Exhibit 10.19
EMPLOYMENT AGREEMENT
This AGREEMENT (this "Agreement"), dated as of April 1, 2002, is by
and between AMERICAN VANTAGE COMPANIES, a Nevada corporation having its
principal offices at 0000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000
(the "Company"), and XXXXXX X. XXXXXXXXX, an individual currently residing at
0000 Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000 (individually, the "Executive" and,
together with the Company, the "parties).
RECITALS
WHEREAS, the Executive and American Casino Enterprises, Inc., the
former name of the Company, had originally entered into an Employment
Agreement dated March 15, 1995, as amended as of July 20, 1995
(collectively, the "Prior Agreement");
WHEREAS, the Prior Agreement has a term expiring on March 31,
2002, subject to extension for an unlimited number of additional one year
terms unless either party gives specified notice to the other party prior
to the commencement of such additional term;
WHEREAS, the Executive has been employed by the Company for more
than twenty years and is currently the Company's Chief Executive Officer
and President;
WHEREAS, the Executive possesses an intimate knowledge of the
business and affairs of the Company, its policies, methods, personnel and
problems;
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes the Executive's contribution as Chief Executive Officer and
President to the growth and success of the Company has been substantial and
desires to assure the Company of the Executive's continued employment in an
executive capacity and to compensate the Executive therefor;
WHEREAS, the Executive is desirous of committing himself to serve
the Company on the terms herein provided;
WHEREAS, the Company has entered into negotiations with Crave
Entertainment Group, Inc., a California corporation ("Crave") and the
shareholders of Crave (the "Crave Shareholders") with respect to a
transaction (the "Crave Transaction") that could result in a "change in
control of the Company" (as such term is defined in this Agreement); and
WHEREAS, the parties believe it imperative that the Company and
the Board be able to rely upon Executive, if required, to assess any
proposal or transaction which would cause a change in control of the
Company, including, but not limited to, the Crave Transaction, and advise
management and the Board as to whether such proposal would be in the best
interest of the Company and its stockholders free from concern that his
recommendations may adversely affect his continued employment.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, the
parties hereto agree as follows:
1. Termination of Prior Agreement. This Agreement supercedes the Prior
Agreement in all respects and the Prior Agreement is hereby terminated in its
entirety and hereby made null and void with no party to the Prior Agreement
having any rights, obligations or liabilities under the Prior Agreement.
2. Employment; Term.
(a) The Company hereby agrees to continue to employ the Executive as
Chief Executive Officer and President of the Company, and the Executive hereby
agrees to continue to serve the Company, on the terms and conditions set forth
herein.
(b) The term of this Agreement shall begin on the date hereof and shall end
on September 30, 2002 (the "Initial Term").
(c) Notwithstanding any thing to the contrary contained in subsection 5(b),
the Company shall cause to be retained a compensation consultant (the
"Compensation Consultant") to render to the Compensation Committee of the Board
(the "Committee"), a written report (the "Consultant's Report"), as to whether
the compensation to be received by Executive under this Agreement, including
payments to be made pursuant to Section 8, is competitive with compensation (the
"Comparable Compensation") provided to senior executive officers having similar
duties to that of the Executive by employees (i) located in the metropolitan
area in which the Principal Office (as such term is defined in this Agreement)
is located and (ii) having the financial conditions and results of operations
similar to that of the Company. If the Compensation Consultant determines that
Executive's compensation under this Agreement exceeds Comparable Compensation,
the parties shall negotiate in good faith an amendment (the "Amendment") to this
Agreement to provide for (x) a reduction in Executive's compensation to a level
that would not exceed the Comparable Compensation (and giving effect to the fact
that Executive's compensation actually paid to Executive under this Agreement
exceeded the Comparable Compensation for periods prior to the effective date of
such amendment to this Agreement), (y) an extension of the term of this
Agreement for an additional thirty month period to expire on March 31, 2005 (the
"Extended Term") and (z) such other terms and provisions as the parties may
mutually agree. In the event that, on or prior to the expiration of a 30 day
period commencing on the date the Consultant renders the Consultant's Report,
the parties fail to reach an agreement as to the form, term and provisions of
the Amendment and/or Executive shall fail to execute a definitive written
agreement reflecting such form, terms and provisions of the Amendment, this
Agreement automatically shall terminate and neither of the parties shall have
any further rights, obligations and/or liabilities under this Agreement, except
for compensation earned through the date of such automatic termination and not
paid to Executive. In the event the Compensation Consultant determines that
Executive's compensation under this Agreement is substantially similar to or
less than the Comparable Compensation and the Committee, acting in good faith,
concurs with such determination, the term of this Agreement automatically shall
be extended for the Extended Term. For the purposes of this Agreement, the
phrase "Term" shall mean either the Initial Term, if no extension (an "Agreement
Extension") has occurred in accordance with this subsection 2(c), or the
Extended Term, if the Agreement Extension has occurred.
3. Position and Duties. The Executive shall serve as the Chief Executive
Officer and President of the Company, reporting only to the Board, and shall
have supervision and control over, and responsibility for, the general
management and operation of the Company, and shall have such other powers and
duties as may from time to time be prescribed by the Board, provided that such
duties are consistent with his present duties and with the Executive's position
as the senior executive officer in charge of the general management of the
Company. The Executive is currently serving as the Chairman of the Board and as
a Director on the Board. The Executive shall devote his full time and efforts
to the business and affairs of the Company.
