SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
GRADALL INDUSTRIES, INC.
---------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 36-3381606
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(State or other (I.R.S. Employer
jurisdiction of incorpor- Identification No.)
ation or organization)
406 Mill Avenue S.W., New Philadelphia, Ohio 44663
- -------------------------------------------------- -----
(Address of Principal Executive Offices) (Zip Code)
Gradall Industries, Inc.
Amended 1995 Stock Option Plan
------------------------------
(Full title of the Plan
Bruce A. Jonker
Vice President and Chief Financial Officer
Gradall Industries, Inc.
406 Mill Avenue S.W.
New Philadelphia, Ohio 44663
-----------------------------
(Name and address of agent for service)
(330) 339-2211
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Telephone number, including area code, of agent for service
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Maximum Proposed Maximum Amount of
Shares to Registered Aggregate Price Aggregate Offering Registration
be Registered Per Unit(a) Offering Price(a) Fee
- ------------- --------- ----------- --------------- ---------
Common Stock 515,226 shares $15.375 $7,921,599.75 $2,400.48
par value
$.001
(a) Based on the average of the high and low sale prices of the shares on
the NASDAQ National Market on November 4, 1997, and estimated solely for
the purpose of calculating the registration fee under Rule 457(C).
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities Exchange Commission
(the "Commission) are incorporated herein by reference:
(a) The Annual Report on Form 10-K of Gradall Industries, Inc. (the
"Company") for the year ended December 31, 1996 filed pursuant to Section
13(a) of the Securities Exchange Act of 1934.
(b) All other 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 document referred to in (a) above.
(c) The description of the Company's common stock set forth in its
registration statement on Form 8-A (No. 0-28736) filed pursuant to
Section 12(g) of the Securities Exchange Act of 1934.
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 the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part hereof from the date of the filing of such documents.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law empowers corporations
to indemnify any person who was or is a party or is threatened to be made a
party to any pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that such
person is or was an officer or director of the corporation or was serving at
the request of the corporation in certain capacities with another corporation
or entity. Such indemnity may extend to expenses, judgments, fines and
amounts paid in settlement. Indemnification is limited generally to instances
in which the person to be indemnified 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 proceeding, had no reason to
believe that his conduct was unlawful. In the case of proceedings brought by
or in the right of the corporation, indemnity is limited to expenses
(including attorneys' fees) actually and reasonably incurred by the person in
connection with the defense or settlement of such proceeding except that no
indemnification for expenses is permitted where the person has been adjudged
to be liable for negligence or misconduct in the performance of his duty to
the corporation unless and to the extent otherwise determined by a court of
competent jurisdiction. To the extent an officer or director has been
successful in the defense of any proceeding, Section 145 requires that he be
indemnified against expenses.
Article Seventh of the Amended and Restated Certificate of Incorporation
of the Company requires the Company to indemnity all persons whom it may
indemnify pursuant to Section 145 of the Delaware General Corporation Law to
the full extent permitted thereby.
The Delaware General Corporation Law also authorizes corporations to
provide other forms of indemnification, including insurance and
indemnification agreements.
Item 8. Exhibits
Exhibit No. Description of Document
------------ -----------------------
4.1 Gradall Industries, Inc. Amended 1995 Stock Option
Plan
5.1 Opinion of Black, McCuskey, Souers & Arbaugh as to
the legality of the securities being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Black, McCuskey, Souers & Arbaugh
(included in their opinion filed as Exhibit 5.1)
Item 9. Undertakings
The undersigned registrant hereby undertakes:
(1) To file during any period in which offers and sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(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 (1)(i) and (1)(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 with or furnished to the
Commission 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.
(4) 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 that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(5) 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.
SIGNATURES
----------
The Registrant. 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 the City of Cleveland, Ohio on November 3, 1997.
Gradall Industries, Inc.
(Registrant)
By:/s/Barry L. Phillips
----------------------
Barry L. Phillips
President
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
date indicated.
Signature Title Date
--------- ----- ----
/s/Barry L. Phillips President and Director November 3, 1997
- ---------------------- ----------------
Barry L. Phillips
/s/Bruce A. Jonker Vice President, Chief November 3, 1997
- -------------------- Financial Officer and ----------------
Bruce A. Jonker Treasurer (Principal
Financial and Accounting
Officer)
/s/David S. Williams Director November 3, 1997
- ---------------------- ----------------
David S. Williams
/s/Sangwoo Ahn Director November 3, 1997
- --------------- ----------------
Sangwoo Ahn
- --------------- Director ----------------
John A. Morgan
/s/Perry J. Lewis Director November 3, 1997
- ------------------- ----------------
Perry J. Lewis
/s/William C. Ughetta, Jr. Director November 3, 1997
- ----------------------------- ----------------
William C. Ughetta, Jr.
