ALLIS-CHALMERS CORPORATION



 


Exhibit 10.1


STOCK OPTION AGREEMENT


This Stock Option Agreement (the “Agreement”) is made and entered into as of
October 15, 2001, by and between Allis-Chalmers Corporation (the “Company”), a
Delaware corporation, and Leonard Toboroff (the “Optionee”), whose residence
address is 39 North Moore Street, Apt. 6B, New York, New York 10013 and whose
business address is c/o Varsity Brands, Inc., 1450 Broadway, Suite 2001, New
York, New York 10018.


The Board of Directors (the “Board”) of the Company approved on June 11, 2001
(but effective as of May 31, 2001) a resolution ratifying and confirming that
certain letter agreement (the “Letter Agreement”), dated May 31, 2001 (the
“Grant Date”), by and between the Company and the Optionee, pursuant to which
the Company granted the Optionee a stock option (the “Option”) to purchase
500,000 shares (the “Shares”) of the Company’s common stock, par value $0.15
per share (the “Common Stock”), for the price, on the terms and subject to the
conditions set forth in this Agreement. The Option was not granted under the
Company’s Long-Term Stock Incentive Plan (1989).


The Option is not intended to satisfy the requirements for an incentive stock
option (an “ISO”) under Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”). The Company makes no representations or warranties as to
the income, estate or other tax consequences to the Optionee of the grant or
exercise of the Option or the sale or other disposition of the Shares acquired
pursuant to the exercise thereof.


• The price at which the Optionee shall have the right to purchase the Shares
under this Agreement is $0.50 per Share, subject to adjustment as provided in
Paragraph 3 below.


Unless the Option is previously terminated pursuant to this Agreement, the
Option shall be exercisable in full from and after the date hereof, which is
the date on which the Company filed, in accordance with the Letter Agreement,
an Amended and Restated Certificate of Incorporation with the Secretary of
State of the State of Delaware. In no event shall any Shares be purchasable
under this Agreement after October 14, 2011 (the “Expiration Date”).


If the Optionee dies, the Option shall be exercisable as provided in this
subparagraph. The Optionee’s estate, in the event of his death, shall have the
privilege of exercising the unexercised portion of the Option which the
Optionee could have exercised on the date of the Optionee’s death the. In no
event, however, shall the Optionee’s estate exercise the Option after the
Expiration Date.


• Neither the Option nor any right under the Option shall be assignable,
alienable, saleable or transferable by the Optionee otherwise than by will or
by the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code or Title I of the Employee Retirement
Income Security Act, or the rules thereunder; provided, however, that, if so
determined by the Board or a committee thereof, the Optionee may, in the manner
established by the Board or a committee thereof in its sole discretion,
designate a beneficiary or beneficiaries to


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exercise the rights of the Optionee, and to receive any property distributable,
with respect to any Option upon the death of the Optionee.


The Option shall not be pledged, alienated, attached, or otherwise encumbered
or transferred in any manner except to the extent that the Option may be
exercised by an executor or administrator or beneficiary as provided in
subparagraphs 1(c) and 2(a) above, and any purported pledge, alienation,
attachment, encumbrance, or transfer thereof shall be void and unenforceable
against the Company. The Option may be exercised, during the lifetime of the
Optionee, only by the Optionee or his duly appointed guardian or legal
representative.


• In the event that the Board or a committee thereof shall determine that the
outstanding shares of Common Stock are affected by any (i) subdivision or
consolidation of shares, (ii) dividend or other distribution (whether in the
form of cash, Shares, other securities, or other property) or (iii)
recapitalization or other capital adjustment of the Company, such that an
adjustment is determined to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be made available
hereunder, then the Board or a committee thereof shall, in such manner as it
may deem necessary to prevent dilution or enlargement of the benefits or
potential benefits intended to be made hereunder, adjust any or all of (x) the
number and type of Shares which may be subject to the Option, (y) the number
and type of Shares subject to the unexercised portion of the Option, and (z)
the exercise price per Share with respect to the Option; provided, however,
that the exercise price per Share shall not be adjusted below the par value per
Share of the Common Stock. In computing any adjustment under this paragraph,
any fractional share shall be eliminated.


