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EXHIBIT 10.3
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made as of this 1st day of December 1999, by and between
American Vantage Companies, a Nevada corporation (the "Grantor") having its
principal office at 6787 West Tropicana, Suite 200, Las Vegas, NV 89103, and
Michael Woloshin (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Optionee is presently an employee of a majority owned
subsidiary of the Grantor (the "Subsidiary" and, collectively with the Grantor,
the "Grantor"); and
WHEREAS, the Grantor is desirous of increasing the incentive of the
Optionee to exert his utmost efforts in improving the business of the Grantor.
NOW, THEREFORE, in consideration of the Optionee's continuous service to
the Grantor, and for other good and valuable consideration, the Grantor hereby
grants the Optionee, outside of the Grantor's stock option plans, an option to
purchase shares of the Grantor's common stock, $.01 par value per share (the
"Common Stock"), on the following terms and conditions:
1. OPTION.
Pursuant to the resolutions passed by the Board of Directors of the
Company on December 1, 1999 (the "Resolutions"), the Grantor hereby grants to
the Optionee an option, not qualified as described in Section 422(b) of the
Internal Revenue Code of 1986, as amended (the "Code"), to purchase, at any time
and from time to time prior to 5:00 p.m. (East Coast time) on November 30, 2004
up to an aggregate of THREE HUNDRED THIRTY THREE THOUSAND THREE HUNDRED THIRTY
FOUR (333,334) fully paid and non-assessable shares of Common Stock (the
"Shares"), subject to the terms and conditions set forth below.
2. PURCHASE PRICE.
The purchase price shall be $1.96875 per Share. The Grantor shall pay all
original issue or transfer taxes on the exercise of this option and all other
fees and expenses necessarily incurred by the Grantor in connection therewith.
3. EXERCISE OF OPTION.
(a) The Optionee shall notify the Grantor by registered or certified mail,
return receipt requested, addressed to its principal office as to the number of
Shares which Optionee desires to purchase under the option herein granted, which
notice shall be accompanied by payment (by cash or certified check) of the
option price therefor as specified in Paragraph 2 above. As soon as
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practicable thereafter, the Grantor shall cause to be delivered to the Optionee
certificates issued in the Optionee's name evidencing the Shares purchased by
the Optionee.
(b) The option granted hereunder may be exercised by the Optionee as
follows: options corresponding to 66,667 shares are exercisable on the date of
this Agreement; options corresponding to the next 200,000 shares are exercisable
at any time after the Subsidiary's business achieves $1,000,000 or more in
Earnings Before Interest, Taxes, Depreciation and Amortization ("EBITDA") for
any four consecutive quarterly periods; and options corresponding to the last
66,667 shares are exercisable at any time after the Subsidiary's business
achieves $2,250,000 or more in EBITDA for any four consecutive quarterly periods
until November 30, 2004. The determination of EBITDA will be made by the
Grantor's Independent Auditors, whose determination shall be final absent gross
negligence or willful misconduct on the part of the Grantor's Independent
Auditors.
4. OPTION CONDITIONED ON CONTINUED EMPLOYMENT.
(a) If the employment of the Optionee shall be terminated voluntarily by
the Optionee or for cause, the option granted to the Optionee hereunder shall
immediately expire. If such employment shall terminate otherwise than by reason
of death, voluntarily by the Optionee, or for cause, such option may be
exercised at any time within three (3) months after such termination, subject to
the provisions of subparagraph (d) of this Paragraph 4.
(b) If the Optionee dies (i) while employed by the Grantor or a subsidiary
or parent corporation, or (ii) within three (3) months after the termination of
Optionee's employment other than voluntarily by the Optionee or for cause, such
option may be exercised by a legatee or legatees of such option under such
individual's last will or by his personal representatives or distributees at any
time within one year after his death, subject to the provisions of subparagraph
(d) of this Paragraph 4.
(c) If the Optionee becomes disabled within the definition of Section
104(d) of the Code, while employed by the Grantor or a subsidiary or parent
corporation, such option may, subject to the provisions of subparagraph (d) of
this Paragraph 4, be exercised at any time within one year after Optionee's
termination of employment due to the disability.
(d) An option may not be exercised pursuant to this Paragraph 4 except to
the extent that the Optionee was entitled to exercise the option at the time of
termination of employment or death, and in any event may not be exercised after
the original expiration date of the option.
5. BRING-ALONG RIGHTS.
In the event the Grantor elects to sell their shares of Common Stock to a
third party acquiror ("Third Party Acquiror"), and the Third Party Acquiror, as
a condition of sale, requires a sale to it of all the capital stock of the
Grantor, the Grantor may require the Optionee to participate in a sale
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thereof to the Third Party Acquiror upon substantially the same terms and
conditions as the Grantor (based on a per share basis).
6. DIVISIBILITY AND NON-ASSIGNABILITY OF THE OPTION.
(a) The Optionee may exercise the option herein granted from time to time
subject to the provisions of Section 3 above with respect to any whole number of
Shares included therein, but in no event may an option be exercised as to less
than ten thousand (10,000) Shares at any one time, or the remaining Shares
covered by the option if less than ten thousand (10,000).
(b) The Optionee may not give, grant, sell, exchange, transfer legal
title, pledge, assign or otherwise encumber or dispose of the options herein
granted or any interest therein, otherwise than by will or the laws of descent
and distribution, and the option herein granted, or any of them, shall be
exercisable during the Optionee's lifetime only by the Optionee.
