provisions requiring the
indemnification of the Company's directors and officers upon and pursuant
to the terms specified therein and under the applicable provisions of the
DGCL. The Company believes that these provisions are necessary to attract
and retain qualified persons as directors and officers.
Section 145 of the DGCL provides broad authority for indemnification
of officers and directors. Insofar as indemnification for liabilities
arising under the Securities Act may be permitted to directors, officers or
persons controlling the Company pursuant to the foregoing provisions, the
Company has been informed that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in
the Securities Act and is therefore unenforceable.
The foregoing summaries are necessarily subject to the complete text
of the statute, Certificate of Incorporation and Bylaws of the Company
referred to above and are qualified in their entirety by reference thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
4.1 1995 Stock Option Plan for Non-Employee Directors of Business
Records Corporation Holding Company (the "Plan") (filed
herewith)
4.2 Form of Non-Qualified Stock Option Agreement relating to
options granted under the Plan (filed herewith)
5.1 Opinion of Arter & Hadden regarding legality of securities
being registered (filed herewith)
23.1 Consent of Arter & Hadden (included in their opinion filed
as Exhibit 5.1) (filed herewith)
23.2 Consent of Price Waterhouse LLP (filed herewith)
Item 9. Undertakings.
(a) Rule 415 Offering. The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement (i) to include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set
forth in the registration statement; and (iii) to include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8 and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 of Section 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act") that are incorporated by reference 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; and
(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) Filings Incorporating Subsequent Exchange Act Documents by
Reference. 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.
(h) Filing of Registration Statement on Form S-8. 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 Securities and Exchange 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 of
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.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all 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 Dallas, Texas, on
May 31, 1996:
BRC HOLDINGS, INC.
By: /s/ Perry E. Esping
Perry E. Esping
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons and in
the capacities indicated on May 31, 1996:
Signature Title
/s/ Perry E. Esping Chairman and Chief Executive Officer
Perry E. Esping (Principal Executive Officer)
/s/ J. L. Morrison President and Chief Operating Officer
J. L. Morrison
/s/ Thomas E. Kiraly Chief Financial Officer (Principal Financial
Thomas E. Kiraly and Accounting Officer)
/s/ L. D. Brinkman Director
L. D. Brinkman
/s/ Robert E. Masterson Director
Robert E. Masterson
/s/ David H. Monnich Director
David H. Monnich
/s/ Paul T. Stoffel Director
Paul T. Stoffel
INDEX TO EXHIBITS
Exhibit Description
4.1 1995 Stock Option Plan for Non-Employee Directors of Business
Records Corporation Holding Company (the "Plan") (filed
herewith)
4.2 Form of Non-Qualified Stock Option Agreement relating to
options granted under the Plan (filed herewith)
5.1 Opinion of Arter & Hadden regarding legality of securities
being registered (filed herewith)
23.1 Consent of Arter & Hadden (included in their opinion filed as
Exhibit 5.1) (filed herewith)
23.2 Consent of Price Waterhouse LLP (filed herewith)
Exhibit 4.1
1995 STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
OF
BUSINESS RECORDS CORPORATION HOLDING COMPANY
1. Purpose. The purpose of this Plan is to advance the interests of
Business Records Corporation Holding Company, a Delaware corporation (the
"Company"), by providing an additional incentive to attract and retain
qualified and competent directors, upon whose efforts and judgment the
success of the Company is largely dependent, through the encouragement of
stock ownership in the Company by such persons.
2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Change of Control" shall mean either the effective date of
either the merger or consolidation of the Company into another corporation,
or the exchange or acquisition by another person or entity in one transaction
or a series of transactions of all or substantially all of the Company's
assets or fifty percent (50%) or more of it then outstanding voting stock,
whether through merger, consolidation or otherwise, or the recapitalization,
reclassification, liquidation or dissolution of the Company.
(c) "Committee" shall mean the stock option committee, if any,
appointed by the Board pursuant to Section 11 hereof.
