BRK GROUP, INC.
1992 TIME ACCELERATED RESTRICTED STOCK OPTION PLAN
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
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
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.
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.
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.
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
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.
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
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;
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:
A true record.
ATTEST:
Gary L. Lederer,
Secretary