EXHIBIT 10.12
EMPLOYMENT AGREEMENT
This Agreement (this "Agreement"), dated as of January 1, 2006, is
by and between American Vantage Companies, a Nevada corporation having its
principal offices at 0000 Xxxxx Xxxxxxx Xxxxx - Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000 (the "Company"), and Xxxxxx X. Xxxxxxxxx, an individual with a current
mailing address at X.X. Xxx 00000, Xxx Xxxxx, Xxxxxx 00000 (individually, the
"Executive" and, together with the Company, the "parties").
RECITALS
WHEREAS, Executive has been employed by the Company for more
than twenty years, is currently the Company's Chief Executive Officer and
President and, during at least a portion of such time, Executive has been
retained by the Company pursuant to a number of employment agreements, the
most recent of which was dated as of February 1, 2003 and which was
supplemented by a letter agreement dated November 14, 2005 (the "Prior
Agreement");
WHEREAS, 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 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 Executive's continued employment in
an executive capacity and to compensate Executive therefor; and
WHEREAS, Executive is desirous of committing himself to serve
the Company on the terms provided in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the
respective covenants and agreements of the parties herein contained, and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties agree as set forth below.
1. Termination of Prior Agreement. This Agreement supercedes all prior
employment agreements and arrangements between the parties, including the Prior
Agreement, in all respects and each of such prior employment agreements and
arrangements, including the Prior Agreement, are terminated in their entirety
and hereby made null and void with no party to such prior employment agreements
and arrangements, including the Prior Agreement, having any rights, obligations
or liabilities under such prior employment agreements and arrangements,
including but not limited to the Prior Agreement.
2. Employment; Term.
(a) The Company hereby agrees to continue to employ Executive as
Chief Executive Officer and President of the Company, and 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 as of the date of this
Agreement and shall terminate on January 31, 2008 (the "Term").
3. Position and Duties.
(a) Executive shall serve as the Chief Executive Officer and
President of the Company, reporting only to the Board of Directors of the
Company (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 Executive's then
present duties and with Executive's position as the senior executive officer in
charge of the general management of the Company.
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(b) The Company shall use its best efforts to cause Executive to
continue to serve as the Chairman of the Board and as a director of the Company.
(c) Executive agrees to devote Executive's full working time,
attention, efforts, loyalties and energies to the business and affairs of the
Company. Notwithstanding the immediately preceding sentence, Executive shall be
permitted to devote a reasonable amount of time, attention and energies to
reasonable community activities and public affairs and to personal matters,
provided such engagement shall not in any way conflict with Executive's duties
under this Agreement or with the business of the Company.
4. Place of Performance. In connection with Executive's employment by the
Company, Executive shall be based at the Company's principal executive offices
located in Las Vegas, Nevada ("Principal Office"). Executive shall not be
required, without Executive's consent, to permanently relocate to any other
location.
5. Compensation.
(a) Base Salary. Executive shall receive a minimum annual base
salary ("Base Salary") at the rate of $326,400 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.
(b) Discretional Increases in Base Salary. No later than December
15th of each year during the Term, the Board, through its Compensation Committee
or otherwise, shall conduct a review (each, a "Salary Review") to determine, in
good faith using its reasonable discretion, whether to increase the Base Salary,
such increase to be effective as of the first day of the calendar year following
the year in which the Salary Review is conducted. In conducting the salary
review, the Compensation Committee shall review (i) Executive's performance
during the most recently completed fiscal year of the Company, (ii) the general
financial condition of the Company at the end of the most recently completed
fiscal year of the Company, (iii) any increase in shareholders' equity of the
Company during the most recently completed fiscal year of the Company, (iv)
compensation received by similarly situated executives in similarly situated
companies located in the Las Vegas, Nevada metropolitan area and (e) such other
factors as the Compensation Committee may, in its sole discretion, determine to
be applicable. Any such increase in Base Salary or other compensation granted
pursuant to this section 5(b) shall in no way limit or reduce any other
obligation of the Company under this Agreement. Notwithstanding anything to the
contrary contained in this Agreement, once increased, whether increased pursuant
to paragraph 5(a) or this paragraph 5(b), the Base Salary may not be decreased
without the affirmative written consent of Executive.