(d) "Date of Grant" shall mean the date on which an Option is
granted to an Eligible Person pursuant to Section 4(c) hereof.
(e) "Director" shall mean a member of the Board.
(f) "Effective Date" shall have the meaning set forth in Paragraph
13 below.
(g) "Eligible Person(s)" shall mean those persons who are
Directors of the Company and who (i) are not employees of the Company or a
Subsidiary and (ii) have not previously been granted Options to purchase
Thirty Thousand Shares under this Plan.
(h) "Fair Market Value" of a Share on any date of reference shall
be the Closing Price on the business day immediately preceding such date.
For this purpose, the Closing Price of the Shares on any business day shall
be (i) if the Shares are listed or admitted for trading on any United States
national securities exchange, the last reported sale price of Shares on such
exchange, as reported in any newspaper of general circulation, (ii) if actual
transactions in the Shares are included in the Nasdaq Stock Market's National
Market ("NASDAQ-NMS") or are reported on a consolidated transaction reporting
system, the last sales price of the Shares on such system, (iii) if Shares
are otherwise quoted on the National Association of Securities Dealers
Automated Quotation System ("GNOSTIC"), or any similar system of automated
dissemination of quotations of securities prices in common use, the mean
between the closing high bid and low asked quotations for such day of Shares
on such system, (iv) if none of clause (i), (ii) or (iii) is applicable,
the mean between the high bid and low asked quotations for Shares as
reported by the National Daily Quotation Service if at least two
securities dealers have inserted both bid and asked quotations for Shares on
at least five (5) of the ten (10) preceding days.
(i) "Internal Revenue Code" or "Code" shall mean the Internal
Revenue Code of 1986, as it now exists or may be amended from time to time.
(j) "Nonincentive Stock Option" shall mean an option that is not
an incentive stock option as defined in Section 422 of the Internal Revenue
Code.
(k) "Option" (when capitalized) shall mean any option granted
under this Plan.
(l) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any successor to the rights of such person under
this Plan by reason of the death of such person.
(m) "Plan" shall mean this 1995 Stock Option Plan for Non-Employee
Directors of Business Records Corporation Holding Company.
(n) "Share(s)" shall mean a share or shares of the common stock,
par value ten cents ($.10) per share, of the Company.
(o) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the Company if,
at the time of the granting of the Option, each of the corporations other
than the last corporation in the unbroken chain owns stock possessing more
than 50% of the total combined voting power of all classes of stock in one
of the other corporations in such chain.
3. Shares and Options. The maximum number of Shares to be issued
pursuant to Options under this Plan shall not exceed ONE HUNDRED TWENTY
THOUSAND SHARES (120,000). Shares issued pursuant to Options granted under
this Plan may be issued from Shares held in the Company's treasury or from
authorized and unissued Shares. If any Option granted under this Plan shall
terminate, expire, or be cancelled or surrendered as to any Shares, new
Options may thereafter be granted covering such Shares. Any Option granted
hereunder shall be a Nonincentive Stock Option.
4. Automatic Grant of Options. (a) Options shall automatically be
granted to Eligible Persons as provided in this Section 4. Notwithstanding
the foregoing, no Eligible Person shall be granted Options under this Plan to
purchase, in the aggregate, more than THIRTY THOUSAND SHARES, except to the
extent that any unexercised Options expire or are otherwise terminated. Each
Option shall be evidenced by an option agreement (an "Option Agreement") and
shall contain such terms as are not inconsistent with this Plan or any
applicable law. Any person who files with the Committee, in a form
satisfactory to the Committee, a written waiver of eligibility to receive any
Option under this Plan shall not be eligible to receive any Option under this
Plan for the duration of such waiver.
(b) The Options automatically granted to Directors under this
Plan shall be in addition to regular director's fees or other benefits with
respect to the Director's position with the Company or its Subsidiaries.
Neither the Plan nor any Option granted under the Plan shall confer upon any
person any right to continue to serve as a Director.