4. Place of Performance. In connection with the Executive's employment by the
Company, the Executive shall be based at the Company's principal executive
offices at 0000 Xxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 ("Principal
Office") and shall not be required to be absent therefrom on travel status or
otherwise more than 90 days in any calendar year. The Executive shall not be
required, without the Executive's consent, to permanently relocate to any other
location that would cause the Executive to be absent from Las Vegas, Nevada, for
more than 90 days in any calendar year.
5. Compensation.
(a) Base Salary. The Executive shall receive a minimum annual base salary
("Base Salary") at the rate of at least $240,000 per annum, subject to
withholding and other deductions as required by law or otherwise authorized in
writing by Executive. During the Term, the Base Salary shall be increased on an
annual basis, effective as of January 1st of each calendar year, based upon no
less than the greater of: (i) the proportional annual increase provided to any
of the Company's other salaried senior executives and (ii) the proportional
increase in the Annual Average All Items Index of the U.S. City Average Consumer
Price Index for All Urban Consumers ("CPI-U") as published by the U.S. Bureau of
Labor Statistics, during the most recent published twelve month period prior to
the effective date of any such increase.
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(b) Discretional Increases in Base Salary. During the Term, the
Board, through its Compensation Committee, shall determine in good faith using
its reasonable discretion, the annual increase to the Base Salary, to be
effective as of January 1st of the following calendar year ("Salary Review").
The Compensation Committee shall review the Executive's performance, including,
but not limited to, the general financial condition of the Company and any
increases in shareholders' equity and compensation received by similarly
situated executives in similarly situated companies located in the Las Vegas
area. The Executive's annual salary will be increased, but never decreased, to
correspond to any increases in Base Salary as a result of the Salary Review as
promptly as practicable, but in any event no later than 30 days after the Salary
Review. Any such increase in Base Salary or other compensation granted pursuant
to this subsection 5(b) shall in no way limit or reduce any other obligation of
the Company under this Agreement and, once established at an increased specified
rate, the Base Salary shall not thereafter be reduced.
(c) Incentive Compensation.
(i) In addition to Base Salary, Executive shall be entitled
to receive such incentive compensation ("Incentive Award") as the Board may
determine pursuant to the Company's existing employee stock option plan(s)
or any similar plan adopted or to be adopted by the Company (the "Plan")
during the Term of this Agreement, and any other Company incentive or bonus
compensation programs in accordance with the Company's then practice. The
Board, through its Compensation Committee, shall, in good faith, determine
in its reasonable discretion any Incentive Award. For any period less than
a full calendar year during the term of this Agreement, the Executive shall
receive an amount equal to the prorated portion of the incentive
compensation payable pursuant to the Incentive Award. The amount of any
additional compensation payable to the Executive pursuant to this
subsection 5(c) in respect of any full calendar year or part thereof will
be determined as promptly as practicable after the determination of the
Company's earnings for the year, but in any event such payment will be made
not later than 30 days after the Company's receipt of consolidated audited
financial statements. Simultaneously with the payment of such additional
compensation, the Company will deliver to the Executive a report of its
principal financial or accounting officer, including the Company's
consolidated statement of earnings for such calendar year and showing in
reasonable detail the computation of such compensation pursuant to the
Incentive Award. If, within 30 days of receipt of such additional
compensation and report, the Executive shall notify the Company that he
disagrees with the report, the dispute shall be submitted for resolution to
the Company's independent public accountants whose determination shall be
made promptly after submission (in a report in appropriate detail delivered
promptly to the Company and the Executive) and shall be binding upon all
parties hereto.
For the purposes of this Agreement, "Total Compensation" is
defined as the sum of the Executive's Base Salary and Incentive Award.
(ii) As compensation to the Executive for increases in CPI
-- U not paid to the Executive for the calendar years ended December 31,
2000 and 2001, the Company shall grant to the Executive a ten-year stock
option to purchase one share of the Company's common stock for each dollar
of increase not paid to the Executive, and the exercise price of such stock
option shall be the fair market value on the date of this Agreement.
(d) Expenses. During the term of his employment hereunder, the
Executive shall be entitled to receive prompt reimbursement for all reasonable
expenses incurred by him in performing services hereunder, provided that the
Executive properly accounts therefor in accordance with Company policy.
The Executive shall be reimbursed for his personal legal and financial
consulting fees subject to a maximum for three percent (3%) of the prior
calendar year's Base Salary.
(e) Fringe Benefits. The executive shall be entitled to continue
to participate in or receive benefits under all the Company's employee benefits
plans and arrangements in effect on the date hereof or plans or arrangements
providing the Executive with at least equivalent benefits thereunder. The
Company shall pay all costs,
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expenses and charges for the Executive's health (including dental if it becomes
available to the Company's employees), life insurance policies (as hereinafter
defined) and D & O (as hereinafter defined). The Company agrees that, without
the Executive's consent, it will not make any changes in such plans or
arrangements which would adversely affect the Executive's rights or benefits
thereunder. The Executive shall be entitled to participate in or receive
benefits under any retirement plan, profit-sharing plan, savings plan, stock
option plan, life insurance, Directors and Officer's Liability Indemnification
Insurance Policy covering liabilities which may have accrued or that will be
incurred by the performance of his services on behalf of the Company, currently
with limits of $3,000,000 per occurrence, and $3,000,000 per incidence overall
coverage ("D & O"), health-and-accident plan or an arrangement made available
by the Company in the future to its executives and key management employees,
subject to and on a basis consistent with the terms, conditions and overall
administration of such plans and arrangements. Nothing paid to the Executive
under any plan or arrangement in subsections 5(d) - (i) presently in effect or
made available in the future (other than under the Incentive Compensation
referred in subsection 5(b) hereof), shall be deemed to be in lieu of
compensation to the Executive hereunder.
