Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
FIRST ALERT, INC.
(Exact name of issuer as specified in its charter)
Delaware 04-315705
(State of Incorporation) (IRS Employer Identification Number)
3901 Liberty Street, Aurora, Illinois 60504
(Address of Principal Executive Offices)
(708) 851-7330
(Registrant's telephone number, including area code)
FIRST ALERT, INC. 1992 TIME
ACCELRATED RESTRICTED STOCK OPTION PLAN
(Full title of the Plan)
Michael J. Riccio, Jr., Esquire
Hutchins, Wheeler & Dittmar
A Professional Corporation
101 Federal Street
Boston, Massachusetts 02110
(617) 951-6600
(Name, address and telephone number of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(l) Per Share Price Fee(2)
<S> <C> <C> <C> <C>
Common Stock, 764,994 $1.6129 $1,233,859 $425.47
par value
$.01 per share
</TABLE>
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
(2) The registration fee has been calculated with respect to all shares
registered on the basis of the price at which options may be exercised.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 (prior to filing of a Post-Effective Amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold) shall be deemed to be incorporated by
reference in this Registration Statement and to be a part thereof from the date
of filing of such documents.
(a) The Company's latest annual report filed pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 or the latest Prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, which contains either
directly or by incorporation by reference, audited financial statements for the
Company's latest fiscal year for which such statements have been filed.
(b) All of the reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report or the Prospectus referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in
the Registration Statement filed by the Company under the Securities Exchange
Act of 1934, including any amendment or report filed for the purpose of updating
such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchins, Wheeler &
Dittmar, A Professional Corporation, Boston, Massachusetts. As of May 22 , 1996,
a total of 11,400 shares of Common Stock were beneficially owned by certain
stockholders of Hutchins, Wheeler & Dittmar, A Professional Corporation.
<PAGE>
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware
provide as follows:
(a) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the person
did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause
to believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that he is or was
a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense
or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall
be made in respect to any claim, issue or matter as to which such
person shall have been adjudged to be liable to the corporation unless
and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that,
despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or
such other court shall deem proper.
<PAGE>
(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in defense of any claim, issue or
matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the board of
directors who are not parties to such action, suit or proceeding, even
though less than a quorum, or (2) if there are no such directors, or,
if such directors so direct, by independent legal counsel in a written
opinion, or (3) by the shareholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the corporation as authorized
in this section. Such expenses (including attorneys' fees) incurred by
other employees and agents may be so paid upon such terms and
conditions, if any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer,
employee, or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
<PAGE>
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at the
request of the corporation" shall include any service as a director,
officer, employee, or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in
this section.
(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
Article NINTH of the Restated Certificate of Incorporation of the
Company provides as follows:
No director of the Corporation shall be personally liable to the
Corporation or its shareholders for monetary damages for breach of fiduciary
duty as a director notwithstanding any provision of law imposing such liability;
provided that, to the extent provided by applicable law, this provision shall
not eliminate the liability of a director (i) for any breach of the director's
duty of loyalty to the Corporation or its shareholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the General Corporation Law of the
State of Delaware, or (iv) for any transaction from which the director derived
an improper personal benefit. No amendment to or repeal of this provision shall
apply to or have any
<PAGE>
effect on the liability or alleged liability of any director for or with respect
to any acts or omissions of such director occurring prior to such amendment or
repeal.
Article 10 of the By-laws of the Company provides as follows:
"ARTICLE 10
INDEMNIFICATION
Section 10.1 Third Party Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorney's fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
Section 10.2 Derivative Actions. The Corporation shall indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of the
Corporation to procure a judgment in its favor by reason of the fact that he is
or was a Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his duty to the Corporation unless and only to
the extent that the Court of Chancery or the court in which such action or suit
was brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
<PAGE>
Section 10.3 Expenses. To the extent that a Director, officer, employee
or agent of the Corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in Sections 10.1 and 10.2,
or in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 10.4 Authorization. Any indemnification under Sections 10.1 and
10.2 (unless ordered by a court) shall be made by the Corporation only as
authorized in the specific case upon a determination that indemnification of the
Director, officer, employee or agent is proper in the circumstances because he
has met the applicable standard of conduct set forth in Sections 10.1 and 10.2.