(c) Options shall be automatically granted and shall thereafter
automatically vest as follows:
(i) Each eligible Person who is in office on the Effective
Date shall, on the Effective Date, automatically be granted an Option to
acquire TEN THOUSAND (10,000) Shares and such Option shall vest as to TWO
THOUSAND (2,000) Shares on each of the first five anniversaries of the Date
of Grant;
(ii) Each Eligible Person who is in office on each
anniversary of the Effective Date shall automatically be granted an Option
to acquire TEN THOUSAND (10,000) Shares and such Option shall vest as to
TWO THOUSAND (2,000) Shares on each of the first five anniversaries of the
Date of Grant.
(d) Any Option that may be granted pursuant to subparagraph (c)
of this Section 4 prior to the approval of this Plan by the stockholders of
the Company is subject to the approval of this Plan by the stockholders of
the Company within twelve (12) months after the Effective Date of this Plan.
If any Optionee exercises an Option prior to such stockholder approval, the
Optionee must tender the exercise price at the time of exercise and the
Company shall hold the Shares to be issued pursuant to such exercise until
the stockholders approve this Plan. If this Plan is approved by the
stockholders, the Company shall issue and deliver the Shares as to which the
Option has been exercised. If this Plan is not approved by the stockholders,
the Company shall return the exercise price to the Optionee.
(e) Except for the automatic grants of Options under subparagraph
(c) of this Section 4, no Options shall otherwise be granted hereunder, and
neither the Board nor the Committee, if any, shall have any discretion with
respect to the grant of Options within the meaning of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended, or any successor rule.
5. Option Price. The option price per Share of any Option granted
pursuant to this Plan shall be one hundred percent (100%) of the Fair Market
Value per Share on the Date of Grant.
6. Exercise of Options. Options may be exercised at any time after
the date on which the Options, or any portion thereof, are vested until the
Option expires pursuant to Section 7. No Option shall be exercisable prior
to six (6) months following the Date of Grant. An Option shall be deemed
exercised when (i) the Company has received written notice of such exercise
in accordance with the terms of the Option Agreement, (ii) full payment of
the aggregate option price of the Shares as to which the Option is exercised
has been made and (iii) arrangements that are satisfactory to the Committee
in its sole discretion have been made for the Optionee's payment to the
Company of the amount, if any, that the Committee determines to be necessary
for the Company to withhold in accordance with applicable federal or state
income tax withholding requirements. Pursuant to procedures approved by
the Committee, tax withholding requirements, at the option of an Optionee,
may be met by withholding Shares otherwise deliverable to the Optionee upon
the exercise of an Option. Unless further limited by the Committee in any
Option Agreement, the Option price of any Shares purchased shall be paid
solely in cash, by certified or cashier's check, by money order, with Shares
(but with Shares only if permitted by the Option Agreement or otherwise
permitted by the Committee in its sole discretion at the time of exercise)
or by a combination of the above; provided, however, that the Committee in
its sole discretion may accept a personal check in full or partial payment
of any Shares. If the exercise price is paid in whole or in part with
Shares, the value of the Shares surrendered shall be their Fair Market Value
on the date the Shares are received by the Company.
7. Termination of Option Period. The unexercised portion of an
Option shall automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(a) thirty (30) days after the date that an Optionee ceases to be
a Director regardless of the reason therefor other than as a result
of such termination by death of the Optionee;
(b) (y) one (1) year after the date that an Optionee ceases to be
a Director by reason of death of the Optionee or (z) six (6) months
after the Optionee shall die if that shall occur during the thirty-day
period described in Subsection 7(a); or
(c) the tenth (10th) anniversary of the Date of Grant of the
Option.
8. Adjustment of Shares. (a) If at any time while this Plan is in
effect or unexercised Options are outstanding, there shall be any increase or
decrease in the number of issued and outstanding Shares through the
declaration of a stock dividend or through any recapitalization resulting in
a stock split-up, combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made in the
maximum number of Shares then subject to being optioned under this
Plan, so that the same proportion of the Company's issued and
outstanding Shares shall continue to be subject to being so
optioned; and
(ii) appropriate adjustment shall be made in the
number of Shares and the exercise price per Share thereof then
subject to any outstanding Option, so that the same proportion of
the Company's issued and outstanding Shares shall remain subject to
purchase at the same aggregate exercise price.