(f) Vacations. The Executive shall be entitled to the number of paid
vacation days in each calendar year determined by the Company from time to time
for its senior executive officers, but not less than four weeks in any calendar
year (prorated in any calendar year during which the Executive is employed
hereunder for less than the entire such year in accordance with the number of
days in such calendar year during which he is so employed). The Executive shall
not take more than three consecutive weeks of vacation during any calendar year.
The Executive shall also be entitled to all paid holidays given by the Company
to its executive officers.
(g) Life Insurance. The Company shall maintain, at its expense and at no
cost to the Executive, a term life insurance policy on the life of the
Executive providing for a minimum death benefit of Two Million Dollars
($2,000,000)("Life Insurance"). The Executive shall have the right to designate
the beneficiary of the Life Insurance.
(h) Automobile. The Company shall pay all normal expenses relating to the
use of the Executive's personal automobile for Company purposes, including but
not limited to, all repairs, maintenance, insurance, licensing, gas, oil and
taxes associated with the operation and ownership of such automobile.
(i) Perquisites. The Executive shall be entitled to continue to receive
the fringe benefits appertaining to the offices of director, Chairman of the
Board, Chief Executive Officer and President of the Company in accordance with
present practice, except that, so long as Executive remains an executive or
senior officer of the Company, Executive shall not be entitled to a fee with
respect to the attendance at any meeting of the Board or any committee of the
Board.
6. Termination.
(a) Death. The Executive's employment hereunder shall terminate upon his
death.
(b) Cause. The Company may terminate the Executive's employment hereunder
for Cause. For the purposes of this Agreement, the Company shall have "Cause"
to terminate the Executive's employment hereunder upon (i) the willful failure
by the Executive to substantially perform his duties hereunder, other than any
such failure resulting from the Executive's incapacity due to physical or
mental illness, or (ii) the Executive engaging in the commission of fraud,
embezzlement or theft against the Company. For purposes of this paragraph, no
act, or failure to act, on the Executive's part shall be considered "willful"
unless done, or omitted to be done, by him not in good faith and without belief
that his action or omission was in the best interest of the Company.
Notwithstanding the foregoing, the Executive shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the
Executive: (x) a copy of a resolution, duly adopted by the affirmative vote of
not less than a majority of the entire membership of the Board (excluding the
Executive) at a meeting of the Board called and held for the purpose (after
reasonable notice to the Executive and an opportunity for him, together with
his counsel, to be heard before the Board), finding that in the good faith
opinion of the Board, the Executive was guilty of conduct set forth above in
clause (i) or (ii) of the preceding sentence, and specifying the particulars
thereof in detail, (y) an affidavit sworn to by the Secretary of the Company
stating that such resolution was in fact adopted by the affirmative vote of not
less than a majority of the entire membership of the Board (excluding the
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Executive) and that the Executive was found guilty of conduct set forth in
clause (i) or (ii) of the preceding sentence specifying the particulars thereof
in detail, and (z) a report with respect to such conduct from a firm of
independent attorneys (other than general counsel for the Company) selected by a
majority of the entire Board (excluding the Executive) and reasonably acceptable
to the Executive, to the effect that the conduct of the Executive has been such
as to permit the Board to terminate the Executive's employment for Cause within
the meaning of the provisions of this subsection 6(b).
(c) Termination by the Executive. The Executive may terminate his
employment hereunder (i) for Good Reason (as hereinafter defined) or (ii) if his
health should become impaired to an extent that makes the continued performance
of his duties hereunder hazardous to his physical or mental health or his life.
For purposes of this Agreement, "Good Reason" shall mean (A) a change in control
of the Company (as defined below), (B) any assignment to the Executive of any
duties significantly different than those contemplated by, or any limitation of
the powers of the Executive in any respect not contemplated by, Section 3
hereof, (C) any removal of the Executive from or any failure to re-elect the
Executive to any of the positions indicated in Section 3 hereof, except in
connection with termination of the Executive's employment for Cause, (D) a
reduction in the Executive's Total Compensation, or a material reduction in the
Executive's fringe benefits or any other material failure by the Company to
comply with Section 5 hereof, (E) failure by the Company to comply with Section
4 hereof in any significant respect, (F) failure of the Company to obtain the
assumption of this Agreement by any successor as contemplated in Section 13
hereof, (G) a relocation of the Company's Principal Office without the
Executive's consent, (H) the Company's failure to provide Salary Review and
benefit increases as provided to other salaried executives of the Company as
specified in Section 5 hereof, or (I) the Executive remains in employment with
the Company through a change in control of the Company and then voluntarily
resigns or otherwise voluntarily terminates his employment upon written notice
of termination by Executive to the Company at any time prior to or during the
two years following a change in control of the Company. For purposes of this
Agreement a "change in control of the Company" shall be deemed to have occurred
if: (i) a third Person becomes the beneficial owner (as such term is defined in
Rule 13d-3 promulgated pursuant to the Securities Exchange Act of 1934, as
amended (the "Act")) of securities of the Company having twenty percent (20%) or
more of the combined voting power of all classes of the Company's securities
entitled to vote in an election of Directors of the Company; (ii) there occurs a
tender offer or exchange offer by, a merger or other business combination with,
or a sale of substantially all of the assets of the Company to any third Person;
(iii) a stockholder or stockholders holding five percent (5%) or more of the
outstanding common stock of the Company proposes a reconstitution of, additions
to or deletions from the Board and as a result, obtains a majority thereof; or
(iv) during any period of two consecutive years during the term of this
Agreement, individuals who at the beginning of such period constitute the Board
cease for any reason other than death or disability to constitute at least a
majority thereof.