Such determination shall be made (a) by a majority vote of the Directors who are
not parties to such action, suit or proceeding, even though less than a quorum,
or (b) if there are no such Directors, or if such Directors so direct, by
independent legal counsel in a written opinion, or (c) by the stockholders.
Section 10.5 Advance Payment of Expenses. Expenses incurred by an
officer or Director in defending a civil or criminal action, suit or proceeding
may be paid by the Corporation in advance of the final disposition of such
action, suit or proceeding as authorized by the Board of Directors in the
specific case upon receipt of an undertaking by or on behalf of such officer or
Director to repay such amount unless it shall ultimately be determined that he
is entitled to be indemnified by the Corporation as authorized in this Article
10. Such expenses incurred by other employees and agents may be so paid upon
such terms and conditions, if any, as the Board of Directors deems appropriate.
Section 10.6 Non-Exclusiveness. The indemnification provided by this
Article 10 shall not be deemed exclusive of any other rights to which those
seeking indemnification may be entitled under any by-law, agreement, vote of
stockholders or disinterested Directors or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office, and shall continue as to a person who has ceased to be a Director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
Section 10.7 Insurance. The Corporation shall have power to purchase
and maintain insurance on behalf of any person who is or was a Director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power to indemnify him against such liability under the provisions of this
Article 10.
Section 10.8 Constituent Corporations. The Corporation shall have power
to indemnify any person who is or was a director, officer, employee or agent of
a constituent corporation absorbed in a consolidation or merger with this
Corporation or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other
<PAGE>
enterprise, in the same manner as hereinabove provided for any person who is or
was a Director, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise.
Section 10.9 Additional Indemnification. In addition to the foregoing
provisions of this Article 10, the Corporation shall have the power, to the full
extent provided by law, to indemnify any person for any act or omission of such
person against all loss, cost, damage and expense (including attorney's fees) if
such person is determined (in the manner prescribed in Section 10.4 hereof) to
have acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interest of the Corporation."
The Company has purchased insurance with respect to, among other
things, the liabilities that may arise under the statutory provisions referred
to above. The directors and officers of the Company also are insured against
certain liabilities, including certain liabilities arising under the Securities
Act of 1933, as amended, which might be incurred by them in such capacities and
against which they are not indemnified by the Company.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
<TABLE>
<CAPTION>
Number Description
<S> <C>
4.1 First Alert, Inc. 1992 Time Accelerated Restricted Stock Option
Plan, as amended.
5.1 Opinion of Hutchins, Wheeler & Dittmar, A Professional
Corporation, as to legality of shares being registered and consent of
Hutchins, Wheeler & Dittmar, A Professional Corporation.
23.1 Consent of Independent Public Accountants.
</TABLE>
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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,
represent a fundamental change in the information set
forth in the registration statement;
(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)(l)(i) and (a)(l)(ii) do not apply if 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 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) The undersigned registrant hereby undertakes to deliver or
cause to be delivered with the prospectus, to each person to whom the prospectus
is sent or give, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to and
meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities
Exchange Act of 1934; and, where interim financial information required to be
presented by Article 3 of Regulation S-X are not set forth in the prospectus, to
deliver, or cause to be delivered to each person to whom the prospectus is sent
or given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(c) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to section 13(a) or section
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
<PAGE>
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.
(d) The undersigned registrant hereby undertakes, that, insofar
as indemnification for liabilities arising under the Securities Act of 1933 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 Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
[Rest of Page Intentionally Left Blank]
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Aurora, Illinois on May 22, 1996.
FIRST ALERT, INC.