(b) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection
with a direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number of or
exercise price of Shares then subject to outstanding Options granted under
this Plan.
(c) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under this Plan shall not affect
in any manner the right or power of the Company to make, authorize or
consummate (i) any or all adjustments, recapitalizations, reorganizations
or other changes in the Company's capital structure or its business; (ii)
any merger or consolidation of the Company; (iii) any issue by the Company
of debt securities, or preferred or preference stock that would rank above
the Shares subject to outstanding Options; (iv) the dissolution or
liquidation of the Company; (v) any sale, transfer or assignment of all or
any part of the assets or business of the Company; or (vi) any other
corporate act or proceeding, whether of a similar character or otherwise.
9. Transferability of Options. Each Option Agreement shall provide
that such Option shall not be transferable by the Optionee otherwise than by
will or the laws of descent and distribution or pursuant to a qualified
domestic relations order and that so long as an Optionee lives, only such
Optionee or his or her guardian or legal representative shall have the
right to exercise the related Option.
10. Issuance of Shares. No person shall be, or have any of the rights
or privileges of, a stockholder of the Company with respect to any of the
Shares subject to an Option unless and until certificates representing such
Shares shall have been issued and delivered to such person. As a condition
of any transfer of the certificate for Shares, the Committee may obtain such
agreements or undertakings, if any, as it may deem necessary or advisable to
assure compliance with any provision of this Plan, any Option Agreement or
any law or regulation, including, but not limited to, the following:
(i) A representation, warranty or agreement by the
Optionee to the Company, at the time any Option is exercised, that
he or she is acquiring the Shares to be issued to him or her for
investment and not with a view to, or for sale in connection with,
the distribution of any such Shares; and
(ii) A representation, warranty or agreement to be
bound by any legends that are, in the opinion of the Committee,
necessary or appropriate to comply with the provisions of any
securities law deemed by the Committee to be applicable to the
issuance of the Shares and are endorsed upon the Share certificates.
Share certificates issued to an Optionee who is a party to any
stockholder agreement or a similar agreement shall bear the legends contained
in such agreements.
11. Administration of the Plan. (a) This Plan shall be administered
by a stock option committee (the "Committee") consisting of not fewer than
three (3) members of the Board; provided, however, that if no Committee is
appointed, the Board shall administer this Plan and in such case all
references to the Committee shall be deemed to be references to the Board.
The Committee shall have all of the powers of the Board with respect to this
Plan. Any member of the Committee may be removed at any time, with or
without cause, by resolution of the Board, and any vacancy occurring in the
membership of the Committee may be filled by appointment by the Board.
(b) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of this Plan. The determinations
and the interpretation and construction of any provision of this Plan by the
Committee shall be final and conclusive.
(c) Any and all decisions or determinations of the Committee
shall be made either (I) by a majority vote of the members of the Committee
at a meeting or (ii) without a meeting by the written approval of a majority
of the members of the Committee.
(d) This Plan is intended and has been drafted to comply with
Rule 16b-3, as amended, under the Securities Exchange Act of 1934, as
amended. If any provision of this Plan does not comply with Rule 16b-3,
as amended, this Plan shall be automatically amended to comply with Rule
16b-3, as amended.
12. Interpretation. (a) If any provision of this Plan is held invalid
for any reason, such holding shall not affect the remaining provisions
hereof, but instead this Plan shall be construed and enforced as if such
provision had never been included in this Plan.
(b) THIS PLAN SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO DELAWARE CONFLICT
OF LAW PROVISIONS.
(c) Headings contained in this Plan are for convenience only and
shall in no manner be construed as part of this Plan.
