Exhibit 10.4.6
NEITHER THIS OPTION NOR THE UNDERLYING COMMON SHARES HAVE BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE CORPORATION WILL NOT TRANSFER THIS OPTION OR THE
UNDERLYING COMMON SHARES UNLESS (i) THERE IS AN EFFECTIVE REGISTRATION COVERING
SUCH OPTION OR SUCH SHARES, AS THE CASE MAY BE, UNDER THE SECURITIES ACT OF 1933
AND APPLICABLE STATES SECURITIES LAWS, (ii) IT FIRST RECEIVES A LETTER FROM AN
ATTORNEY, ACCEPTABLE TO THE BOARD OF DIRECTORS OR ITS AGENTS, STATING THAT IN
THE OPINION OF THE ATTORNEY THE PROPOSED TRANSFER IS EXEMPT FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933 AND UNDER ALL APPLICABLE STATE SECURITIES LAWS,
OR (iii) THE TRANSFER IS MADE PURSUANT TO RULE 144 UNDER THE SECURITIES ACT OF
1933.
Void after 5:00 P.M., Omaha, Nebraska USA Time on October 26, 2000
OPTION TO PURCHASE COMMON SHARES
OF
BALLANTYNE OF OMAHA, INC.
THIS IS TO CERTIFY THAT, FOR VALUE RECEIVED, JOHN P. WILMERS, or permitted
transferees ("Optionee") are together entitled to purchase, subject to the
provisions of this Option, from BALLANTYNE OF OMAHA, INC., a Delaware
corporation ("Corporation"), at a price of $5.50 (US) per Share, up to Fifty
Thousand (50,000) common shares of the Corporation ("Shares") at any time during
the period commencing 12:01 A.M. on October 26, 1999 and terminating on 11:59
P.M. on the date on which a sale of substantially all of the capital stock or
substantially all of the assets of the Corporation is consummated; provided,
however,
(1) that the occurrence of such sale and the closing thereof on or
before October 26, 2000, shall be a condition precedent to the exercise of the
option herein granted, and
(2) that the option rights granted herein shall expire in any event
at 5:00 P.M., Omaha, Nebraska USA Time, on October 26, 2000.
The Shares deliverable upon the exercise of this option are hereinafter
sometimes referred to as the "Underlying Shares" and the exercise price per
share of this Option to purchase is hereinafter sometimes referred to as the
"Exercise Price." The Shares deliverable upon the exercise of the Options are
hereinafter sometimes referred to as the "Option Shares."
SECTION 1. EXERCISE OF OPTION. Subject to the provisions hereof, this Option may
be exercised, in whole or in part, by presentation and surrender hereof to the
Corporation at its principal office, with the purchase form annexed hereto, duly
executed and accomplished by payment of the Exercise Price for the number of
shares specified in such form. Upon receipt by the Corporation of this Option at
its principal office, in proper form for exercise, the Optionee shall be deemed
to be the holder of record of the Option Shares issuable upon such exercise,
notwithstanding that the shares transfer books of the Corporation shall then be
closed or that certificates representing such Option Shares shall not then be
actually delivered to the Optionee.
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SECTION 2. RESERVATION AND STATUS OF SHARES. The Corporation hereby agrees that
at all times there shall be reserved for issuance and delivery upon exercise of
this Option such number of its common shares as shall be required for issuance
and delivery upon exercise of this Option, and that such shares, when issued in
accordance with the terms of this Option, shall be validly issued, fully paid,
and non-assessable.
SECTION 3. FRACTIONAL SHARES. Fractional Shares or script representing
Fractional Shares may be issued upon the exercise of this Option.
SECTION 4. NO ASSIGNMENT, TRANSFER UPON DEATH, EXCHANGE, OR LOSS OF OPTION.
4.1 This Option shall not be assignable except that it may be transferred, upon
the death of the Optionee, to the beneficiaries of the Optionee by testamentary
instrument or to the heirs of the Optionee by operation of law.
4.2 This Option is exchangeable, without expense, at the option of the
Optionee, upon presentation and surrender hereof to the Corporation at its
principal office, for other Options of different denominations entitling the
Optionee to purchase, in the aggregate, the same number of Shares purchasable
hereunder.
4.3 Upon receipt by the Corporation of evidence satisfactory to it of the loss,
theft, destruction, or mutilation of this Option, and (in the case of loss,
theft, or destruction) of reasonably satisfactory indemnification, and (in the
case of mutilation) upon surrender and cancellation of this Option, the
Corporation will execute and deliver a new Option, in lieu of the original.
SECTION 5. RIGHTS OF THE OPTIONEE. Except as provided in the last sentence of
Section 1, the Optionee shall not, by virtue hereof, be entitled to any rights
of a shareholder in the Corporation, either at law or equity. The rights of the
Optionee are limited to those expressed in this Option and are not enforceable
against the Corporation except to the extent set forth herein.