In the event of the dissolution or liquidation of the Company, or in the event
of a Change in Control (as hereafter defined), the Optionee shall have the
right, immediately prior to the record date for the determination of
stockholders entitled to participate in such dissolution, liquidation or Change
in Control, to exercise the Option, in whole or in part. In such event, the
Company will mail or cause to be mailed to the Optionee a notice specifying the
date of such dissolution, liquidation or Change in Control. Such notice shall
be mailed at least ten (10) days prior to the date therein specified to the
address of the Optionee specified on page 1 of this Agreement or to such other
address as the Optionee delivers or transmits by registered or certified mail
to the Secretary of the Company at its principal office. For purposes of the
Agreement, a “Change in Control” of the Company shall be deemed to have
occurred if (i) the Company shall have merged or consolidated with an
unaffiliated entity in which (A) the Company is not the surviving corporation
or (B) the Company shall have transferred or sold all or substantially all of
its assets to an unaffiliated entity (other than a transaction which would
cause the stockholders immediately prior to such transaction to own at least
fifty percent (50%) of the voting securities of the Company immediately after
such transaction) or (ii) there shall be a change in the constituency of a
majority of the members of the Board within any twelve (12) month period (other
than a change which a majority of the existing directors voted in favor).


The Option shall be exercised when written notice of such exercise, signed by
the person entitled to exercise the Option, has been delivered or transmitted
by registered or certified mail, to the Secretary of the Company at its
principal office. Said written notice shall specify the number of Shares
purchasable under the Option which such person then wishes to purchase and
shall be accompanied by such documentation, if any, as may be required by the
Company as provided in Paragraph 8 below and be accompanied by payment of the
aggregate Option price. Such


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payment of the aggregate Option price shall be, without limitation, in the form
of (i) cash, Shares, outstanding Options or other consideration, or any
combination thereof, having a Fair Market Value on the exercise date equal to
the exercise price of the Option or portion thereof being exercised or (ii) a
broker-assisted cashless exercise program established by the Board or a
committee thereof. Delivery of said notice and such documentation shall
constitute an irrevocable election to purchase the Shares specified in said
notice and the date on which the Company receives said notice and documentation
shall, subject to the provisions of Paragraphs 5 and 6, be the date as of which
the Shares so purchased shall be deemed to have been issued. The person
entitled to exercise the Option shall not have the right or status as a holder
of the Shares to which such exercise relates prior to receipt by the Company of
such payment, notice and documentation. For purposes of this Agreement, “Fair
Market Value” shall mean, with respect to Shares or other securities, (i) the
closing price per Share of the Shares on the principal exchange on which the
Shares are then trading, if any, on such date, or, if the Shares were not
traded on such date, then on the next preceding trading day during which a sale
occurred; or (ii) if the Shares are not traded on an exchange but are quoted on
Nasdaq or a successor quotation system, (1) the last sales price (if the Shares
are then listed on the Nasdaq National Market) or (2) the mean between the
closing representative bid and asked prices (in all other cases) for the Shares
on such date as reported by Nasdaq or such successor quotation system; or (iii)
if the Shares are not publicly traded on an exchange and not quoted on Nasdaq
or a successor quotation system, the mean between the closing bid and asked
prices for the Shares on such date as determined in good faith by the
Committee; or (iv) if the Shares are not publicly traded, the fair market value
established by the Committee acting in good faith.


Anything in this Agreement to the contrary notwithstanding, in no event may the
Option be exercisable if the Company shall, at any time and in its sole
discretion, determine that (i) the listing, registration or qualification of
any Shares otherwise deliverable upon such exercise, upon any securities
exchange or under any state or federal law, or (ii) the consent or approval of
any regulatory body or the satisfaction of withholding tax or other withholding
liabilities is necessary or desirable in connection with such exercise. In such
event, such exercise shall be held in abeyance and shall not be effective
unless and until such withholding, listing, registration, qualification,
consent, or approval shall have been affected or obtained free of any
conditions not acceptable to the Company.


The Board or a committee thereof may require as a condition to the right to
exercise the Option hereunder that the Company receive from the person
exercising the Option, representations, warranties and agreements, at the time
of any such exercise, to the effect that the Shares are being purchased for
investment only and without any present intention to sell or otherwise
distribute such Shares and that the Shares will not be disposed of in
transactions which, in the opinion of counsel to the Company, would violate the
registration provisions of the Securities Act of 1933, as then amended (the
“Securities Act”), and the rules and regulations thereunder. The certificate
issued to evidence such Shares shall bear appropriate legends summarizing such
restrictions on the disposition thereof.


