EXHIBIT 10.22
SETTLEMENT AND GENERAL RELEASE AGREEMENT
This SETTLEMENT AND GENERAL RELEASE AGREEMENT, dated as of
July 29, 2002 (this "Agreement"), is by and between XXX X. XXXXXX, a resident of
Nevada ("Xxxxxx"), and AMERICAN VANTAGE COMPANIES, a Nevada corporation ("AVC").
WITNESSETH
WHEREAS, Xxxxxx has been employed by AVC as its Chief
Financial Officer, Vice President, Secretary and Treasurer and has
served as a director and officer of various subsidiaries of AVC for
more than the last seven years; and
WHEREAS, AVC and Xxxxxx did enter into an Employment
Agreement, dated as of April 1, 2002 (the "2002 Agreement"), following
the termination of an Employment Agreement, dated as of July 20, 1995
(the "1995 Agreement" and, collectively with the 2002 Agreement, the
"Employment Agreements"); and
WHEREAS, AVC and Xxxxxx have agreed that (a) Xxxxxx
shall resign as an officer and employee of AVC and as a director,
officer and/or employee of the various subsidiaries of AVC in which
Xxxxxx currently serves as a director, officer and/or employee and (b)
AVC shall accept such resignations and cause its various subsidiaries
to accept such resignations, each on the terms and conditions as set
forth in this Agreement; and
WHEREAS, Xxxxxx and AVC now desire to settle fully
and finally all claims Xxxxxx may have against AVC and that AVC may
have against Xxxxxx, including, but not limited to, the obligations of
the parties to each other under the 2002 Agreement and any other
matters arising out of Xxxxxx'x employment with AVC and Xxxxxx'x
separation therefrom.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. NON-ADMISSION OF LIABILITY OR WRONGDOING.
This Agreement shall not be construed in any way as an
admission by either of the parties hereto that any of them have acted wrongfully
with respect to each other or any other person or that any one of them has any
rights whatsoever against the others.
SECTION 2. RESIGNATION; RETURN OF AVC ASSETS, EQUIPMENT AND OTHER ITEMS.
Xxxxxx hereby resigns as (a) an officer and employee of AVC
and (b) a director, officer and employee of each of the various subsidiaries of
AVC in which Xxxxxx currently serves as a director, officer and/or employee and
AVC hereby accepts such resignations and agrees to cause its various
subsidiaries to accept such resignations, each effective as of July 31, 2002
(the "Termination Date"). Xxxxxx agrees to return to AVC all assets, equipment
or other items which are owned by AVC and in the possession or control of Xxxxxx
not later than the Termination Date.
SECTION 3. PAYMENT TO XXXXXX.
(a) As of the effective date of the execution of this
Agreement, AVC shall pay to Xxxxxx the following gross amounts,
totaling $537,575.88, before all applicable federal, state and local
tax withholding requirements:
Salary $514,579.12
Health Insurance 16,209.84
Life Insurance 2,390.00
Disability Insurance 4,396.92
(b) In addition to the payment being made pursuant to
paragraph 3(a) of this Agreement, as of the effective date of the
execution of this Agreement, AVC shall make a payment into the SAR-SEP
account of Xxxxxx of $13,483.54.
SECTION 4. COMPLETE RELEASE.
(a) As a material inducement to AVC to enter into
this Agreement, but subject to the payment by AVC of the amounts due
Xxxxxx pursuant to Section 3 of this Agreement and the other
obligations of AVC under this Agreement, Xxxxxx hereby waives, releases
and discharges AVC, its officers, directors, stockholders, employees,
agents, attorneys, subsidiaries, servants, successors, insurers and
affiliates, and their successors and assigns, from any and all manners
of action, claims, liens, demands, liabilities, causes of action,
charges, complaints, suits (judicial, administrative, or otherwise),
damages, debts, demands, obligations of any other nature, past or
present, known or unknown, whether in law or in equity, whether founded
upon contract (expressed or implied), tort (including, but not limited
to, defamation), statute or regulation (federal, state or local),
common law and/or any other theory or basis, from the beginning of the
world to the date hereof, including, but not limited to, any claim that
Xxxxxx has asserted, now asserts or could have asserted under the
Employment Agreements or otherwise. This waiver, release and discharge
includes, but is not limited to, claims arising under federal, state or
local laws prohibiting employment or other discrimination or claims
growing out of any legal restrictions on the Company's rights to
terminate its employees, including, but not limited to, any claim
arising under Title VII of the United States Code. It is expressly
understood by Xxxxxx that among the various rights and claims being
waived by him in this release are those arising under the Age
Discrimination in Employment Act of 1967 (29 U.S.C. 621, et seq.).