/s/Jack D. Rutherford Director November 3, 1997
- ----------------------- ----------------
Jack D. Rutherford
/s/Ernest Green Director November 3, 1997
- --------------- ----------------
Ernest Green
<PAGE>
EXHIBIT INDEX
-------------
Located in
Sequentially
Exhibit No. Description of Document Numbered Copy
----------- ----------------------- -------------
4.1 Gradall Industries, Inc. Amended
1995 Stock Option Plan
5.1 Opinion of Black, McCuskey, Souers &
Arbaugh as to the legality of the
securities being registered
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Black, McCuskey, Souers &
Arbaugh (included in their opinion filed
as Exhibit 5.1)
Exhibit 4.1
GRADALL INDUSTRIES, INC.
AMENDED 1995 STOCK OPTION PLAN
1. General. This Stock Option Plan (the "Plan") provides eligible
employees of Gradall Industries, Inc., a Delaware corporation (the "Company"),
and its subsidiaries with the opportunity to acquire or expand their equity
interest in the Company by making available for purchase shares of Common
Stock, without par value, of the Company ("Common Stock"), through the
granting of nontransferable options to purchase shares of Common Stock ("Stock
Options"). Stock Options shall be referred to herein as "Grants", and an
individual grant of Stock Options shall be referred to herein as a "Grant".
It is intended that key employees may be granted, simultaneously or from
time to time, Stock Options that qualify as incentive stock options
("Incentive Stock Options") under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"). This Plan and Option Agreements entered into
pursuant to this Plan shall be administered and construed in a manner
consistent with the requirements of Section 422 of the Code.
The Plan is intended to conform to the extent necessary with all provisions
of the Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any
and all regulations and rules promulgated by the Securities and Exchange
Commission thereunder, including, without limitation, Rule 16b-3. The Plan
shall be administered, and Stock Options shall be granted and may be
exercised, only in such a manner as to conform to such laws, rules and
regulations, if applicable.
2. Purpose of the Plan. The purpose of the Plan is to provide continuing
incentives to key employees of the Company and its subsidiaries, by encouraging
such key employees to acquire new or additional share ownership in the Company,
thereby increasing their proprietary interest in the Company's business and
enhancing their personal interest in the Company's success. For purposes of the
Plan, a "subsidiary" consists of any corporation fifty percent (50%) of the
stock of which is directly or indirectly owned or controlled by the Company.
3. Administration of the Plan. The Plan shall be administered by the
Board of Directors of the Company (the "Board"), unless and until the Board
appoints a committee composed of no fewer than two (2) members of the Board
(the "Committee").
A majority of the members of the Committee shall constitute a quorum. The acts
of a majority of the members present at any meeting at which a quorum is
present (or acts unanimously approved in writing by the members of the
Committee) shall constitute binding acts of the Committee.
Subject to the terms and conditions of the Plan, the Board, unless and
until a Committee is appointed, and then the Committee (hereinafter, the
"Administrator") shall be authorized and empowered:
a. To select the key employees to whom Grants may be made;
b. To determine the number of shares of Common Stock to be covered by any
Grant;
c. To prescribe the terms and conditions of any Grants made under the Plan,
and the form(s) and agreement(s) used in connection with such Grants,
which shall include agreements governing the granting of Stock Options
which may provide that the stock which is the subject of any such Grant
shall be subject to the restrictions on transfer contained in any
agreement in effect among the Company and one or more of its stockholders;
d. To determine the time or times when Stock Options will be granted and when
they will terminate in whole or in part;
e. To determine the time or times when Stock Options that are granted may be
exercised; provided, however, that unless the Administrator specifically
determines otherwise in any individual instance, the standard vesting
schedule for Stock Options granted hereunder shall be three equalyearly
installments;
f. To establish any other Stock Option agreement provisions not inconsistent
with the terms and conditions of the Plan or with the terms and conditions
of Section 422 of the Code; and
g. Make any other determination and take any other action that the
Administrator deems necessary or desirable for the administration of the
Plan.
