As filed with the Securities and Exchange Commission
on January 12, 1998
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 75-1533071
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
1111 West Mockingbird, Suite 75247
1500 (Zip Code)
Dallas, Texas
(Address of Principal
Executive Offices)
_________________________
NONQUALIFIED PERFORMANCE STOCK OPTION PLAN FOR
NEW EMPLOYEES AND EMPLOYEES OF ACQUIRED COMPANIES
(Full title of the plan)
_________________________
THOMAS E. KIRALY Copy to:
Chief Financial Officer JEFFREY M. SONE, ESQ.
BRC HOLDINGS, INC. Arter & Hadden LLP
1111 West Mockingbird 1717 Main St., Suite 4100
Suite 1500 Dallas, Texas 75201-4605
Dallas, Texas 75247 (214) 761-2100
(214) 688-1800
(Name, address and telephone
number, including area code,
of agent for service)
_________________________
<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 | 500,000 Shares | (2) | $19,672,918 | $5,804
($.10 par value) | | | |
===============================================================================================================
</TABLE>
(1) The securities to be registered represent shares of
Common Stock issued or reserved for issuance under the
Nonqualified Performance Stock Option Plan for New Employees and
Employees of Acquired Companies (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 (35,833 shares of Common Stock) may be exercised
is $1,338,321.50 and (ii) the maximum proposed offering price at
which unissued options may be exercised under the Plan (464,167
shares of Common Stock) is $18,334,596.50 calculated on the basis
of the high and low price per share of Common Stock on the Nasdaq
Stock Market's National Market on January 7, 1998 ($39.50), in
accordance with Rule 457(c).
=================================================================
<PAGE>
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. (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, 1996;
(2) the Company's Quarterly Reports filed with the
Commission on Form 10-Q for the quarters ended March
31, 1997; June 30, 1997 and September 30, 1997;
(3) the Company's Current Reports on Form 8-K dated
January 6, 1997; November 20, 1997; December 3, 1997
and December 5, 1997;
(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.
<PAGE>
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.
<PAGE>
Item 8. Exhibits.
(a) Exhibits.
Exhibit Description
------- -----------
4.1 Nonqualified Performance Stock Option
Plan for New Employees and Employees of Acquired
Companies (filed herewith)
5.1 Opinion of Arter & Hadden LLP regarding
legality of securities being registered (filed
herewith)
23.1 Consent of Arter & Hadden LLP (included
in their opinion filed as Exhibit 5.1) (filed
herewith)
23.2 Consent of Price Waterhouse LLP (filed
herewith)
24.1 Power of Attorney (included on the
signature page of this Registration Statement)
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;
<PAGE>
(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.
<PAGE>
SIGNATURES
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 January 9, 1998:
BRC HOLDINGS, INC.
By: /s/ PERRY E. ESPING
------------------------------------
Perry E. Esping
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints each of PERRY E.
ESPING and THOMAS E. KIRALY, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all
capacities, to sign any or all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to
be done in and about the premises, as fully for all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
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
January 9, 1998:
Signature Title
- --------- ------
/s/ PERRY E. ESPING Chairman and Chief Executive Officer
- ---------------------------- (Principal Executive Officer)
Perry E. Esping
/s/ THOMAS E. KIRALY Chief Financial Officer
- ---------------------------- Principal Financial and Accounting
Thomas E. Kiraly 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
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
------- -----------
4.1 Nonqualified Performance Stock Option
Plan for New Employees and Employees of Acquired
Companies (filed herewith)
5.1 Opinion of Arter & Hadden LLP regarding
legality of securities being registered (filed
herewith)
23.1 Consent of Arter & Hadden LLP (included
in their opinion filed as Exhibit 5.1) (filed
herewith)
23.2 Consent of Price Waterhouse LLP (filed
herewith)
24.1 Power of Attorney (included on the
signature page of this Registration Statement)
EXHIBIT 4.1
-----------
BRC HOLDINGS, INC.