(c) Incentive Compensation. 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 equity incentive plan
or any similar plan adopted or to be adopted by the Company during the Term
(collectively, the "Plan") 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, Executive shall receive an amount equal to the prorated portion
of the incentive compensation payable pursuant to the Incentive Award. In the
event that an Incentive Award shall be based upon the results of the Company for
any fiscal year, the amount of any Incentive Award payable to Executive pursuant
to this paragraph 5(c) will be determined as promptly as practicable after the
determination of the Company's results for such fiscal year, but not later than
30 days after the Company's receipt of consolidated audited financial statements
for such fiscal year. Simultaneously with the payment of such additional
compensation, the Company will deliver to Executive a report of its principal
financial or accounting officer showing in reasonable detail the computation of
such Incentive Award. If, within 30 days of receipt of such additional
compensation and report, Executive shall notify the Company that Executive
disagrees with the computation set forth in such report, the dispute shall be
submitted for resolution in accordance with section 21 and such resolution shall
be binding upon all parties to this Agreement. Notwithstanding anything to the
contrary contained in this paragraph 5(c), each and every Incentive Award
payable to Executive shall be paid to Executive no later than March 15th of the
year following the calendar year in which the subject Incentive Award relates.
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(d) "Total Compensation" Defined. For the purposes of this
Agreement, "Total Compensation" for any given year shall mean the sum of the
Base Salary actually due Executive for such year plus all Incentive Awards
granted Executive during such year.
(e) Expenses. (i) During the term of Executive's employment
hereunder, Executive shall be entitled to receive prompt reimbursement for all
reasonable expenses incurred by him in performing services hereunder, provided
that Executive properly accounts therefor in accordance with Company policy.
(ii) Except as set forth in paragraph 8(d) and section 21, Executive shall be
reimbursed for Executive's personal legal and financial consulting fees subject
to an annual maximum of 3% of the prior calendar year's Base Salary.
(f) Fringe Benefits.
(i) Executive shall be entitled to continue to participate in
or receive benefits under all the Company's employee benefits plans and
arrangements in effect as of the date of this Agreement available to
senior executives of the Company or plans or arrangements providing
Executive with at least equivalent benefits thereunder.
(ii) The Company shall pay all costs, expenses and charges for
Executive's health insurance (including dental, if dental insurance
coverage becomes available to the Company's senior executives), Life
Insurance policies (as hereinafter defined) and D&O Insurance (as
hereinafter defined).
(iii) 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 ("D&O Insurance") covering liabilities
which may have accrued or that will be incurred by the performance of
Executive's services on behalf of the Company, currently with limits of
$3,000,000 per occurrence, and $3,000,000 in overall coverage,
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.
(g) Vacations. 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 Executive is employed hereunder
for less than the entire such year in accordance with the number of days in such
calendar year during which Executive is so employed). Executive shall not take
more than three consecutive weeks of vacation during any calendar year.
Executive shall also be entitled to all paid holidays given by the Company to
its executive officers.
(h) Life Insurance. The Company shall maintain, at its expense and
at no cost to Executive but subject to Executive being insurable, a term life
insurance policy on the life of Executive providing for a minimum death benefit
of Two Million Dollars ($2,000,000) ("Life Insurance"). Executive shall have the
right to designate the beneficiary of the Life Insurance policy.
(i) Automobile. The Company shall pay all normal expenses relating
to the use of 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.
(j) Perquisites. 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 Executive's attendance at any meeting of the Board or any committee
of the Board.
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(k) No Off-Set. No amounts paid to or on behalf of Executive under
any plan or arrangement in accordance with paragraphs 5(e), (f), (g), (h), (i)
and (j) shall be deemed to be paid in lieu of other compensation to which
Executive is entitled to receive or benefit from under this Agreement.
6. Termination.
(a) Death. Executive's employment with the Company under this
Agreement shall terminate upon Executive's death.
(b) Cause.
(i) The Company shall have the right to terminate Executive's
employment with the Company under this Agreement for Cause. For the
purposes of this Agreement, the Company shall have "Cause" to terminate
Executive's employment with the Company under this Agreement upon the
occurrence of any of the following events:
(A) the willful failure by Executive to
substantially perform Executive's duties under this Agreement, other
than any such failure resulting from Executive's incapacity due to
physical or mental illness, or
(B) Executive engaging in the commission of fraud,
embezzlement or theft.
(ii) Prior to any termination pursuant to this paragraph 6(b),
the Board must give Executive reasonable written notice of and adequate
opportunity to either respond to the reasons for such termination for
Cause or, where applicable, cure any such reasons for such termination for
Cause.
(c) Termination by Executive.