(d) Notice of Termination. Any termination by the Company pursuant to
subsection 6(b) or by the Executive pursuant to subsection 6(c) shall be
communicated by writing a Notice of Termination to the other party hereto. For
purposes of this Agreement, a "Notice of Termination" shall mean a notice which
shall indicate the specific termination provision in this Agreement relied upon
and shall set forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive's employment under the
provision so indicated.
(e) Termination Date. For purposes of this Agreement, the term
"Termination Date" shall mean (i) if the Executive's employment is terminated by
his death, the date of his death, (ii) if the Executive's employment is
terminated pursuant to subsection 6(b), the date specified in the Notice of
Termination, and (iii) if the Executive's employment is terminated for any other
reason, the date on which a Notice of Termination is given; provided that if
within 60 days after any Notice of Termination is given the party receiving such
Notice of Termination notifies the other party that a dispute exists concerning
the termination, the Termination Date shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, by a
binding and final arbitration award or by a final judgment, order or decree of a
court of competent jurisdiction (the time for appeal therefrom having expired
and no appeal having been perfected).
7. Disability. If as a result of the Executive's incapacity due to physical or
mental illness ("Disability"), the Executive shall have been absent from his
duties hereunder on a full time basis for twelve consecutive months, and within
30 days after the Company notifies the Executive in writing that it intends to
replace him, the Executive shall not have returned to the performance of his
duties hereunder on a full time basis, the Company may replace the
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Executive without breaching this Agreement. Such disability will not act to
terminate the Executive's employment under this Agreement, unless the Company
provides notice to replace the Executive as provided herein.
If disabled within the meaning of this paragraph, the Company shall
maintain in full force and effect, for the continued benefit of the Executive
for the Term, including any extension thereof, all employee benefit plans and
programs in which the Executive was entitled to participate immediately prior to
the replacement date provided that the Executive's continued participation is
possible under the general terms and provisions of such plans and programs. In
the event that the Executive's participation in any such plan or program is
barred as a result of the Disability, the Executive shall be entitled to receive
an amount equal to the annual contributions, payment, credits or allocations
which would have been made by the Company to him, to his account or on his
behalf under such plans and programs from which his continued participation is
barred.
If the parties hereto disagree as to the determination of the
Executive's Disability, the term Disability (or Disabled) shall mean the
Executive's inability, either mentally or physically, to perform the necessary
functions of the Executive's position of employment with the Company, and such
Disability shall be deemed to exist if it persists for a period of six
consecutive months unless the parties hereto agree otherwise. If the Company
shall find on the basis of medical evidence reasonably satisfactory to it that
the Executive is so totally mentally or physically disabled as to be unable to
engage in further employment by the Company and that Disability shall be
determined to be such that it will cause, or actually does cause or has caused,
the Executive to be absent from work for a period in excess of six months in any
one twelve-month period.
8. Compensation Upon Termination, Death or During Disability.
(a) If the Executive's employment shall be terminated by reason of
his death, the Company shall pay to such person as the Executive shall designate
in a notice filed with the Company, or, if no such person shall be designated,
to the Executive's estate as a lump sum death benefit, an amount equal to the
sum of (i) the annualized average of the Base Salary paid to Executive for the
five calendar years immediately preceding Executive's death plus (ii) the
annualized average of the Incentive Awards paid to the Executive for the five
calendar years immediately preceding the Executive's death pursuant to
subsection 5(b) hereof. Such amount shall be exclusive of and in addition to any
payments the Executive's widow, beneficiaries or estate may be entitled to
receive pursuant to any pension or employee benefit plan or life insurance
policy or other compensation provided for herein or presently maintained by the
Company.
(b) During any period that the Executive fails to perform his duties
hereunder as a result of a Disability, the Executive shall continue to receive
his Total Compensation during the initial waiting period as provided by the
Company's existing or thereafter adopted (during the term of this Agreement)
disability insurance plan. Upon the Executive becoming Disabled, the Executive
shall be paid 100% of the five calendar year average of his Total Compensation
for one year, less payments made by Social Security and less payments made by
the Company's insurance carrier in accordance with the Company's existing
long-term disability plan or, if a long-term disability plan does not exist as
of the execution date hereof, then in accordance with any long-term disability
plan hereinafter adopted by the Company during the Term of this Agreement.
