EXHIBIT 10.27
EXECUTIVE EMPLOYMENT AGREEMENT
between
AMERICAN VANTAGE COMPANIES
and
XXXX X. XXXXXXXX
This Executive Employment Agreement (this "Agreement"), dated
as of April 16, 2003 (the "Effective Date"), is by and between American Vantage
Companies, a Nevada corporation (the "Corporation"), and Xxxx X. Xxxxxxxx
("Executive").
WHEREAS, the Corporation desires to employ Executive
as the Corporation's Chief Accounting Officer, upon the terms and
conditions as set forth in this Agreement; and
WHEREAS, Executive desires to accept such employment
with the Corporation upon such terms and conditions.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement and other good and valuable
consideration, the receipt and adequacy is hereby acknowledged, the parties to
this Agreement agree as set forth below.
1. Employment and Duties.
(a) The Corporation hereby employs Executive and Executive
accepts the employment with the Corporation in the position of Chief Accounting
Officer of the Corporation.
(b) As Chief Accounting Officer of the Corporation, Executive
shall perform such duties and services, consistent with such positions, as may
be assigned to Executive from time to time by the Board of Directors of the
Corporation (the "Board") or the Board's designee, which designee, absent notice
actually given Executive by the Board to the contrary, shall be the President
and/or Chief Executive Officer of the Corporation.
(c) Executive covenants and agrees to perform faithfully and
to the best of Executive's abilities such duties and other reasonable executive
duties and responsibilities assigned to Executive from time to time by the Board
or the Board's designee.
2. Term of Agreement.
(a) Subject to the terms and conditions set forth in this
Agreement, the term of Executive's employment by the Corporation and this
Agreement shall commence on the Effective Date and shall terminate on July 31,
2004 (the "Initial Term").
(b) The term of employment of Executive and this Agreement, as
set forth in paragraph 2(a) of this Agreement, shall automatically be extended,
without any further action by the Corporation or Executive, for successive one
year periods (each, an "Option Term" and, collectively with the Initial Term,
the "Term of this Agreement"), on the same terms and conditions as set forth in
this Agreement. If either party shall desire to terminate Executive's employment
by the Corporation or this Agreement at the end of the Initial Term or any
Option Term, such party shall give written notice of such desire to the other
party at least 60 days prior to the expiration of the Initial Term or such
Option Term, as the case may be. At the expiration of the Initial Term or then
existing Option Term, as the case may be, the Corporation shall have no further
obligation to Executive, and Executive shall have no further obligation to
Corporation, except with respect to (i) Executive's obligations to the
Corporation pursuant to sections 7, 8, 9 and 10 of this Agreement, (ii) the
Corporation's obligations to Executive pursuant to section 5 of this Agreement
and (iii) any other obligations the Corporation may have to Executive and/or
Executive may have to the Corporation under applicable law governing the
relationship of an employer to an employee and/or an employee to an employer
upon and following termination of such relationship.
3. Time to be Devoted to Employment.
(a) Executive agrees to devote Executive's full time,
attention, efforts, loyalties and energies to the business and affairs of the
Corporation. 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, provided such engagement
shall not in any way conflict with the business of any of the Companies (as such
term is defined in section 4 of this Agreement).
(b) Executive shall be entitled to the number of paid vacation
and personal days in each calendar year as determined by the Board for its
executive officers, but in no event less than twenty work days per calendar year
(prorated for any period during the Term of this Agreement which is less than a
full calendar year). Executive shall not be permitted to use more than ten work
days of vacation or personal days consecutively without the written approval of
the Board or the Board's designee.
4. Restriction on Other Employment; Relationship of Corporation to Parent and
the Companies.
(a) During the term of employment and Term of this Agreement,
Executive agrees that, without the prior approval of the Board, Executive shall
not accept a membership on or otherwise become a member of a board of directors,
act as an officer, employee or consultant or engage in any other business
activity, whether or not such other business is a similar or competing business
with the Corporation or any subsidiary (each, a "Subsidiary") or parent
("Parent" and, as a whole with the Corporation and Subsidiaries, the
"Companies"), whether presently existing or hereafter created or acquired, that
would in any way conflict with the business of any of the Companies or the time
required by Executive to perform Executive's duties to the Corporation. It is
expressly acknowledged by the Corporation that Executive is President of the
International Willow Collectors, a not-for-profit organization, and the
Corporation agrees to permit Executive to continue in such capacity, provided
that such entity does not enter a business which is similar or competing with
any of the Companies or the time which Executive is required to devote to such
entity would conflict with the time required by Executive to perform Executives'
duties to the Companies.