(i) Executive shall have the right to terminate Executive's
employment under this Agreement upon the occurrence of any of the
following events:
(A) for Good Reason (as hereinafter defined) or
(B) if Executive's health should become impaired
to an extent that makes the continued performance of Executive's
duties under this Agreement to be hazardous to Executive's physical
or mental health or Executive's life.
(ii) For purposes of this Agreement, "Good Reason" shall mean
the occurrence of any of the following events:
(A) a Change in Control (as defined below), (B)
any assignment to Executive of any duties
significantly different from those contemplated by, or any
limitation of the powers of Executive in any respect not
contemplated by, section 3,
(C) any removal of Executive from or any failure
to re-elect Executive to any of the positions indicated in section
3, except in connection with termination of Executive's employment
for Cause,
(D) any material failure by the Company to comply
with section 5 of this Agreement,
(E) failure by the Company to comply with section
4 in any significant respect,
(F) failure of the Company to obtain the
assumption of this Agreement by any successor as contemplated in
section 13,
(G) the Company's failure to provide Executive
with benefit increases as provided to other salaried executives of
the Company as specified in section 5, or
(H) Executive remains in employment with the
Company through a Change in Control and then voluntarily resigns or
otherwise voluntarily terminates Executive's employment upon written
notice of termination by Executive to the Company at any time prior
to or during the two years following such Change in Control."
(iii) For the purposes of this Agreement, a "Change in
Control" shall be deemed to occur when and only when any of the following
events first occurs:
(A) any person (as defined below) becomes the
beneficial owner, directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the
Company's then outstanding voting securities who is not such a
beneficial owner as of the date of this Agreement,
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(B) two or more directors, whose election or
nomination for election is not approved by a majority of the
Incumbent Board (as such term is defined below), are elected within
any single 24-month consecutive period to serve on the Board;
(C) members of the Incumbent Board cease to
constitute a majority of the Board without the approval of the
remaining members of the Incumbent Board; or
(D) any merger, consolidation, liquidation or
dissolution of the Company (other than a merger or consolidation
transaction where the Company is the survivor and there is no
accompanying Change in Control), or the sale of all or substantially
all of the assets of the Company.
(iv) For the purposes of clause (iii) of paragraph 6(c) of
this Agreement, term "person" shall encompass the meaning of such term
under subparagraph (a)(2) of Section 2 of the Securities Act of 1933, as
amended, and subparagraph (d)(3) of Section 13 of the Securities Exchange
Act of 1934, as amended. As such, the term "person" shall include an
individual, a corporation, a partnership, an association, a joint-stock
company, a trust, any unincorporated organization or a government or
political subdivision thereof; and, when two or more of such persons act
as a partnership, limited partnership, syndicate or other group for the
purpose of acquiring, holding, or disposing of securities, such
partnership, limited partnership, syndicate or group shall be deemed a
person.
(d) Notice of Termination. Any termination by the Company pursuant
to paragraph 6(b) or by Executive pursuant to paragraph 6(c) shall be
communicated in writing by means of the delivery of 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
Executive's employment under the provision so indicated.
(e) Termination Date. For purposes of this Agreement, the term
"Termination Date" shall mean:
(i) if Executive's employment is terminated by Executive's
death, the date of Executive's death,
(ii) if Executive's employment is terminated pursuant to
paragraph 6(b) or 6(c), the date specified in the Notice of Termination.
7. Disability.
(a) If as a result of Executive's incapacity due to physical or
mental illness ("Disability" or "Disabled"), Executive shall have been absent
from Executive's duties under this Agreement on a full time basis for twelve
consecutive months and, within 30 days after the Company gives notice (a
"Disability Notice") to Executive that the Company intends to replace Executive
due to such Disability, Executive shall not have returned to the performance of
Executive's duties under this Agreement on a full time basis, the Company may
replace Executive without being in violation of this Agreement. Such Disability
will not act to terminate Executive's employment under this Agreement, unless
the Company specifically states in the Disability Notice that the Company
intends to replace Executive as provided in this paragraph 7(a) and terminate
Executive;'s employment under this Agreement.
(b) If Executive becomes Disabled, the Company shall maintain in
full force and effect, for the continued benefit of Executive for the remainder
of the Term, including any extension thereof, all employee benefit plans and
programs in which Executive was entitled to participate immediately prior to the
giving of a Disability Notice provided that Executive's continued participation
is possible under the general terms and provisions of such plans and programs.
