<PAGE>
As filed with the Securities and Exchange Commission on May 16, 1996
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BALLANTYNE OF OMAHA, INC.
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 47-0587703
- --------------------------------- --------------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
4350 MCKINLEY STREET, OMAHA, NE 68112
----------------------------------------------------
(Address of Principal Executive Offices) (ZIP Code)
1995 STOCK OPTION PLAN (1)
1995 OUTSIDE DIRECTORS STOCK OPTION PLAN (2)
1995 EMPLOYEE STOCK PURCHASE PLAN (3)
----------------------------------------------
(Full title of the plan or written contract)
STEPHEN E. GEHRING
CLINE, WILLIAMS, WRIGHT, JOHNSON & OLDFATHER
1125 SOUTH 103RD STREET, SUITE 720
OMAHA, NE 68124
------------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (402) 397-1700
--------------------
(1) The Company has reserved 440,000 shares of Common Stock for issuance
pursuant to the 1995 Stock Option Plan.
(2) The Company has reserved 110,000 shares of Common Stock for issuance
pursuant to the 1995 Outside Directors Stock Option Plan.
(3) The Company has reserved 275,000 shares of Common Stock for issuance
pursuant to the 1995 Employee Stock Purchase Plan.
<PAGE>
Approximate date of proposed commencement of sales pursuant to the plan: as
soon as practicable after the effective date of this registration statement.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------------------------------------------------------------------
Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share offering price fee
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------
Common Stock,
$0.01 par value 440,000 shares $14.69(4) $6,463,600(4) $2,228.65
- ----------------------------------------------------------------------------------
Common Stock,
$0.01 par value 110,000 shares $14.69(4) $1,615,900(4) $ 557.16
- ----------------------------------------------------------------------------------
Common Stock,
$0.01 par value 275,000 shares $14.69(4) $4,039,750(4) $1,392.90
- ----------------------------------------------------------------------------------
</TABLE>
(4) Estimated pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act
of 1933, as amended (the "Securities Act") solely for the purpose of
calculating the registration fee. The price is based upon the average of
the high and low prices of Ballantyne of Omaha, Inc. Common Stock on May
10, 1996, as reported on the American Stock Exchange.
- 2 -
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Ballantyne of Omaha, Inc. (the "Company") hereby incorporates by reference
in this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's latest Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing
audited financial statements for the Company's latest fiscal year;
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document referred
to in (a) above; and
(c) A description of the Company's Common Stock contained in the Company's
Registration Statement on Form S-1 (File No. 33-93244) filed under the
Securities Act of 1933, as amended, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a post-
effective amendment which indicates that all securities offered have been sold
or which reregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be a part thereof
from the date of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The provision regarding indemnification of directors and officers is found
in the Bylaws of the Company which are incorporated by reference to Exhibit 3.2
to the Registration Statement on Form S-1 (File No. 33-93244).
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
- 3 -
<PAGE>
ITEM 8. EXHIBITS
- --------------------------------------------------------------------------------
EXHIBIT
NUMBER EXHIBIT
- --------------------------------------------------------------------------------
4.1 Certificate of Incorporation, as amended through July 20, 1995
(incorporated by reference to Exhibit 3.1 and 3.3 to the Registration
Statement on Form S-1 (File No. 33-93244).
- --------------------------------------------------------------------------------
4.2 Bylaws of the Company, as amended through August 24, 1995
(incorporated by reference to Exhibit 3.2 to the Registration
Statement on Form S-1 [File No. 33-93244]).
- --------------------------------------------------------------------------------
5 Opinion of Counsel
- --------------------------------------------------------------------------------
23.1 Independent Auditors Consent
- --------------------------------------------------------------------------------
23.2 Consent of Counsel (included in Exhibit 5)
- --------------------------------------------------------------------------------
99.1 1995 Stock Option Plan
- --------------------------------------------------------------------------------
99.2 1995 Outside Directors Stock Option Plan
- --------------------------------------------------------------------------------
99.3 1995 Employee Stock Purchase Plan
- --------------------------------------------------------------------------------
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING. The undersigned registrant hereby undertakes to:
(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) Reflect in the prospectus any facts or events which,
individually or together, represent a fundamental change in the
information set forth in the Registration Statement; and
(iii) Include any additional or changed material information on
the plan of distribution;
PROVIDED, HOWEVER, that paragraph (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required in a post-effective amendment is incorporated by reference from
periodic reports filed by the small business issuer under the Exchange Act.
- 4 -
<PAGE>
(2) For determining liability under the Securities Act, treat each
post-effective amendment as a new Registration Statement of the securities
offered, and the offering of the securities at that time to be the initial
bona fide offering thereof.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE.
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act, that it 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.
(c) INCORPORATED ANNUAL AND QUARTERLY REPORTS. 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 given, 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 Exchange Act; 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.
(d) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF REGISTRATION
STATEMENT ON FORM S-8. Insofar as indemnification for liabilities arising under
the Securities Act 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 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 Securities Act and will be governed by the final
adjudication of such issue.
- 5 -
<PAGE>
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 Lincoln, State of Nebraska on May 10, 1996.
BALLANTYNE OF OMAHA, INC.,
BY: /s/ Brad French, Secretary, Treasurer, Chief
Financial Officer and Principal Accounting Officer
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.
Signature Title Date
--------- ----- ----
- ------------------------- Chairman and Director 5/__/96
/s/ Ronald H. Echtenkamp President, Chief Executive
- ------------------------- Officer and Director 5/08/96
/s/ John P. Wilmers Vice President, Sales and
- ------------------------- Director 5/08/96
- ------------------------- Director 5/__/96
/s/ Colin G. Campbell Director 5/02/96
- -------------------------
/s/ Yale Richards Director 5/08/96
- -------------------------
- ------------------------- Director 5/__/96
- 6 -
<PAGE>
[CLINE, WILLIAMS, WRIGHT, JOHNSON & OLDFATHER LETTERHEAD]
May 10, 1996
Mr. Ronald H. Echtenkamp
President and Chief Executive Officer
Ballantyne of Omaha, Inc.
4350 McKinley Street
Omaha, NE 68112
Re: Registration Statement on Form S-8
Dear Mr. Echtenkamp:
We have acted as legal counsel for Ballantyne of Omaha, Inc., a Delaware
corporation, (the "Company") in connection with the Company's preparation of the
above-referenced Registration Statement on Form S-8 (the "Form S-8") being filed
with the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended, (the "Act") and the prospectus which is not
filed, but is included as a part of the Form S-8 (the "Prospectus"). The Form
S-8 and the Prospectus relate to the Company's three stock plans; specifically
the 1995 Stock Option Plan (440,000 shares); the 1995 Outside Directors Stock
Option Plan (110,000 shares); and the 1995 Employee Stock Purchase Plan (275,000
shares), all of the shares which are to be offered and sold by the Company
pursuant to the applicable plan and in the manner set forth in the respective
plan, Form S-8 and Prospectus.
In connection herewith, we have examined: (i) the Form S-8 and the
Prospectus; (ii) the Certificate of Incorporation, as amended, and the Bylaws,
as amended, of the Company; (iii) the corporate minutes and proceedings of the
Company applicable to filing of the Form S-8; and (iv) such other proceedings,
documents and records as we deem necessary or appropriate for the purposes of
making this opinion. In making such examinations, we have assumed the
genuineness of all signatures on all documents and conformed originals to all
copies submitted to us as conformed or photocopies. In addition to such
examination, we have ascertained or verified such additional facts as we deem
necessary or appropriate for purposes of this opinion. However, as to various
questions of fact material to our opinion, we have relied upon representations,
statements or certificates of officers, directors, or representatives of the
Company or others.
<PAGE>
Based upon the foregoing, we are of the opinion that: (i) the Company has
been legally incorporated and is validly existing under the laws of the state of
Delaware; and (ii) the shares issued pursuant to each of the Plans, upon
issuance and payment therefor, as contemplated by the respective plan, Form S-8
and the Prospectus, will be validly issued, fully paid and non-assessable common
stock of the Company.
We hereby consent to the filing of the opinion as an exhibit to the Form
S-8 and to any references to our firm in the Prospectus. In giving this
consent, we do not admit that we come within the category of persons whose
consent is required under Section 7 of the Act or the Rules and Regulations of
the Commission promulgated thereunder.
Very truly yours,
Cline, Williams, Wright, Johnson & Oldfather
SEG:nw
<PAGE>
[KPMG PEAT MARWICK LLP LETTERHEAD]
ACCOUNTANTS' CONSENT
The Board of Directors
Ballantyne of Omaha, Inc.:
We consent to incorporation by reference in the registration statement (No. 33-
93244) on Form S-8 of Ballantyne of Omaha, Inc. of our report, dated January 19,
1996, relating to the consolidated balance sheets of Ballantyne of Omaha and
subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of income, retained earnings and cash flows for each of the years in
the three-year period ended December 31, 1995, and all related schedules, which
report appears in the December 31, 1995 annual report on Form 10-K of Ballantyne
of Omaha, Inc.
KPMG PEAT MARWICK LLP
Omaha, Nebraska
May 2, 1996
<PAGE>
BALLANTYNE OF OMAHA, INC.
1995
STOCK OPTION PLAN
1. NAME.
The name of this Plan is the Ballantyne of Omaha, Inc. 1995 Stock
Option Plan.
2. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Affiliate" means any partnership, corporation, firm, joint
venture, association, trust, limited liability company,
unincorporated organization or other entity (other than a
Subsidiary) that, directly or indirectly through one or more
intermediaries, is controlled by the Company, where the term
"controlled by" means the possession, direct or indirect, of the
power to cause the direction of the management and policies of
such entity, whether through the ownership of voting interests or
voting securities, as the case may be, by contract or otherwise.
