Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Amendment No. 1 76 446K
2: EX-2 Plan of Reorganization 12 50K
3: EX-3.1 Restated Certificate of Incorporation 3 18K
4: EX-3.2 By-Laws 25 63K
5: EX-5 Opinion re: Legality 2± 12K
6: EX-10.1 Employment Agreement 15 54K
14: EX-10.11 Shareholder's Agreement 13 44K
15: EX-10.12 Option to Purchase Common Stock 7 39K
16: EX-10.13 Option to Purchase Common Stock 6 34K
17: EX-10.14 Option to Purchase Common Stock 6 35K
7: EX-10.2 Employment Agreement 15 55K
8: EX-10.3 Employment Agreement 15 54K
9: EX-10.4 Private Label Manufacturing Agreement 32 101K
10: EX-10.5 Distributorship Agreement 18 60K
11: EX-10.6 Lease Agreement 28 129K
12: EX-10.7 Agreement of Lease 16 50K
13: EX-10.8 Agreement 5 18K
18: EX-11.1 Pro Forma Net Income Per Share 1 9K
19: EX-11.2 Supplemental Pro Forma Net Income Per Share 1 10K
20: EX-23.1 Consent of Independent Accountants 1 8K
21: EX-23.2 Consent of Independent Accountants 1 8K
22: EX-27 Financial Data Schedule 1 10K
EX-10.12 — Option to Purchase Common Stock
| EX-10.12 | 1st Page of 7 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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THIS OPTION HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND THIS OPTION MAY NOT BE SOLD, ENCUMBERED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR, IF AN EXEMPTION
SHALL BE APPLICABLE, THE HOLDER SHALL HAVE DELIVERED AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. THIS OPTION
AND THE SHARES ISSUABLE UPON ITS EXERCISE ARE SUBJECT TO THE TERMS OF THAT
CERTAIN SHAREHOLDERS AGREEMENT AND IRREVOCABLE PROXY DATED AS OF JANUARY 1,
1996, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY.
JANUARY 1, 1996 OPTION TO PURCHASE COMMON STOCK
OF
HOLT'S CIGAR CO. or SUCCESSOR
This is to certify that, FOR VALUE RECEIVED (including, without limitation
the execution of the Shareholders Agreement in form and content attached
hereto), MICHAEL PITKOW (hereinafter referred to as the "Holder") is hereby
granted an option to purchase, subject to the provisions of this correspondence,
from the undersigned FIVE (5.00) PERCENT of the common stock of the Company
(hereinafter referred to as the "Common Stock") at any time and from time to
time, subject to the vesting provisions described below, for a price calculated
based upon a TWO MILLION ($2,000,000) DOLLAR valuation of the Company as of the
date of this Option. In the event that the Company merges, consolidates,
or combines with: (a) Ashton Holdings, Inc.; (b) Ashton Distributors, Inc.
and/or (c) any entity in or with respect to which Carlos A. Fuente, Carlos P.
Fuente and/or Cynthia Suarez Fuente (and/or members of their respective
immediate family's) are principals (a "Merger" and "Merged Entity",
respectively), then, in such event, this Option shall be for then purchase of up
to FIVE (5.00) PERCENT of each such entity, and the exercise price shall be
allocated pursuant to mutual agreement, or if not, then pursuant to a binding
arbitration conducted pursuant to the rules for Commercial Arbitration
promulgated by the American Arbitration Association then in effect. Thus, the
Option Price of the Common Stock would be ONE HUNDRED THOUSAND ($100,000)
DOLLARS for the exercise of the five percent option for the Company and/or the
Merged Entity without regard to any dilution of the value of Holt's due to any
such prospective business transaction. In all other events, including
acquisitions or mergers of entities not classified as a Merger above these
Options, and the rights relating to the shares of Common Stock issuable upon
exercise, shall be subject to dilution in the same manner as the holders of the
remaining equity and rights to equity in the Company or a Merged Entity. The
shares of Common Stock deliverable upon the exercise of this Option described
above are sometimes hereinafter referred to as the "Option Shares". The exercise
price for the purchase of the Option Shares as described above is sometimes
hereinafter referred to as the "Exercise Price".