(d) Any reference to the masculine, feminine or neuter gender
shall be a reference to such other gender as is appropriate.
13. Effective Date, Termination Date and Amendment of Plan. The
effective date of this Plan is the date set forth below as such (the
"Effective Date"), on which date the Board adopted this Plan; provided,
however, if this Plan is not approved by the stockholders of the Company
within twelve (12) months after the Effective Date, then, in such event,
this Plan and all Options granted pursuant to this Plan shall be null and
void. Unless sooner terminated as provided herein, this Plan shall terminate
ten (10) years from the Effective Date set forth below, and any Option
outstanding on such date will remain outstanding until it has either
expired or has been exercised. The Committee may at any time make such
modification or amendment to the Plan as it deems advisable; provided,
however, that the Plan may not be amended more than once every six (6)
months, other than to comport with the changes in the Internal Revenue
Code of 1986, as amended, the Employee Retirement Income Security Act of
1974, as amended, or the rules thereunder; and provided further,
however, that, except as provided in Section 8, the Committee may not,
without the approval of the stockholders of the Company, increase the
maximum aggregate number of shares for which Options may be granted under
the Plan, or the number of Shares for which an Option may be granted to any
Eligible Person. Termination or any modification or amendment of the Plan
shall not, without the consent of the Eligible Person, affect his or her
rights under an Option previously granted to him or her.
14. Change of Control. In its absolute discretion, and on such terms
and conditions as it deems appropriate, coincident with or after the grant
of any Option, the Committee may provide that such Option cannot be
exercised after a Change of Control, and if the Committee so provides, it
may, in its absolute discretion and on such terms and conditions as it deems
appropriate, also provide, either by the terms of such Option or by a
resolution adopted prior to the occurrence of such Change of Control, that,
for some period of time prior to such Change of Control such Option shall be
exercisable as to all shares subject thereto, notwithstanding anything to the
contrary in Section 4(c) and that, upon the occurrence of such Change of
Control, such Option shall terminate and be of no further force or effect;
provided, however, that the Committee may also provide, in its absolute
discretion, that even if the Option shall remain exercisable after any such
Change of Control, from and after such Change of Control, any such Option
shall be exercisable only for the kind and amount of securities and/or other
property, or the cash equivalent thereof, receivable as a result of such
Change of Control by the holder of a number of shares of stock for which
such Option could have been exercised immediately prior to such Change of
Control. Notwithstanding the foregoing, in the event that the Committee
determines that the Option cannot be exercised or terminates after the
occurrence of a Change of Control, then to the extent the Eligible Person
has not exercised such Option or otherwise received adequate consideration
in respect thereof prior to the occurrence of such Change of Control, the
Eligible Person shall be entitled to receive in consideration for the
termination of such Option, whether or not then exercisable or vested,
an amount not less than the excess, if any, of (a) the per share
consideration payable pursuant to the terms of such Change of Control, in
respect of the Common Stock (or, if applicable, in respect of the assets of
the Company) over (b) the option price per Share for all Shares of Common
Stock subject to such Option, times the number of Shares of Common Stock
subject to such Option; provided, however, that, to the extent the
consideration referred to in clause (a) above includes, in whole or in part,
securities or property (other than cash), the per share consideration for
purposes of such clause (a) shall equal the Fair Market Value of such
securities or property plus any cash portion of the consideration.
Notwithstanding anything to the contrary contained herein, an Eligible
Person shall vest and be entitled to one hundred percent (100%) of any
options theretofore granted to such person, and all such Options shall
become fully exercisable immediately prior to (but conditional upon the
occurrence of) any event constituting a Change of Control.
ADOPTED BY THE BOARD August 1, 1995
EFFECTIVE DATE: August 1, 1995
APPROVED BY STOCKHOLDERS: May 16, 1996
Exhibit 4.2
BUSINESS RECORDS CORPORATION HOLDING COMPANY
Non-Qualified Stock Option Agreement
Under
1995 Stock Option Plan for Non-Employee Directors
Business Records Corporation Holding Company, a Delaware corporation (the
"Company"), hereby grants this ______________, 19___, to ____________________,
a member of the Board of Directors of the Company (the "Optionee"), an option
to purchase a maximum of ______________ shares of Common Stock, $0.10 par
value, (the "Option Shares"), at the price of $_____ per share, on the
following terms and conditions.