(b) "Board" means the board of directors of the Company.
(c) "Cause" as applied to any Officer or Employee means: (i) the
conviction of such individual for the commission of any felony;
(ii) the commission by such individual of any crime involving
moral turpitude (E.G., larceny, embezzlement) which results in
harm to the business, reputation, prospects or financial
condition of the Company, any Subsidiary or Affiliate; or (iii)
the willful neglect, failure or refusal of such individual to
carry out his duties, which results in harm to the business,
reputation, prospects or financial condition of the Company, any
Subsidiary or Affiliate, which neglect, failure or refusal
continues for a period of ten consecutive business days following
notice thereof, or ten
<PAGE>
cumulative business days following successive notices thereof, to
such individual from the Company; PROVIDED, HOWEVER, that such
willful neglect, failure or refusal is not due to the death or
disability (I.E., as a result of an injury or sickness such
individual is rendered permanently unable to perform his duties
as an Officer or an Employee, as the case may be, on a full-time
basis) of such individual or illness leading to the death or
disability of such individual.
(d) "Chairman" means the individual appointed by the Board to serve
as the chairman of the Committee.
(e) "Code" means the Internal Revenue Code of 1986, as amended from
time to time and the Treasury regulations promulgated thereunder.
(f) "Committee" means the committee appointed by the Board to
administer the Plan as provided in Section 4(a).
(g) "Common Stock" means the common stock, $.01 par value per share,
of the Company or any security of the Company identified by the
Committee as having been issued in substitution or exchange
therefor or in lieu thereof.
(h) "Company" means Ballantyne of Omaha, Inc., a Delaware
corporation.
(i) "Director" means an individual who: (i) is now, or hereafter
becomes, a member of the Board or of the board of directors of
any Subsidiary; and (ii) is not eligible to participate in the
Non-Employee Director NQSO Plan.
(j) "Employee" means an individual employed by the Company or a
Subsidiary whose wages are subject to the withholding of federal
income tax under Section 3401 of the Code.
(k) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
- 2 -
<PAGE>
(l) "Fair Market Value" of a Share as of a specified date means the
average of the highest and lowest market prices of a Share on the
American Stock Exchange on such date as reported in the Eastern
Edition of THE WALL STREET JOURNAL or, if no trading of Common
Stock is reported for that day, the next preceding day on which
trading was reported. In the event the Common Stock is not then
traded on the American Stock Exchange, the Fair Market Value of a
Share shall be determined by reference to the principal market or
exchange on which the Common Stock is then traded.
(m) "ISO" means any stock option granted pursuant to the Plan that is
intended to be and is specifically designated as an "incentive
stock option" within the meaning of Section 422 of the Code.
(n) "Non-Employee Director NQSO Plan" means the Company's 1995
Outside Directors Stock Option Plan.
(o) "NQSO" means any stock option granted pursuant to the provisions
of the Plan that is not an ISO.
(p) "Officer" means an individual elected or appointed by the Board
or by the board of directors of a Subsidiary or chosen in such
other manner as may be prescribed by the by-laws of the Company
or a Subsidiary, as the case may be, to serve as such.
(q) "Option" means an ISO or a NQSO granted under the Plan.
(r) "Participant" means an individual who is granted an Option under
the Plan.
(s) "Plan" means this 1995 Stock Option Plan.
(t) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or
replacement rule adopted by the Securities and Exchange
Commission.
- 3 -
<PAGE>
(u) "Share" means one share of Common Stock, adjusted in accordance
with Section 10(b), if applicable.
(v) "Stock Option Agreement" means the written agreement between the
Company and the Participant that contains the terms and
conditions pertaining to an Option.
(w) "Subsidiary" means any corporation of which the Company, directly
or indirectly, is the beneficial owner of fifty percent (50%) or
more of the total voting power of all classes of its stock having
voting power and which qualifies as a subsidiary corporation
pursuant to Section 424(f) of the Code.
(x) "Ten Percent Shareholder" means a Participant who prior to the
grant of an ISO owned, directly or indirectly within the meaning
of Section 424(d) of the Code, ten percent (10%) or more of the
total combined voting power of all classes of stock of the
Company, any Subsidiary or any parent of the Company (as defined
in Section 425(e) of the Code).
3. PURPOSE.
The purpose of the Plan is to enable the Company to provide
incentives, which are linked directly to increases in stockholder value, to
certain key personnel in order that they will be encouraged to promote the
financial success and progress of the Company.
4. ADMINISTRATION.
(a) COMPOSITION OF THE COMMITTEE.
The Plan shall be administered by a Committee appointed by the Board,
consisting of not less than a sufficient number of "disinterested persons" (as
such term is defined in Rule 16b-3), who are also "outside directors" (within
the meaning of Section 162(m) of the Code) so as to qualify the Committee to
administer the Plan as contemplated by Rule 16b-3 and Section 162(m),
respectively. Members of the Committee shall not be entitled to participate in
the Plan. Subject to the provisions of the first sentence of this Section 4(a),
the Board may from time to time remove members from, or add members to, the
Committee. Vacancies on the
- 4 -
<PAGE>
Committee, however caused, shall be filled by the Board. The Board shall
appoint one of the members of the Committee as Chairman.
(b) ACTIONS BY THE COMMITTEE.
The Committee shall hold meetings at such times and places as it may
determine. Acts approved by a majority of the members of the Committee present
at a meeting at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee.
(c) POWERS OF THE COMMITTEE.
Subject to the express terms and conditions hereof, the Committee
shall have the authority to administer the Plan in its sole and absolute
discretion. To this end, the Committee is authorized to construe and interpret
the Plan and to make all other determinations necessary or advisable for the
administration of the Plan, including, but not limited to, the authority to
determine the eligible individuals who shall be granted Options, the number of
Options to be granted, the vesting period, if any, for all Options granted
hereunder, the date on which any Option becomes first exercisable, the number of
Shares subject to each Option, the exercise price for the Shares subject to each
Option, and, whether the Option to be granted is an ISO or a NQSO. Any
determination, decision or action of the Committee in connection with the
construction, interpretation, administration or application of the Plan shall be
final, conclusive and binding upon all Participants and any person validly
claiming under or through a Participant.
(d) LIABILITY OF COMMITTEE MEMBERS.
No member of the Board or the Committee will be liable for any action
or determination made in good faith by the Board or the Committee with respect
to the Plan or any grant or exercise of an Option thereunder.
(e) OPTION ACCOUNTS.
The Committee shall maintain a journal in which a separate account for
each Participant shall be established. Whenever an Option is granted to or
exercised by a Participant, the Participant's account shall be appropriately
credited or debited. Appropriate adjustment shall also be
- 5 -
<PAGE>
made in the journal with respect to each account in the event of an adjustment
pursuant to Section 10(b).
5. EFFECTIVE DATE AND TERM OF THE PLAN.
(a) EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board and became effective on September 6,
1995, subject to approval by the stockholders of the Company at a meeting duly
called and held within twelve months following such date.
(b) TERM OF PLAN.
No Option shall be granted pursuant to the Plan on or after September
6, 2005, but Options theretofore granted may extend beyond that date.
6. TYPE OF OPTIONS AND SHARES SUBJECT TO THE PLAN.
Options granted under the Plan may be either ISOs or NQSOs. Each
Stock Option Agreement shall specify whether the Option covered thereby is an
ISO or a NQSO.
The maximum aggregate number of Shares that may be issued under the
Plan is 400,000 Shares; PROVIDED, HOWEVER, that no more than 75,000 Shares shall
be awarded to any Participant in any calendar year. The limitation on the
number of Shares which may be subject to Options under the Plan shall be subject
to adjustment as provided in Section 10(b).
If any Option granted under the Plan expires or is terminated for any
reason, any Shares as to which the Option has not been exercised shall again be
available for purchase under Options subsequently granted. At all times during
the term of the Plan, the Company shall reserve and keep available for issuance
such number of Shares as the Company is obligated to issue upon the exercise of
all then outstanding Options.
7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan shall be authorized and unissued
Shares. No fractional Shares shall be issued under the Plan.
- 6 -
<PAGE>
8. ELIGIBILITY.
The individuals eligible for the grant of Options under the Plan shall
be: (i) all Directors, Officers and Employees; and (ii) such individuals
determined by the Committee to be rendering substantial services as a consultant
or independent contractor to the Company or any Subsidiary or Affiliate of the
Company, as the Committee shall determine from time to time in its sole and
absolute discretion; PROVIDED, HOWEVER, that only Employees of the Company or
any Subsidiary shall be eligible to receive ISOs. Any Participant shall be
eligible to be granted more than one Option hereunder.
9. OPTIONS.
(a) GRANT OF OPTIONS.
Subject to any applicable requirements of the Code and any regulations
issued thereunder, the date of the grant of an Option shall be the date on which
the Committee determines to grant the Option.
(b) EXERCISE PRICE OF ISOS.
The exercise price of each Share subject to an ISO shall not be less
than the Fair Market Value of a Share on the date of grant of the ISO, except
that in the case of a grant of an ISO to a Participant who at the time such ISO
was granted was a Ten Percent Shareholder, the exercise price shall not be less
than 110% of the Fair Market Value of a Share on the date of the grant of the
ISO.
(c) EXERCISE PRICE OF NQSOS.
The exercise price of each Share subject to a NQSO shall be determined
by the Committee at the time of grant but will not be less than eighty-five
percent (85%) of the Fair Market Value of a Share on the date of grant.
(d) EXERCISE PERIOD.
Each Option granted hereunder shall vest and become first exercisable
as determined by the Committee.
(e) TERMS AND CONDITIONS.