(c) If the Executive's employment shall be terminated for Cause, the
Company shall pay the Executive his full Base Salary through the Termination
Date at the rate in effect at the time Notice of Termination is given and the
Company shall have no further obligations to the Executive under this Agreement.
(d) If during the Term, the Company terminates the Executive's
employment other than for Cause, death or Disability, or the Executive
terminates employment for Good Reason: (i) within 90 days following the
Termination Date, the Company shall pay the Executive an amount equal to (A) the
sum of the annualized total average of the Base Salary and Incentive Awards
granted during the five calendar year period ended immediately prior to the
Termination Date, (B) multiplied by two and ninety-nine one hundredths (2.99);
(ii) within 30 days following the Termination Date, the Company shall pay the
Executive his Total Compensation through the Termination Date to the extent not
yet paid; (iii) within 30 days following the presentment of any legal bills
(including retainer fees) relating to the Executive's enforcement of his rights
under this Agreement, including bills relating to the interpretation of
Executive's rights under this Agreement, the Company shall pay up to $100,000 of
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such bills; and (iv) all outstanding unexercised stock options granted to the
Executive under the Company's stock option plans and/or other Incentive Awards
held or contingently payable to the Executive as of the Termination Date shall
become fully vested and exercisable as of the Termination Date and shall
continue to be exercisable for the life of such option or Incentive Award, as
the case may be.
(e) Unless the Executive is terminated for Cause or the Executive
terminates his employment for other than Good Reason or Disability, the Company
at its sole cost shall maintain in force and effect, for the continued benefit
of the Executive and his family for the Term of this Agreement including any
extension thereof, all employee benefit plans and programs in which the
Executive was entitled to participate immediately prior to the Termination Date
(including specifically but without limitation the benefits which the Executive
would have been entitled to receive pursuant to the Company's pension plan had
his employment continued for the Term provided in Section 1 hereof at the rate
of compensation specified herein), provided that the Executive's continued
participation is possible under the general terms and provisions of such plans
and programs. In the event that the Executive's participation in any such plan
or program is barred as a result of such termination, the Executive shall be
entitled to receive an amount equal to the annual contributions, payments,
credits or allocations which would have been made by the Company to him, to his
account or on his behalf under such plans and programs from which his continued
participation is barred.
(f) Unless the Executive is terminated for Cause or the Executive
terminates his employment for other than Good Reason or Disability, the Company
agrees that: (i) following the Termination Date, the Company shall pay, at its
sole cost and expense, to or on behalf of the Executive all the premiums towards
the provision of health insurance for the Executive and his family for a period
of twelve months commencing on the Termination Date; (ii) the Company shall use
its best efforts to continue the Executive's same coverage under its group
health plan(s) after his Termination Date as he had prior to his Termination
Date; if, despite those efforts, the Company is not permitted to continue the
Executive's coverage under such plan(s), the Company shall pay the amounts
described in subsection 8(f)(i), directly to the Executive annually in advance
of the period of coverage; (iii) subject to subsection 8(f)(ii), upon the
Executive's death, his spouse and family shall be entitled to health insurance
coverage and payments as described in subsection 8(f)(i); (iv) payments provided
pursuant to this Section 8 shall not be construed to be in lieu of, or to
interfere with, the Executive or his spouse's right to conversion privileges
under the Company's group health plan; however, the Company's obligation to
provide continuation coverage (COBRA) to the Executive or his spouse under its
group health plan shall be satisfied to the extent payments are made to the
Executive and his spouse in accordance with this Section 8 for the otherwise
applicable continuation coverage period; (v) if the Executive's termination is
the result of his death or Disability, the benefits provided pursuant to this
Section 8 shall be provided to the Executive's spouse or to the Executive, as
appropriate; and (vi) the Company shall maintain for twelve months commencing on
the Termination Date, each individual life insurance policy owned by the Company
on the life of the Executive, by paying its share of the premium on, and
preventing a lapse of coverage (due to actions solely within the control of the
Company) under.
(g) If the Executive is terminated for any reason except for Cause, on
the Termination Date the Company shall transfer to the Executive any and all
insurance policies on the Executive's life owned by the Company together with
the cash value of the policies on the Termination Date, plus prepaid premiums
accrued thereon. If the Executive's Termination occurs as a result of the
Executive's death or Disability, the benefits provided pursuant to this
subsection 8(g) shall be provided to the Executive's spouse or to the
Executive's estate, as appropriate.
(h) The Executive shall not be required to mitigate the amount of any
payment provided for in this Section 8 by seeking other employment or otherwise,
nor will the amount of damages or severance benefits payable to the Executive
under this Section 8 be reduced by reason of his securing other employment or
for any other reason, unless otherwise provided in this Agreement.
(i) Notwithstanding anything to the contrary contained in this
Agreement, the maximum amount payable to Executive under this Section 8,
together with all other amounts that may be due or payable to Executive under
this Agreement as result of the termination of employment of Executive by the
Corporation, shall be equal to the amount which would otherwise result in an
"excess parachute payment" under section 280G of the Internal Revenue Code of
1986, as amended (the "Code"), or to any successor to said section or the Code,
minus
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$1.00, in each case giving effect to the present value of any future payment
required under this Section 8 or otherwise in this Agreement.