1. Definitions. Capitalized terms in this Agreement, unless
specifically defined herein, shall have the meanings assigned such terms in
the Company's 1995 Stock Option Plan for Non-Employee Directors.
2. Grant Under 1995 Stock Option Plan. This option is granted pursuant
to and is governed by the Plan and, unless the context otherwise requires,
terms used herein shall have the same meaning as in the Plan. The Plan is
incorporated herein by reference, made a part hereof and shall control unless
provisions hereof specifically alter any term thereof. Determinations made
in connection with this Option pursuant to the Plan shall be governed by the
Plan as administered by the Committee.
3. Term. The term (the "Option Term") of the Option shall commence on
the date of this Agreement and shall expire on the tenth (10th) anniversary
of the date of this Agreement, unless such Option shall theretofore have been
terminated in accordance with the terms hereof or of the Plan.
4. Grant as Nonincentive Stock Option; Other Options. This Option
shall be treated for federal income tax purposes as a Nonincentive Stock
Option (rather than an incentive stock option). This Option may be in
addition to any other options heretofore or hereafter granted to the Optionee
by the Company, but a duplicate original of this instrument shall,
nonetheless, not effect the grant of another option.
5. Vesting. Subject to the Plan and to the provisions of Sections 6
and 7 below, this Option may be exercised, in whole or in part, as to any
Vested Shares. As used herein, "Vested Shares" shall mean, at any time, the
number of vested shares determined in accordance with Sections 3(c) and 14 of
the Plan as of such time. For convenience, but without modifying the Plan,
the vesting schedule of this Option is set forth on Exhibit "A" hereto.
6. Termination of Relationship. Except as provided in Section 7, in
the event the Optionee shall cease to be a member of the Board of Directors
of the Company, the Option, to the extent not theretofore exercised, shall
terminate after the passage of thirty (30) days from the date of such
termination regardless of the reason therefor, but in no event shall Optionee
be permitted to exercise said Option after the expiration of the Option Term.
7. Death of Optionee. In the event of the death of the Optionee, the
Option may be exercised with respect to any or all Vested Shares not
theretofore purchased upon prior exercise of the Option, at any time within
a period of one (1) year after the death of the Optionee (except that in the
event of the death of the Optionee during the thirty (30) day period
referenced in Section 6 above, the Option exercise period shall be decreased
to one hundred eighty (180) days after the date that said Optionee dies), but
in no event shall the Option be exercised after the expiration of the Option
Term by the estate, legatee, distributee or beneficiary of the Optionee or
any of their respective legal representatives to the same extent as the
Option could have been exercised on the date of death of the Optionee by the
Optionee.
8. Partial Exercise. Exercise of this Option up to the extent above
stated may be made in part at any time and from time to time within the above
limits, except that this Option may not be exercised for a fraction of a
share unless such exercise is with respect to the final installment of stock
subject to this Option and a fractional share (or cash in lieu thereof) must
be issued to permit the Optionee to exercise completely such final
installment. Any fractional share with respect to which an installment of
this Option cannot be exercised because of the limitation contained in the
preceding sentence shall remain subject to this Option and shall be available
for later purchase by the Optionee in accordance with the terms hereof.
9. Payment of Price. The option price is payable in United States
dollars and may be paid in cash or by check, or any combination of the
foregoing, equal in amount to the option price, together with any amounts
that the Company shall be required to withhold in respect of taxes or similar
amounts. The Company shall promptly upon request therefor (which request
shall not constitute an exercise of this Option), notify the Optionee of
amounts which the Company expects to withhold with respect to any
contemplated exercise hereof.