All Options granted pursuant to the Plan shall be evidenced by a Stock
Option Agreement (which need not be the same for each Participant or Option),
approved by the Commit-
- 7 -
<PAGE>
tee which shall be subject to the following express terms and conditions and the
other terms and conditions as are set forth in this Section 9, and to such other
terms and conditions as shall be determined by the Committee in its sole and
absolute discretion which are not inconsistent with the terms of the Plan:
(i) the failure of an Option to vest for any reason whatsoever
shall cause the Option to expire and be of no further force
or effect;
(ii) unless terminated earlier pursuant to Sections 9(i) or 11,
the term of any Option granted under the Plan shall be ten
years from the date of grant; PROVIDED, HOWEVER, that no ISO
granted to a Ten Percent Shareholder shall have a term of
more than five years from the date of grant;
(iii)in the case of an ISO, the aggregate Fair Market Value
(determined as of the time the ISO is granted) of Shares
exercisable for the first time by a Participant during any
calendar year (under the Plan and any other incentive stock
option plans of the Company, any Subsidiary or any parent of
the Company (as defined in Section 424(e) of the Code) shall
not exceed $100,000;
(iv) Options shall not be transferable by the Participant
otherwise than by will or by the laws of descent and
distribution, and shall be exercisable during the lifetime
of the Participant only by him or by his guardian or legal
representative;
(v) no Option or interest therein may be transferred, assigned,
pledged or hypothecated by the Participant during his
lifetime whether by operation of law or otherwise, or be
made subject to execution, attachment or similar process;
and
(vi) payment for the Shares to be received upon exercise of an
Option may be made in
- 8 -
<PAGE>
cash, in Shares (determined with reference to their Fair
Market Value on the date of exercise) or any combination
thereof.
(f) ADDITIONAL MEANS OF PAYMENT.
Any Stock Option Agreement may, in the sole and absolute discretion of
the Committee, permit payment by any other form of legal consideration
consistent with applicable law and any rules and regulations relating thereto,
including, but not limited to, the execution and delivery of a full recourse
promissory note (bearing interest at a rate not less than the prime rate
announced as then being in effect by the Company's principal lender and whose
maturity date shall not extend beyond ten years) by the Participant to the
Company.
(g) EXERCISE.
The holder of an Option may exercise the same by filing with the
Corporate Secretary of the Company and the Chairman a written election, in such
form as the Committee may determine, specifying the number of Shares with
respect to which such Option is being exercised, and accompanied by payment in
full of the exercise price for such Shares. Notwithstanding the foregoing, the
Committee may specify a reasonable minimum number of Shares that may be
purchased on any exercise of an Option, provided that such minimum number will
not prevent the holder from exercising the Option with respect to the full
number of Shares as to which the Option is then exercisable.
(h) WITHHOLDING TAXES.
Prior to issuance of the Shares upon exercise of an Option, the
Participant shall pay or make adequate provision for the payment of any Federal,
state, local or foreign withholding obligations of the Company or any Subsidiary
or Affiliate of the Company, if applicable. In the event a Participant shall
fail to make adequate provision for the payment of such obligations, the Company
shall have the right to issue a stock certificate for an amount of Shares equal
to the difference obtained by subtracting: (i) the number of Shares, rounded up
for any fraction to the next whole number, that have a Fair Market Value (as of
the date of exercise) equal to such amount as is sufficient to satisfy
applicable federal, state or local withholding obligations; from (ii) the number
of Shares attributable to that portion of the Option so exercised. The Company
shall promptly remit, or cause to be
- 9 -
<PAGE>
remitted, to the appropriate taxing authorities the amount so withheld. In such
cases, although the stock certificate delivered to the Participant will be for a
net number of Shares, such Participant shall be considered, for tax purposes, to
have received the number of Shares equal to the full number of Shares to which
the Option had been exercised.
(i) TERMINATION OF OPTIONS.
Options granted under the Plan shall be subject to the following
events of termination:
(i) in the event a Participant who is a Director is removed from
the Board or the board of directors of a Subsidiary, as the
case may be, for cause (as contemplated by the charter, by-
laws or other organizational or governing documents), all
unexercised Options held by such Participant on the date of
such removal (whether or not vested) will expire immediately;
(ii) in the event the employment of a Participant who is an
Officer or Employee is terminated for Cause, all unexercised
Options held by such Participant on the date of such
termination of employment (whether or not vested) will
expire immediately; and
(iii) in the event a Participant is no longer a Director, Officer
or Employee other than for the reasons set forth in Sections
9(i)(i) or 9(i)(ii), all Options which remain unvested at
the time the Participant is no longer a Director, Officer or
Employee, as the case may be, shall expire immediately, and
all Options which have vested prior to such time shall
expire twelve months thereafter unless by their terms they
expire sooner.
10. RECAPITALIZATION.
(a) CORPORATE FLEXIBILITY.
The existence of the Plan and the Options granted hereunder shall not
affect or restrict in any way the right or
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power of the Board or the stockholders of the Company, in their sole and
absolute discretion, to make, authorize or consummate any adjustment,
recapitalization, reorganization or other change in the Company's capital
structure or its business, any merger or consolidation of the Company, any issue
of bonds, debentures, common stock, preferred or prior preference stock ahead of
or affecting the Company's capital stock or the rights thereof, the dissolution
or liquidation of the Company or any sale or transfer of all or any part of its
assets or business, or any other grant of rights, issuance of securities,
transaction, corporate act or proceeding and notwithstanding the fact that any
such activity, proceeding, action, transaction or other event may have, or be
expected to have, an impact (whether positive or negative) on the value of any
Option.
(b) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Except as otherwise provided in Section 11 and subject to any required
action by the stockholders of the Company, in the event of any change in
capitalization affecting the Common Stock of the Company, such as a stock
dividend, stock split or recapitalization, the Committee, in its sole and
absolute discretion, may make proportionate adjustments with respect to: (i)
the aggregate number of Shares available for issuance under the Plan; (ii) the
number of Shares available for any individual award; (iii) the number and
exercise price of Shares subject to outstanding Options; PROVIDED, HOWEVER, that
the number of Shares subject to any Option shall always be a whole number; and
(iv) such other matters as shall be appropriate in light of the circumstances.
11. CHANGE OF CONTROL.
In the event of a Change of Control (as defined below), unless
otherwise determined by the Committee at the time of grant or by amendment (with
the holder's consent) of such grant, all Options not vested on or prior to the
effective time of any such Change of Control shall immediately vest as of such
effective time. The Committee in its discretion may make provisions for the
assumption of outstanding Options, or the substitution for outstanding Options
of new incentive awards covering the stock of a successor corporation or a
parent or subsidiary thereof, with appropriate adjustments as to the number and
kind of shares and prices so as to prevent dilution or enlargement of rights.
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<PAGE>
A "Change of Control" will be deemed to occur on the date any of the
following events occur:
(a) any person or persons acting together which would constitute a
"group" for purpose of Section 13(d) of the Exchange Act (other than the
Company, any Subsidiary and any entity beneficially owned by any of the
foregoing) beneficially own (as defined in Rule 13d-3 under the Exchange Act)
without Board approval, directly or indirectly, at least 30% of the total voting
power of the Company entitled to vote generally in the election of the Board;
(b) either (i) the Current Directors (as hereinafter defined) cease
for any reason to constitute at least a majority of the members of the Board
(for these purposes, a "Current Director" means any member of the Board as of
September 7, 1995, and any successor of a Current Director whose election, or
nomination for election by the Company's stockholders, was approved by at least
a majority of the Current Directors then on the Board) or (ii) at any meeting of
the stockholders of the Company called for the purpose of electing directors, a
majority of the persons nominated by the Board for election as directors fail to
be elected;
(c) the stockholders of the Company approve (i) a plan of complete
liquidation of the Company, or (ii) an agreement providing for the merger or
consolidation of the Company (A) in which the Company is not the continuing or
surviving corporation (other than consolidation or merger with a wholly-owned
subsidiary of the Company in which all Shares outstanding immediately prior to
the effectiveness thereof are changed into or exchanged for the same
consideration) or (B) pursuant to which the Shares are converted into cash,
securities or other property, except a consolidation or merger of the Company in
which the holders of the Shares immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock of the
continuing or surviving corporation immediately after such consolidation or
merger or in which the Board immediately prior to the merger or consolidation
would, immediately after the merger or consolidation, constitute a majority of
the board of directors of the continuing or surviving corporation; or
(d) the stockholders of the Company approve an agreement (or
agreements) providing for the sale or other disposition (in one transaction or a
series of transactions) of all or substantially all of the assets of the
Company.
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<PAGE>
12. SECURITIES LAW REQUIREMENTS.
No Shares shall be issued under the Plan unless and until: (i) the
Company and the Participant have taken all actions required to register the
Shares under the Securities Act of 1933, as amended, or perfect an exemption
from the registration requirements thereof; (ii) any applicable requirement of
Nasdaq or any stock exchange on which the Common Stock is listed has been
satisfied; and (iii) any other applicable provision of state or Federal law has
been satisfied. The Company shall be under no obligation to register the Shares
under the Securities Act of 1933, as amended, or to effect compliance with the
registration or qualification requirements of any state securities laws.
13. AMENDMENT AND TERMINATION.
(a) MODIFICATIONS TO THE PLAN.
The Board may, insofar as permitted by law, from time to time, with
respect to any Shares at the time not subject to Options, suspend or terminate
the Plan or revise or amend the Plan in any respect whatsoever. However, unless
the Board specifically otherwise provides, any revision or amendment that would
cause the Plan to fail to comply with Rule 16b-3, Section 422 or 162(m) of the
Code or any other requirement of applicable law or regulation if such amendment
were not approved by the stockholders of the Company shall not be effective
unless and until such approval is obtained.
(b) RIGHTS OF PARTICIPANT.