NONQUALIFIED PERFORMANCE
STOCK OPTION PLAN FOR NEW EMPLOYEES
AND EMPLOYEES OF ACQUIRED COMPANIES
BRC Holdings, Inc. ("BRC"), a Delaware corporation, hereby
adopts this Nonqualified Performance Stock Option Plan for New
Employees and Employees of Acquired Companies. The purpose of
this Plan is to further the growth, development and financial
success of BRC by providing incentives to certain prospective
employees, advisers and consultants to BRC, including those who
are expected to become employees, advisers or consultants to BRC
as a result of the acquisition of business operations or assets
of third parties. BRC is providing such incentives, among other
things, to encourage retention of employees of acquired companies
and the commitment of new employees to achieving BRC's future
performance objectives.
ARTICLE 1
DEFINITIONS
Section 1.1 Board
-----
"Board" shall mean the Board of Directors of BRC.
Section 1.2 BRC
---
"BRC" shall mean BRC Holdings, Inc., a Delaware corporation.
Section 1.3 Change of Control
-----------------
"Change of Control" shall mean either the effective date of
either the merger or consolidation of BRC into another
corporation, or the exchange or acquisition by another Person in
one transaction or a series of transactions of all or
substantially all of BRC's assets or 50% or more of its then
outstanding voting stock, whether through merger, consolidation
or otherwise, or the recapitalization, reclassification,
liquidation or dissolution of BRC or, with respect to a
particular Employee designated by the Committee, the occurrence
of a "Change of Control" as specifically defined in such
Employee's employment or equivalent agreement with BRC.
Section 1.4 Code
----
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
Section 1.5 Committee
---------
"Committee" shall mean the Stock Option Committee of the
Board, appointed as provided in Section 6.1 or a successor or
substitute committee thereto designated by the Board to exercise
the authority of the "Committee" with regard to the Plan.
Section 1.6 Common Stock
------------
"Common Stock" shall mean the Common Stock, par value $.10
per share, of BRC.
<PAGE>
Section 1.7 Employee
--------
"Employee" shall mean any employee (as defined in accordance
with the regulations and revenue rulings then applicable under
Section 3401(c) of the Code) of or any adviser or consultant to
BRC, or of or to any corporation which is then a Subsidiary,
whether such employee, adviser or consultant is so employed at
the time this Plan is adopted or becomes so employed subsequent
to the adoption of this Plan; provided, however, that to the
extent any person receiving options shall not be an employee for
the purposes of Section 3401(c) of the Code, such person shall
be, at the time of such grant, rendering, or under contract or
agreement to render in the future, bona fide services to BRC or
any of its Subsidiaries other than services in connection with
the offer or sale of securities in a capital raising transaction.
Section 1.8 General
-------
Whenever the following terms are used in this Plan they
shall have the meaning specified below unless the context clearly
indicates to the contrary.
Section 1.9 Option
------
"Option" shall mean an option granted under the Plan to
purchase Common Stock. Options include only options which are not
intended to be "incentive stock options" under Section 422 of the
Code.
Section 1.10 Option Price
------------
"Option Price" shall have the meaning given in Section 4.2.
Section 1.11 Person
------
"Person" shall mean any individual, corporation,
partnership, limited partnership, trust or business entity, or
any group of them acting in concert or under common control with
regard to BRC or the Common Stock.
Section 1.12 Plan
----
"Plan" shall mean the Nonqualified Performance Stock Option
Plan for New Employees of BRC and its Subsidiaries.
Section 1.13 Pronouns
--------
The masculine pronoun shall include the feminine and neuter
and the singular shall include the plural, where the context so
indicates.
Section 1.14 Secretary
---------
"Secretary" shall mean the Secretary, or any successor
officer holding substantially similar duties, as delegated by the
Board, with regard to the Plan, of BRC.
Section 1.15 Stock Option Agreement
----------------------
"Stock Option Agreement" shall have the meaning contemplated
in Section 4.1.
-2-
<PAGE>
Section 1.16 Subsidiary
----------
"Subsidiary" shall mean any corporation (other than BRC) in
an unbroken chain of corporations beginning with BRC if each of
the corporations, or if each group of commonly controlled
corporations, other than the last corporation in an unbroken
chain then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in at least one of
the other corporations in such chain.