(b) It is expressly understood that the Corporation may
require Executive to devote Executive's efforts and be assigned duties relating
to the operations of any or all of the Companies, without further compensation
from the Corporation or any of the Companies. It is understood and agreed that
Executive will hold the same offices with all of the Companies as Executive
shall hold under this Agreement, unless the Board, in the Board's sole
discretion, shall determine otherwise.
5. Compensation; Reimbursement.
(a) Commencing as of the Effective Date, the Corporation shall
pay to Executive an annual base salary (the "Base Salary") of $135,000, payable
in equal bi-weekly installments or in the manner and on the timetable which the
Corporation's payroll is customarily handled or at such intervals as the
Corporation and Executive may hereafter agree to from time to time. Commencing
on August 1, 2004 and on each anniversary thereafter during the Term of this
Agreement (each, a "Base Salary Adjustment Date"), the Base Salary shall be
subject to a cost of living adjustment equal to the Base Salary as in effect on
such Base Salary Adjustment Date multiplied by a fraction, the numerator of
which shall be the Consumer Price Index for all Urban Areas (All Employees) as
published by the Bureau of Labor Statistics of the United States Department of
Labor (the "COLA Index") in effect on such Base Salary Adjustment Date and the
denominator of which shall be the COLA Index in effect on the later of the (i)
Effective Date or (ii) immediately preceding Base Salary Adjustment Date. In any
year in which the COLA Index is not available, the Board shall, in the Board's
reasonable discretion, find and use a similar governmental publication or
similar criteria for the COLA Index to be used for the numerator for the
purposes of this paragraph 5(a) and shall, retroactively, establish the COLA
Index to be used for the denominator for the purposes of this paragraph 5(a)
using such similar publication or criteria. Executive's Base Salary may, but is
not required to, be increased from time to time, based upon Executive's
performance and other relevant factors, as the Board may deem appropriate,
without affecting any other provisions of this Agreement. Once so increased in
accordance with the immediately preceding sentence, the Base Salary may not be
thereafter decreased without the prior written consent of Executive.
(b) In addition to receiving the Base Salary provided for in
paragraph 5(a) of this Agreement, during the Term of this Agreement, Employee
shall be entitled to receive such fringe benefits, including, but not limited
to, participation in any Corporation-sponsored retirement plan, profit sharing
plan, savings plan, stock option or ownership plan and medical/health and
disability insurance benefits, as are made available from time to time to other
executive officers of the Corporation or any of the Companies. Whether or not
available to others, Executive shall specifically be entitled to medical/health
insurance coverage, paid for by the Corporation, provided that Executive shall
qualify for such coverage.
(c) In addition to receiving the Base Salary provided for in
paragraph 5(a) of this Agreement and the fringe benefits provided for in
paragraph 5(b) of this Agreement, the Corporation shall use its best efforts to
obtain and maintain for the Term of this Agreement term life insurance on the
life of Executive in the amount of $250,000, which shall be payable to
Executive's designee(s), provided, in all events that Executive shall qualify
for such insurance and cooperate in obtaining and maintaining such insurance.
Executive shall have the right to change Executive's designee(s), at Executive's
sole discretion, subject to the provisions of the applicable insurance policy.
The entire premium expense for such life insurance shall be paid by the
Corporation.
(d) The Corporation shall reimburse the Executive, in
accordance with the practice followed from time to time for other executive
officers of the Corporation, for all reasonable and necessary business and
traveling expenses and other disbursements incurred by Executive for or on
behalf of the Corporation in the performance of Executive's duties under this
Agreement upon presentation by the Executive to the Corporation of an
appropriate detailed accounting of such expenses and disbursements.
(e) In addition to receiving the compensation set forth in
pargaraphs 5(a) and 5(b) of this Agreement, effective as of the Effective Date,
the Corporation shall grant to Executive an option to purchase 50,000 shares of
the common stock, par value $.01 per share (the "Common Stock"), of the
Corporation, evidenced by an option agreement substantially in the form annexed
to this Agreement as Exhibit 5(e).
(f) If requested by the Board, Executive shall use Executive's
best efforts to obtain and maintain for the Term of this Agreement "key man"
term life insurance on the life of Executive in an amount determined by the
Board, which amount shall be payable to the Corporation as beneficiary. The
entire premium expense for such life insurance shall be paid by the Corporation.
6. Termination of Employment.
(a) Executive's employment by the Corporation and this
Agreement shall terminate in the event of the death of Executive.