4. Employees Eligible for Grants. Grants may be made from time to time to
those key employees of the Company or its subsidiaries who are designated by the
Administrator in its sole and exclusive discretion. Key employees may include,
but shall not necessarily be limited to, members of the Board of Directors
(excluding members of the Committee) and officers of the Company and any
subsidiary; however, Stock Options shall be granted to key employees only while
actually employed by the Company or a subsidiary. No Stock Option shall be
granted to any key employee during any period of time when such key employee is
on a leave of absence.
5. Stock Subject to the Plan. The shares to be issued pursuant to any Grant
made under the Plan shall be shares of Common Stock. Either shares of Common
Stock held as treasury stock or authorized and unissued shares of Common Stock,
or both, may be so issued, in such amount or amounts within the maximum limits
of the Plan as the Administrator shall from time to time determine.
Subject to the provisions of the next succeeding paragraph of this Section 5,
the aggregate number of shares of Common Stock that can be actually issued
under the Plan shall be 515,226 shares.
If, at any time subsequent to August 28, 1996 the number of issued and
outstanding shares of Common Stock increases or decreases, or the Common
Stock is changed into or exchanged for a different number or kind of shares
of stock or other securities of the Company as a result of a stock split, stock
dividend, combination of shares, reclassification, redesignation,
recapitalization or other similar capital change): (i) there shall
automatically be substituted for each share of Common Stock subject to the Plan
and to an unexercised Stock Option (in whole or in part) granted under the Plan,
the number and kind of shares of stock or other securities into which each share
of outstanding Common Stock shall be changed or for which each such share of
Common Stock shall be exchanged; and (ii) the option price per share of Common
Stock or unit of securities shall be increased or decreased proportionately so
that the aggregate purchase price for the securities subject to a Stock Option
shall remain the same as immediately prior to such event. In addition to the
foregoing, the Administrator shall be entitled in the event of any such
increase, decrease or exchange of shares of Common Stock to make other
adjustments to the securities subject to a Stock Option, the provisions of the
Plan, and to any related Stock Option agreements (including adjustments which
may provide for the elimination of fractional shares) where necessary (under
Section 422(a)(2) of the Code or otherwise) to preserve the terms and conditions
of any Grants hereunder.
6. Stock Option Provisions.
a. General. The Administrator may grant to key employees (also referred to
as "optionees") nontransferable Stock Options that qualify as Incentive
Stock Options under Section 422 of the Code. Stock Options shall only be
granted under this Plan within ten (10) years from the earlier of (I) the
date this Plan is adopted by the Board and (ii) the date this Plan is
approved by the stockholders of the Company.
b. Stock Option Price. The option price per share of Common Stock which may
be purchased under a Stock Option under the Plan shall be determined by
the Administrator at the time of Grant, but shall not be less than one
hundred percent (100%) of the fair market value of a share of Common
Stock, determined as of the date such Option is granted; however, if a key
employee to whom a Stock Option is granted is, at the time of the grant of
such Option, an "owner" as defined in Section 422(b)(6) of the Code
(modified as provided in Section 424(d) of the Code) of more than ten
. percent (10%) of the total combined voting power of all classes of stock
of the Company or any subsidiary (a "Substantial Shareholder"), the price
per share of Common Stock of such Option, as determined by the
Administrator, shall not be less than one hundred ten percent (110%) of
the fair market value of a share of Common Stock on the date such Option
is granted. Except as specifically provided above, the fair market value
of a share of Common Stock shall be determined in accordance with
procedures to be established by the Administrator. The day on which the
Administrator approves the granting of a Stock Option shall be considered
the date on which such Option is granted.
c. Period of Stock Option. The Administrator shall determine when each Stock
Option is to expire. However, no Stock Option shall be exercisable after
the expiration of ten (10) years from the date upon which such Option is
granted, or five (5) years from the date upon which such Option is
granted, with respect to Options granted to a Substantial Shareholder.
d. Limitation on Exercise and Transfer of Stock Options. Only the key
employee to whom a Stock Option is granted may exercise such Option,
except where a guardian or other legal representative has been duly
appointed for such employee, and except as otherwise provided in the case
of such employee's death. No Stock Option granted hereunder shall be
transferable by an optionee other than by will or the laws of descent and
distribution. No Stock Option granted hereunder may be pledged or
hypothecated, nor shall any such Option be subject to execution,
attachment or similar process.
e. Payment for Stock Option Price. A Stock Option shall be exercised by an
optionee giving written notice to the Company of his intention to exercise
the same, accompanied by full payment of the purchase price in cash or by
check. The Administrator may, in its sole discretion, approve other
methods of exercise for a Stock Option or payment of the option price,
provided that no such method shall cause any option granted under the Plan
to not qualify under Section 422 of the Code, or cause any share of Common
Stock issued in connection with the exercise of an option not to be a
fully paid and non-assessable share of Common Stock.
