EXHIBIT 10.46
THIS OPTION AGREEMENT is entered into as of the 17th
day of January, 1995 between GREAT DANE HOLDINGS INC. (the "Company"), a
Delaware corporation with an address at 2016 North Pitcher Street, Kalamazoo,
Michigan 49007, and Jay Harris (the "Employee"), an individual with an address
at 550 South Ocean Blvd., Apt. 2203, Boca Raton, Florida, 33432.
WHEREAS, the Employee is a key employee of the Company; and
WHEREAS, the Company wishes to secure for itself and its
shareholders the benefits arising from stock ownership by the Employee who is
expected to contribute to the Company's future growth and success.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the parties hereby agree to the following:
1. The Employee is hereby granted the option to purchase from the
Company, on the terms and conditions set forth in this Agreement, all or any
part of 52,500 shares of Common Stock, par value $.01 per share (the "Shares of
Common Stock") of the Company at $1 per share.
2. The Shares of Common Stock subject to this option shall become
exercisable in three annual installments, in accordance with the following
schedule:
Date Number of Shares
---- ----------------
Closing of the Company's Initial 17,500
Public Offering (the "Closing Date")
One year after the Closing Date 17,500
Two years after the Closing Date 17,500
This option shall terminate, and shall not be exercisable on a date
after the earlier of (i) the tenth anniversary of this Agreement; or (ii) the
termination of the Employee's employment with the Company. Notwithstanding
anything in this Section 2 to the contrary, upon termination of employment by
the Company for any reason other than Cause, as defined in the Employment
Agreement effective as of July 1, 1992 by and between the Company and the
Employee, all options which were exercisable on the date of termination of
employment may be exercised for a period of three months from the date of
termination of employment, but in no event after the tenth anniversary of this
Agreement.
3. Upon each exercise of this option, the Employee shall give written
notice to the Company specifying the number of Shares of Common Stock to be
purchased and accompanied by payment in cash of the aggregate purchase price
thereof. Such exercise shall be effective upon receipt by the Company of such
notice and payment. The Employee shall not be entitled to any rights as a
shareholder of the Company in respect of any Shares of Common
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Stock to be received upon exercise of this option until such Shares of Common
Stock have been paid for in full and issued to him.
4. (a) This option contemplates and is conditional upon the
recapitalization (the "Recapitalization") and stock split described in the
Registration Statement on Form S-1 filed by the Company with the SEC on November
23, 1994. In the event, after the Recapitalization, there is any further change
in the Common Stock of the Company by reason of any reorganization,
recapitalization, stock split, stock dividend or otherwise, the number of Shares
of Common Stock deliverable upon exercise thereafter of this option shall be
increased or decreased proportionately, as the case may be, without a change in
the option price.
(b) Upon (i) the merger or consolidation of the Company with or into
another company, if the agreement of merger or consolidation does not provide
for (x) the continuance of this option, or (y) the substitution of new options,
or (ii) the dissolution, liquidation, or sale of substantially all the assets of
the Company, or any person or persons who are not currently stockholders of the
Company acquire 75% of the Company's Common Stock, the Employee shall have the
right immediately prior to the effective date of such merger, consolidation,
dissolution,
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liquidation or sale of assets to exercise this option in whole or in part
without regard to Section 2. The Company, to the extent possible, shall give
advance notice to the Employee of such merger, consolidation, dissolution,
liquidation or sale of assets. All options which are not exercised shall
terminate as of the effective time of such merger, consolidation, dissolution,
liquidation or sale of assets.
5. (a) If at any time or from time to time the Company shall determine to
register any of its capital stock, for its own account or for the account of
others, other than a registration relating solely to employee benefits plans or
a registration relating solely to a Commission Rule 145 transaction or a
registration on any registration form that does not include substantially the
same information as would be required to be included in a registration statement
covering the sale of the Shares of Common Stock, the Company will:
(i) promptly give to the Employee written notice thereof
(which shall include a list of the jurisdictions in which the Company intends to
attempt to qualify such securities under the applicable blue sky or other state
securities laws); and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Shares of
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Common Stock specified in a written request or requests by the Employee, made
within twenty days after receipt of such written notice from the Company,
provided, however, that the Company shall not be required to effect any such
registration if at the time of the request the Employee could sell all of the
Shares of Common Stock requested to be registered under Rule 144 during the
three-month period following such request.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Employee as a part of the written notice given pursuant to Section
5(a)(i). In such event the right of the Employee to registration pursuant to
this Section 5 shall be conditioned upon the Employee's participation in such
underwriting and the inclusion of the Shares of Common Stock in the underwriting
to the extent provided herein. If the Employee proposes to distribute its
securities through such underwriting it shall (together with the Company and any
other holders distributing their securities through such underwriting) enter
into an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding any
other provision of this Section 5, if the underwriter determines that marketing
factors require a limitation of the number of shares to be underwritten, the
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limitation of the underwriter may exclude some or all Shares of Common Stock
from such registration and underwriting. The Company shall so advise the
Employee, and the number of shares of the Company's capital stock included in
such registration and underwriting in addition to those included by the Company
for its own account shall be allocated among the Employee and any other holder
of shares of the Company's capital stock sought to be included in such
registration and underwriting pursuant to comparable registration rights in
proportion, as nearly as practicable, to the respective amounts of the aggregate
number of Shares of Common Stock then held by the Employee and shares of the
Company's capital stock then held by other shareholders with comparable rights
to participate in the registration. No Shares of Common Stock excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If the Employee disapproves of the terms of any
such underwriting, the Employee may elect to withdraw therefrom by written
notice to the Company and the underwriter.
(c) The Company may withdraw any registration proceeding begun
pursuant to this Section 5 at any time without liability to the Employee.
6. This option is not transferable other than by will or the laws of
descent and distribution and is exercisable, during
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the lifetime of the Employee, only by him.
7. All notices hereunder shall be in writing, and if to the Company,
shall be delivered personally to the President of the Company or mailed to its
principal office, addressed to the attention of the President and if to the
Employee, shall be delivered personally or mailed to the Employee at the address
noted above. Such addressed may be changed at any time by notice from one party
to the other.
8. This Agreement shall bind and inure to the benefit of the parties
hereto and the successors and assigns of the Company and, to the extent provided
in Section 2, the executors, administrators, legatees and heirs of the
Employees.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
GREAT DANE HOLDINGS INC.
/s/ David R Markin
-----------------------------------------
By: David R. Markin
/s/ Jay H. Harris
-----------------------------------------
Jay H. Harris
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