In the event that Executive's participation in any such plan or program is
barred as a result of the Disability, 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 Executive, to Executive's account or on
Executive's behalf under such plans and programs from which Executive's
continued participation is barred.
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(c) If the Company and Executive disagree as to the determination of
Executive's Disability, the term Disability (or Disabled) shall mean Executive's
inability, either mentally or physically, to perform the necessary functions of
Executive's position of employment with the Company, and such Disability shall
be deemed to exist if it persists for a period of twelve consecutive months
unless the Company and Executive agree otherwise. If the Company shall find on
the basis of medical evidence reasonably satisfactory to the Company that
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 the Disability will cause, or actually does cause or
has caused, Executive to be absent from work for a period in excess of twelve
consecutive months, the Company shall have a right to terminate Executive's
employment under this Agreement.
8. Compensation Upon Termination, Death or During Disability.
(a) If Executive's employment shall be terminated by reason of
Executive's death, the Company shall pay to such person as Executive shall
designate in a notice filed with the Company prior to Executive's death,
or, if no such person shall be designated, to Executive's estate as a lump
sum death benefit no later than two-and-one-half months after the end of
the calendar year in which Executive's death shall occur, 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
Executive for the five calendar years immediately preceding Executive's
death pursuant to subsection 5(b) hereof. Such amount shall be exclusive
of and in addition to any payments Executive's widow, beneficiaries or
estate may be entitled to receive pursuant to any pension or employee
benefit plan of the Company or the Life Insurance policy.
(b) During any period that Executive fails to perform Executive's
duties under this Agreement as a result of a Disability, Executive shall
continue to receive Executive's Total Compensation during the period prior
to the actual giving of the Disability Notice. Upon Executive's employment
with the Company being terminated due to Executive's Disability following
the giving of a Disability Notice under and in accordance with the
provisions of paragraph 7(a), Executive only shall be entitled to receive
from the Company an amount equal to (i) 100% of the annualized average of
Executive's Total Compensation for the five calendar years immediately
preceding the actual giving of the Disability Notice one year, minus (ii)
payments made as Social Security benefits due to the Disability and minus
(iii) 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. Payments under this paragraph 8(b) shall be made
in substantially equal installments consistent with the Company's payroll
policies for a one year period commencing as of the date of Executive's
employment with the Company being terminated due to Executive's Disability
following the giving of a Disability Notice under and in accordance with
the provisions of paragraph 7(a).
(c) If Executive's employment with the Company is terminated for
Cause, the Company shall pay Executive the full Base Salary through the
Termination Date at the rate in effect at the time the Notice of
Termination is given and the Company shall have no further obligations to
Executive under this Agreement or otherwise.
(d) (i) If, during the Term, (x) the Company terminates the
employment of Executive with the Company other than for Cause, death or
Disability, or (y) Executive terminates Executive's employment with the
Company for Good Reason, then:
(A) the Company shall pay Executive, in three
equal installments payable six, nine and twelve months following the
Termination Date, the aggregate amount equal to the product
resulting from multiplying (A) the annualized average of the Total
Compensation paid to Executive for the five calendar years
immediately preceding Executive's termination by (B) 2.99;
(B) within 30 days following the Termination Date,
the Company shall pay Executive the Total Compensation earned
through the Termination Date to the extent not yet paid;
(C) within 30 days following the presentment of
any legal bills (including retainer fees) relating to Executive's
enforcement of Executive's 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
(D) all outstanding unexercised stock options
granted to Executive under the Plan and/or other Incentive Awards
held or contingently payable to 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.