10. Payment of Taxes. In connection with any exercise hereunder, the
Optionee shall deliver, or cause to be delivered pursuant to Section 9, to
the Company, in cash, an amount equal to any federal income or other tax
required to be withheld by the Company with respect to such exercise.
11. Agreement to Purchase for Investment. By acceptance of this
Option, the Optionee agrees that a purchase of Shares under this Option will
not be made with a view to their distribution, as that term is used in the
Securities Act of 1933, as amended, unless in the opinion of counsel to the
Company such distribution is in compliance with or exempt from the
registration and prospectus requirements of that Act, and the Optionee agrees
to sign a certificate to such effect at the time of exercising this Option
and agrees that the certificate for the Shares so purchased may be inscribed
with a legend to ensure compliance with that Act.
12. Method of Exercising Option. Subject to the terms and conditions
of this Agreement, this Option may be exercised by written notice to the
Company, at the principal executive office of the Company. Such notice shall
state the election to exercise this Option and the number of Shares in
respect of which it is being exercised and shall be signed by the person or
persons so exercising this Option. The certificate or certificates for the
Shares as to which this Option shall have been so exercised shall be
registered in the name of the person or persons so exercising this Option
(or, if this Option shall be exercised by the Optionee and if the Optionee
shall so request in the notice exercising this Option, shall be registered
in the name of the Optionee and another person jointly, with right of
survivorship) and shall be delivered as provided above to or upon the written
order of the person or persons exercising this Option. In the event this
Option shall be exercised, pursuant to Section 6 hereof, by any person or
persons other than the Optionee, such notice shall be accompanied by
appropriate proof of the right of such person or persons to exercise this
Option. All Shares that shall be purchased upon the exercise of this Option
as provided herein shall be fully paid and non-assessable.
13. Option Not Transferable. Except as may be provided otherwise
herein, the Option may not be transferred, pledged, assigned or hypothecated
in any way by the Optionee otherwise than by will or the laws of descent and
distribution or pursuant to a qualified domestic relations order and so long
as the Optionee shall live, such Option may be exercised only by the Optionee
or his or her guardian or legal representative. The Option shall not be
subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of the
Option contrary to the provisions hereof, and the levy of any execution,
attachment or similar process upon the Option shall be null and void and
without effect.
14. No Obligation to Exercise Option. The grant and acceptance of
this Option imposes no obligation on the Optionee to exercise it.
15. No Rights as Stockholder until Exercise. The Optionee shall have
no rights as a stockholder with respect to Shares subject to this Agreement
until a stock certificate therefore has been issued to the Optionee and is
fully paid for. Except as is expressly provided in the Plan with respect to
certain changes in the capitalization of the Company, no adjustment shall be
made for dividends or similar rights for which the record date is prior to
the date such stock certificate is issued.
16. Capital Changes and Business Successions. It is a purpose of this
Option to encourage the Optionee to work for the best interests of the
Company and its stockholders. Since, for example, that might require the
issuance of a stock dividend or a merger with another corporation, the
purpose of this Option would not be served if such a stock dividend, merger
or similar occurrence would cause the Optionee's rights hereunder to be
diluted or terminated and thus be contrary to the Optionee's interest. The
Plan contains provisions designed to preserve options at full value in a
number of contingencies including circumstances described in the Plan as
resulting in a Change of Control. Therefore, provisions in the Plan for
adjustment with respect to stock subject to options and the related
provisions with respect to successors to the business of the Company are
hereby made applicable hereunder and are incorporated herein by reference.
17. Governing Law. This Agreement shall be governed by and
interpreted in accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF the Company and the Optionee have caused this
instrument to be executed, and the Optionee whose signature appears below
acknowledges receipt of a copy of the Plan and acceptance of an original
copy of this Agreement.