/s/ Malcolm Candlish
--------------------------------------
Malcolm Candlish
Chairman of the Board, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Malcolm Candlish and Gary L. Lederer, and each of
them, with the power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him or in his name, place and stead, in any and all capacities to sign any
and all amendments or post-effective 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 attorney-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agents or either of them, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Malcolm Candlish Chairman of the May 22, 1996
- -------------------------------------------
Malcolm Candlish Board, President, Chief
Executive Officer
and Director
(principal executive
officer)
/s/ Gary Lederer Senior Vice President May 22, 1996
- -------------------------------------------
Gary L. Lederer Chief Financial Officer
Secretary and
Treasurer
(principal financial
and accounting
officer)
<PAGE>
/s/ David V. Harkins Director May 22, 1996
------------------------------------------
David V. Harkins
/s/ Scott A. Schoen Director May 22, 1996
- -------------------------------------------
Scott A. Schoen
/s/Anthony J. DiNovi Director May 22, 1996
- -------------------------------------------
Anthony J. DiNovi
/s/ John R. Albers Director May 22, 1996
- -------------------------------------------
John R. Albers
/s/ Peter M. Wood Director May 22, 1996
- -------------------------------------------
Peter M. Wood
</TABLE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
FIRST ALERT, INC.
(Exact name of registrant as specified in its charter)
BRK GROUP, INC.
1992 TIME ACCELERATED RESTRICTED STOCK OPTION PLAN
<PAGE>
BRK GROUP, INC.
1992 TIME ACCELERATED RESTRICTED STOCK OPTION PLAN
1. Purpose of the Plan.
This Time Accelerated Restricted Stock Option Plan (the "Plan") is
intended to encourage ownership of the stock of BRK Group, Inc. (f/k/a THL-FA
Holding Corp.), a Delaware corporation (referred to herein with its subsidiaries
as the "Company"), by members of senior management of the Company, to induce
qualified management personnel to enter and remain in the employ of the Company
and otherwise to provide additional incentive for optionees to promote the
success of its business.
2. Stock Subject to the Plan.
(a) The total number of shares of the authorized but unissued or
treasury shares of the common stock, $.01 par value per share, of the Company
("Common Stock") for which options may be granted under the Plan shall not
exceed 764,994 shares, subject to adjustment as provided in Section 12 hereof.
(b) If an option granted hereunder shall expire or terminate for any
reason without having been exercised in full, the unpurchased shares subject
thereto shall not thereafter be available for subsequent option grants under the
Plan.
(c) Stock issuable upon exercise of an option granted under the Plan may
be subject to such restrictions on transfer, repurchase rights or other
restrictions as shall be determined by the Board of Directors and set forth in
the option agreement.
3. Administration of the Plan.
(a) The Plan shall be administered by the Board of Directors of the
Company. A majority of the members of the Board of Directors shall constitute a
quorum, and any action may be taken by a majority of those present and voting at
any meeting. The decision of the Board of Directors as to all questions of
interpretation and application of the Plan shall be final, binding and
conclusive on all persons. The Board of Directors may, in its sole discretion,
grant options to purchase shares of the Company's Common Stock and issue shares
upon exercise of such options as provided in the Plan. The Board shall have
authority, subject to the express provisions of the Plan, to construe the
respective option agreements and the Plan, to prescribe, amend and rescind rules
and regulations relating to the Plan, to determine
<PAGE>
the terms and provisions of the respective option agreements, which may but need
not be identical, and to make all other determinations in the judgment of the
Board necessary or desirable for the administration of the Plan. The Board may
correct any defect or supply any omission or reconcile any inconsistency in the
Plan or in any option agreement in the manner and to the extent it shall deem
expedient to carry the Plan into effect and shall be the sole and final judge of
such expediency. No director shall be liable for any action or determination
made in good faith. The Board of Directors may, in its discretion, delegate its
power, duties and responsibilities to a committee, consisting of two or more
members of the Board of Directors, all of whom are "disinterested persons" (as
hereinafter defined) (the "Committee"). If the Committee is so appointed, all
references to the Board of Directors herein shall mean and relate to the
Committee, unless the context otherwise requires.
(b) Any option granted to an officer or director of the Company shall
only be granted (i) by the Board of Directors, all of the members of which are
"disinterested persons" (as hereinafter defined) or (ii) by the Committee,
appointed as described above. Directors who are not otherwise employees of the
Company shall not be eligible to be granted an option under the Plan. The
preceding sentences shall not apply with respect to any options granted prior to
the date of the first registration of an equity security of the Company under
Section 12 of the Securities and Exchange Act of 1934.