Section 1.17 Termination of Employment
-------------------------
"Termination of Employment" shall mean the time when the
employee-employer advisory or consultancy relationship between
the Employee and BRC or its Subsidiaries is terminated for any
reason whatsoever. The Committee, in its absolute discretion,
shall determine, for purposes of the Plan, the effect of all
matters and questions relating to Termination of Employment,
including, but not by way of limitation, all questions of whether
particular leaves of absence constitute Terminations of
Employment and the question of whether any reemployment (which
may include a commitment to rehire) by BRC is simultaneous, for
the purposes of this Plan, with termination. Notwithstanding any
other provision of this Plan, BRC or any of its Subsidiaries have
an absolute and unrestricted right to terminate any Employee's
employment at any time for any reason whatsoever with or without
cause.
ARTICLE 2
SHARES SUBJECT TO PLAN
Section 2.1 Shares Subject to Plan
----------------------
Subject to the provisions of Sections 4.6 and 4.7, the
shares of stock subject to Options shall be shares of Common
Stock. The aggregate number of shares of Common Stock which may
be issued upon exercise of Options shall not exceed 500,000
shares, subject to adjustment as provided in Section 4.6 or 4.7
hereof and subject to the amendment of this Plan by any action of
the Board of Directors of BRC, as ratified by the stockholders of
BRC, in accordance with Section 7.4 hereof.
Section 2.2 Unexercised Options
-------------------
If any Option expires or is canceled without having been
fully exercised, the number of shares subject to such Option but
as to which such Option was not exercised prior to its expiration
or cancellation may again be optioned hereunder, subject to the
limitations of Section 2.1.
ARTICLE 3
GRANTING OF OPTIONS
Section 3.1 Eligibility
-----------
Any natural person who has agreed to become an Employee or
who is an employee, adviser or consultant to any other Person and
who is, or is expected to become an Employee following the
consummation of any transaction between the Person in question
and BRC pursuant
-3-
<PAGE>
to which BRC acquires from such Person (i) one or more businesses
or (ii) assets to be utilized by BRC in connection with its
existing or contemplated business activities, shall be eligible
to be granted Options. Notwithstanding the foregoing, no Options
hereunder may be granted to any Person who was, at any time
during the sixty (60) days preceding such grant, an Employee of
BRC or its Subsidiaries.
Section 3.2 Granting of Options
-------------------
The Committee shall from time to time, in its absolute
discretion:
(i) Determine the eligible Persons to whom options
should be granted; and
(ii) Determine the number of shares to be subject to
any such Options; and
(iii) Determine the terms and conditions of such
Options consistent with the Plan; and
(iv) Establish such conditions as to the vesting of
options and the manner of exercise of such Options as it may
deem necessary, including but not limited to establishing a
maximum number of Options that any Person shall be entitled
to and requiring option holders under this Plan to enter
into agreements regarding transferability and other
restrictions with respect to shares issuable upon exercise
of such Options.
Section 3.3 Bona Fide Services Required
---------------------------
Notwithstanding any provision of Sections 3.1 or 3.2, or of
any agreement relating to an Option granted hereunder, no Option
shall become exercisable in whole or in part until the Person to
whom such Option shall have been granted has become an Employee
of BRC or its Subsidiaries or has otherwise begun to render bona
fide services to BRC or its Subsidiaries.
ARTICLE 4
TERMS OF OPTIONS
Section 4.1 Option Agreement
----------------
Each Option shall be evidenced by a written stock option
agreement (a "Stock Option Agreement") which shall be executed by
the Employee and an authorized officer of BRC and which shall
contain such terms and conditions as the Committee shall
determine, consistent with the Plan.
Section 4.2 Option Price
------------
The price per share of the Common Stock subject to each
Option (the "Option Price") shall be set by the Committee in its
discretion. The Option Price may be less than the fair market
value of such shares on the date such Option is granted.
-4-
<PAGE>
Section 4.3 Commencement of Exercisability
------------------------------
Subject to the provisions of Section 7.4, Options shall
become exercisable at such times and in such installments (which
may be cumulative) as the Committee shall provide in the terms of
each individual Stock Option Agreement as amended from time to
time; provided, however, that by a resolution adopted after an
Option is granted the Committee may, on such terms and conditions
as it may determine to be appropriate and subject to Section 7.4,
accelerate the time at which such Option or any portion thereof
may be exercised.