f. Limitation on Exercisable Stock Option. The aggregate fair market value
of the shares of Common Stock first becoming subject to exercise as Stock
Options by a key employee during any given calendar year shall not exceed
the sum of One Hundred Thousand Dollars ($100,000.00). Such aggregate fair
market value shall be determined as of the date such Option is granted,
taking into account, in the order in which granted, any other incentive
stock options granted by the Company, or by a parent or subsidiary
thereof.
g. Withholding of Taxes. The Administrator may, in its sole discretion,
require, as a condition to any Grant or to the delivery of certificates
for shares issued thereunder, that the optionee pay to the Company, in
cash, any federal, state or local taxes of any kind required by law to be
withheld with respect to any Grant or any delivery of shares of Common
Stock upon exercise thereof. The Company, to the extent permitted or
required by law, shall have the right to deduct from any payment of any
kind (including salary, bonus, severance of insurance proceeds) otherwise
due to an optionee any federal, state or local taxes of any kind
required by law to be withheld with respect to any Grant or to the
delivery of shares of Common Stock under the Plan.
7. Termination of Employment. A Stock Option may be exercised only while the
optionee is an employee of the Company or a subsidiary or within three (3)
months after the termination of employment for any reason other than death,
retirement, "permanent and total disability" (as defined below) or termination
for "cause" (as defined below). Neither the optionee nor any other person shall
have any right after such date to exercise all or any part of his Stock Options
and they shall thereupon be forfeited, declared void and without value, or both.
If termination of employment is due to death or permanent and total disability,
then outstanding Stock Options may be exercised, to the extent they were
exercisable on the date of such termination of employment, within the one (1)
year period ending on the anniversary of such death or permanent and total
disability. If termination of employment is without cause or as a result of
retirement, such Stock Options may be exercised, to the extent they were
exercisable on the date of such termination of employment, within three (3)
months of the date of such termination. In the case of death, such outstanding
Stock Options may be exercised by such optionee's estate, or the person
designated by such optionee by Will, or as otherwise designated by the laws of
descent and distribution. Notwithstanding the foregoing, in no event shall any
Stock Option be exercisable after the expiration of the option period.
For purposes hereof, "permanent and total disability" means a permanent and
total disability as defined in Section 22(e)(3) of the Code. For purposes
hereof, termination for "cause" means termination of the employee's employment
by the Company as a result of (i) conviction of the employee for a felony or for
any crime or offense lesser than a felony involving the property of the Company
or a subsidiary; (ii) conduct by the employee that has caused demonstrable and
serious injury to the Company or a subsidiary, monetary or otherwise; or (iii)
substandard performance, or material misconduct or negligence in the
performance, of the employee's duties in the reasonable judgment of the Board.
8. Merger, Sale, etc. In the event of a merger, consolidation or other
corporate reorganization of the Company with respect to which the outstanding
shares of Common Stock of the Company are to be converted into or exchanged for
cash, debt or equity securities or other property, the Company shall pay to each
holder of an outstanding Stock Option on or before the consummation thereof in
cash the amount by which the aggregate value of the consideration receivable in
the transaction by the holder of the number of shares of Common Stock equal to
the number of shares remaining subject to such Stock Option (whether or not then
exercisable) exceeds the aggregate option price of such Stock Option unless
(i) the surviving or acquiring corporation in such merger, consolidation or
other corporate reorganization has agreed to assume such Stock Option or to
substitute a new option therefor in conformity with the requirements of Section
422 and 424 of the Internal Revenue Code and (ii) such holder agrees to such
assumption or substitution.
In the event that (a) the Company sells or otherwise transfers all or
substantially all its assets or (b) all or substantially all the assets of The
Gradall Company are acquired by another corporation or entity (whether by
purchase, merger or otherwise) then, in either of such events, the Company
shall pay to each holder of an outstanding Stock Option on or before the
consummation thereof an amount in cash equal to the product obtained by
multiplying (I) the number of shares remaining subject to such Stock Option
(whether or not then exercisable) by (II) the quotient obtained by dividing
(A) the value of the consideration paid to the Company or The Gradall Company
for such assets (excluding the amount of debt assumed by the acquirer) by (B)
the number of shares of Common Stock of the Company which would then be
outstanding (assuming the exercise of all options, warrants and convertible
securities) and subtracting from the product so obtained the aggregate option
price of such Stock Option, unless (i) the acquiring corporation or entity has
agreed to assume such Stock Option or to substitute a new option therefor in
conformity with the requirements of Section 422 and 424 of the Internal
Revenue Code and (ii) such holder agrees to such assumption or substitution.