(c) For the purposes of the Plan, a director or member of such committee
shall be deemed to be "disinterested" only if such person qualifies as a
"disinterested person" within the meaning of paragraph (c)(2)(i) of Rule 16b-3
promulgated under the Securities and Exchange Act of 1934, as such term is
interpreted from time to time.
4. Type of Options.
Options granted pursuant to the Plan shall be authorized by action of
the Board of Directors of the Company (or the Committee designated by the Board
of Directors, as described in Section 3(a)) and shall be designated as
non-qualified options which are not intended to meet the requirements of Section
422 of the Internal Revenue Code of 1986, as amended, (the "Code").
5. Eligibility.
Non-qualified options may be granted to the officers and key employees
of the Company or of any of its subsidiaries.
In determining the eligibility of an individual to be granted an option,
as well as in determining the number of shares to be optioned to any individual,
the Board of Directors may take into account the position and responsibilities
of the individual being considered, the nature and value to the Company of his
or her service and accomplishments, his or her present and
<PAGE>
potential contribution to the success of the Company, and such other factors as
the Board of Directors deemed relevant.
6. Option Agreement.
Each option shall be evidenced by an option agreement (the "Agreement")
duly executed on behalf of the Company and by the optionee to whom such option
is granted, which Agreement shall comply with and be subject to the terms and
conditions of the Plan. The Agreement may contain such other terms, provisions
and conditions which are not inconsistent with the Plan as may be determined by
the Board of Directors. No option shall be granted within the meaning of the
Plan and no purported grant of any option shall be effective until the Agreement
shall have been duly executed on behalf of the Company and the optionee.
7. Option Price.
The option price of shares of the Company's Common Stock for
non-qualified stock options granted hereunder shall be as determined by the
Board of Directors.
8. Manner of Payment; Manner of Exercise.
(a) Options granted under the Plan may provide for the payment of the
exercise price by delivery of cash or a check payable to the order of the
Company in an amount equal to the exercise price of such options.
(b) To the extent that the right to purchase shares under an option has
accrued and is in effect, options may be exercised in full at one time or in
part from time to time, by giving written notice, signed by the person or
persons exercising the option, to the Company, stating the number of shares with
respect to which the option is being exercised, accompanied by payment in full
for such shares as provided in subparagraph (a) above. Upon such exercise,
delivery of a certificate for paid-up non-assessable shares shall be made at the
principal office of the Company to the person or persons exercising the option
at such time, during ordinary business hours, within thirty (30) days from the
date of receipt of the notice by the Company, as shall be designated in such
notice, or at such time, place and manner as may be agreed upon by the Company
and the person or persons exercising the option.
9. Exercise of Options.
Each option granted under the Plan shall, subject to Section 10(b) and
Section 12 hereof, not be exercisable prior to fifteen (15) years from the date
of issuance unless exercisability is otherwise accelerated based upon a time
accelerated vesting schedule which is dependent upon performance criteria all as
set forth in the Agreement; provided, however, that no option granted under the
Plan shall have a term in excess of fifteen (15) years and six (6) months from
the date of grant.
<PAGE>
Notwithstanding the foregoing, in the case of any Change in Control (as
hereinafter defined) of the Company, the exercisability of any options,
notwithstanding any limitations in this Plan or in the Agreement, will
automatically and fully vest upon the occurrence of such Change in Control. A
"Change in Control" shall be deemed to have occurred if any person, or any two
or more persons acting as a group, and all affiliates of such person or persons,
who prior to such time owned less than fifty percent (50%) of the then
outstanding Common Stock of the Company, shall acquire such additional shares of
the Company's Common Stock in one or more transactions, or series of
transactions, such that following such transaction or transactions, such person
or group and affiliates beneficially own fifty percent (50%) or more of the
Company's Common Stock outstanding.
10. Term of Options; Exercisability.
(a) Term.