1. Exercise, Vesting and Termination of Option. (a) This Option, which may
be transferred or assigned subject to the provisions of the Securities Act of
1933, as amended, shall vest TWENTY (20%) PERCENT on each January 1, commencing
January 1, 1997, except that this Option shall immediately and automatically
become fully vested upon the first to occur of any of the following events: (1)
the death or permanent disability of Robert Levin; (2) upon any sale or transfer
of common stock of the Company such that Robert Levin does not own fifty (50%)
percent of the Company's or a Merged Entity's Common Stock; (3) the death or
permanent disability of Michael Pitkow; or (4) upon the declaration of
effectiveness of a registration statement filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, for the sale of the
Company's common stock to the public in an initial public offering.
(b) This Option, subject to vesting as described above, may be exercised in
whole but not in part, from time to time on or after the date hereof until
December 31, 2005.
(c) Notwithstanding the foregoing, if Holders's employment with the Company
and any Merged Entity is terminated for any reason other than for death or
disability, this Option shall expire on the date of termination of employment;
provided that the Board of Directors of the Company or any Merged Entity may, in
its sole discretion, by written notice given to Holder, permit Holder to
exercise the Stock Option during a period ending on the earlier of: (i) ninety
(90) days after such termination of employment; or (ii) the date the Option
expires in accordance with its terms. During such periods, this Option may be
exercised by Holder with respect to the same number of shares of Common Stock,
in the same manner, and to the same extent, which the Holder could have
exercised on the date of termination, and this Option shall be cancelled with
respect to all remaining shares of Common Stock.
(d) If Holder's employment with the Company and any subsidiaries is
terminated due to his disability or death, this Option may be exercised by the
Holder with respect to the same number of shares of Common Stock, in the same
manner, and to the same extent as if Holder had continued employment for the
twelve (12) month period after his termination of employment and this Option
shall be cancelled with respect to all remaining shares of Common Stock;
provided that in the event Holder shall die at a time when this Option, or a
portion thereof, is exercisable by him, the Stock Option shall be exercisable in
whole or in part during the applicable period set forth herein by legatee or
legatees of the Holder under Holder's will, or by his executors, personal
representatives or distribute.
(e) Upon receipt by the Company of this Option at its offices, or by the
stock transfer agent of the Company at its offices, in proper form for exercise,
the Holder shall be deemed to be the Holder of record of the shares of Common
Stock issuable upon such exercise notwithstanding that the stock transfer books
of the Company shall then be closed or that the certificates representing such
shares of Common Stock shall not then be actually deliverable to the Holder.
Upon the exercise in whole of this Option, the Company shall issue, or shall
cause the stock transfer agent to issue certificates for the total number of
shares of Common Stock purchased, in such names and denominations as are
required by the Holder, and the Company shall, or shall direct the stock
transfer agent to deliver such certificates to or in accordance with the written
instructions of the Holder.
2. Reservation of Shares. The Company hereby agrees that at all times
during the term of this Option, there shall be reserved for issuance and/or
delivery upon the exercise hereof such number of shares of its Common Stock as
may be required for issuance and delivery upon the exercise in full of this
Option.
3. Exchange, Transfer, Assignment or Loss of Option. This Option is
exchangeable, without expense, at the option of the Holder, upon presentation
and surrender hereof to the Company, at its offices, or to the stock transfer
agent, at its offices, for other Options of different denominations entitling
the holder thereof to purchase in the aggregate the same number of shares of
Common Stock purchasable hereunder. This Option is not transferable, except with
respect to the parents, siblings, spouse or children of the original holder, or
trusts for any of their benefit, and is subject to compliance with the
Securities Act of 1933, as amended (hereinafter referred to as the "Act"),
Section 14 of this Option, any applicable state securities or blue-sky laws, and
the Shareholders Agreement. Upon surrender of this Option to the Company at its
offices, or
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to the stock transfer agent, if any, at its offices, together with the
Assignment Form annexed hereto duly executed and funds aufficient to pay any
transfer tax, the Company shall, without further charge or costs, execute and
deliver a new Option in the name of the permitted assignee named in the
Assignment Form, and this Option shall promptly be canceled. This Option may be
divided or combined with other Options which carry the same rights upon
presentation hereof at the offices of the Company, or at the offices of the
stock transfer agent, if any, together with a written notice specifying the
names and denominations in which new Options are to be issued, and signed by the
holder thereof. The term "Option", as used herein includes any Options into
which this Option may be divided or exchanged. Upon receipt by the Company of
evidence satisfactory to it of the loss, theft, destruction or mutilation of
this Option, and (in the case of loss, theft or destruction) of reasonably
satisfactory indemnification, and upon surrender and cancellation of this
Option, if mutilated, the Company will execute and deliver a new Option of like
tenor and date. Any such new Option executed and delivered shall constitute an
additional contractual obligation on the part of the Company, whether or not
this Option is lost, stolen, destroyed or mutilated, and shall be at any time
enforceable by anyone.