9. Change of Control. In the event that (i) the Company is the surviving
corporation in a merger, combination or other corporate reorganization as a
result of which less than a majority of the outstanding voting securities are
owned by the persons who were shareholders of the Company immediately prior to
such merger or corporate reorganization, (ii) 25% or more of the outstanding
voting securities of the Company become owned (whether directly, indirectly,
beneficially or of record) by any person or group (within the meaning of
Section 13(d) or Section 14(d) of the Securities Exchange Act of 1934), other
than MLGA Fund II, L.P. or a pension, retirement, profit sharing, employee stock
ownership or other employee benefit plan of the Company or an affiliate thereof,
and the percentage of voting securities so owned by such person or group exceeds
the percentage of the Company's outstanding voting securities owned by MLGA
Fund II, L. P. or (iii) during any period of two consecutive years, individuals
who at the beginning of any such period constituted the directors of Company
cease for any reason to constitute a majority thereof (provided, however, that
for purposes of this clause (iii) each new director whose nomination for
election was approved by a vote of at least two-thirds of the directors then
still in office who were directors at the beginning of any such period will be
deemed to have been a director of the Company at the beginning of such period),
then in any of such events each Stock Option which is then outstanding shall
immediately become and be exercisable in full for the remainder of its term,
notwithstanding the subsequent termination by the Company of the optionee's
employment with the Company.
10. Employment by Subsidiary. For purposes of this Plan, employment by a
subsidiary of the Company shall be considered employment by the Company. The
term "subsidiary" as used herein shall have the meaning set forth in Section 24
of the Internal Revenue Code or subsequent comparable statute. All references
herein to the provisions of the Internal Revenue Code are references to the
Internal Revenue Code of 1986, as amended, as in effect from time to time.
11. Amendments to Plan. The Administrator is authorized to interpret this Plan
and from time to time adopt any rules and regulations for carrying out this Plan
that it may deem advisable. Subject to the approval of the Board, the
Administrator may at any time amend, modify, suspend or terminate this Plan.
In no event, however, without the approval of the stockholders, shall any action
of the Administrator or the Board result in:
a. Materially amending, modifying or altering the eligibility requirements
provided in Section 4 hereof;
b. Materially increasing, except as provided in Section 5 hereof, the maximum
number of shares of Common Stock that may be made subject to Grants; or
c. Materially increasing the benefits accruing to participants under this
Plan;
except to conform this Plan and any agreements made hereunder to changes in
the Code or required by governing law.
12. Investment Representation, Approvals and Listing. The Administrator may,
if it deems appropriate, condition its grant of any Stock Option hereunder upon
receipt of the following investment representation from the optionee:
"I agree that any shares of Common Stock of Gradall Industries, Inc.
which I may acquire by virtue of this Stock Option shall be acquired for
investment purposes only and not with a view to distribution or resale,
and may not be transferred, sold, assigned, pledged, hypothecated or
otherwise disposed of unless (i) a registration statement or
post-effective amendment to a registration statement under the Securities
Act, with respect to said shares of Common Stock has become effective so
as to permit the sale or other disposition of said shares by me; or (ii)
there is presented to Gradall Industries, Inc. an opinion of counsel
satisfactory to Gradall Industries, Inc. to the effect that the sale or
other proposed disposition of said shares of Common Stock may lawfully be
made otherwise than pursuant to an effective registration statement or
post-effective amendment to a registration statement relating to the said
shares under the Securities Act of 1933, as amended."
The Company shall not be required to issue any certificate for shares of
Common Stock upon the exercise of any Stock Option granted under this Plan
prior to (i) the obtaining of any approval from any governmental agency with
the Administrator shall, in its sole discretion, determine to be necessary or
advisable; (ii) the admission of such shares to listing on any national
securities exchange on which the shares of Common Stock may be listed; (iii)
the completion of any registration or other qualification of the shares of
Common Stock under any state or federal law or ruling or regulations of any
governmental body which the Administrator shall, in its sole discretion,
determine to be necessary or advisable or the determination by the
Administrator, in its sole discretion, that any registration or other
qualification of the shares of Common Stock is not necessary or advisable; or
(iv) the obtaining of an investment representation from the optionee in the
form stated above or in such other form as the Administrator, in its sole
discretion, shall determine to be adequate.