_____________________ BUSINESS RECORDS CORPORATION
Signature of Optionee HOLDING COMPANY
_____________________ By:________________________________
Full Name of Optionee Name:______________________________
Title:_____________________________
_____________________
_____________________
_____________________
Address
ARTER & HADDEN
1717 Main Street, Suite 4100
Dallas, Texas 75201
(214) 761-2100
(214) 741-7139 (FAX)
Exhibit 5.1 & 23.1
May 28, 1996
Board of Directors
BRC Holdings, Inc.
1111 West Mockingbird, Suite 1500
Dallas, Texas 75047
Re: Registration Statement on Form S-8
1995 Stock Option Plan for Non-Employee Directors
Gentlemen:
We have acted as counsel to BRC Holdings, Inc. (f/k/a Business
Records Corporation Holding Company), a Delaware corporation (the
"Company"), in connection with the preparation of the Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission on or about May 29,
1996, under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 120,000 shares of the $0.10 par value common
stock (the "Common Stock") of the Company that will be issued on
the exercise of stock options (collectively, the "Options") granted
or that may be granted under the 1995 Stock Option Plan for Non-Employee
Directors of the Company (the " Outside Director Plan").
You have requested the opinion of this firm with respect to
certain legal aspects of the Registration Statement. In connection
therewith, we have examined and relied upon the original, or copies
identified to our satisfaction, of (1) the Certificate of
Incorporation and the Bylaws of the Company, as both have been
amended; (2) minutes and records of the corporate proceedings of
the Company with respect to the Outside Director Plan and related
matters; (3) the Registration Statement and exhibits thereto,
including the Outside Director Plan and the option agreement listed
as exhibits to the Registration Statement; and (4) such other
documents and instruments as we have deemed necessary for the
expression of the opinions herein contained. In making the
foregoing examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as
originals, and the conformity to original documents of all
documents submitted to us as certified or photostatic copies. As
to various questions of fact material to this opinion, and as to
the content and form of the Certificate of Incorporation, the
Bylaws, minutes, records, resolutions and other documents or
writings of the Company, we have relied, to the extent we deem
reasonably appropriate, upon representations or certificates of
officers or directors of the Company and upon documents, records
and instruments furnished to us by the Company, without independent
check or verification of their accuracy.
Based upon our examination, consideration of, and reliance on
the documents and other matters described above, and subject to the
comments and exceptions noted below, we are of the opinion that,
assuming (i) the outstanding Options were duly granted and the
Options to be granted in the future will be duly granted in
accordance with the terms of the Outside Director Plan, (ii) the
Company maintains an adequate number of authorized but unissued
shares and/or treasury shares of Common Stock available for
issuance to those persons who exercise Options granted under the
Outside Director Plan, (iii) the exercise of Options is in
accordance with the provisions thereof and in accordance with the
provisions of the Outside Director Plan, and (iv) the consideration
for the shares of Common Stock issuable upon the exercise of such
Options is actually received by the Company as provided in the
Outside Director Plan and the particular Option and such
consideration exceeds the par value of such shares, then the shares
of Common Stock issued pursuant to the exercise of the Options will
be validly issued, fully paid and nonassessable.
We bring to your attention the fact that this legal opinion is
an expression of professional judgment and not a guaranty of
result. This opinion is rendered as of the date hereof, and we
undertake no, and hereby disclaim any, obligation to advise you of
any changes in or new developments that might affect any matters or
opinions set forth herein.
This opinion is limited in all respects to the General
Corporation Law of the State of Delaware as in effect on the date
hereof; however, we are not members of the Bar of the State of
Delaware and our knowledge of its General Corporation Law is
derived from a reading of the most recent compilation of that
statute available to us without consideration of any judicial or
administrative interpretations thereof.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to references to our firm
included in or made a part of the Registration Statement. In
giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations of the Securities and
Exchange Commission thereunder. This opinion may not be relied
upon by any person other than the addressee identified above.
Very truly yours,
/s/ Arter & Hadden
ARTER & HADDEN
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 22,
1996, appearing on page 48 of Business Records Corporation Holding
Company's Annual Report on Form 10-K for the year ended
December 31, 1995.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Dallas, Texas
May 28, 1996