No amendment, suspension or termination of the Plan that would
adversely affect the right of any Participant with respect to an Option
previously granted under the Plan will be effective without the written consent
of the affected Participant.
14. MISCELLANEOUS.
(a) STOCKHOLDERS' RIGHTS.
No Participant and no beneficiary or other person claiming under or
through such Participant shall acquire any rights as a stockholder of the
Company by virtue of such Participant having been granted an Option under the
Plan. No Participant and no beneficiary or other person claiming under or
through such Participant will have any right, title or
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<PAGE>
interest in or to any Shares, allocated or reserved under the Plan or subject to
any Option except as to Shares, if any, that have been issued or transferred to
such Participant. No adjustment shall be made for dividends or distributions or
other rights for which the record date is prior to the date of exercise of an
Option, except as may be provided in the Stock Option Agreement.
(b) OTHER COMPENSATION ARRANGEMENTS.
Nothing contained in the Plan shall prevent the Board from adopting
other compensation arrangements, subject to stockholder approval if such
approval is required. Such other arrangements may be either generally
applicable or applicable only in specific cases.
(c) TREATMENT OF PROCEEDS.
Proceeds realized from the exercise of Options under the Plan shall
constitute general funds of the Company.
(d) COSTS OF THE PLAN.
The costs and expenses of administering the Plan shall be borne by the
Company.
(e) NO RIGHT TO CONTINUE EMPLOYMENT OR SERVICES.
Nothing contained in the Plan or in any instrument executed pursuant
to the Plan will confer upon any Participant any right to continue to render
services to the Company, a Subsidiary or Affiliate; to continue as a Director,
Officer or Employee; or affect the right of the Company, a Subsidiary, the
Board, the board of directors of a Subsidiary, the stockholders of the Company
or a Subsidiary, as applicable, to terminate the directorship, office or
employment, as the case may be, of any Participant at any time with or without
Cause or with or without any other cause, reason or justification. The term
"Cause" as defined herein is included solely for the purposes of the Plan and is
not, and shall not be deemed to be: (i) a restriction on the right of the
Company or a Subsidiary, as the case may be, to terminate any Officer or
Employee for any reason whatsoever; or (ii) a part of the employment
relationship (whether oral or written, express or implied) of any such
individual.
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<PAGE>
(f) SEVERABILITY.
The provisions of the Plan shall be deemed severable and the validity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
(g) BINDING EFFECT OF PLAN.
The Plan shall inure to the benefit of the Company, its successors and
assigns.
(h) NO WAIVER OF BREACH.
No waiver by any party hereto at any time of any breach by another
party hereto of, or compliance with, any condition or provision of the Plan to
be performed by such other party shall be deemed a waiver of the same, any
similar or any dissimilar provisions of conditions at the same or at any prior
or subsequent time.
(i) GOVERNING LAW.
The Plan and all actions taken thereunder shall be enforced, governed
and construed by and interpreted under the laws of the State of Delaware
applicable to contracts made and to be performed wholly within such State
without giving effect to the principles of conflict of laws thereof.
(j) HEADINGS.
The headings contained in the Plan are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Plan.
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<PAGE>
15. EXECUTION.
To record the adoption of the Plan to read as set forth herein, the
Company has caused the Plan to be signed by its President and attested by its
Secretary on April 17, 1996.
BALLANTYNE OF OMAHA, INC.
By:
-------------------------------
Ronald H. Echtenkamp
President
ATTEST:
By:
--------------------------
Brad French
Secretary
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<PAGE>
BALLANTYNE OF OMAHA, INC.
1995 OUTSIDE DIRECTORS
STOCK OPTION PLAN
1. NAME.
The name of this Plan is the Ballantyne of Omaha, Inc. 1995 Outside
Directors Stock Option Plan.
2. DEFINITIONS.
For the purposes of the Plan, the following terms shall be defined as
set forth below:
(a) "Affiliate" means any partnership, corporation, firm, joint
venture, association, trust, limited liability company,
unincorporated organization or other entity (other than a
Subsidiary) that, directly or indirectly through one or more
intermediaries, is controlled by the Company, where the term
"controlled by" means the possession, direct or indirect, of the
power to cause the direction of the management and policies of
such entity, whether through the ownership of voting interests or
voting securities, as the case may be, by contract or otherwise.
(b) "Board" means the board of directors of the Company.
(c) "Chairman" means the individual appointed by the Board to serve
as the chairman of the Committee.
(d) "Code" means the Internal Revenue Code of 1986, as amended from
time to time, and the Treasury regulations promulgated
thereunder.
(e) "Committee" means the committee appointed by the Board to
administer the Plan as provided in Section 4(a).
(f) "Common Stock" means the common stock, $.01 par value per share,
of the Company or any security of the Company identified by the
Committee as having been issued in substitution or exchange
therefor or in lieu thereof.
<PAGE>
(g) "Company" means Ballantyne of Omaha, Inc., a Delaware
corporation.
(h) "Effective Date" means September 6, 1995.
(i) "Employee" means an individual whose wages are subject to the
withholding of federal income tax under Section 3401 of the Code.
(j) "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor statute.
(k) "Fair Market Value" of a Share as of a specified date means the
average of the highest and lowest market prices of a Share on the
American Stock Exchange on such date as reported in the Eastern
Edition of THE WALL STREET JOURNAL or, if no trading of Common
Stock is reported for that day, the next preceding day on which
trading was reported. In the event the Common Stock is not then
traded on the American Stock Exchange, the Fair Market Value of a
Share shall be determined by reference to the principal market or
exchange on which the Shares are then traded.
(l) "Non-Employee Director" means an individual who: (i) is now, or
hereafter becomes, a member of the Board; (ii) is neither an
Employee nor an Officer of the Company or of any Subsidiary or
Affiliate on the date of the grant of the NQSO; and (iii) has not
elected to decline to participate in the Plan pursuant to the
immediately succeeding sentence. A director otherwise eligible
to participate in the Plan may make an irrevocable, one-time
election, by written notice to the Corporate Secretary of the
Company and the Chairman within thirty days after his initial
election or appointment to the Board to decline to participate in
the Plan.
(m) "NQSO" means an option that is not qualified under Section 422 of
the Code.
(n) "Officer" means an individual elected or appointed by the Board
or by the board of directors of a Subsidiary, or chosen in such
other manner as may be prescribed by the by-laws of the Company
or a Subsidiary, as the case may be, to serve as such.
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<PAGE>
(o) "Participant" means a Non-Employee Director who is granted a NQSO
under the Plan.
(p) "Plan" means this 1995 Outside Directors Stock Option Plan.
(q) "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under the Exchange Act, or any successor or
replacement rule adopted by the Securities and Exchange
Commission.
(r) "Share" means one share of Common Stock, adjusted in accordance
with Section 9(b), if applicable.
(s) "Stock Option Agreement" means the written agreement between the
Company and the Participant that contains the terms and
conditions pertaining to the NQSO.
(t) "Subsidiary" means any corporation or entity of which the
Company, directly or indirectly, is the beneficial owner of fifty
percent (50%) or more of the total voting power of all classes of
its stock having voting power, unless the Committee shall
determine that any such corporation or entity shall be excluded
hereunder from the definition of the term Subsidiary.
3. PURPOSE.
The purpose of the Plan is to enable the Company to provide
incentives, which are linked directly to increases in stockholder value, to Non-
Employee Directors in order that they will be encouraged to serve on the Board
and exert their best efforts on behalf of the Company.
4. ADMINISTRATION.
(a) COMPOSITION OF THE COMMITTEE.
The Plan shall be administered by a Committee appointed by the Board
consisting of no less than two individuals. Members of the Committee need not
be members of the Board, Officers or Employees of the Company. Members of the
Committee shall not be entitled to participate in the Plan. The Board may from
time to time remove members from, or add members to, the Committee. Vacancies
on the Committee, however caused, shall be filled by the
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<PAGE>
Board. The Board shall appoint one of the members of the Committee as Chairman.
(b) ACTIONS BY THE COMMITTEE.
The Committee shall hold meetings at such times and places as it may
determine. Acts approved by a majority of the members of the Committee present
at a meeting at which a quorum is present, or acts reduced to or approved in
writing by a majority of the members of the Committee, shall be the valid acts
of the Committee.
(c) POWERS OF THE COMMITTEE.
The Committee shall have the authority to administer the Plan in its
sole and absolute discretion; PROVIDED, HOWEVER, that the Committee shall have
no authority to grant NQSOs, to determine the number of Shares subject to NQSOs
or the price at which each Share covered by a NQSO may be purchased pursuant to
the Plan, all of which shall be automatic as described in Section 8. To this
end, the Committee is authorized to construe and interpret the Plan and to make
all other determinations necessary or advisable for the administration of the
Plan. Subject to the foregoing, any determination, decision or action of the
Committee in connection with the construction, interpretation, administration or
application of the Plan shall be final, conclusive and binding upon all
Participants and any person validly claiming under or through a Participant.
(d) LIABILITY OF COMMITTEE MEMBERS.
No member of the Board or the Committee will be liable for any action
or determination made in good faith by the Board or the Committee with respect
to the Plan or any grant or exercise of a NQSO thereunder.
(e) NQSO ACCOUNTS.
The Committee shall maintain a journal in which a separate account for
each Participant shall be established. Whenever NQSOs are granted to or
exercised by a Participant, the Participant's account shall be appropriately
credited or debited. Appropriate adjustment shall also be made in the journal
with respect to each account in the event of an adjustment pursuant to Section
9(b).
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<PAGE>
5. EFFECTIVE DATE AND TERM OF THE PLAN.
(a) EFFECTIVE DATE OF THE PLAN.