(j) In the event that Executive notifies the Company that Executive
is terminating Executive's employment for Good Reason, the Company shall:
(i) As soon as possible, but in no event later than five
business days after receipt of such notice, shall establish an irrevocable
trust for the purpose of providing funds for the payment of the benefits
payable pursuant to this Section 8, such trust to be a grantor trust
containing provisions which are the same as, or are similar to, the
provisions contained in the model "rabbi trust" set forth in IRS Revenue
Procedure 92-64;
(ii) Pay all costs relating to the establishment and maintenance
of such trust and the investment of funds held in such trust; and
(iii) Make an irrevocable contribution to such trust in an amount
that is sufficient to fund the obligations of the Company under this
Section 8, in the form of an assignment of the funds received by the
Company (including funds received by any subsidiary of the Company) with
respect to (A) the membership interest of the Company (and/or any
subsidiary of the Company) in Border Grill Las Vegas, LLC (the "Border
Grill LLC Proceeds") and (B) the real property described in Schedule A to
this Agreement (the "Real Property Proceeds").
The terms of such trust shall provide for distributions to Executive as follows:
(x) During the first year following the establishment of such
trust, the first $1,000,000 received into such trust representing Border
Grill Proceeds no later than ten business days from the date of receipt of
said funds by such trust;
(y) No later than five business days following the first
anniversary of the establishment of such trust, all Real Property Proceeds
received by such trust during the first year following the establishment of
such trust to the extent that the Border Grill Proceeds are less than
$1,000,000 during the first year following the establishment of such trust;
and
(z) After the first year following the establishment of such
trust, all Border Grill Proceeds and Real Property Proceeds no later than
five business days from date of receipt of said funds by such trust.
9. Restrictive Covenants.
(a) Restrictions. Executive covenants that, except in furtherance
of Executive's duties hereunder and as approved by the Board:
(i) Competitive Activity. During the Restricted Period (as
hereinafter defined), Executive shall not directly or indirectly, own any
interest in, participate or engage in, assist, render any services
(including advisory services) to, become associated with, work for, serve
(in any capacity whatsoever, including, without limitation, as an employee,
consultant, advisor, agent, independent contractor, officer or director) or
otherwise become in any way or manner connected with the ownership,
management, operation, or control of, any business, firm, corporation,
partnership, trust or other business or governmental entity (collectively,
together with any individual, a "Person") that engages in, or assists
others in engaging in or conducting, any business that deals, directly or
indirectly, in products or services similar to or competitive with the
Company's product line or services anywhere in the world that the Company
does business through Executive's last day of employment; provided,
however, that the restrictions set forth in this paragraph 9(a)(i) shall
not be deemed to exclude Executive from acting as director of a corporation
for the benefit of the Company with the consent of the Board; and provided,
further, that the restrictions set forth in this paragraph 9(a)(i) shall
not be deemed to prohibit Executive
8
from owning or acquiring securities issued by any corporation whose
securities are listed on a national securities exchange or are quoted on
Nasdaq or the OTC Bulletin Board, provided that Executive at no time owns,
directly or indirectly, beneficially or otherwise, one (1%) percent or more
of any class of any such corporation's outstanding capital stock.
(ii) Non-Solicitation of Customers. During the Restricted Period,
Executive shall not knowingly provide or solicit to provide to any Person
any goods or services that are competitive with those provided by the
Company or that would be competitive with the goods or services that the
Company has planned to provide. The term "customer" shall mean any Person
to whom the Company has provided goods and services during the last five
years of Executive's employment by the Company.
(iii) Non-Solicitation of Company Personnel. During the Restricted
Period, Executive will not solicit for employment, or attempt to solicit,
directly or by assisting others, any employee of Company with whom
Executive had contact during Executive's employment with the Company. For
the purposes of this paragraph 9(a)(iii), "contact" means any interaction
whatsoever between Executive and the other employee.
(iv) Protected Information. Executive shall not divulge to others, nor
shall Executive use at any time during the Restricted Period or thereafter,
any confidential or trade secret information obtained by Executive during
the course of Executive's employment with the Company, including
information relating to sales, salespersons, sales volume or strategy,
customers, formulas, processes, methods, machines, manufacturers,
compositions, ideas, improvements or inventions belonging to or relating to
the business of the Company, or its subsidiary or affiliated companies.
(v) Non-Disparagement. Executive covenants and agrees that during the
Restricted Period or at any time thereafter, Executive shall not, directly
or indirectly, in public or private, deprecate, impugn, disparage, or make
any remarks that would tend to or be construed to tend to defame the
Company or any of its employees, members of its board of directors or
agents, nor shall Executive assist any other person, firm or company in so
doing.
(b) Definition of "Restricted Period." For purposes of this Agreement, the
term "Restricted Period" shall mean the Term and the period of five years
commencing immediately upon the termination of Executive's employment with the
Company.
(c) Enforcement of Covenants. Executive acknowledges that Executive's
breach of any of the restrictive covenants contained in this Section 9 may cause
irreparable damage to the Company for which remedies at law would be inadequate.
Accordingly, if Executive breaches or threatens to breach any of the provisions
of this Section 9, the Company shall be entitled to appropriate injunctive
relief, including, without limitation, preliminary and permanent injunctions, in
any court of competent jurisdiction, restraining Executive from taking any
action prohibited under this Section 9. This remedy shall be in addition to all
other remedies available to the Company at law or in equity. If any portion of
this Section 9 is adjudicated to be invalid or unenforceable, this Section 9
shall be deemed amended to delete therefrom the portion so adjudicated, such
deletion to apply only with respect to the operation of this Section 9 in the
jurisdiction in which such adjudication is made.