4. Rights of the Holder. The Holder shall not, by virtue hereof, be
entitled to any rights of a stockholder in the Company, either at law or in
equity, and the rights of the Holder hereunder are limited to those expressed in
this Option. Notwithstanding anything contained in this Option to the contrary,
this limitation shall not in any manner limit or affect any rights, benefits or
entitlements of the Holder as may be set forth in the Shareholders Agreement,
further notwithstanding that this Option has not yet been exercised in any part.
5. Covenants of the Company. The Company hereby covenants that: (a) it will
take no corporate action the effect of which would be to render the par value of
the Option Shares issuable hereunder greater than the Exercise Price; and (b)
such Option Shares as may be issued pursuant to the exercise of this Option
will, upon issuance, be duly and validly issued, fully paid and nonassessable
and free from all liens, charges and encumbrances with respect to the issuance
thereof.
6. Registration Rights. If (but without obligation to do so) the Company
proposes to register any of its stock or other securities in connection with a
public offering, the Company shall, each such time, promptly give the Holder
hereof written notice of such registration and the Company hereby agrees to
grant to the Holder the right to cause the Option Shares or the shares of Common
Stock which may be issuable pursuant to this Option, to be included in the
proposed registration. The Company further agrees to sell any Option Shares
which are purchased prior to the effective date of any such offering in the same
manner and upon the same terms and conditions as securities are being sold in
each such registered offering, subject, however, to the right of the Company to
require the holder of this Option or the Option Shares to execute a written
instrument whereby the holder agrees not to sell the Option or the Option Shares
for a reasonable period of time required by the underwriter of such initial
public offering (the "Lock-Up"), and provided the the other holders of the
Company's Common Stock execute similar Lock-Up agreements.
7. Adjustment of Shares Purchasable. The number of shares of the Common
Stock of the Company purchasable hereunder and the Exercise Price per share are
subject to adjustment from time to time as specified in this Option.
8. Recognition of Registered Owner. Prior to the due presentment for
registration of transfer of assignment of this Option, the Company may treat the
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registered owner as the party exclusively entitled to receive notices and
otherwise to exercise the rights and enticements hereunder.
9. Effect of Recapitalization. Subject to the provisions of the first
paragraph of the Option with respect to a Merged Entity or a business
combination between Holt's, Ashton Distributors, Inc., and Ashton Holdings,
Inc., in the event of any other "Dilution Event" defined below, the following
shall apply:
(a) Dilution Event. If at any time, or from time to time, the Company
shall (i) by stock dividend, split, reverse split, reclassification of
shares or otherwise, or changes as a whole of the outstanding Common
Stock into a different number or class of shares; (ii) issue or sell
shares of its Common Stock, including shares held in the Company's
treasury, for a consideration per share less than: (A) the Exercise
Price in effect immediately prior to the issuance or sale of such
shares, or without any consideration; or (B) the fair market value of
such shares as determined by the Company's Board of Directors,
whichever is less; (iii) For an amount of consideration per share
which is less than: (A) the Exercise Price in effect immediately prior
to the issuance or sale of such shares, or without any consideration;
or (B) the fair market value of such shares as determined by the
Company's Board of Directors, whichever is less, issue Options,
warrants or option agreements convertible into or exchangeable or
exercisable for shares of Common Stock (or for other securities which
are themselves convertible into or exercisable or exchangeable for
shares of Common Stock or such other securities), in whole or in part,
whether or not such subscription, conversion, exercise or exchange is
conditioned upon the payment of consideration or the occurrence of any
contingent or non-contingent future event, a "Dilution Event" shall
have occurred.