The Plan was adopted by the Board and became effective on September 6,
1995, subject to approval by the stockholders of the Company at a meeting duly
called and held within twelve months following such date.
(b) TERM OF PLAN.
No NQSO shall be granted pursuant to the Plan on or after September 6,
2005, but NQSOs theretofore granted may extend beyond that date.
6. SHARES SUBJECT TO THE PLAN.
The maximum aggregate number of Shares which may be subject to NQSOs
granted to Non-Employee Directors under the Plan shall be 100,000. The
limitation on the number of Shares which may be subject to NQSOs under the Plan
shall be subject to adjustment as provided in Section 9(b).
If any NQSO granted under the Plan expires or is terminated for any
reason without having been exercised in full, the Shares allocable to the
unexercised portion of such NQSO shall again become available for grant pursuant
to the Plan. At all times during the term of the Plan, the Company shall
reserve and keep available for issuance such number of Shares as the Company is
obligated to issue upon the exercise of all then outstanding NQSOs.
7. SOURCE OF SHARES ISSUED UNDER THE PLAN.
Common Stock issued under the Plan shall be authorized and unissued
Shares. No fractional Shares shall be issued under the Plan.
8. NON-QUALIFIED STOCK OPTIONS.
(a) GRANT OF NQSOS.
On the next succeeding business day after the Effective Date, NQSOs to
purchase 15,000 Shares shall be granted automatically to each Non-Employee
Director. With respect to any Non-Employee Director who first becomes a member
of the Board after the Effective Date, NQSOs to purchase 15,000 Shares shall be
granted automatically on the next succeeding business day following his election
to the Board. In addition to such initial NQSO grants,
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<PAGE>
NQSOs to purchase 15,000 Shares shall be granted automatically to each Non-
Employee Director on the third anniversary date of his initial NQSO grant and
every three years thereafter during the term of the Plan, provided that said
Non-Employee Director continues to be a member of the Board on the date of each
such additional grant. NQSOs shall be granted in the aforesaid manner until the
date on which the Shares available for grant shall no longer be sufficient to
permit grants of NQSOs covering 15,000 Shares to be made to each Non-Employee
Director entitled to a grant as of such date, in which event the Shares then
available for grant shall be allocated on a PRO RATA basis among the Non-
Employee Directors entitled to a grant of NQSOs as of such date. The provisions
of this Section shall not be amended more than once every six months, other than
to comport with changes in the Code, the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), or the rules thereunder.
(b) EXERCISE PRICE.
Each Share covered by a NQSO granted on the business day next
succeeding the Effective Date may be purchased at a purchase price equal to the
initial public offering price of a Share. Each Share covered by a NQSO granted
after the business day next succeeding the Effective Date may be purchased at a
purchase price equal to the Fair Market Value of a Share on the date of the NQSO
grant. The provisions of this Section shall not be amended more than once every
six months, other than to comport with changes in the Code, ERISA, or the rules
thereunder.
(c) TERMS AND CONDITIONS.
All NQSOs granted pursuant to the Plan shall be evidenced by a Stock
Option Agreement (which need not be the same for each Participant or NQSO),
approved by the Committee which shall be subject to the following express terms
and conditions and to the other terms and conditions specified in this Section
8, and to such other terms and conditions as shall be determined by the
Committee in its sole and absolute discretion which are not inconsistent with
the terms of the Plan:
(i) except as set forth in Section 10, all NQSOs granted to a
Participant shall vest and become first exercisable at the
rate of 5,000 Shares for each term of service by such
Participant on the Board (for purposes of measuring such
term, a Participant shall receive credit for any period of
continuous service on the Board prior to the Effective
Date);
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<PAGE>
(ii) the failure of a NQSO to vest for any reason whatsoever
shall cause the NQSO to expire and be of no further force or
effect;
(iii) unless terminated earlier pursuant to Sections 8(f) or 10,
the term of each NQSO shall be FIVE YEARS from the date of
grant;
(iv) NQSOs shall not be transferable by the Participant otherwise
than by will or by the laws of descent and distribution, and
shall be exercisable during the lifetime of the Participant
only by him or by his guardian or legal representative;
(v) no NQSO or interest therein may be transferred, assigned,
pledged or hypothecated by the Participant during his
lifetime whether by operation of law or otherwise, or be
made subject to execution, attachment or similar process;
and
(vi) payment for the Shares to be received upon exercise of a
NQSO may be made in cash, in Shares (determined with
reference to their Fair Market Value on the date of
exercise) or any combination thereof.
(d) ADDITIONAL MEANS OF PAYMENT.
Any Stock Option Agreement may, in the sole and absolute discretion of
the Committee, permit payment by any other form of legal consideration
consistent with applicable law and any rules and regulations relating thereto,
including, but not limited to, the execution and delivery of a full recourse
promissory note (bearing interest at a rate not less than the prime rate
announced as then being in effect by the Company's principal lender and whose
maturity date shall not exceed beyond ten years) by the Participant to the
Company.
(e) EXERCISE.
The holder of a NQSO may exercise the same by filing with the
Corporate Secretary of the Company and the Chairman a written election, in such
form as the Committee may determine, specifying the number of Shares with
respect to which such NQSO is being exercised. Such notice shall be accompanied
by payment in full of the exercise price for such Shares. Notwithstanding the
foregoing,
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<PAGE>
the Committee may specify a reasonable minimum number of Shares that may be
purchased on any exercise of an Option, provided that such minimum number will
not prevent the holder from exercising the Option with respect to the full
number of Shares as to which the Option is then exercisable.
(f) TERMINATION OF NQSOS.
NQSOs granted under the Plan shall be subject to the following events
of termination:
(i) in the event a Participant is removed from the Board for
cause (as contemplated by the Company's by-laws), all
unexercised NQSOs held by such Participant on the date of
such removal (whether or not vested) will expire
immediately;
(ii) in the event a Participant is no longer a member of the
Board, other than by reason of removal for cause, all NQSOs
which remain unvested at the time the Participant is no
longer a member of the Board shall expire immediately, and
all NQSOs which have vested prior to such time shall expire
twelve months thereafter unless by their terms they expire
sooner; and
(iii) in the event a Participant becomes an Officer or Employee of
the Company or a Subsidiary (whether or not such Participant
remains a member of the Board) all NQSOs which remain
unvested at the time such Participant becomes an Officer or
Employee of the Company shall expire immediately, and all
NQSOs which have vested prior to such time shall expire
twelve months thereafter unless by their terms they expire
sooner.
9. RECAPITALIZATION.
(a) CORPORATE FLEXIBILITY.
The existence of the Plan and the NQSOs granted hereunder shall not
affect or restrict in any way the right or power of the Board or the
stockholders of the Company, in their sole and absolute discretion, to make,
authorize or consummate any adjustment, recapitalization, reorganization or
other change in the
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<PAGE>
Company's capital structure or its business, any merger or consolidation of the
Company, any issue of bonds, debentures, common stock, preferred or prior
preference stocks ahead of or affecting the Company's capital stock or the
rights thereof, the dissolution or liquidation of the Company or any sale or
transfer of all or any part of its assets or business, or any other grant of
rights, issuance of securities, transaction, corporate act or proceeding and
notwithstanding the fact that any such activity, proceeding, action, transaction
or other event may have, or be expected to have, an impact (whether positive or
negative) on the value of any NQSO.
(b) ADJUSTMENTS UPON CHANGES IN CAPITALIZATION.
Except as otherwise provided in Section 10 below and subject to any
required action by the stockholders of the Company, in the event of any change
in capitalization affecting the Common Stock of the Company, such as a stock
dividend, stock split or recapitalization, the Committee shall make
proportionate adjustments with respect to: (i) the aggregate number of Shares
available for issuance under the Plan; (ii) the number of Shares subject to each
grant under the Plan; (iii) the number and exercise price of Shares subject to
outstanding NQSOs; and (iv) such other matters as shall be appropriate in light
of the circumstances; PROVIDED, HOWEVER, that the number of Shares subject to
any NQSO shall always be a whole number and that no such adjustment shall be
made if the adjustment would cause the Plan to fail to comply with the "formula
award" exception, as set forth in Rule 16b-3(c)(2)(ii) of the Exchange Act, for
grants of NQSOs to non-employee directors.
10. CHANGE OF CONTROL.
In the event of a Change of Control (as defined below), all Options
not vested on or prior to the effective time of any such Change of Control shall
immediately vest as of such effective time. The Committee in its discretion may
make provisions for the assumption of outstanding Options, or the substitution
for outstanding Options of new incentive awards covering the stock of a
successor corporation or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices so as to prevent
dilution or enlargement of rights; provided, however, that no such adjustment
shall be made if the adjustment would cause the Plan to fail to comply with the
"formula award" exception, as set forth in Rule 16b-3(c)(2)(ii) of the Exchange
Act, for grants of NQSOs to non-employee directors.
A "Change of Control" will be deemed to occur on the date any of the
following events occur:
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<PAGE>
(a) any person or persons acting together which would constitute a
"group" for purpose of Section 13(d) of the Exchange Act (other than the
Company, any Subsidiary and any entity beneficially owned by any of the
foregoing), beneficially own (as defined in Rule 13d-3 under the Exchange Act)
without Board approval, directly or indirectly, at least 30% of the total voting
power of the Company entitled to vote generally in the election of the Board;
(b) either (i) the Current Directors (as herein defined) cease for
any reason to constitute at least a majority of the members of the Board (for
these purposes, a "Current Director" means any member of the Board as of the
Effective Date, and any successor of a Current Director whose election, or
nomination for election by the Company's shareholders, was approved by at least
a majority of the Current Directors then on the Board) or (ii) at any meeting of
the stockholders of the Company called for the purpose of electing directors, a
majority of the persons nominated by the Board for election as directors fail to
be elected;
(c) the stockholders of the Company approve (i) a plan of complete
liquidation of the Company, or (ii) an agreement providing for the merger or
consolidation of the Company (A) in which the Company is not the continuing or
surviving corporation (other than consolidation or merger with a wholly-owned
subsidiary of the Company in which all Shares outstanding immediately prior to
the effectiveness thereof are changed into or exchanged for the same
consideration) or (B) pursuant to which the Shares are converted into cash,
securities or other property, except a consolidation or merger of the Company in
which the holders of the Shares immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock of the
continuing or surviving corporation immediately after such consolidation or
merger or in which the Board immediately prior to the merger or consolidation
would, immediately after the merger or consolidation, constitute a majority of
the board of directors of the continuing or surviving corporation; or
(d) the stockholders of the Company approve an agreement (or
agreements) providing for the sale or other disposition (in one transaction or a
series of transactions) of all or substantially all of the assets of the
Company.