7. STOCK AS INVESTMENT.
(a) By accepting this option, the Optionee agrees for himself, his heirs
and legatees that any and all Shares purchased hereunder shall be acquired for
investment purposes only and not for sale or distribution, and upon the issuance
of any or all of the Shares issuable under the option granted hereunder, the
Optionee, or his heirs or legatees receiving such Shares, shall deliver to the
Grantor a representation in writing, that such Shares are being acquired in good
faith for investment purposes only and not for sale or distribution. Grantor may
place a "stop transfer" order with respect to such Shares with its transfer
agent and place an appropriate restrictive legend on the stock certificate(s)
evidencing such Shares.
(b) Unless a registration statement is filed with the Securities and
Exchange Commission covering the Shares issuable upon the exercise of the
option, such Shares will be restricted securities. Sales of such restricted
securities may be made only in compliance with an available exemption from such
registration.
8. RESTRICTION ON ISSUANCE OF SHARES.
The Grantor shall not be required to issue or deliver any certificate for
Shares purchased upon the exercise of any option granted hereunder unless (a)
the issuance of such Shares has been registered with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, or an opinion of
counsel satisfactory to the Grantor that such registration is not required; (b)
approval, to the extent required, shall have been obtained from any state
regulatory body having jurisdiction thereof; and (c) permission for the listing
of such Shares, if required, shall have been given by any national securities
exchange on which the Common Shares of the Grantor are at the time of issuance
listed.
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9. ADJUSTMENT IN EVENT OF CHANGE IN COMMON STOCK.
(a) In the event of any stock dividends, stock splits, recapitalizations,
reorganizations, mergers, consolidations, reclassifications, combinations of
shares, rights offerings, split-ups or extraordinary dividends (including
spin-offs), divestiture, liquidations, or any other change in the corporate
structure of Shares, an appropriate adjustment shall be made by the Board of
Directors, as determined by the Board of Directors and/or any authorized
committee thereof, in the aggregate number of shares of Common Stock issuable
upon exercise of the outstanding Options, and the purchase price per share. In
the event of any consolidation or merger of the Grantor with or into another
company where the Grantor is not the survivor, or the conveyance of all or
substantially all of the assets of the Grantor to another company, each then
outstanding Option shall upon exercise thereafter entitle the holder thereof to
such number of shares of Common Stock or other securities or property to which a
holder of shares of Common Stock of the Grantor would have been entitled to upon
such consolidation, merger or conveyance; and in any such case appropriate
adjustment, as determined by the Board of Directors of the Grantor (or successor
entity) shall be made as set forth above with respect to any future changes in
the capitalization of the Grantor or its successor entity. In the event of the
proposed dissolution or liquidation of the Grantor, all outstanding Options will
automatically terminate, unless otherwise provided by the Board of Directors of
the Grantor or any authorized committee thereof.
(b) Notwithstanding the above, this option may, at the discretion of the
Board of Directors of the Grantor and said other corporation, be exchanged for
options to purchase shares of capital stock of another corporation which the
Grantor, and/or a subsidiary thereof is merged into, consolidated with, or all
or a substantial portion of the property or stock of which is acquired by said
other corporation or separated or reorganized into. The terms, provisions and
benefits to the Optionee of such substitute option(s) shall in all respects be
identical to the terms, provisions and benefits of Optionee under his Option(s)
prior to said substitution.
(c) No adjustment shall be made with respect to stock dividends or splits
which do not exceed 5% of the outstanding Common Shares in any fiscal year, cash
dividends or the issuance to shareholders of the Grantor of rights to subscribe
for additional Common Shares or other securities.
(d) Any adjustment in the number of Shares shall apply proportionately to
only the unexercised portion of the option granted hereunder. If fractions of a
Share would result from any such adjustment, the adjustment shall be revised to
the next lower whole number of Shares.
10. BINDING EFFECT.
Except as herein otherwise expressly provided, this Agreement shall be
binding upon and inure to the benefit of the parties hereto, their successors,
legal representatives and assigns.
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11. NO RIGHTS IN OPTION STOCK.
Optionee shall have no rights as a shareholder in respect of Shares as to
which the option granted hereunder shall not have been exercised and payment
made as herein provided.
12. EFFECT UPON EMPLOYMENT.
This Agreement does not give the Optionee any right to continued
employment.
13. AGREEMENT SUBJECT TO RESOLUTIONS.
Notwithstanding anything contained herein to the contrary, this Agreement
is subject to, and shall be construed in accordance with, the terms of the
Resolutions, and in the event of any inconsistency between the terms hereof and
the terms of the Resolutions, the terms of the Resolutions shall govern.
14. MISCELLANEOUS.
This Agreement shall be construed under the laws of the State of New York,
without application to the principles of conflicts of law. Headings have been
included herein for convenience of reference only, and shall not be deemed a
part of this Agreement. References in this Agreement to the pronouns "him," "he"
and "his" are not intended to convey the masculine gender alone and are employed
in a generic sense and apply equally to the feminine gender or to an entity.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
AMERICAN VANTAGE COMPANIES
By:_____________________________________
Ronald J. Tassinari,
President
ACCEPTED AND AGREED TO:
________________________________________
Michael Woloshin
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