Exhibit 10.21
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 XXX X. XXXXXX, an individual currently residing at 0000
Xxxxxxx Xxx, 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 as of July 20, 1995 (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 ten years and is currently the Company's Chief Financial
Officer, Vice President, Secretary and Treasurer;
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 Financial Officer,
Vice President, Secretary and Treasurer 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 Financial Officer, Vice President, Secretary and Treasurer 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 Financial
Officer, Vice President, Secretary and Treasurer of the Company, reporting only
to the Board, and shall have supervision and control over, and responsibility
for, the financial and accounting management and operations 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 financial and accounting management of the Company. 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 located 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 $147,000 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 of 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 One Million Dollars
($1,000,000)("Life Insurance"). The Executive shall have the right to designate
the beneficiary of the Life Insurance.
(h) Automobile.
(i) The Company shall provide executive with the use of an
automobile compatible with Executive's position. The Company also shall pay
all normal expenses relating to the use of such 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. The parties acknowledge that the automobile
presently provided to Executive is a [YEAR, MAKE and MODEL?].
(ii) Within 30 days following the Termination Date, the Company
shall transfer to Executive ownership of the automobile owned or leased by
the Company and used by Executive immediately prior to his Termination
Date.
(iii) If Executive's termination is the result of his death or
Disability, the Company automobile used by the Executive prior to his
Termination Date shall be transferred to his spouse pursuant to paragraph
5(h)(ii).
(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 Financial Officer, President, Secretary and Treasurer 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
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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 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
provisions 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
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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 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.
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(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
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 an 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
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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 $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.
9. Restrictive Covenants.
(a) Restrictions. Executive covenants that, except in furtherance of
Executive's duties hereunder and as approved by the Board or Chief Executive
Officer:
(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 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,
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processes, methods, machines, manufactures, 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.
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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 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 clauses (i) of this Section 10(a) or that come into
Executive's knowledge or possession during 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
invested, 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.
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(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
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 attorney's 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 purposes 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.
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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.
(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: Xxx X. Xxxxxx
0000 Xxxxxxx Xxx
Xxx Xxxxx, Xxxxxx 00000
If to the Company, to: American Vantage Companies, Inc.
0000 Xxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Executive 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
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be 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.
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.
AMERICAN VANTAGE COMPANIES
WITNESS:
/s/ Xxxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------- ------------------------------------
Xxxxxx X. Xxxxxxxxx, President
WITNESS:
/s/ Xxxxxx Xxxx /s/ Xxx X. Xxxxxx
------------------------------------- ------------------------------------
Xxx X. Xxxxxx
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