• If, at any time, the Company proposes to file a registration statement on Form
S-8 under the Securities Act with respect to an offering for its own account or
for the account of others of any class of equity security, then the Company
shall give written notice of such proposed filing to the


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Optionee at least twenty-five (25) days before the anticipated filing date, and
such notice shall offer the Optionee the opportunity to register such Shares as
such Optionee may request in writing to the Company within fifteen (15) days
after the date such Optionee first received notice of such registration (a
“Piggyback Registration”); provided, however, that the Company shall have no
obligation to register any Shares of the Optionee pursuant to this Paragraph
7(a) unless the Optionee shall request that 50% or more (or all outstanding
Shares, if less than 50% of the initial aggregate number of Shares) of the
initial aggregate number of Shares be registered; provided, further, that the
Company shall have no obligation to register any Shares of the Optionee
pursuant to this Paragraph 7(a) if the Shares are saleable at one time pursuant
to Rule 144(k) under the Securities Act.


In any registration initiated as a Piggyback Registration, whether or not the
registration statement becomes effective, the Company will pay or cause to be
paid all costs, fees and expenses in connection therewith, including, without
limitation, the Company’s legal and accounting fees, printing expenses and
“blue sky” fees and expenses, except that the Company shall not pay for (i)
underwriting discounts and commissions, (ii) state transfer taxes, (iii)
brokerage commissions, (iv) fees and expenses of counsel and accountants for
the Optionee and (v) blue sky fees and expenses in jurisdictions where the
Company is not currently registered or qualified.
To the extent not inconsistent with applicable law, the Optionee agrees not to
effect any public sale or distribution of Common Stock, including a sale
pursuant to Rule 144 or in reliance on any other exemption from registration
under the Securities Act, during the fourteen (14) days prior to, and during
the one hundred eighty (180) days beginning on, the effective date of a
registration statement that includes Shares (except as part of such
registration), but only if and to the extent requested in writing (with
reasonable prior written notice) by the underwriter(s) in the case of an
underwritten public offering by the Company of securities similar to the
Shares.


The Company and the Optionee agree to indemnify and hold harmless each other
(and, in the case of the Company, its directors and officers and each person
who controls the Company (within the meaning of the Securities Act)) against
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) (collectively, “Losses”) arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
registration statement with respect to a Piggyback Registration, any amendment
or supplement thereto, any prospectus or preliminary prospectus or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided,
however, that the Optionee shall not be indemnified for Losses insofar as such
Losses arise out of or are based upon any such untrue statement or omission
based upon information furnished in writing to the Company by or on behalf of
the Optionee (in his individual capacity) expressly for use therein; provided
further, however, that in the event the prospectus shall have been amended or
supplemented and copies thereof, as so amended or supplemented, shall have been
furnished to the Optionee prior to the confirmation of any sales of Registrable
Securities, such indemnity with respect to the prospectus shall not inure to
the benefit of the Optionee if the person asserting such Loss did not, at or
prior to the confirmation of the sale of the Registrable Securities to such
person, receive a copy of the prospectus, as so amended or supplemented, and
the untrue statement or omission of a material fact contained in the prospectus
was corrected in the prospectus, as so amended or supplemented.


The Option shall be exercisable in accordance with the terms hereof even if (i)
any ISO to purchase Common Stock in the Company, in any parent or subsidiary of
the Company or in any predecessor corporation of such corporations, was granted
to the Optionee and (ii) such


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previously granted ISO remains outstanding. For purposes of this Paragraph, an
ISO shall be treated as outstanding until such option is exercised in full or
expires by reason of lapse of time. All certificates for Shares delivered pursuant to any Option or the exercise
thereof shall be subject to such stop transfer orders and other restrictions as
the Board or a committee thereof may deem advisable under the rules,
regulations, and other restrictions of the Securities and Exchange Commission,
any stock exchange upon which such Shares or other securities are then listed,
and any applicable federal or state securities laws, and the Board or a
committee thereof may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.


This Agreement shall be construed and enforced in accordance with the laws of
the State of Delaware and applicable federal law. Subject to subparagraph 1(c)
and 2(a) hereof, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, personal
representatives, successors or assigns, as the case may be.
IN WITNESS WHEREOF, the parties have witnessed this Agreement to be duly
executed and delivered as of the date first above written.



  	 	 	 
	 	 ALLIS-CHALMERS CORPORATION
	 	 	 
	 	 	 
	 	 By:	 /s/ Munawar H. Hidayatallah
	 	 	
        

      
	 	 	 Name: Munawar H. Hidayatallah
        

        Title: President, Chief Executive Officer and Chairman
	 	 	 
	 	 	 
	 	  /s/ Leonard
        Toboroff
	 	
        

      
	 	  LEONARD TOBOROFF




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