Notwithstanding anything else contained in this Agreement, this waiver,
release and discharge is not intended to release any rights Xxxxxx has
(i) with respect to Xxxxxx'x participation in AVC-sponsored stock
option plans, including the options granted to Xxxxxx as of November
28, 1994 and February 4, 2000, which options shall continue to remain
in effect for their full original terms and (ii) to seek and obtain
indemnification and/or defense pursuant to the provisions of the 2002
Agreement, the Certificate of Incorporation and Bylaws of AVC (each as
amended through the effective date of the execution of this Agreement)
and the laws of the State of Nevada, in the event that any claim is
asserted against Xxxxxx by a third party.
(b) As a material inducement to Xxxxxx to enter into
this Agreement, subject to the obligations of Xxxxxx under this
Agreement, AVC hereby irrevocably and unconditionally waives, releases
and discharges Xxxxxx, his agents and attorneys, successors and assigns
from any and all manner of action, claims, liens, demands, liabilities,
causes of action, charges, complaints, suits (judicial, administrative,
or otherwise), damages, debts, demands, obligations of any other
nature, past or present, known or unknown, whether in law or in equity,
whether founded upon contract (expressed or implied), tort (including,
but not limited to, defamation), statute or regulation (federal, state
or local), common law and/or any other theory or basis, from the
beginning of the world to the date hereof, including, but not limited
to, any claim that AVC has asserted, now asserts or could have
asserted.
(c) It is understood and agreed by the parties hereto
that the facts and respective assumptions of law in contemplation of
which this Agreement is made may hereafter prove to be other than or
different from those facts and assumptions now known, made or believed
by them to be true. The parties hereto expressly accept and assume the
risk of the facts and assumptions to be so different, and agree that
all terms of this agreement shall be in all respects effective and not
subject to termination or reclusion by any such difference in facts or
assumptions of law.
SECTION 5. ACKNOWLEDGMENTS.
Xxxxxx acknowledges that he:
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(a) has had a full 21 days within which to consider
the terms of this Agreement before executing it;
(b) has carefully read and fully understands all of
the provisions of this Agreement;
(c) is, through this Agreement, releasing AVC and its
affiliates from any and all claims he may have against any of them
(except as provided in paragraph 4(a) of this Agreement);
(d) knowingly and voluntarily agrees to all of the
terms set forth in this Agreement;
(e) knowingly and voluntarily intends to be legally
bound by the same;
(f) was advised and hereby is advised in writing to
consider the terms of this Agreement and consult with an attorney of
his choice prior to executing this Agreement; and
(g) has a full seven days following the execution of
this Agreement to revoke this Agreement and has been and hereby is
advised in writing that this Agreement shall not become effective or
enforceable until the revocation period has expired.
SECTION 6. NON-DISCLOSURE.
Xxxxxx shall not disclose or deliver to any other party
certain trade secrets or confidential or proprietary information gained through
employment with AVC. These non-disclosable items include, but are not limited
to, proprietary technologies, software programs and tools, financial
information, business plans, systems files, algorithms, file structures,
customer lists, supplier lists, internal program structures, options,
documentation and data developed by AVC or any subsidiary or division thereof.
Xxxxxx agrees that any breach of this Section 6 will cause AVC substantial and
irreparable damages that would not be quantifiable and, therefore, in the event
of any such breach, in addition to other remedies that may be available, AVC
shall have the right to seek specific performance and other injunctive and
equitable relief.
SECTION 7. NON-DISPARAGEMENT.
The parties hereto mutually agree not to (a) publish,
communicate or disseminate any negative information as regards each other, or
(b) make public any negative information regarding this Agreement to the media,
suppliers, vendors and other industry participants, or in any negative way to
any other person, except that they may disclose its contents to their financial
advisors, accountants and attorneys and as required by law. It is acknowledged
by the parties that, under applicable law, AVC shall be required to file a
conformed copy of this Agreement as an exhibit to the Annual Report on Form 10-K
of AVC for the fiscal year ending July 31, 2002. The parties hereto each agree
that any breach of this Section 7 by a party will cause the other party
substantial and irreparable damages that would not be quantifiable and,
therefore, in the event of any such breach, in addition to other remedies that
may be available, such other party shall have the right to seek specific
performance and other injunctive and equitable relief.