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(ii) If, during the Term, (x) Executive's employment with the
Company is terminated by the Company in connection with a "change in
ownership or effective control" within the meaning of such term under
Section 409A of the Code (a "Section 409A Change in Control") or (y),
within three months following the occurrence of an event constituting a
Section 409A Change in Control, Executive terminates Executive's
employment with the Company, then:
(A) the Company shall pay Executive, within 90
days following the Termination Date, the aggregate amount equal to
the product resulting from multiplying (A) the annualized average of
the Total Compensation paid to Executive for the five calendar years
immediately preceding Executive's termination by (B) 2.99;
(B) within 30 days following the Termination Date,
the Company shall pay Executive the Total Compensation earned
through the Termination Date to the extent not yet paid;
(C) within 30 days following the presentment of
any legal bills (including retainer fees) relating to Executive's
enforcement of Executive's 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
(D) all outstanding unexercised stock options
granted to Executive under the Plan and/or other Incentive Awards
held or contingently payable to 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) If, during the Term, (i) the Company terminates the employment
of Executive with the Company other than for Cause or Disability, (ii) Executive
terminates Executive's employment with the Company for Good Reason, (iii)
Executive's employment with the Company is terminated by the Company in
connection with a Section 409A Change in Control or (iv), within three months
following the occurrence of an event constituting a Section 409A Change in
Control, Executive terminates Executive's employment with the Company, then the
Company shall, at the Company's sole cost and expense, maintain in force and
effect, for the continued benefit of Executive and Executive's family for the
Term of this Agreement including any extension thereof, all employee benefit
plans and programs in which Executive was entitled to participate immediately
prior to the Termination Date (including specifically but without limitation the
benefits which Executive would have been entitled to receive pursuant to the
Company's pension plan had Executive's employment continued for the Term at the
rate of compensation specified in this Agreement), provided that Executive's
continued participation is possible under the general terms and provisions of
such plans and programs. In the event that Executive's participation in any such
plan or program is barred as a result of such termination, 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 Executive,
to Executive's account or on Executive's behalf under such plans and programs
from which Executive's continued participation is barred. The Company's
obligations under this paragraph 8(e) shall terminate on the earlier of (i) the
last day of the Term (without giving effect to such termination of employment)
or (ii) the last day of the second calendar year following the calendar year in
which such termination occurs.
(f) If, during the Term, (i) the Company terminates the employment
of Executive with the Company other than for Cause or Disability, (ii) Executive
terminates Executive's employment with the Company for Good Reason, (iii)
Executive's employment with the Company is terminated by the Company in
connection with a Section 409A Change in Control or (iv), within three months
following the occurrence of an event constituting a Section 409A Change in
Control, Executive terminates Executive's employment with the Company, then the
Company shall, at the Company's sole cost and expense, pay to or on behalf of
Executive, all the premiums toward the provision of health insurance for
Executive and Executive's family as provided in clause (ii) of paragraph 5(f)
for the period commencing on the Termination Date and terminating on the earlier
of (x) the last day of the Term or (y) the last day of the second calendar year
following the calendar year in which the Termination Date occurs.
(g) Payments provided pursuant to this section 8 shall not be
construed to be in lieu of, or to interfere with, Executive or Executive's
spouse's right to conversion privileges under the Company's group health plan;
provided, however, the Company's obligation to provide continuation coverage
under the applicable provisions of COBRA to Executive or Executive's spouse
under the Company's group health plan shall be satisfied to the extent payments
are made to Executive and Executive's spouse in accordance with this Section 8
for the otherwise applicable continuation coverage period.
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(h) If Executive's employment with the Company under this Agreement
is terminated as a result of Executive's death or Disability, the benefits
provided pursuant to this section 8 shall be provided to Executive's spouse or
to Executive, as appropriate.
(i) If, during the Term, (i) the Company terminates the employment
of Executive with the Company other than for Cause or Disability, (ii) Executive
terminates Executive's employment with the Company for Good Reason, (iii)
Executive's employment with the Company is terminated by the Company in
connection with a Section 409A Change in Control or (iv), within three months
following the occurrence of an event constituting a Section 409A Change in
Control, Executive terminates Executive's employment with the Company, then the
Company shall, at the Company's sole cost and expense, pay to or on behalf of
Executive, the Company shall maintain in full force and effect for twelve months
following the Termination Date, each individual Life Insurance policy, 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, such Life Insurance policies.
(j) If Executive's employment with the Company under this Agreement
is terminated for any reason except for Cause, as soon as practicable following
the Termination Date, the Company shall transfer to Executive any and all Life
Insurance policies together with the cash value of the policies on the
Termination Date, plus prepaid premiums accrued thereon. If Executive's
employment with the Company under this Agreement is terminated due to
Executive's death and the Company shall have received any proceeds from any Life
Insurance policies, as soon as practicable following receipt of such proceeds,
the Company shall release to Executive's spouse or Executive's estate, as
applicable, such proceeds.
(k) 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 Executive under
this section 8 be reduced by reason of Executive securing other employment or
for any other reason, unless otherwise provided in this Agreement.
(l) (i) Notwithstanding anything to the contrary contained in this
Agreement, the maximum amounts 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 under this Agreement, shall not exceed the amount 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.