11. SECURITIES LAW REQUIREMENTS.
No Shares shall be issued under the Plan unless and until: (i) the
Company and the Participant have taken all actions required to register the
Shares under the Securities Act of 1933,
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<PAGE>
as amended, or perfect an exemption from the registration requirements thereof;
(ii) any applicable requirement of Nasdaq or any stock exchange on which the
Common Stock is listed has been satisfied; and (iii) any other applicable
provision of state or federal law has been satisfied. The Company shall be
under no obligation to register the Shares under the Securities Act of 1933, as
amended, or to effect compliance with the registration or qualification
requirements of any state securities laws.
12. AMENDMENT AND TERMINATION.
(a) MODIFICATIONS TO THE PLAN.
The Board may, insofar as permitted by law, from time to time, with
respect to any Shares at the time not subject to NQSOs, suspend or terminate the
Plan or, subject to Sections 8(a) and 8(b), revise or amend the Plan in any
respect whatsoever. However, unless the Board specifically otherwise provides,
any revision or amendment that would cause the Plan to fail to comply with Rule
16b-3 or any other requirement of applicable law or regulation if such amendment
were not approved by the stockholders of the Company shall not be effective
unless and until such approval is obtained.
(b) RIGHTS OF PARTICIPANT.
No amendment, suspension or termination of the Plan that would
adversely affect the right of any Participant with respect to a NQSO previously
granted under the Plan will be effective without the written consent of the
affected Participant.
13. MISCELLANEOUS.
(a) STOCKHOLDERS' RIGHTS.
No Participant and no beneficiary or other person claiming under or
through such Participant shall acquire any rights as a stockholder of the
Company by virtue of such Participant having been granted a NQSO under the Plan.
No Participant and no beneficiary or other person claiming under or through such
Participant will have any right, title or interest in or to any Shares,
allocated or reserved under the Plan or subject to any NQSO except as to Shares,
if any, that have been issued or transferred to such Participant. No adjustment
shall be made for dividends or distributions or other rights for which the
record date is prior to the date of exercise.
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<PAGE>
(b) OTHER COMPENSATION ARRANGEMENTS.
Nothing contained in the Plan shall prevent the Board from adopting
other compensation arrangements, subject to stockholder approval if such
approval is required. Such other arrangements may be either generally
applicable or applicable only in specific cases.
(c) TREATMENT OF PROCEEDS.
Proceeds realized from the exercise of NQSOs under the Plan shall
constitute general funds of the Company.
(d) COSTS OF THE PLAN.
The costs and expenses of administering the Plan shall be borne by the
Company.
(e) NO RIGHT TO CONTINUE AS DIRECTOR.
Nothing contained in the Plan or in any instrument executed pursuant
to the Plan will confer upon any Participant any right to continue as a member
of the Board or affect the right of the Company, the Board or the stockholders
of the Company to terminate the directorship of any Participant at any time with
or without cause.
(f) SEVERABILITY.
The provisions of the Plan shall be deemed severable and the validity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
(g) BINDING EFFECT OF PLAN.
The Plan shall inure to the benefit of the Company, its successors and
assigns.
(h) NO WAIVER OF BREACH.
No waiver by any party hereto at any time of any breach by another
party hereto of, or compliance with, any condition or provision of the Plan to
be performed by such other party shall be deemed a waiver of the same, any
similar or any dissimilar provisions of conditions at the same or at any prior
or subsequent time.
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<PAGE>
(i) GOVERNING LAW.
The Plan and all actions taken thereunder shall be enforced, governed
and construed by and interpreted under the laws of the State of Delaware
applicable to contracts made and to be performed wholly within such State
without giving effect to the principles of conflict of laws thereof.
(j) HEADINGS.
The headings contained in the Plan are for reference purposes only and
shall not affect in any way the meaning or interpretation of the Plan.
14. EXECUTION.
To record the adoption of the Plan to read as set forth herein, the
Company has caused the Plan to be signed by its President and attested by its
Secretary on April 17, 1996.
BALLANTYNE OF OMAHA, INC.
By:
-------------------------------
Ronald H. Echtenkamp
President
ATTEST:
By:
--------------------------
Brad French
Secretary
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<PAGE>
BALLANTYNE OF OMAHA, INC.
1995 EMPLOYEE
STOCK PURCHASE PLAN
1. DEFINITIONS
The following terms shall have the meanings set forth below:
(a) "Base Pay" shall mean an Eligible Employee's basic or regular
compensation from the Corporation and its Subsidiaries, excluding overtime,
shift premiums, incentive payments, commissions, bonuses and other non-basic
compensation items.
(b) "Board" shall mean the board of directors of the Corporation.
(c) "Business Day" shall mean any day of the week other than Saturday
or Sunday.
(d) "Code" shall mean the United States Internal Revenue Code of 1986,
as amended.
(e) "Committee" shall have the meaning ascribed to that term in
Section 9.1 hereof.
(f) "Common Stock" shall mean the common stock, $.01 par value per
share, of the Corporation.
<PAGE>
(g) "Corporate Secretary" shall mean the Corporate Secretary of the
Corporation.
(h) "Corporation" shall mean Ballantyne of Omaha, Inc., a Delaware
corporation.
(i) "Dispositive Act" shall have the meaning ascribed to that term in
Section 10.4 hereof.
(j) "Eligible Employee" shall mean, as of any applicable Offering
Date, each Employee who has been in the continuous employ of the Corporation or
any of its Subsidiaries for at least ninety (90) days.
(k) "Employee" shall mean each employee of the Corporation or any of
its Subsidiaries including, but not limited to, executive officers and directors
who are also employees of the Corporation and/or its Subsidiaries, provided that
such employee's customary work week is more than twenty (20) hours per week.
(l) "1933 Act" shall mean the Securities Act of 1933, as amended.
(m) "1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
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<PAGE>
(n) "Offering Date" shall mean the first Business Day in November in
each of the years 1995 through 1999.
(o) "Offering Period" shall mean each of the periods commencing on an
Offering Date and ending on the Purchase Date in the year immediately following
such Offering Date.
(p) "Option" shall mean a right granted pursuant to the Plan to
purchase Common Stock in an amount determined in accordance with the terms of
the Plan.
(q) "Participant", as it relates to an Offering Period, shall mean
each Eligible Employee who has executed a subscription and payroll deduction
agreement in accordance with Section 3.1 of the Plan.
(r) "Plan" shall mean the Ballantyne of Omaha, Inc. 1995 Employee
Stock Purchase Plan.
(s) "Purchase Date" shall mean the last Business Day in October in
each of the years 1996 through 2000.
(t) "Stock Price", as of a specified date, shall mean the average of
the highest and lowest market prices of a share of Common Stock on the American
Stock Exchange on such date as reported in the Eastern Edition of THE WALL
STREET
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<PAGE>
JOURNAL, or if no trading of Common Stock is reported for that day, the next
preceding day on which trading was so reported. In the event that the Common
Stock is not then traded on the American Stock Exchange, the Stock Price shall
be determined by reference to the principal market or exchange on which the
Common Stock is then traded.
(u) "Subsidiary" shall mean any corporation of which the Corporation,
directly or indirectly, is the beneficial owner of fifty percent (50%) or more
of the total voting power of all classes of its stock having voting power and
which qualifies as a subsidiary corporation pursuant to Section 424 of the Code.
2. PURPOSE
The purpose of the Plan is to provide a method by which Eligible
Employees may purchase Common Stock on a discounted basis through payroll
deductions. The Corporation believes that participation in the 1995 Plan
provides Eligible Employees at all levels with a greater incentive to contribute
to the success of the Corporation. It is the intention of the Corporation to
have the Plan qualify as an "employee stock purchase plan" under Section 423 of
the Code. The provisions of the Plan shall be construed so as to extend and
limit
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<PAGE>
participation in a manner consistent with the requirements of Section 423 of the
Code.
3. PARTICIPATION
3.1 COMMENCEMENT OF PARTICIPATION. Prior to each Offering Date, the
Corporation shall make subscription and payroll deduction agreements available
to all Eligible Employees. To subscribe for Common Stock in connection with an
Offering Period, an Eligible Employee must complete, execute and deliver a
subscription and payroll deduction agreement to the Corporate Secretary prior to
such Offering Date. Eligible Employees who desire to participate in a
subsequent Offering Period under the Plan must execute and deliver a separate
subscription and payroll deduction agreement to the Corporate Secretary.
Payroll deductions for a Participant shall commence on the applicable Offering
Date when his or her subscription and payroll deduction agreement becomes
effective and shall end on the Purchase Date to which such agreement is
applicable unless sooner terminated as provided in Section 8.