Section 4.4 Expiration of Options
---------------------
(a) No Option may be exercised to any extent by anyone
after, and every Option shall expire no later than the tenth
anniversary of the date the Option was granted or deemed granted.
(b) Subject to the provisions of Section 4.4(a), the
Committee shall provide, in the terms of each individual Stock
Option Agreement, when such Option expires and becomes
unexercisable
Section 4.5 No Right to Continue in Employment or Office
--------------------------------------------
Nothing in this Plan or in any Stock Option Agreement (i)
shall confer upon any Person any right to employment or continued
employment by BRC or any of its Subsidiaries or (ii) shall
interfere with or restrict in any way the rights of BRC and its
Subsidiaries, which are hereby expressly reserved, to terminate
the employment of any Employee at any time for any reason
whatsoever, with or without good cause. No termination of any
Employee, or any document or agreement executed or delivered in
connection therewith shall have the effect of amending any Stock
Option Agreement or modifying any of its terms unless such Stock
Option Agreement or this Plan is specifically referenced with
regard thereto.
Section 4.6 Adjustments in Outstanding Options
----------------------------------
Subject to Section 4.7, in the event that the outstanding
shares of Common Stock subject to Options are, from time to time,
changed into or exchanged for a different number or kind of
shares of BRC or other securities of BRC or in the event holders
of the Common Stock receive additional shares of Common Stock or
a different kind or number of shares of BRC or other securities
of BRC by reason of a merger, consolidation, recapitalization,
reclassification, stock split-up, stock dividend, combination of
shares, or otherwise, the Committee shall make an appropriate and
equitable adjustment in the aggregate number of shares which may
be issued pursuant to Section 2.1 hereof and the number and kind
of shares or other consideration as to which all outstanding
Options, or portions thereof then unexercised, shall be
exercisable. Any such adjustment made by the Committee shall be
final and binding upon all Employees, BRC and all other
interested persons.
Section 4.7 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
-5-
<PAGE>
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 4.3 and/or in any installment
provisions of such Option (but subject to the provisions of
Section 4.4(a)) 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 in 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 holder thereof has
not exercised such Option or otherwise received adequate
consideration in respect thereof prior to the occurrence of such
Change of Control, that holder 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 BRC), 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, a
person who is an Employee as of the effective date of a Change in
Control shall vest and be entitled to 100% of any options
theretofore granted to such Employee, and all such Options shall
become fully exercisable immediately prior to (but conditional
upon the occurrence of) any event constituting a Change of
Control.
ARTICLE 5
EXERCISE OF OPTIONS
Section 5.1 Persons Eligible to Exercise
----------------------------
During the lifetime of the Person receiving an Option
hereunder, only he or his guardian may exercise such Option.
After the death of the Person receiving an Option hereunder, any
exercisable portion of an Option may, prior to the earlier to
occur of (i) one year following the death of such Person or (ii)
the time when such portion becomes unexercisable under Section
4.4 or Section 4.7, be exercised by his personal representative
or by any person empowered to do so under the deceased Employee's
will or under the then applicable laws of descent and
distribution.
Section 5.2 Partial Exercise
----------------
At any time and from time to time prior to the time when any
exercisable Option or exercisable portion thereof expires or
becomes unexercisable under Section 4.4 or Section 4.7, such
Option or portion thereof may be exercised in whole or in part;
provided, however, that
-6-
<PAGE>
BRC shall not be required to issue fractional shares and the
Committee may, in the Stock Option Agreement, require any partial
exercise to be with respect to a specified minimum number of
shares.