10. Proprietary Property.
(a) Ownership of Proprietary Property. Executive agrees that any and all
inventions, discoveries, investigations, know-how, trade secrets and
developments or improvements in technology (collectively "Inventions") as well
as any and all Proprietary Information (as defined in Section 10(b) below)
created, developed, conceived of or discovered during the Term or any prior
period of Executive's employment with the Company (i) by Executive (solely or
jointly with others) either (A) in the course of Executive's employment or
engagement, on the Company's time or with the Company's materials or facilities,
or (B) relating to any subject matter with which Executive's work for the
Company is or may be concerned or to any business in which the Company or any of
its subsidiaries or affiliated companies is involved, regardless of how or when
Executive shall have created, developed, conceived, or discovered such
Inventions or Proprietary Information (collectively, "Proprietary Property"), or
(ii) by
9
or for the Company, or (iii) by any independent Person and thereafter acquired
by the Company, and which are within Executive's knowledge or possession in the
case of clause (i) of this Section 10(a) or that come into Executive's knowledge
or possession during the Term the Term or any prior period of Executive's
employment with the Company in the case of clauses (ii) or (iii) of this Section
10(a), shall be, if created, developed, conceived of or discovered by Executive,
promptly disclosed to the Company, or shall be, if otherwise developed or
acquired by the Company, received by Executive as an employee, consultant or
retiree of the Company and not in any way for Executive's own benefit. Executive
shall neither have nor obtain any right, title or interest in or to such
Proprietary Property unless and until the Company shall expressly and in writing
waive the rights that it has therein and thereto under the provisions of this
Section 10. With respect to any and all Proprietary Property that is invented,
created, written, developed, furnished or produced by Executive, or suggested by
Executive to the Company, during the Term or any prior period of Executive's
employment with the Company, Executive does hereby agree that all such
Proprietary Property shall be the exclusive property of the Company, and that
Executive shall neither have nor retain any right, title or interest, of any
kind therein and thereto or in and to any results or proceeds therefrom. At any
time, whether during or after the Term, Executive will, upon the request and at
the expense of the Company, (x) obtain patents or copyrights on, or (y) permit
the Company to patent or copyright, any such Proprietary Property, whichever (x)
or (y) is appropriate, and/or (z) execute, acknowledge and deliver any and all
assignments, instruments of transfer, or other documents, that the Company deems
necessary or appropriate to transfer to and vest in the Company all right, title
and interest in and to such Proprietary Property and to evidence the Company's
ownership of such Proprietary Property, including, without limitation, taking
all steps necessary to enable the Company to publish or protect said Proprietary
Property by patents or otherwise in any and all countries and to render all such
assistance as the Company may require in any patent office proceeding or
litigation involving said Proprietary Property. Executive shall not, without
limitation as to time or place, use any Proprietary Property except on Company
business, during or after the Term, nor disclose the same to any other Person or
individual except for disclosure on Company business or as may be required by
law.
(b) Definition of Proprietary Information. As used in this
Agreement, "Proprietary Information" means any information about the affairs of
the Company or any of its subsidiaries or affiliates, including, without
limitation, trade secrets, trade "know-how," inventions, customer lists, client
lists, business plans, operational methods, pricing policies, marketing plans,
sales plans, identity of suppliers, trading positions, sales, profits or other
financial information, which is confidential to the Company or any of its
subsidiaries or affiliates or is not generally known in the relevant trade,
regardless of whether Executive developed such information.
(c) Disclosure of Proprietary Property. During the Term and
thereafter, Executive will not, directly or indirectly, lecture upon, publish
articles concerning, use, disseminate, disclose, sell or offer for sale any
Proprietary Property without the Company's prior written permission.
11. Indemnification.
(a) (i) Except as otherwise provided in subsection 11(b), and to
the fullest extent allowable by law and the Company's Articles of
Incorporation, as may be amended from time to time, the Company shall
indemnify the Executive for the Executive's reasonable attorneys' fees and
disbursements incurred in any litigation for the purpose of interpreting
any provision of this Agreement.
(ii) Except as otherwise provided in subsection 11(b), and to
the fullest extent allowed by law, the Company shall indemnify and hold
Executive free and harmless from any liability for injury or death to
persons or damage or destruction of property due to any cause whatsoever,
either in or about the Company, any properties managed, owned or operated
by the Company or elsewhere, as a result of the performance by the
Executive of his duties under this Agreement irrespective of whether
alleged to be caused, wholly or partially, by the Executive;
(iii) Except as otherwise provided in subsection 11(b), the
Company shall reimburse the Executive upon written demand for any money or
other property which the Executive is required to pay out for any reason
whatsoever in performing his duties hereunder, whether the payment is for
charges or debts incurred or assumed by the Executive or any other party,
or judgments, settlements, or expenses in defense claim, civil or criminal
action, proceeding, charge, or prosecution made, instituted or maintained
against the Executive or the Company, jointly or severally, because of the
condition or use of any
10
properties managed, owned or operated, or acts or failures to act of the
Executive, or arising out of or based upon any law, regulation,
requirement, contract or award; and
(iv) Except as otherwise provided in subsection 11(b), the
Company shall defend any claim, action, suit or proceeding brought against
the Executive, arising out of or connected with any of the foregoing, and
to hold harmless and fully indemnify the Executive from any judgment, loss
or settlement on account thereof, regardless of the jurisdiction in which
any such claim, actions, suits or proceedings may be brought.