(1) Each option shall expire not more than fifteen (15) years
and six (6) months from the date of the granting thereof, but shall be subject
to earlier termination as provided in subsection (2) below.
(2) If, at any time, an employee optionee is terminated for
Cause (as defined in the Shareholders' Agreement between the Company and its
shareholders dated as of July 31, 1992 (the "Shareholders' Agreement")) or
voluntarily terminates his employment with the Company or any of its
subsidiaries for any reason or for no reason, then, in either such case, the
option granted to such employee shall terminate as follows: To the extent the
option is vested (as determined in accordance with the Vesting Schedule) it
shall terminate on the thirtieth (30th) day following such termination of
employment and to the extent the option in not so vested, is shall terminate
immediately upon such termination of employment.
(3) If, at any time, an employee optionee is terminated by the
Company without Cause, the option granted to such employee shall terminate as
follows: To the extent the option is vested (as determined in accordance with
the Vesting Schedule), it shall terminate on the 180th day following such
termination of employment and to the extent the option is not so vested, it
shall terminate immediately upon such termination of employment.
(4) In the event of the termination of an employee optionee's
employment with the Company or any of its subsidiaries due to the death or
Disability of the employee optionee (as defined in the Shareholders' Agreement),
the option granted to such employee shall terminate as follows: To the extent
the option is vested (as determined in accordance with the Vesting Schedule), it
shall terminate on the 180th day following such termination of employment and to
the extent the option is not so vested, it shall terminate immediately upon such
termination of employment.
(b) Exercisability.
<PAGE>
An option granted to an employee optionee who ceases to be an
employee of the Company or any of its subsidiaries, at any time, for any reason
or for no reason, shall be exercisable only to the extent that the right to
purchase shares under such option has accrued and is in effect on the date such
optionee ceases to be an employee of the Company or any of its subsidiaries.
11. Options Not Transferrable.
<PAGE>
The right of any optionee to exercise any option granted to him or her
shall not be assignable or transferrable by such optionee otherwise than by will
or the laws of descent and
<PAGE>
distribution, and any such option shall be exercisable during the lifetime of
such optionee only by him or her. Any option granted under the Plan shall be
null and void and without effect upon the bankruptcy of the optionee to whom the
option is granted, or upon any attempted assignment or transfer, except as
herein provided, including without limitation any purported assignment, whether
voluntary or by operation of law, pledge, hypothecation or other disposition,
attachment, trustee process or similar process, whether legal or equitable, upon
such option.
12. Recapitalizations, Reorganizations and the Like.
In the event that the outstanding shares of the Common Stock of the
Company are changed into or exchanged for a different number or kind of shares
or other securities of the Company or of another corporation by reason of any
reorganization, merger, consolidation, recapitalization, reclassification, stock
split-up, combination of shares, or dividends payable in capital stock,
appropriate adjustment shall be made in the number and kind of shares as to
which outstanding options or portions thereof, then accrued and in effect, shall
be exercisable. In accordance herewith, the proportionate interest of the
optionee shall be maintained as before the occurrence of such event; such
adjustment in outstanding options shall be made without change in the total
price applicable to the unexercised portion of such options and with a
corresponding adjustment in the option price per share.
Upon dissolution or liquidation of the Company, all options granted
under this Plan shall terminate, but each optionee (if at such time in the
employ of or otherwise associated with the Company or any of its subsidiaries)
shall have the right, immediately prior to such dissolution or liquidation, to
exercise his or her option to the extent then exercisable.
If by reason of a corporate merger, consolidation, acquisition of
property or stock, separation, reorganization, or liquidation, the Board of
Directors shall authorize the issuance or assumption of a stock option or stock
options in a transaction to which Section 424(a) of the Code applies, then,
notwithstanding any other provision of the Plan, the Board of Directors may
grant an option or options upon such terms and conditions as it may deem
appropriate for the purpose of assumption of the old option, or substitution of
a new option for the old option, in conformity with the provisions of such
Section 424(a) of the Code and the Regulations thereunder, and any such option
shall not reduce the number of shares otherwise available for issuance under the
Plan.