SECTION 8. NO REPRESENTATIONS.
The parties hereto represent that, in signing this Agreement,
they do not rely on nor have they relied on any representation or statement not
specifically set forth in this Agreement by any of the releasees or by any of
the releasees' agents, representatives or attorneys with regard to the subject
matter, basis or effect of this Agreement or otherwise.
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SECTION 9. MISCELLANEOUS.
(a) Notices. All requests, demands, notices and other
communications required or otherwise given under this Agreement shall
be sufficiently given if (a) delivered by hand against written receipt
therefor, (b) forwarded by overnight courier requiring acknowledgment
of receipt or (c) mailed by registered or certified mail, postage
prepaid, addressed as follows:
If to AVC, to: American Vantage Companies
0000 Xxxx Xxxx Xxxx Xxxxxxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to: Xxxx Xxxxxx, Esq.
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to Xxxxxx, to: Xx. Xxx X. Xxxxxx
0000 Xxxxxx Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to: Xxxxxxx Xxxxxxx, Esq.
0000 X. Xxxx Xxxx, Xxx.000
Xxx Xxxxx, XX 00000
or, in the case of any of the parties hereto, at such other address as
such party shall have furnished in writing, in accordance with this
paragraph 9(a), to the other parties hereto. Each such request, demand,
notice or other communication shall be deemed given (i) on the date of
delivery by hand, (ii) on the first business day following the date of
deposit with a nationally recognized overnight courier for next
business day delivery or (iii) three business days following mailing by
registered or certified mail.
(b) Prior Agreements/Oral Modification. This
Agreement supersedes all prior agreements, including, but not limited
to the Employment Agreements, and constitutes the entire agreement and
understanding between parties with respect to the subject matters of
this Agreement. This Agreement may not be amended, modified in any
manner or terminated orally; and no amendment, modification,
termination or attempted waiver of any of the provisions hereof shall
be binding unless in writing and signed by the parties against whom the
same is sought to be enforced.
(c) Attorney's Fees. In the event of any litigation
between the parties to this Agreement, or any of them, concerning this
Agreement, the prevailing party shall be entitled to recover the
prevailing party's reasonable attorney's fees, including, but not
limited to, the prevailing party's reasonable attorney's fees for
services rendered on appeal, as determined by a court of competent
jurisdiction.
(d) Costs. The parties shall each pay their own
respective costs and expenses in connection with the negotiation,
execution, delivery and performance of this Agreement.
(e) Binding Agreement; Benefit. The provisions of
this Agreement will be binding upon, and will inure to the benefit of,
the respective heirs, legal representatives and successors of the
parties hereto.
(f) Governing Law. This Agreement will be governed
by, and construed and enforced in accordance with the laws of the State
of Nevada without regard to the conflict of laws provisions thereof.
The parties hereto do hereby consent and submit to the venue and
jurisdiction of the state and federal courts sitting in the State of
Nevada ,County of Xxxxx, as the sole and exclusive forum for such
matters of dispute, and further agree that, in the event of any action
or suit as to any matters of dispute between the parties, service of
any process may be made upon the other party in the same manner as the
giving of notices under paragraph 9(a) of this Agreement.
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(g) Proper Construction. The language of all parts of
this Agreement shall in all cases be construed as a whole according to
its fair meaning, and not strictly for or against any of the parties.
The parties hereto agree that they have been represented by counsel
during the negotiation and execution of this Agreement and, therefore,
waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other
document will be construed against the party drafting such agreement or
document. As used in this Agreement, the term "or" shall be deemed to
include the term "and/or" and the singular or plural number shall be
deemed to include the other whenever the context so indicates or
requires.
(h) Waiver of Breach. The waiver by either party of a
breach of any provision of this Agreement by the other party must be in
writing and shall not operate or be construed as a waiver of any
subsequent breach by such other party.
(i) Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(j) Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other
jurisdiction.
(k) Assignment. This Agreement is personal in its
nature and the parties hereto shall not, without the consent of the
other parties, assign or transfer this Agreement or any rights or
obligations hereunder.
(l) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, the parties have duly executed this
Agreement as of the date first above written.
AMERICAN VANTAGE COMPANIES
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx, President
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
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