(b) The Corporation may terminate this Agreement and
Executive's employment for cause, and, in such an event, the Corporation shall
only be obligated to pay Executive the Base Salary through the date of such
termination. Prior to any termination pursuant to this paragraph 6(b), the
Corporation must give Executive reasonable written notice and adequate
opportunity to respond to the reasons for such termination or, where applicable,
cure. For purposes of this paragraph 6(b), "cause" shall mean that the Board has
made a reasonable determination that Executive has:
(i) committed a fraud against any of the Companies,
(ii) misappropriated or done material, intentional
damage to the property of any of the Companies,
(iii) been convicted of a felony involving personal
dishonesty, moral turpitude, or willfully violent conduct,
(iv) engaged in gross business misconduct,
(v) engaged in gross malfeasance of Executive's
duties,
(vi) materially breached any provision of this
Agreement, or
(vii) failed, on account of a medical disability, to
substantially perform Executive's duties of employment for a period of
90 consecutive calendar days and the finding by the Board, in the
exercise of the Board's reasonable discretion, that Executive will not
be able to substantially perform Executive's duties for the shorter of
(A) at least a period of an additional 90 calendar days during the Term
of this Agreement or (B) for the remainder of the Term of this
Agreement.
(c) If, for any reason, Executive's employment is terminated
under paragraph 6(a) or clause (vii) of paragraph 6(b) of this Agreement, any
compensation payable under section 5 of this Agreement which shall have been
earned but not yet paid shall be paid by the Corporation to Executive or
Executive's estate, guardian or custodian, as the case may be.
(d) If, for any reason, Executive's employment is terminated
by the Corporation prior to the last day of the Term of this Agreement without
cause and other than for any of the reasons set forth in paragraph 6(a) of this
Agreement, or if there is a "change in control" and Executive shall have
terminated Executive's employment with the Corporation within six months of such
change in control, Executive shall be entitled to a severance payment equal to
35% of Executive's Base Salary as in effect on the date of such termination,
payable over a period equal in length to the period in which Executive would
have received Executive's Base Salary equal to the aggregate severance payment
had Executive remained in the employ of the Corporation pursuant to this
Agreement. Such severance payments shall commence with the first pay period
immediately following the date of such termination. Notwithstanding anything to
the contrary contained in this Agreement, commencing on August 1, 2004 and on
each anniversary of such date during the Term of this Agreement, the percentage
of Executive's Base Salary to serve as the basis for determining Executive's
severance payment pursuant to this paragraph 6(d) shall increase by 5%, subject
to a maximum equal to 100% of Executive's Base Salary.
(e) If there is a "change in control" of the Corporation and
Executive shall have terminated Executive's employment with the Corporation
within one year of such change in control, Executive shall be entitled to a
severance payment equal to 100% of Executive's Base Salary as in effect on the
date of such termination, payable over a period equal in length to the period in
which Executive would have received Executive's Base Salary equal to the
aggregate severance payment had Executive remained in the employ of the
Corporation pursuant to this Agreement. Such severance payment shall commence
with the first pay period immediately following the date of such termination.
(f) For the purposes of paragraph 6(e) of this Agreement,
a "change in control shall be deemed to
occur when and only when any of the following events first occurs:
(i) any person who is not currently a stockholder of
the Company becomes the beneficial owner, directly or indirectly, of
securities of the Company representing 51% or more of the combined
voting power of the Company's then outstanding voting securities;
(ii) any merger (other than a merger where the
Corporation is the survivor and there is no accompanying change in
control under clauses (i) of this paragraph 6(f), consolidation,
liquidation or dissolution of the Corporation, or the sale of all or
substantially all of the assets of the Corporation.
For purposes of this paragraph 6(f), the terms "person" and
"beneficial owner" shall have the meaning set forth in Sections 3(a) and 13(d)
of the Securities Exchange Act, and in the regulations promulgated thereunder
and the term "incumbent board" shall mean (x) the members of the Board on the
Effective Date, to the extent that they continue to serve as members of the
Board, and (y) any individual who becomes a member of the Board after the
Effective Date, if such individual's election or nomination for election as a
director was approved by a vote of at least three-quarters of the then incumbent
board.
7. Disclosure of Information.
Executive agrees that Executive will not, at any time during
or after the Term of this Agreement, disclose, reproduce, assign or transfer to
any person, firm, corporation or other business entity, except as required by
law, any non-public information concerning the business, clients, affairs,
business plans, strategies, compounds, formulations, methods, devices,
apparatus, preparations, results from ongoing investigations by others, and
present and future plans of the Corporation, any subsidiary or affiliate thereof
or any company formed or funded by the Corporation ("Confidential Information")
for any reason or purpose whatsoever, without the Corporation's written consent;
nor shall Executive make use of any of such Confidential Information for
Executive's own purpose or for the benefit of any person, firm, corporation or
other business entity, except the Corporation or any subsidiary or affiliate
thereof.