No fraction of a share shall be purchasable or deliverable upon the
exercise of any option, but in the event any adjustment hereunder of the number
of shares covered by the option shall cause such number to include a fraction of
a share, such fraction shall be adjusted to the nearest smaller whole number of
shares.
13. No Special Employment Rights.
<PAGE>
Nothing contained in the Plan or in any option granted under the Plan
shall confer upon any option holder any right with respect to the continuation
of his or her employment by the Company or interfere in any way with the right
of the Company, subject to the terms of any separate employment agreement to the
contrary, at any time to terminate such employment or to increase or decrease
the compensation of the option holder from the rate in existence at the time of
the grant of an option. Whether an authorized leave of absence, or absence in
military or government service, shall constitute termination of employment shall
be determined by the Board of Directors at the time.
14. Withholding.
The Company's obligation to deliver shares upon the exercise of the
non-qualified option granted under the Plan shall be subject to the option
holder's satisfaction of all applicable Federal, state and local income and
employment tax withholding requirements. The Company and employee may agree to
withhold shares of Common Stock purchased upon exercise of an option to satisfy
the above-mentioned withholding requirements.
15. Restrictions on Issue of Shares.
(a) Notwithstanding the provisions of Section 8, the Company may delay
the issuance of shares covered by the exercise of an option and the delivery of
a certificate for such shares until one of the following conditions shall be
satisfied:
(i) The shares with respect to which such option has been exercised are at
the time of the issue of such shares effectively registered or qualified under
applicable Federal and state securities acts now in force or as hereafter
amended; or
(ii) Counsel for the Company shall have given an opinion, which opinion
shall not be unreasonably conditioned or withheld, that such shares are exempt
from registration and qualification under applicable Federal and state
securities acts now in force or as hereafter amended.
(b) It is intended that all exercises of options shall be effective, and
the Company shall use its best efforts to bring about compliance with the above
conditions within a reasonable time, except that the Company shall be under no
obligation to qualify shares or to cause a registration statement or a
post-effective amendment to any registration statement to be prepared for the
purpose of covering the issue of shares in respect of which any option may be
exercised, except as otherwise agreed to by the Company in writing.
16. Purchase for Investment.
Unless the shares to be issued upon exercise of an option granted under
the Plan have been effectively registered under the Securities Act of 1933, as
now in force or hereafter
<PAGE>
amended, the Company shall be under no obligation to issue any shares covered by
any option unless the person who exercises such option, in whole or in part,
shall give a written representation and undertaking to the Company which is
satisfactory in form and scope to counsel for the Company and upon which, in the
opinion of such counsel, the Company may reasonably rely, that he or she is
acquiring the shares issued pursuant to such exercise of the option for his or
her own account as an investment and not with a view to, or for sale in
connection with, the distribution of any such shares, and that he or she will
make no transfer of the same except in compliance with any rules and regulations
in force at the time of such transfer under the Securities Act of 1933, or any
other applicable law, and that if shares are issued without such registration, a
legend to this effect may be endorsed upon the securities so issued.
17. Loans.
The Company may make loans to optionees to permit them to exercise
options. If loans are made, the requirements of all applicable Federal and state
laws and regulations regarding such loans must be met.
18. Modification of Outstanding Options.
The Board of Directors may authorize the amendment of any outstanding
option with the consent of the optionee when and subject to such conditions as
are deemed to be in the best interests of the Company and in accordance with the
purposes of the Plan and so long as such amendment does not violate any
contractual obligations of the Company.
19. Approval of Shareholders.
The Plan shall be subject to approval by the vote of shareholders
holding at least a majority of the voting stock of the Company voting in person
or by proxy at a duly held shareholders' meeting, or by written consent of a
majority of the shareholders, within twelve (12) months after the adoption of
the Plan by the Board of Directors and shall take effect as of the date of
adoption by the Board upon such approval. The Board of Directors may grant
options under the Plan prior to such approval, but any such option shall become
effective as of the date of grant only upon such approval and, accordingly, no
such option may be exercisable prior to such approval.