3.2 RESTRICTIONS ON PARTICIPATION. Notwithstanding any provisions of
the Plan to the contrary, no Eligible Employee shall be granted an Option:
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<PAGE>
(a) if, immediately after such grant, such Eligible Employee would
for purposes of Section 423(b)(3) of the Code own stock, and/or hold outstanding
options to purchase stock, possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Corporation or of
any Subsidiary (for purposes of this paragraph, the rules of Section 424(d) of
the Code shall apply in determining stock ownership of any Eligible Employee);
or
(b) which permits his or her rights to purchase stock under all
employee stock purchase plans of the Corporation or any Subsidiary to accrue at
a rate which pursuant to Section 423(b)(8) of the Code exceeds $25,000 of the
fair market value of such stock (determined at the time such Option is granted)
for each calendar year in which such Option is outstanding at any time.
4. COMMON STOCK SUBJECT TO THE PLAN
4.1 OFFERING PERIOD AMOUNTS. The maximum number of shares of Common
Stock which may be sold pursuant to Options exercised under the Plan is 250,000,
subject to adjustment upon changes in capitalization of the Corporation as
provided in Section 4.3. The maximum number of shares of Common Stock
purchasable by all Eligible Employees during an Offering Period, subject to
adjustment upon changes in capitalization
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<PAGE>
of the Corporation as provided in Section 4.3, shall be as follows: (a) during
the Offering Period ending in October 1996, 250,000 shares of Common Stock;
(b) during the Offering Period ending in October 1997, one-fourth of the shares
of Common Stock remaining available for purchase under the Plan; (c) during the
Offering Period ending in October 1998, one-third of the shares of Common Stock
remaining available for purchase under the Plan; (d) during the Offering Period
ending in October 1999, one-half of the shares of Common Stock remaining
available for purchase under the Plan; and (e) during the Offering Period ending
in October 2000, all of the shares of Common Stock remaining available for
purchase under the Plan. In the event of an oversubscription for shares of
Common Stock during any Offering Period, the Committee shall make a PRO RATA
allocation of the shares of Common Stock available for delivery and distribution
in as nearly a uniform manner as shall be practicable and as it shall determine
to be equitable. In such event, the Corporation shall give written notice of
such allocation to each Eligible Employee affected thereby and the surplus of
the payroll deductions credited to the account of each such Eligible Employee
shall be returned to him or her as promptly as possible.
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<PAGE>
4.2 SOURCE OF COMMON STOCK. The Common Stock to be issued upon the
exercise of Options shall be authorized and unissued shares of Common Stock. If
for any reason shares of Common Stock as to which an Option has been granted
cease to be subject to purchase thereunder, then such shares of Common Stock
again shall be available for issuance pursuant to Options.
4.3 ADJUSTMENT UPON CHANGES IN CAPITALIZATION. Subject to any
required action by the stockholders of the Corporation, if, while any Options
are outstanding, the outstanding shares of Common Stock have increased,
decreased, changed into or been exchanged for a different number or kind of
shares or securities of the Corporation through reorganization, merger,
subdivision, consolidation, recapitalization, reclassification, stock split,
reverse stock split, stock dividend or similar transaction, the Committee may
make appropriate and proportionate adjustments: (a) in the number and/or kind of
shares which are subject to purchase under outstanding Options; (b) to the Stock
Price applicable to such outstanding Options; and (c) the number and/or kind of
shares which may be offered in each subsequent Offering Period. In no event,
however, shall adjustments be made for the conversion of any convertible
securities of the Corporation or the
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<PAGE>
exercise of any option or warrant to purchase securities of the Corporation.
5. PAYROLL DEDUCTIONS
5.1 AMOUNT OF DEDUCTION. At the time a Participant files his or her
subscription and payroll deduction agreement, he or she shall elect to have
payroll deductions made on each payday during the Offering Period at a rate not
exceeding ten percent (10%) of his or her Base Pay as in effect on the Offering
Date.
5.2 PARTICIPANT'S ACCOUNT. All payroll deductions made for a
Participant shall be credited to his or her account under the Plan. A
Participant may not make any separate cash payments into such account.
5.3 CHANGES IN PAYROLL DEDUCTIONS. A Participant may withdraw from
the Plan as provided in Section 8, or may decrease (but not increase) the rate
of his or her payroll deductions a maximum of once during the Offering Period by
completing and filing with the Corporate Secretary a new subscription and
payroll deduction agreement. In the event a Participant elects to decrease the
rate of his or her payroll deductions, such decrease shall become effective no
later than fifteen (15) days after the Corporate Secretary's receipt of the new
subscription and payroll deduction agreement.
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<PAGE>
5.4 FORM OF PAYMENT. Payment for shares of Common Stock purchased
under the Plan shall be made in United States dollars. Participants who are
paid in foreign currency must make an arrangement with their employer to pay for
shares of Common Stock purchased under the Plan in United States dollars.
6. GRANT OF OPTIONS
6.1 ENTITLEMENT. On each Offering Date, each Participant shall be
deemed to have been granted an Option by the Corporation to purchase that number
of whole shares of Common Stock determined by dividing the aggregate amount of
the Participant's payroll deductions which will be made during the Offering
Period (not to exceed an amount equal to ten percent (10%) of his or her Base
Pay during the Offering Period) by the lesser of: (a) eighty-five percent (85%)
of the Stock Price on the Offering Date, or (b) eighty-five percent (85%) of the
Stock Price on the Purchase Date; PROVIDED, HOWEVER, that, subject to Section
3.2(b), the maximum number of shares of Common Stock that can be purchased
pursuant to any Option is one thousand (1,000).
6.2 OPTION PRICE. The per share price at which Common Stock will be
sold upon exercise of an Option shall be equal to the lesser of: (a) eighty-
five percent (85%) of the
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<PAGE>
Stock Price on the Offering Date, or (b) eighty-five percent (85%) of the Stock
Price on the Purchase Date.
7. EXERCISE OF OPTION
7.1 AUTOMATIC EXERCISE. Unless a Participant gives written notice as
hereinafter provided, his or her Option shall be deemed to have been exercised
automatically on the Purchase Date for the maximum number of whole shares of
Common Stock which may be purchased under such Option with the accumulated
payroll deductions in his or her account on the Purchase Date, and any surplus
cash in his or her account at that time will be returned to him or her, without
interest, as promptly as practicable thereafter.
7.2 FRACTIONAL SHARES. Fractional shares of Common Stock will not be
issued under the Plan and any accumulated payroll deductions which would have
been used to purchase fractional shares of Common Stock will be returned to each
Participant as promptly as practicable following the termination of an Offering
Period without interest.
7.3 EXERCISE OF OPTION. During a Participant's lifetime, Options held
by such Participant shall be exercisable only by that Participant.
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<PAGE>
7.4 DELIVERY OF STOCK CERTIFICATES. As promptly as practicable after
the Purchase Date of each Offering Period, the Corporation will deliver to each
Participant, one or more certificates representing the number of shares of
Common Stock purchased upon exercise of his or her Option.
8. WITHDRAWAL
8.1 GENERAL. A Participant may withdraw all, but not less than all,
of the accumulated payroll deductions credited to his or her account under the
Plan at any time prior to the Purchase Date by giving written notice to the
Corporate Secretary. All of the Participant's payroll deductions credited to
his or her account will be paid to him or her as promptly as practicable after
receipt of his or her notice of withdrawal, and no further payroll deductions
for the purchase of shares of Common Stock will be made during such Offering
Period. The Corporation may, at its option, treat any attempt to borrow by a
Participant on the security of his or her accumulated payroll deductions as an
election to withdraw such deductions.
8.2 EFFECT ON SUBSEQUENT PARTICIPATION. A withdrawal from the Plan by
a Participant not subject to Section 16 of the 1934 Act will not have any effect
upon his or her eligibility to participate in any succeeding Offering Period
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<PAGE>
or in any similar plan which may hereafter be adopted by the Corporation. Each
Participant subject to Section 16 of the 1934 Act who withdraws from the Plan
must wait at least six (6) months from the date of his or her withdrawal before
participating in the Plan again.
8.3 TERMINATION OF EMPLOYMENT NOT ATTRIBUTABLE TO DEATH. Upon the
termination of a Participant's employment for any reason other than death, such
Participant shall elect, by written notice given to the Corporate Secretary
within ten (10) Business Days of the effective date of his or her termination,
either:
(a) to be paid all of the payroll deductions credited to his or her
account under the Plan, without interest, as promptly as practicable; or
(b) to discontinue contributions to the Plan but remain a Participant.
In the event that no such written election shall be timely received by the
Corporate Secretary, the Participant shall automatically be deemed to have
elected, pursuant to clause (b) of this Section 8.3, to discontinue his or her
contributions to the Plan but remain a Participant.
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<PAGE>
8.4 TERMINATION OF EMPLOYMENT DUE TO DEATH. Upon the termination of a
Participant's employment because of his or her death, his or her beneficiary (as
defined in Section 10.3) shall elect, by written notice given to the Corporate
Secretary prior to the earlier of the Purchase Date or the expiration of a
period of sixty (60) days commencing with the date of the death of the
Participant, either:
(a) to be paid all of the payroll deductions credited to such
Participant's account under the Plan, without interest, as promptly as
practicable; or
(b) to exercise such Participant's Option on the Purchase Date next
following the date of such Participant's death for the purchase of that number
of whole shares of Common Stock which may be purchased at the applicable Stock
Price with the accumulated payroll deductions in such Participant's account on
the date of his or her death, and any surplus cash in such account will be
returned to said beneficiary without interest as promptly as practicable after
the Purchase Date.
In the event that no such written notice of election shall be timely received by
the Corporate Secretary, the beneficiary shall automatically be deemed to have
elected, pursuant to
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<PAGE>
clause (b) of this Section 8.4, to exercise the deceased Participant's Option.