(b) Notwithstanding the foregoing, Company shall not be liable to
indemnify and hold the Executive harmless from any liability described above
which results from the willful misconduct of the Executive.
(c) If (i) the Company shall be obligated to indemnify the Executive
hereunder, or (ii) a suit, action, investigation, claim or proceeding is begun,
made or instituted as a result of which the Company may become obligated to the
Executive hereunder, the Executive shall give prompt written notice to the
Company of the occurrence of such event. The Company agrees to defend, contest
or otherwise protect against any such suit action, investigation, claim or
proceeding at the Company's own cost and expense. The Executive shall have the
right but not the obligation to participate at his own expense in the defense
thereof by counsel of his own choice. In the event that the Company fails
timely to defend, contest or otherwise protect against any such suit, action,
investigation, claim or proceeding, the Executive shall have the right to
defend, contest or otherwise protect against the same and may make any
compromise or settlement thereof and recover the entire cost thereof from the
Company including, without limitations, reasonable attorneys' fees,
disbursements and all amounts paid or payable as a result of such suit, action,
investigation, claim, or proceeding or compromise or settlement thereof.
12. Definitions. For the purpose of this Agreement,
(a) Company shall mean (i) American Vantage Companies, Inc., if the
Executive is employed by the Company on his Termination Date, and (ii) a
Successor Organization, if Executive is employed by a Successor Organization on
his Termination Date;
(b) Company shall include all of the Company's subsidiaries; and
(c) Successor Organization shall mean any one or more individuals,
organizations or entities (except, in any event, the Company or any of its
affiliates) that, as a result of a direct or indirect sale, merger,
consolidation of such events, owns or controls (i) twenty percent (20%) or more
of the combined voting power of the Company of the then outstanding securities,
or (ii) substantially all of the Company's assets.
13. Successors: Binding Agreement.
(a) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, by agreement in
form and substance satisfactory to the Executive, to expressly assume and agree
to perform this Agreement in the same manner and to the same extent that the
Company would be required to perform it if no such succession had taken place.
Failure of the Company to obtain such agreement prior to the effectiveness of
any such succession shall be a breach of this Agreement and shall entitle the
Executive to compensation from the Company in the same amount and on the same
terms its he would be entitled to hereunder if he terminated his employment for
Good Reason, except that for purposes of implementing the foregoing, the date on
which any such succession becomes effective shall be deemed the Termination
Date.
(b) This Agreement and all rights of the Executive hereunder shall
inure to the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If the Executive should die while any amounts would still
be payable to him hereunder if he had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the Executive's devisee, legatee, or other designee or, if
there be no such designee, to the Executive's estate.
11
(c) Neither this Agreement nor any rights arising hereunder may be
assigned or pledged by the Executive.
14. Notice. For the purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
certified or registered mail, return receipt requested, postage prepaid,
addressed as follows:
If to the Executive, to: Xxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
If to the Company, to: American Vantage Companies, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
with a copy to: Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxxxx, Esq.
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
15. Miscellaneous. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is approved by the
Board and agreed to in writing signed by the Executive and such officer as may
be specifically authorized by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. For purposes of this Agreement, it is understood that any references
to duties, practices, procedures, places, arrangements, or policies of the
Company in effect on or prior to the date of this Agreement shall be deemed to
be those of American Vantage Companies.
16. Payment Obligations Absolute. The Company's obligation to pay the
Executive's Total Compensation and all other sums due pursuant to this Agreement
and to make the appropriate arrangements as provided for herein shall by
absolute and unconditional and shall not be affected by any circumstances,
including without limitation, any set-off, counterclaim, recoupment defense or
other right which the Company may have against the Executive or anyone else. All
amounts payable by the Company hereunder shall be paid without notice or demand
except as provided herein. Each and every payment made hereunder by the Company
shall be final and the Company will not seek to recover all or any part of such
payment from the Executive or from whosoever may be entitled thereto, for any
reason whatsoever. The Executive shall not be obligated to seek other employment
in mitigation of the amounts payable or arrangements made under any provision of
this Agreement, and the obtaining of any such other employment shall in no event
effect any reduction of the Company's obligation to make the payments and
arrangements required to be made under this Agreement.
17. Governing Law. The validity, interpretation, construction and performance
of this Agreement shall be governed by the laws of the State of Nevada without
giving effect to any conflict of law provisions, and the parties irrevocably
submit to the jurisdiction of any state or federal court of the State of Nevada,
located in the city of Las Vegas, Xxxxx County, for the purpose of any suit,
action or other proceeding arising out of this Agreement.
12
18. Validity. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall remain in full force and
effect.
19. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
20. Currency. All sums of money referred to herein shall be payable in U.S.
currency.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
WITNESS AMERICAN VANTAGE COMPANIES
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxx X. Xxxxxx
--------------------------------- -------------------------------
Xxx X. Xxxxxx, Chief Financial
Officer
WITNESS
/s/ Xxxxxx Xxxx /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------- -------------------------------
Xxxxxx X. Xxxxxxxxx
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