13. General Provisions. The form and substance of Stock Option Agreements made
hereunder, whether granted at the same or different times, need not be
identical. Nothing in this Plan or in any Stock Option agreement shall confer
upon any employee any right to continue in the employ of the Company or any of
its subsidiaries or to interfere with or limit the right of the Company or any
subsidiary to terminate his employment at any time, with or without cause.
Nothing contained in this Plan or in any Stock Option Agreement shall be
construed as entitling any optionee to any rights of a stockholder as a result
of the grant of Stock Option, until such time as shares of Common Stock are
actually issued to such optionee pursuant to the exercise of such Option. This
Plan may be assumed by the successors and assigns of the Company. The liability
of the Company under this Plan and any sale made hereunder is limited to the
bligations set forth herein with respect to such sale and no term or provision
of this Plan shall be construed to impose any liability on the Company in favor
of any employee (or any other party acting on his behalf or in his stead) with
respect to any loss, cost or expense which such employee or party may incur in
connection with or arising out of any transaction in connection with this Plan.
The cash proceeds received by the Company from the issuance of shares of Common
Stock pursuant to this Plan will be used for general corporate purposes. The
expense of administering this Plan shall be borne by the Company. The captions
and section numbers appearing in this Plan are inserted only as a matter of
convenience. They do not define, limit, construe or describe the scope or
intent of the provisions of this Plan.
14. Provisions Applicable Solely to Insiders. The provisions of this Section
11 shall apply only to persons who are subject to Section 16 of the Exchange
Act with respect to securities of the Company ("Insiders"), and shall apply to
Insiders notwithstanding any provision of the Plan to the contrary. No Insider
shall be permitted to transfer any security of the Company acquired by him,
except to the extent permitted by 17 C.F.R. 240.16a-2(d)(1), upon the
exercise of any Stock Option, until at least six (6) months and one (1) day
after the later of (i) the day on which such Stock Option is granted to the
Insider or (ii) the day on which the exercise or conversion price of such
Stock Option is fixed.
15. Termination of This Plan. This Plan shall terminate on October 13, 2005,
and thereafter no Stock Options shall be granted hereunder. All Stock Options
outstanding at the time of termination of this Plan shall continue in full force
and effect according to their terms and the terms and conditions of this Plan.
Exhibit 5.1
November 5, 1997
Gradall Industries, Inc.
406 Mill Avenue S.W.
New Philadelphia, Ohio 44663
Gentlemen:
Reference is made to your Registration Statement on Form S-8 to be filed
with the Securities and Exchange Commission in connection with the sale of up
to 515,226 shares (the "Shares") of common stock, par value $.001 (the "Common
Stock") of Gradall Industries, Inc. (the "Company") upon the exercise of stock
options granted and to be granted pursuant to the Gradall Industries, Inc.
Amended 1995 Stock Option Plan (the "Plan").
We have examined the proceedings taken to organize the Company, its
Certificate of Incorporation and Bylaws and all amendments to date, the
records of proceedings taken by its shareholders and directors to date,
including proceedings of the Board of Directors and shareholders adopting and
approving the Plan and all amendments thereto.
Based upon the foregoing, and upon the examination of such other matters
as we have deemed necessary in order to express the opinions hereinafter set
forth, we are of the opinion that:
1. The Company is a corporation duly organized and in good standing
under the laws of the State of Delaware having an authorized capital stock
which includes 18,000,000 shares of Common Stock.
2. The Company has full right, power and authority to grant stock
options under the Plan covering an aggregate of up to 515,226 shares of Common
Stock, and, when granted in accordance with the terms of the Plans, such
options will be valid and binding obligations of the Company.
3. The Shares to be issued and sold upon the exercise of stock
options granted and to be granted under the Plan have been duly authorized
and, when issued and sold upon payment of the option exercise price, will be
validly issued and outstanding, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to said
Registration Statement. In giving such consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations
promulgated thereunder.
Very truly yours,
BLACK, McCUSKEY, SOUERS & ARBAUGH
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the Gradall Industries, Inc. Amended 1995
Stock Option Plan of our report dated March 7, 1997 with respect to the
consolidated financial statements of Gradall Industries, Inc. included in its
Annual Report on Form 10-K for the year ended December 31, 1996 filed with the
Securities and Exchange Commission.
Coopers & Lybrand L.L.P.
Cleveland, Ohio
November 4, 1997