9. ADMINISTRATION
9.1 APPOINTMENT OF COMMITTEE. The Board shall appoint a committee
(the "Committee") to administer the Plan, which shall consist of no less than
two (2) members of the Board. The Plan shall be administered in a manner that
assures all Participants the same rights and privileges. Members of the
Committee who are Eligible Employees are permitted to participate in the Plan.
9.2 AUTHORITY OF COMMITTEE. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to interpret
and construe any and all provisions of the Plan, to adopt rules and regulations
for administering the Plan, and to make all other determinations deemed
necessary or advisable for administering the Plan. The Committee's
determination on the foregoing matters shall be conclusive.
9.3 RULES GOVERNING THE ADMINISTRATION OF THE COMMITTEE. The Board
may from time to time appoint members of the Committee in substitution for or in
addition to members previously appointed and may fill vacancies, however caused,
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<PAGE>
in the Committee. The Committee may select one of its members as its Chairman
and shall hold its meetings at such times and places as it shall deem advisable
and may hold telephonic meetings. A majority of its members shall constitute a
quorum. All determinations of the Committee shall be made by a majority of its
members. The Committee may correct any defect or omission or reconcile any
inconsistency in the Plan, in the manner and to the extent it shall deem
desirable. Any decision or determination reduced to writing and signed by a
majority of the members of the Committee shall be as fully effective as if it
had been made by a majority vote at a meeting duly called and held. The
Committee may appoint a secretary and shall make such rules and regulations for
the conduct of its business as it shall deem advisable.
9.4 LIABILITY. No member of the Board or the Committee shall be
liable for any action or determination made in good faith by the Board or the
Committee with respect to the Plan or any Option granted thereunder.
10. MISCELLANEOUS
10.1 STOCKHOLDERS' RIGHTS. A Participant will have no interest or
voting right in the shares of Common Stock covered by his or her Option until
such Option has been exercised.
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<PAGE>
10.2 REGISTRATION OF COMMON STOCK. The shares of Common Stock to be
delivered to a Participant under the Plan will be registered in the name of the
Participant or, if the Participant so directs by written notice to the Corporate
Secretary prior to the Purchase Date applicable thereto, in the names of the
Participant and one such other person as may be designated by the Participant,
as joint tenants with rights of survivorship or as tenants by the entireties, to
the extent permitted by applicable law.
10.3 DESIGNATION OF BENEFICIARY. A Participant may file a written
designation of a beneficiary who is to receive any shares of Common Stock and/or
cash upon his or her death. Such designation of beneficiary may be changed by
the Participant at any time by written notice to the Corporate Secretary. Upon
the death of a Participant and the receipt by the Corporation of proof of
identity and existence at the time of such Participant's death of a beneficiary
validly designated by him or her under the Plan, the Corporation shall deliver
such shares of Common Stock and/or cash to such beneficiary. In the event that
a beneficiary validly designated under the Plan by a Participant is not living
at the time of such Participant's death, (a) the Corporation shall deliver such
shares of Common Stock and/or cash to the executor or administrator of the
estate of the Participant, or (b) if no
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<PAGE>
such executor or administrator has been appointed (to the knowledge of the
Corporation), the Corporation, in its discretion, may deliver such shares of
Common Stock and/or cash to the spouse or to any one or more dependents of the
Participant as the Corporation may designate. No beneficiary shall, prior to
the death of the Participant by whom he or she has been designated, acquire any
interest in the shares of Common Stock and/or cash credited to such
Participant's account under the Plan.
10.4 TRANSFERABILITY. Neither payroll deductions credited to a
Participant's account nor any rights with regard to the exercise of an Option or
to receive shares of Common Stock under the Plan may be assigned, transferred,
pledged, hypothecated or otherwise disposed of by the Participant, whether by
operation of law or otherwise, or be made subject to execution, attachment or
similar process (each a "Dispositive Act"), other than by will or the laws of
descent and distribution. Any attempted Dispositive Act shall be without
effect, except that the Corporation may treat such act as an election to
withdraw from the Plan in accordance with Section 8.
10.5 RESALE RESTRICTION. Each Participant subject to Section 16 of
the 1934 Act who purchases shares of Common
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Stock under the Plan may not sell or otherwise transfer such shares of Common
Stock for at least six (6) months from the applicable Purchase Date.
10.6 TREATMENT OF PROCEEDS. All payroll deductions and other amounts
received or held by the Corporation under the Plan may be used by the
Corporation or its Subsidiaries for any corporate purpose, and neither the
Corporation nor any of its Subsidiaries shall be obligated to segregate such
funds.
10.7 NO INTEREST. No interest shall accrue on the payroll deductions
or other amounts contributed by a Participant under the Plan.
10.8 SECURITIES LAW REQUIREMENTS. The Corporation shall not be
obligated to deliver any shares of Common Stock upon the exercise of an Option
unless and until: (a) the Corporation and the Participant have taken all actions
required to register such shares of Common Stock under the 1933 Act or perfect
an exemption from the registration requirements thereof; (b) any applicable
requirement of Nasdaq or any stock exchange on which the Common Stock is listed
has been satisfied; and (c) any other applicable provision of state or Federal
law has been satisfied. The Corporation shall be under no obligation to
register the shares of Common
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<PAGE>
Stock subject to the Plan under the 1933 Act or to effect compliance with the
registration or qualification requirements of any state securities laws.
10.9 TERMINATION AND AMENDMENT. The Board may, insofar as permitted
by law, from time to time, with respect to any shares of Common Stock at the
time not subject to Options, suspend or terminate the Plan or revise or amend
the Plan in any respect whatsoever. However, unless the Board specifically
otherwise provides, any revision or amendment that would cause the Plan to fail
to comply with Rule 16b-3 under the 1934 Act, Section 423 of the Code or any
other requirement of applicable law or regulation if such revision or amendment
was not approved by the stockholders of the Corporation shall not be effective
unless and until such approval is obtained. Furthermore, no suspension,
termination or amendment of the Plan that would adversely affect the right of
any Participant with respect to an Option previously granted will be effective
without the written consent of the affected Participant.
10.10 EFFECTIVE DATE. The Plan shall become effective as of November
1, 1995, subject to approval by the holders of the majority of the shares of
Common Stock present and represented at a special and/or annual meeting of the
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<PAGE>
stockholders held on or before such date. If the Plan is not so approved, the
Plan shall not become effective.
10.11 NO RIGHT TO CONTINUE EMPLOYMENT OR SERVICES. Nothing contained
in the Plan or in any instrument executed pursuant to the Plan will confer upon
any Participant any right to continue to render services to the Corporation or
its Subsidiaries; to continue as a director, officer or employee of the
Corporation or its Subsidiaries; or affect the right of the Corporation, a
Subsidiary, the Board, the board of directors of a Subsidiary, or the
shareholders of the Corporation or a Subsidiary, as applicable, to terminate the
directorship, office or employment, as the case may be, of any Participant at
any time with or without cause, reason or justification.
10.12 EFFECT OF PLAN. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all successors of
each Participant, including, without limitation, such Participant's estate and
the executors, administrators or trustees thereof, heirs and legatees, and any
receiver, trustee in bankruptcy or representative of creditors of such
Participant.
10.13 REPORTS. Individual accounts will be maintained for each
Participant. Statements of account will be furnished to each Participant within
a reasonable period of
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time following each Purchase Date. Each such statement shall set forth the
aggregate amount of payroll deductions made on behalf of the Participant during
the Offering Period, the Stock Price used to purchase shares of Common Stock,
the number of shares of Common Stock purchased by such Participant, and the
amount, if any, of the surplus cash not used to purchase shares of Common Stock
on the Purchase Date.
10.14 NOTICES. All notices or communications by a Participant to the
Corporation under or in connection with the Plan shall be deemed to have been
duly given when received in the form specified by the Corporation at the
location, or by the individual, designated by the Corporation for the receipt
thereof.
10.15 GOVERNING LAW. The Plan and all actions taken thereunder shall
be enforced, governed and construed by and interpreted under the laws of the
State of Delaware applicable to contracts made and to be performed wholly within
such State without giving effect to the principles of conflict of laws thereof.
10.16 HEADINGS. The headings contained in the Plan are for reference
purposes only and shall not affect in any way the meaning or interpretation of
the Plan.
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<PAGE>
10.17 COSTS OF THE PLAN. The costs and expenses of administering the
Plan shall be borne by the Corporation.
10.18 OTHER COMPENSATION ARRANGEMENTS. Nothing contained in the Plan
shall prevent the Board from adopting other compensation arrangements, subject
to stockholder approval if such approval is required. Such other arrangements
may be either generally applicable or applicable only in specific cases.
10.19 CORPORATE FLEXIBILITY. The existence of the Plan and the
Options granted thereunder shall not affect or restrict in any way the right or
power of the Board or the stockholders of the Corporation, in their sole and
absolute discretion, to make, authorize or consummate any adjustment,
recapitalization, reorganization or other change in the Corporation's capital
structure or its business, any merger or consolidation of the Corporation, any
issue of bonds, debentures, common stock, preferred or prior preference stock
ahead of or affecting the Corporation's capital stock or the rights thereof, the
dissolution or liquidation of the Corporation or any sale or transfer of all or
any part of its assets or business, or any other grant of rights, issuance of
securities, transaction, corporate act or proceeding and notwithstanding the
fact that any such activity, proceeding, action,
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<PAGE>
transaction or other event may have, or be expected to have, an impact (whether
positive or negative) on the value of any Option.
11. EXECUTION
To record the adoption of the Plan to read as set forth herein, the
Company has caused the Plan to be signed by its President and attested by its
Secretary on October 16, 1995.
BALLANTYNE OF OMAHA, INC.
By:
------------------------
Ronald H. Echtenkamp
President
ATTEST:
By:
----------------
Brad French
Secretary
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