20. Termination and Amendment of Plan.
Unless sooner terminated as herein provided, the Plan shall terminate
fifteen (15) years and six (6) months from the date upon which the Plan was duly
adopted by the Board of Directors of the Company. The Board of Directors may at
any time terminate the Plan or make such modification or amendment thereof as it
deems advisable so long as such modification or amendment does not conflict with
contractual obligations of the Company;
<PAGE>
provided, however, that except as provided in Section 12, the Board of Directors
may not, without the approval of the shareholders of the Company obtained in the
manner stated in Section 19, increase the maximum number of shares for which
options may be granted. Termination or any modification or amendment of the Plan
shall not, without the consent of an optionee, adversely affect his or her
rights under an option theretofore granted to him or her.
21. Reservation of Stock.
The Company shall at all times during the term of the Plan reserve and
keep available such number of shares of stock as will be sufficient to satisfy
the requirements of the Plan and shall pay all fees and expenses necessarily
incurred by the Company in connection therewith.
22. Limitation of Rights in the Option Shares.
An optionee shall not be deemed for any purpose to be a shareholder of
the Company with respect to any of the options except to the extent that the
option shall have been exercised with respect thereto and, in addition, a
certificate shall have been issued theretofore and delivered to the optionee.
23. Notices.
Any communication or notice required or permitted to be given under the
Plan shall be in writing and shall be deemed duly given if hand-delivered or
mailed by registered or certified mail, postage prepaid, return receipt
requested, as follows:
(a) If to the Company:
BRK Group, Inc.
780 McClure Road
Aurora, Illinois 60504-2495
Attn: President
(b) If to an Optionee:
To the most recent address furnished in writing to the Company by the
Optionee,
unless and until notice of another or different address shall be given as
provided herein.
Adopted by the Board of Directors:
Approved by the Shareholders:
<PAGE>
A true record.
ATTEST:
Gary L. Lederer,
Secretary
<PAGE>
First Alert, Inc.
3901 Liberty Street Road
Aurora, IL 60504
Gentlemen:
We are general counsel to First Alert, Inc., a Delaware corporation (the
"Company"), and as such counsel we are familiar with the corporate proceedings
taken in connection with the adoption of the Company's 1992 Time Accelerated
Restricted Stock Option Plan (the "Plan"). We are also familiar with the
registration statement to which a copy of this opinion will be attached as an
exhibit.
As such counsel, we have examined the corporate records of the Company,
including the Articles of Organization, By-laws, stock records, minutes of
meetings of its Board of Directors and stockholders and such other documents as
we have deemed necessary as a basis for the opinions herein expressed.
Based upon the foregoing, and having regard for such legal
considerations as we deem relevant, we are of the opinion that:
1. The Company is duly organized and validly existing under
the laws of the State of Delaware;
2. The Company has authorized the issuance of 30,000,000 shares of
common stock, $.01 par value per share, and 1,000,000 shares of Preferred Stock,
par value $.01 per share.
3. The outstanding common stock of the Company has been duly authorized,
constitutes validly issued, fully paid and non-assessable shares of capital
stock of the Company and no personal liability attaches to any of the shares;
and
<PAGE>
First Alert, Inc.
May 22, 1996
Page 2
4. The shares of common stock issuable pursuant to the Plan, when issued
in accordance with the terms thereof, will be validly issued, fully paid and
non-assessable shares of capital stock of the Company to which no personal
liability will attach.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement on Form S-8 and to the reference to us under the caption
"Interests of Named Experts and Counsel" in the Registration Statement.
Very truly yours,
HUTCHINS, WHEELER & DITTMAR
A Professional Corporation
MJR/WBD/kjm
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S- 8 of our report dated January 31, 1996, which appears on
page 30 of the 1995 Annual Report to Shareholders of First Alert, Inc. which is
incorporated by reference in First Alert, Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1995. We also consent to the incorporation by
reference of our report on the Financial Statement Schedule, which appears on
page 17 of such Annual Report on Form 10-K.
Price Waterhouse LLP
Chicago, Illinois
May 22, 1996
<PAGE>
