EXHIBIT 10.23
SETTLEMENT AND GENERAL RELEASE AGREEMENT
This SETTLEMENT AND GENERAL RELEASE AGREEMENT, dated as of July 29,
2002 (this "Agreement"), is by and between XXXXXX X. XXXXXXXXX, a resident of
Nevada ("Xxxxxxxxx"), and American Vantage Companies, a Nevada corporation
("AVC").
WITNESSETH
WHEREAS, Xxxxxxxxx has been employed by AVC as its Executive Vice
President and has served as a director and officer of various subsidiaries of
AVC for more than the last seven years; and
WHEREAS, AVC and Xxxxxxxxx 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 Xxxxxxxxx have agreed that (a) Xxxxxxxxx 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 Xxxxxxxxx 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, Xxxxxxxxx and AVC now desire to settle fully and finally
all claims Xxxxxxxxx may have against AVC and that AVC may have against
Xxxxxxxxx, including, but not limited to, the obligations of the parties to each
other under the 2002 Agreement and any other matters arising out of Xxxxxxxxx'x
employment with AVC and Xxxxxxxxx'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.
Xxxxxxxxx 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 Xxxxxxxxx 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"). Xxxxxxxxx agrees to return to AVC all assets,
equipment or other items which are owned by AVC and in the possession or control
of Xxxxxxxxx not later than the Termination Date.
SECTION 3. PAYMENT TO XXXXXXXXX.
(a) As of the effective date of the execution of this Agreement, AVC
shall pay to Xxxxxxxxx the following gross amounts, totaling $739,429.39, before
all applicable federal, state and local tax withholding requirements:
Salary $720,097.07
Health Insurance 9,677.16
Life Insurance 4,223.20
Disability Insurance 4,431.96
(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 Xxxxxxxxx of $18,471.24.
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 Xxxxxxxxx pursuant to
Section 3 of this Agreement and the other obligations of AVC under this
Agreement, Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx that among the
various rights and claims being waived by her 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 Xxxxxxxxx has (i) with
respect to Xxxxxxxxx'x participation in AVC-sponsored stock option plans,
including the options granted to Xxxxxxxxx as of November 28, 1994, October 7,
1996, December 19, 1997 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 Xxxxxxxxx by a third
party.
(b) As a material inducement to Xxxxxxxxx to enter into this
Agreement, subject to the obligations of Xxxxxxxxx under this Agreement, AVC
hereby irrevocably and unconditionally waives, releases and discharges
Xxxxxxxxx, her 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.
Xxxxxxxxx acknowledges that she:
(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 she 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 her 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.
Xxxxxxxxx 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.
Xxxxxxxxx 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 information regarding this Agreement to the media, suppliers, vendors and
other industry participants, or in any 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.
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 Xxxxxxxxx, to: Xx. Xxxxxx X. Xxxxxxxxx
0000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
with a copy to:
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.
(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/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