(ii) Notwithstanding anything to the contrary contained in
this Agreement, including, but not limited, to the provisions of
subparagraph 8(l)(i), if a time restriction is required to avoid or
otherwise exempt a payment from constituting deferred compensation under
section 409A of the Code, then, in such an event and only to the extent
necessary, the Company is granted the right, in its sole discretion, to
fix the time period for any such payments so that such payments shall be
not be deemed to constitute deferred compensation under section 409A of
the Code.
(m) Notwithstanding anything to the contrary contained in this
Agreement, if, at the time of Executive's termination of employment, Executive
is a "specified employee" as defined in Section 409A of the Code, and one or
more payments to the Executive would constitute deferred compensation within the
meaning of Section 409A of the Code, no such payment may be provided until the
earlier of:
(i) six months after Executive's separation of service for
reasons other than death or disability,
(ii) the date of death or disability of Executive, or
(c) the effective date of a Section 409A Change in Control.
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9. Restrictive Covenants.
(a) Restrictions. Executive covenants that, except in furtherance of
Executive's duties hereunder and as approved by the Board to be subject to the
restrictions set forth in this paragraph 9(a).
(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 subparagraph
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, 1% 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 the 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, 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 paragraph 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 clause (i) of this paragraph 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 paragraph 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 paragraph 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 Executive for 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 paragraph 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 Executive
of Executive's duties under this Agreement irrespective of whether alleged
to be caused, wholly or partially, by Executive;
(iii) Except as otherwise provided in paragraph 11(b), the
Company shall reimburse Executive upon written demand for any money or
other property which Executive is required to pay out for any reason
whatsoever in performing Executive's duties hereunder, whether the payment
is for charges or debts incurred or assumed by 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 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 Executive, or arising out of or based upon any
law, regulation, requirement, contract or award; and
(iv) Except as otherwise provided in paragraph 11(b), the
Company shall defend any claim, action, suit or proceeding brought against
Executive, arising out of or connected with any of the foregoing, and to
hold harmless and fully indemnify 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 Executive harmless from any liability described above which
results from the gross negligence or willful misconduct of Executive.
(c) If (i) the Company shall be obligated to indemnify 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
Executive hereunder, 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. Executive shall have the right
but not the obligation to participate at Executive's own expense in the defense
thereof by counsel of Executive's 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, 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 purposes of this Agreement,
(a) Company shall mean (i) American Vantage Companies, Inc., if
Executive is employed by the Company on Executive's Termination Date, and (ii) a
Successor Organization, if Executive is employed by a Successor Organization on
the 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) 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 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
Executive to compensation from the Company in the same amount and on the same
terms Executive would be entitled to hereunder if Executive terminated
Executive's 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.
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(b) This Agreement and all rights of Executive hereunder shall inure
to the benefit of and be enforceable by Executive's personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amounts would still be
payable to him hereunder if Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee, or other designee or, if there
be no such designee, to Executive's estate.
(c) Neither this Agreement nor any rights arising hereunder may be
assigned or pledged by 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 Executive, to: Xxxxxx X. Xxxxxxxxx
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000
If to the Company, to: American Vantage Companies, Inc.
0000 Xxxxx Xxxxxxx Xxxxx - Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Accounting 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 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 Executive's
Total Compensation and all other sums due pursuant to this Agreement and to make
the appropriate arrangements as provided for herein shall 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 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
Executive or from whosoever may be entitled thereto, for any reason whatsoever.
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.
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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.
21. Arbitration.
(a) Any dispute arising between the parties to this Agreement,
including, but not limited to, those pertaining to the formation, validity,
interpretation, effect or alleged breach of this Agreement ("Arbitrable
Dispute") will be submitted to arbitration in Las Vegas, Nevada, before an
experienced employment arbitrator and selected in accordance with the rules of
the American Arbitration Association labor tribunal. Each party shall pay the
fees of their respective attorneys, the expenses of their witnesses and any
other expenses connected with presenting their claim. Other costs of the
arbitration, including the fees of the arbitrator, cost of any record or
transcript of the arbitration, administrative fees, and other fees and costs
shall be borne equally by the parties to this Agreement.
(b) Should any party to this Agreement hereafter institute any legal
action or administrative proceedings against another party with respect to any
claim waived by this Agreement or pursue any other Arbitrable Dispute by any
method other than said arbitration, the responding party shall be entitled to
recover from the initiating party all damages, costs, expenses and attorney's
fees incurred as a result of such action.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
American Vantage Companies
By: /s/ Xxxxxxxx X. Read
---------------------------------------
Xxxxxxxx X. Read
Chairman of the Compensation Committee
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxxxx
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