EXHIBIT 11
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT made as of this 25th day of October 2002, by and between American
Vantage Companies, a Nevada corporation having its principal executive offices
at 0000 Xxxx Xxxx Xxxx Xxxx., Xxx Xxxxx, Xxxxxx 00000 ("Grantor"), and Xxxxxx
Xxxx, an individual residing at 0000 Xxxxxxxxxx Xxx, Xxx Xxxxx, Xxxxxx 00000
("Optionee").
W I T N E S S E T H:
WHEREAS, Optionee is the Chairperson of the Audit Committee and a
director of the Grantor's Board; and
WHEREAS, Grantor is desirous of increasing the incentive of Optionee to
exert her utmost efforts to improve the business and increase the assets of
Grantor.
NOW, THEREFORE, in consideration for Optionee's services rendered and
to be rendered to Grantor or any of its subsidiaries, and for other good and
valuable consideration, Grantor hereby grants to Optionee an option to purchase
shares of Grantor's common stock, par value $.01 per share ("Common Stock"),
upon the following terms and conditions:
1. Option.
Pursuant to its 1996 Stock Option Plan, as amended (the "Plan"),
Grantor hereby grants to Optionee an Incentive Stock Option (the "Option"), as
such term is defined in Section 422(b) of the Internal Revenue Code of 1986, as
amended (the "Code"), to purchase up to twenty thousand (20,000) fully paid and
non-assessable shares of Common Stock, commencing on October 25, 2002 and
expiring at 5:00 Pacific Time on October 24, 2012 (the "Expiration Date"),
subject to the terms and conditions set forth below.
2. Purchase Price.
The purchase price for the Option shall be $1.26 per share (the
"Purchase Price"). Grantor shall pay all original issue or transfer taxes on the
exercise of the Option and all of the fees and expenses necessarily incurred by
Grantor in connection therewith.
3. Exercise of Option.
(a) The Option may be exercised in whole or in part by delivering
a Notice of Exercise substantially in the form attached hereto, to Grantor by
hand delivery, overnight courier or by registered or certified mail, return
receipt requested, addressed to its principal office, as to the number of shares
of Common Stock which Optionee desires to purchase under the Option herein
granted. The payment of the Purchase Price may be made, at the option of the
Holder, either (i) by cash or certified or bank cashier's check in lawful money
of the United States of America, payable to the order of the Company in an
amount equal to the Purchase Price multiplied by the number of shares of Common
Stock for which this Option is being exercised, (ii) by delivery of shares of
Common Stock having a fair market value on the trading day immediately preceding
the date of Grantor's receipt of the Notice of Exercise equal to the Purchase
Price of the shares of Common Stock being exercised, (iii) by having the Company
withhold from the shares of Common Stock to be issued upon exercise of the
Option, the number of shares of Common Stock having a value, based on the Common
Stock closing price on the trading day immediately prior to the date of such
exercise, equal to the product of the Purchase Price times the number of shares
of Common Stock as to which this Option is being exercised, or (iv) by any
combination thereof. As soon as practicable thereafter, Grantor shall cause to
be delivered to Optionee certificates issued in Optionee's name evidencing the
shares of Common Stock purchased by Optionee.
(b) If the aggregate fair market value of the Common Stock with
respect to which Incentive
Stock Options are exercisable for the first time by Optionee during any calendar
year and all other Incentive Stock Option plans of Grantor or its affiliates
exceeds $100,000.00, the grant of the Incentive Stock Option hereunder shall
not, to the extent of such excess, be deemed a grant of an Incentive Stock
Option but will instead be deemed the grant of a Non-Qualified Stock Option
under the Plan.
4. Option Not Conditioned On Continued Employment.
(a) If Optionee shall be removed as a director for cause, or if
Optionee resigns voluntarily, the option granted to Optionee hereunder shall
expire immediately upon such termination. If Optionee shall be removed as a
director without 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 Optionee dies (i) while performing services for the Grantor
or a subsidiary or parent corporation, or (ii) within three (3) months after the
termination of Optionee's service othis than voluntarily by Optionee or for
cause, such option may be exercised by a legatee or legatees of such option
under Optionee's last will or by her personal representatives or distributees at
any time within one (1) year after Optionee's death.
(c) If Optionee becomes disabled within the definition of Section
22(e)(3) of the Code while employed by Grantor or a subsidiary or parent
corporation, such Option, subject to the provisions of subparagraph (d) of this
Paragraph 4, may be exercised at any time within one (1) year after the
termination of employment due to disability.
(d) The Option may not be exercised pursuant to this Paragraph 4
except to the extent that Optionee was entitled to exercise the Option, or any
part thereof, at the time of termination of service or death, and in any event
may not be exercised after the original Expiration Date of the Option.
5. Divisibility and Non-Assignability of Options.
(a) The Optionee may exercise the Option herein granted from time
to time subject to the provisions of Paragraph 3 above with respect to any whole
number of shares of Common Stock included therein, but in no event may the
Option be exercised as to less than one thousand (1,000) shares of Common Stock
at any one time, except for the remaining shares of Common Stock covered by the
Option if less than one thousand (1,000).