(b) Exercise Price and Share Adjustment. (i) Exercise Price Adjustment.
Upon, and at the time of any Dilution event, and thereafter upon and
at the time of each further Dilution Event, the Exercise Price in
effect immediately prior to each such Dilution event shall be changed
to a price determined by the formula {X/Y}, where "X" equals the sum
of (A) the total number of shares of Common Stock outstanding
immediately prior to such Dilution event multiplied by the Exercise
Price in effect immediately prior to such Dilution event, plus (B) the
consideration, if any, received by the Company upon such sale,
issuance, dividend, split or reclassification; and where "Y" equals
the total number of shares of Common Stock outstanding immediately
after such Dilution Event. Solely for the purposes of this Section 9
and Section 10, below, the number of shares of Common Stock
outstanding at any time shall include the aggregate number of shares
issued or issuable (subject to readjustment upon the actual issuance
thereof) upon the exercise in full of option, rights, Options and upon
conversion, exchange or exercise of convertible or exchangeable
securities, but shall not include shares held in the Company's
treasury.
(ii) Number of Purchasable Shares Adjustment. Upon each
adjustment of the Exercise Price pursuant to Section 9(b)(i), the
total number of shares of Common Stock purchasable hereunder shall be
the number of shares purchasable immediately prior to each such
Dilution event multiplied by that certain fraction, the numerator of
which shall be the Exercise Price in effect immediately prior to such
Dilution Event, and the
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denominator of which shall be the Exercise Price in effect immediately
after such Dilution Event.
(iii) Effective Date and Reissued Options. In respect of any
adjustment or change in the Exercise Price or the number of shares
purchasable hereunder, any substituted, changed, reissued or partial
form of this Option thereafter issued shall express the Exercise Price
and the number of shares of Common Stock purchasable thereunder as
determined by this Section 9. In the case of the issuance of
additional shares of Common Stock as a dividend, the aggregate number
of shares of the Common Stock issued in payment of such dividend shall
be deemed to have been issued at the close of business on the record
date fixed for such for the determination of the shareholders entitled
to such dividend, and shall be deemed to have been issued without
consideration; provided however, that if the Company, after fixing
such record date, shall legally abandon its plan to so issue Common
Stock as a dividend, no adjustment of Exercise Price and number of
shares of Common Stock purchasable hereunder shall be required by
reason of the fixing of such record date.
(iv) Definitions for use in Calculations. Solely for the purposes
of this Section 9 and Section 10, below, the number of shares of
Common Stock outstanding at any time shall include the aggregate
number of shares issued or issuable (subject to readjustment upon the
actual issuance thereof) upon the exercise in full of option, rights,
Options and upon conversion, exchange or exercise of convertible or
exchangeable securities, but shall not include shares held in the
Company's treasury. Solely for the purposes of this Section 9 and
Section 10, below, consideration paid or payable for any security
shall be an amount equal to the result of the formula {A/B}, where "A"
equals the sum of the original price paid or payable per share or unit
of such security upon the issuance of each of such securities, if any,
plus, the price or prices paid or payable upon any and all
subscriptions, conversions, exercises or exchanges (or any combination
thereof) necessary for the acquisition of any and all of the Common
Stock underlying such security, and where "B" equals the aggregate
number of shares of Common Stock issuable upon the full subscription,
conversion, exercise or exchange (or combination thereof) of each of
such securities. The expiration or termination of any of the foregoing
rights or entitlements shall cause a like adjustment in the formula
set forth in the foregoing sentence. No adjustments under this Section
9 shall be made in the event of an exercise of the rights, or
termination in whole or in part, of this Option.