Section 5.3 Manner of Exercise
------------------
An exercisable Option, or any exercisable portion thereof,
may be exercised solely by delivering to the Secretary or his
office all of the following prior to the time when such Option or
such portion becomes unexercisable under Section 4.4 or Section
4.7:
(a) Notice in writing signed by the Employee or other
person then entitled to exercise such Option or portion thereof,
stating that such Option or portion thereof is exercised;
(b) Full payment of the Option Price (in cash or by
delivery of a properly executed exercise notice as specified in
Section 5.3(a) above together with irrevocable instructions to a
broker to promptly deliver to BRC the amount of sale or loan
proceeds to pay the exercise price) for the shares with respect
to which such Option or portion thereof is thereby exercised,
together with payment or arrangement for payment of any federal
income or other tax required to be withheld by BRC with respect
to such shares;
(c) In lieu of payment contemplated in clause (b) above, at
the discretion of the Committee, an exercising holder may tender,
in payment of all or any part of the Option Price or any federal
or other taxes due with respect to an exercise, shares of Common
Stock having a fair market value equal to the required cash
payment amounts;
(d) Such representations and documents as the Committee
reasonably deems necessary or advisable to effect compliance with
all applicable provisions of the Securities Act of 1933, the
Securities Exchange Act of 1934 and any other federal, state or
foreign securities laws or regulations promulgated thereunder,
all as may be amended from time to time. The Committee may, in
its absolute discretion, also take whatever additional actions it
deems appropriate to effect such compliance, including, without
limitation, placing legends on share certificates and issuing
stop-transfer orders to transfer agents and registrars;
(e) In the event that the Option or portion thereof shall
be exercised pursuant to Section 5.1 by any person or persons
other than an Employee, appropriate proof of the right of such
person or persons to exercise the Option or portion thereof; and
(f) Such other documents, certificates or undertakings as
the Committee may require in accordance with Section 7.2 hereof
or as may be required pursuant to applicable law.
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<PAGE>
ARTICLE 6
ADMINISTRATION
Section 6.1 Stock Option Committee
----------------------
The Committee shall consist of at least two Directors. It
shall be appointed by and shall serve at the pleasure of the
Board. If the Board shall make the determination to seek or
maintain such exemption, and to the extent required to secure or
maintain any exemption available under Section 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
no person shall be eligible to serve on the Committee unless he
is then a "Non-Employee Director" within the meaning of paragraph
(b)(3) of Rule 16b-3 which has been adopted by the Securities and
Exchange Commission under the Exchange Act, as amended, as such
Rule or its equivalent is then in effect. Appointment of
Committee members shall be effective upon acceptance of
appointment. Committee members may resign at any time by
delivering written notice to the Board. Vacancies in the
Committee may be filled by the Board as it deems appropriate. At
the option of the Board, or in the absence of the appointment or
designation of the Committee by the Board, the entire Board shall
constitute the Committee.
Section 6.2 Duties and Powers of Committee
------------------------------
It shall be the duty of the Committee to conduct the general
administration of the Plan in accordance with its provisions. The
Committee shall have the power to interpret the Plan and the
Options and to adopt such rules for the administration,
interpretation, and application of the Plan as are consistent
therewith and to interpret, amend or revoke any such rules. Any
such interpretations and rules shall be consistent with the basic
purpose of the Plan to grant Options. In its absolute discretion,
the Board may at any time and from time to time exercise any and
all rights and duties of the Committee under the Plan.
Section 6.3 Majority Rule
-------------
The Committee shall act by a majority of its members in
office and the Committee may act either by vote at a telephonic
or other meeting or by a memorandum or other written instrument
signed by a majority of the Committee.
Section 6.4 Compensation: Professional Assistance; Good Faith
Actions
-------------------------------------------------
Members of the Committee shall not receive compensation for
their services as members but all expenses and liabilities they
incur in connection with the administration of the Plan shall be
borne by BRC. The Committee may employ attorneys, consultants,
accountants, appraisers, brokers or other persons. The Committee,
BRC and the officers and Directors of BRC shall be entitled to
rely upon the advice, opinions or valuations of any such persons.
All actions taken and all interpretations and determinations made
by the Committee in good faith shall be final and binding upon
all Employees, BRC and all other interested persons. No member of
the Committee shall be personally liable for any action,
determination or interpretation made in good faith with respect
to the Plan or the Options, and all members of the Committee
shall be fully protected by BRC with respect to any such action,
determination or interpretation.
-8-
<PAGE>
ARTICLE 7
MISCELLANEOUS PROVISIONS
Section 7.1 Rights as Stockholders
----------------------
The holders of Options shall not be, nor have any of the
rights or privileges of, stockholders of BRC in respect of any
shares purchasable upon the exercise of any part of an Option
unless and until certificates representing such shares have been
issued by BRC to such holders.