SECTION 6. ANTI-DILUTION PROVISIONS. The number and kind of securities
purchasable upon the exercise of this Option and the Exercise Price shall be
subject to adjustment from time to time as follows:
6.1 In case the Corporation shall (i) pay a dividend or make a distribution on
the outstanding Common Shares payable in Common Shares, (ii) subdivide the
outstanding Common Shares into a greater number of shares, (iii) combine the
outstanding Common Shares into a lesser number of shares, or (iv) issue by
reclassification of the Common Shares any Common Shares of the Corporation, the
Optionee of this Option shall thereafter be entitled, upon exercise, to receive
the number and kind of shares which, if this Option had been exercised
immediately prior to the happening of such an event, the Optionee would have
owned upon such exercise and been entitled to receive upon such dividend,
distribution, subdivision, combination, or reclassification. Such adjustment
shall become effective on the day next following (x) the record date of such
dividend or distribution or (y) the day upon which such subdivision,
combination, or reclassification shall become effective.
6.2 In case the Corporation shall consolidate or merge into or with another
corporation, or in case the Corporation shall sell or convey to any other person
or persons all or substantially all the property of the Corporation, the
Optionee of this Option shall thereafter be entitled, upon exercise, to receive
this kind and amount of shares, other securities, cash, and property receivable
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upon such consolidation, merger, sale, or conveyance by a holder of the number
of Common Shares which might have been purchased upon exercise of this Option
immediately prior to such consolidation, merger, sale, or conveyance, and shall
have no other conversion rights. In any such event, effective provision shall be
made, in the certificate or articles of incorporation of the resulting or
surviving corporation, in any contracts of sale and conveyance, or otherwise so
that, so far as appropriate and as nearly as reasonably may be, the provisions
set forth herein for the protection of the rights of the Optionee of this Option
shall thereafter be made applicable.
6.3 Whenever the number of shares purchasable upon exercise of this Option is
adjusted pursuant to this Section 6, the Exercise Price per share shall be
adjusted simultaneously by multiplying that Exercise Price per share in effect
immediately prior to such adjustment by a fraction, of which the numerator shall
be the number of shares purchasable upon exercise of this Option immediately
prior to such adjustment, and of which the denominator shall be the number of
shares so purchasable immediately after such adjustment, so that the aggregate
exercise price of this Option remains the same.
6.4 In the event that at any time, as a result of an adjustment made pursuant
to this Section 6, the Optionee shall become entitled to receive upon exercise
of this Option cash, property, or securities other than Shares, then references
to Share in this Section 6 shall be deemed to apply, so far as appropriate and
as nearly as may be, to such cash, property, or other securities.
6.5 Irrespective of any adjustments in the Exercise Price or in the number or
kind of Shares purchasable upon exercise of this Option, the form of Options
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in this Option.
SECTION 7. OFFICER'S CERTIFICATE. Whenever the number or kind of securities
purchasable upon exercise of this Option or the Exercise Price shall be adjusted
as required by the provisions of Section 6, the Corporation shall forthwith file
with its Secretary or Assistant Secretary at its principal office an officer's
certificate showing the adjusted number or kind of securities purchasable upon
exercise of this Option and the adjusted Exercise Price determined as herein
provided and setting forth in reasonable detail such facts as shall be necessary
to show the reason for and the manner of computing such adjustments. Each such
officer's certificate shall be made available at all reasonable times for
inspection by the Optionee and the Corporation shall, forthwith after each such
adjustment, mail by certified mail a copy of such certificate to the Optionee.
SECTION 8. NOTICE. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be mailed by certified mail,
return receipt requested, or delivered against receipt, if to the Optionee, to:
John P. Wilmers
17566 Baywood Drive
Omaha, Nebraska 68130
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And if to the Corporation, at its principal office:
Ballantyne of Omaha, Inc.
4350 McKinley Street
Omaha, Nebraska 68112
Or such other addresses as a party shall so notify the other party in writing.
Any notice or other communication given by certified mail shall be deemed given
at the time of certification thereof, except for a notice changing a party's
address which shall be deemed given at the time of receipt thereof.
SECTION 9. BINDING EFFECT. The provisions of this Option shall be binding upon
and inure to the benefit of (A) the parties hereto, (B) the successors and
assigns of the Corporation, and (C) the heirs and personal representative of the
Optionee.
SECTION 10. LAW GOVERNING. This Agreement shall be governed by and construed in
accordance with the laws of the Sate of Delaware, United States of America.
SECTION 11. TITLES AND CAPTIONS. All section titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context nor effect the interpretation of this Agreement.
SECTION 12. PRESUMPTION. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
SECTION 13. FURTHER ACTION. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of the Agreement.
SECTION 14. PARTIES IN INTEREST. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
Dated:
BALLANTYNE OF OMAHA, INC.
A Delaware Corporation
By: /s/ Arnold Tenney
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(OFFICER'S NAME & TITLE)
Arnold Tenney, Chairman
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