10. Effect of Merger. If at any time or from time to time while this Option
is outstanding in whole or in part, the Company effects any consolidation or
merger with any other corporation or entity (except with respect to a Merger, in
which event this Option shall be governed by the terms of the first paragraph of
this document), the Holder shall thereafter be enticed upon exercise to
purchase, with respect to each share of Common Stock purchasable hereunder
immediately before such consolidation or merger becomes effective, the
securities or other consideration to which a holder of one (1) share of Common
Stock is entitled to in such consolidation or merger without any change in or
payment in addition to the Exercise Price in effect immediately prior to any
such merger or consolidation. The Company shall take any necessary steps in
connection with any consolidation or merger to assure that all the provisions of
this Option shall thereafter be applicable to any securities or other
consideration so deliverable upon the exercise of this
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Option. The Company shall not consolidate or merge unless, prior to
consummation, the successor corporation (if other than the Company) assumes the
obligations of this Section 10 by written instrument executed and mailed to the
registered owner at the address of the owner on the books of the Company. A sale
or lease of all or substantially all of the assets of the Company for a
consideration (apart from the assumption of obligations) consisting primarily of
securities is deemed a consolidation or merger for the purposes of this
Section 10.
11. Notice of Adjustment. On the happening of any event requiring an
adjustment of the Exercise Price or the number of shares purchasable hereunder,
the Company shall forthwith give written notice to the registered owner stating
the adjusted Exercise Price and/or the adjusted number and kind of securities or
other property purchasable hereunder resulting from the event, and setting forth
in reasonable detail the method of calculation and the facts upon which the
calculations were based. The Board of Directors of the Company, acting in good
faith, shall determine such calculations.
12. Notice and Effect of Dissolution. In the event of a voluntary or
involuntary dissolution, liquidation or winding up of the Company (other than in
connection with a consolidation or merger contemplated in Section 10, above), is
at any time proposed, the Company shall give at least thirty (30) days prior
written notice to the registered owner of this Option. Such notice shall set
forth: (a) the record date (which shall be at least thirty (30) days after the
giving of notice) as of which holders of Common Shares will be entitled to
receive distributions as a result of the transaction; (b) a reasonably detailed
description of the transaction; (c) a reasonably detailed description of the
distributions to be made to the holders of the Common Shares as a result of the
transaction; and (e) an estimate of the fair value of the distributions. On the
date of the transaction, if it actually occurs, this Option and all rights
hereunder shall terminate.
13. Notices. Notices shall be given by postage pre-paid registered mail,
return receipt requested, and shall be addressed to the address of the
registered owner on the books of the Company. Notices shall be deemed given
three (3) days after deposit of the foregoing with the United States Postal
Service.
14. Compliance with the Act. Unless a current registration statement under
the Act shall be in effect with respect to the securities to be issued upon the
exercise of this Option, the Holder hereof, by accepting this Option, covenants
and agrees that at the time of exercise hereof, such Holder shall deliver to the
Company a written statement that the securities acquired by the Holder upon the
exercise of the Option are for the account of the Holder for investment
purposes, and are not acquired with a view to, or for sale in connection with
any public distribution thereof.
Attest: Holt's Cigar Co.
By: /s/ Robert Levin
----------------------------- ---------------------------
, Secretary Robert Levin, President
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By execution below and acceptance of this Option Agreement from Holt's Cigar
Company, Michael Pitkow hereby acknowledges and agrees that this Option
Agreement, together with the Employment Agreement between Michael Pitkow and
Holt's Cigar Company satisfies in full any and all promises, commitments,
obligations, duties, liabilities and agreements made between Michael Pitkow and
all Holt's Cigar Company, Ashton Distributors, Inc., Ashton Holdings, Inc. and
Robert Levin (the "Holt's Entities") with respect to any and all compensation of
nature or type whatsoever to which Michael Pitkow may be entitled as a result of
his prior, present and future efforts on behalf of the Holt's Entities, except
solely for his continued right to the compensation set forth in the said
Employment Agreement, and Michael Pitkow hereby releases and waives any and all
other claims to compensation from or participation in any of the Holt's
Entities, and acknowledges that he has been advised to seek the advice of
independent counsel prior to the execution hereof.
Witness: /s/ Michael Pitkow
------------------------- -----------------------
Michael Pitkow
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Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 12/31/05 | | 2 | | | | | None on these Dates |
| | 11/5/97 |
| Filed on: | | 11/3/97 |
| | 1/1/97 | | 1 |
| | 1/1/96 | | 1 |
| List all Filings |
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