Section 7.2 Transfer Restrictions
---------------------
The Committee, in its absolute discretion, may impose such
restrictions on the transferability of the shares purchasable
upon the exercise of an Option as it deems appropriate, and any
such restrictions shall be set forth in the respective Stock
Option Agreement or a stock subscription agreement to be executed
by the grantee thereof prior to the exercise of an option and may
be referred to on the certificates evidencing such shares.
Section 7.3 Options Not Transferable
------------------------
No Option or interest or right therein shall be subject to
disposition by transfer, alienation, anticipation, pledge,
encumbrance, assignment or any other means, whether such
disposition be voluntary or involuntary or by operation of law or
by judgment, levy, attachment, garnishment or any other legal or
equitable proceeding (including bankruptcy), and any attempted
disposition thereof shall be null and void and of no effect;
provided, however, that nothing in this Section 7.3 shall prevent
transfers by will or by the applicable laws of descent and
distribution.
Section 7.4 Amendment. Suspension or Termination of the Plan
------------------------------------------------
The Plan may be wholly or partially amended or otherwise
modified, suspended or terminated at any time or from time to
time by the Board. However, without approval of a majority vote
of BRC's stockholders present in person or by proxy at any
regular or special meeting given within 12 months before or after
the action by the Board or the Committee, no action of the
Committee or the Board may, except as provided in Sections 4.6 or
4.7, increase any limit imposed in Section 2.1 on the maximum
number of shares which may be issued upon exercise of Options,
reduce the minimum option price requirements in Section 4.2 or
extend the limit imposed in this Section 7.4 on the period during
which Options may be granted. Except as expressly permitted by
the terms of the Plan, neither the amendment, suspension nor
termination of the Plan shall, without the consent of the holder
of the Option, alter or impair any rights or obligations under
any Option theretofore granted. No Option may be granted during
any period of suspension nor after termination of the Plan, and
in no event may any Option be granted under this Plan after the
expiration of ten (10) years from the date the Plan is adopted or
the date the stockholders of BRC approve this Plan, if earlier.
Section 7.5 Effect of Plan Upon Other Options and Compensation
Plans
---------------------------------------------------
Nothing in this Plan shall be construed to limit the right
of BRC or any of its Subsidiaries (a) to establish any other
forms of incentives or compensation for employees of BRC or any
of its Subsidiaries or (b) to grant or assume options otherwise
than under this Plan in connection with
-9-
<PAGE>
any proper corporate purpose, including, but not by way of
limitation, the grant or assumption of options in connection with
the acquisition by purchase, lease, merger, consolidation or
otherwise, of the business, stock or assets of any corporation,
firm or association.
Section 7.6 Titles
------
Titles are provided herein for convenience only and are not
to serve as a basis for interpretation or construction of the
Plan.
-10-
ARTER & HADDEN LLP
1717 Main Street, Suite 4100
Dallas, Texas 75201
(214) 761-2100
(214) 741-7139 (Fax)
Exhibit 5.1
-----------
January 9, 1998
Board of Directors
BRC Holdings, Inc.
1111 West Mockingbird, Suite 1500
Dallas, Texas 75247
Re: Registration Statement on Form S-8
Nonqualified Performance Stock Option Plan for New
Employees and Employees of Acquired Companies
Gentlemen:
We have acted as counsel to BRC Holdings, Inc., 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 January 9, 1998, under the Securities Act
of 1933, as amended (the "Securities Act"), relating to 500,000
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 Nonqualified Performance Stock Option Plan for
New Employees and Employees of Acquired Companies (the "New
Employee 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 New Employee Plan
and related matters; (3) the Registration Statement and exhibits
thereto, including the New Employee Plan listed as an exhibit 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,
<PAGE>
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 New Employee 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
New Employee Plan, (iii) the exercise of Options is in accordance
with the provisions thereof and in accordance with the provisions
of the New Employee 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 New
Employee 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.
Respectfully submitted,
/s/ ARTER & HADDEN LLP
ARTER & HADDEN LLP
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the
Registration Statement on Form S-8 of our report dated March
7, 1997 appearing in BRC Holdings, Inc.'s Annual Report on
Form 10-K for the year ended December 31, 1996.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
Dallas, Texas
January 9, 1998