(b) Except as specifically provided herein, Optionee may not give,
grant, sell, exchange, transfer legal title, pledge, assign or otherwise
encumber or dispose of the Option herein granted or any interest therein,
otherwise than by will or the laws of descent and distribution, and this Option
herein granted, or any of them, shall be exercisable during Optionee's lifetime
only by Optionee.
6. Stock as Investment.
By accepting this Option herein granted, Optionee agrees for herself,
her heirs and legatees, that unless such shares are sold pursuant to an
effective registration statement under the under the Securities Act of 1933, as
amended (the "Securities Act") or an exemption from registration, all shares of
Common Stock 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 of Common Stock issuable under the Option, Optionee, or her heirs or
legatees receiving such shares of Common Stock, shall deliver to Grantor a
representation in writing, that such shares of Common Stock 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 the shares of Common
Stock with its transfer agent and place an appropriate restrictive legend on the
stock certificate(s) evidencing such shares of Common Stock.
7. Restriction on Issuance of Shares.
Grantor shall not be required to issue or deliver any certificate for
shares of its Common Stock purchased upon the exercise of the Option unless (a)
the issuance of such shares of Common Stock has
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been registered with the Securities and Exchange Commission under the Securities
Act, or counsel to Grantor shall have given an opinion 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 of Common Stock, if required, shall have been
given by Nasdaq and/or any national securities exchange on which the Common
Stock of Grantor is at the time of issuance listed.
8. Adjustments Upon Changes in Capitalization
(a) In the event of changes in the outstanding Common Stock of Grantor
by reason of stock dividends, stock splits, recapitalizations, mergers,
consolidations, combinations, or exchanges of shares, separations,
reorganizations, or liquidations, the number of shares of Common Stock as to
which the Option may be exercised shall be correspondingly adjusted by Grantor,
and the Purchase Price shall be adjusted so that the product of the Purchase
Price immediately after such event multiplied by the number of options subject
to this Agreement immediately after such event shall be equal to the product of
the Purchase Price multiplied by the number of shares of Common Stock subject to
this Agreement immediately prior to the occurrence of such event. No adjustment
shall be made with respect to stock dividends or splits which do not exceed 10%
in any fiscal year, cash dividends or the issuance to stockholders of Grantor of
rights to subscribe for additional shares of Common Stock or oher securities.
Anything to the contrary contained herein notwithstanding, the Board of
Directors of Grantor shall have the discretionary authority to take any action
necessary or appropriate to prevent this Option from being disqualified as
"Incentive Stock Options" under the United States income tax laws then in
effect.
(b) Any adjustment in the number of shares of Common Stock 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 higher whole number of shares of Common Stock.
9. Effect of Mergers, Consolidations or Sales of Assets.
In the event of any consolidation or merger of Grantor with or into
another company, or the conveyance of all or substantially all of the assets of
Grantor to another company for solely stock and/or securities, each then
unexercised Option granted hereunder 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 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 Grantor (or
successor entity) shall be made as set forth above with respect to any future
changes in the capitalization of Grantor or its successor entity. In the event
of the proposed dissolution or liquidation of Grantor, or the sale of
substantially all the assets of Grantor for other than stock and/or securities,
any unexercised portion of the Option granted hereunder will automatically
terminate, unless otherwise provided by the Board of Directors of Grantor or any
authorized committee thereof.
10. No Rights in Option Stock.
Optionee shall have no rights as a stockholder in respect of shares of
Common Stock as to which the Option granted hereunder shall not have been
exercised and payment made as herein provided.
11. Effect Upon Employment.
This Agreement does not give Optionee any right to employment by
Grantor.
12. 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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13. Withholding.
Optionee agrees to cooperate with Grantor to take all steps necessary
or appropriate for the withholding of taxes by Grantor under law or regulation
in connection therewith. In the event Optionee does not make the required
withholding payment at the time of exercise, Grantor may make such provisions
and take such steps as it, in its sole discretion, may deem necessary or
appropriate for the withholding of any taxes that Grantor is required by any law
or regulation of any governmental authority, whether federal, state or local,
domestic or foreign, to withhold in connection with the exercise of any Option
granted hereunder, including, but not limited to, (i) the withholding of payment
of all or any portion of such Option until Optionee reimburses Grantor for the
amount Grantor is required to withhold with respect to such taxes, or (ii) the
canceling of any number of shares of Common Stock issuable upon exercise of such
Option in an amount sufficient to reimburse Grantor for the amount it is
required to so withhold, and/or (iii) the selling of any property contingently
credited by Grantor for the purpose of exercising such Option, in order to
withhold or reimburse Grantor for the amount it is required to so withhold.
14. Agreement Subject to Plan.
Notwithstanding anything contained herein to the contrary, this
Agreement is subject to, and shall be construed in accordance with, the terms of
the Plan, and in the event of any inconsistency between the terms hereof and the
terms of the Plan, the terms of the Plan shall govern.
15. Miscellaneous.
This Agreement shall be construed under the laws of the State of Nevada
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AMERICAN VANTAGE COMPANIES
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, Chief Executive Officer
ACCEPTED AND AGREED TO:
/s/ Xxxxxx Xxxx
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Xxxxxx Xxxx
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