8. Restrictive Covenants.
(a) Executive hereby acknowledges and recognizes that during
the term of employment by the Corporation, Executive will be privy to trade
secrets and confidential proprietary information critical to the Corporation's
business and Executive further acknowledges and recognizes that the Corporation
would find it extremely difficult or impossible to replace Executive and,
accordingly, Executive agrees that, in consideration of the premises contained
herein and, the consideration to be received by the Executive hereunder,
Executive will not, from the date hereof through the end of the Term of this
Agreement and for a six-month period thereafter, (i) directly or indirectly
engage in, represent in any way, or be connected with, any business or activity
(such business or activity being hereinafter called a "Competing Business"), in
competition with the Corporation or any Subsidiary in any location throughout
the United States of America (the "Restricted Territory"), at the time of
Executive's termination of employment with the Corporation, whether such
engagement shall be as an officer, director, owner, employee, partner, affiliate
or other participant in any Competing Business, (ii) assist others in engaging
in any Competing Business in the manner described in the foregoing clause (i) of
this paragraph 8(a), (iii) induce other employees of any of the Companies to
terminate such employee's employment with any of the Companies, or engage in any
Competing Business and (iv) induce customers of any of the Companies to
terminate such customer's relationship with any of the Companies, or to purchase
the goods and services previously supplied by any of the Companies to such
customer from any Competing Business. In the event that termination of Executive
is without cause under paragraph 6(b) of this Agreement, the restrictions
specified above shall be applicable for the Restricted Territory and for the
period of time Executive continues to receive compensation from the Corporation
pursuant to this Agreement, but in no event for less than six months from the
date of such termination without cause.
(b) Executive understands that the restrictions contained in
paragraph 8(a) of this Agreement may limit Executive's ability to earn a
livelihood in a business similar to the businesses of any of the Companies, but
Executive nevertheless believes that Executive will receive sufficient
consideration under this Agreement and as an employee of the Corporation and as
otherwise provided in this Agreement clearly to justify such restrictions which,
in any event (given Executive's education, skills and ability), Executive does
not believe would prevent Executive from earning a living.
(c) Executive represents and warrants that:
(i) Executive is familiar with the covenants not to
compete as set forth in paragraph 8(a) of this Agreement;
(ii) Executive has had the opportunity to discuss the
provisions of the covenants as set forth this section 8 with
Executive's personal attorney and has concluded that such provisions
(including, without limitation, the right of equitable relief and the
length of time provided for herein) are fair, reasonable and just under
the circumstances;
(iii) Executive is fully aware of the obligations,
limitations and liabilities included in the covenants as set forth in
paragraph 8(a) of this Agreement;
(iv) the scope of activities covered as set forth in
paragraph 8(a) of this Agreement is substantially similar to those
activities to be performed by Executive pursuant to this Agreement;
(v) the duration of covenants as set forth in
paragraph 8(a) of this Agreement have been agreed upon as a reasonable
restriction, giving consideration to the following factors: (A)
Executive and the Corporation reasonably anticipate that this
Agreement, although terminable in accordance with section 6 of this
Agreement or otherwise, may continue in effect for sufficient duration
to allow Executive to attain superior bargaining strength and an
ability for unfair competition with respect to the customers of the
Companies and (B) the duration of the covenants as set forth in
paragraph 8(a) of this Agreement is a reasonably necessary period to
allow the Companies to restore the Companies' position of equivalent
bargaining strength and fair competition with respect to such
customers;
(vi) the geographical territory covered hereby has
been agreed upon as a reasonable geographical restriction; and
(vii) the Corporation is relying upon the
representations, warranties and covenants of Executive contained in
this section 8 in entering into this Agreement and, without such
representations, warranties and covenants, the Corporation would not
enter into this Agreement.
9. Corporation's Right to Inventions and Work Product.
Executive shall promptly disclose, grant and assign to the
Corporation for the Corporation's sole use and benefit any and all inventions,
improvements, technical information and suggestions relating in any way to the
business of any of the Companies, which Executive may develop or acquire during
the term of employment with the Corporation (whether or not during normal
working hours), together with all patent applications, letters, patents,
copyrights and reissues thereof that may at any time be granted for or upon any
such invention, improvement or technical information. In connection therewith:
(a) Executive shall, without charge but at the
expense of the Corporation, promptly at all times hereafter execute and
deliver to the Corporation and/or the Companies such applications,
assignments, descriptions and other instruments as may be necessary or
proper in the opinion of the Corporation to vest title to any such
inventions, improvements, technical information, patent applications,
patents, copyrights or reissues thereof in the Corporation and/or the
Companies and to enable the Corporation and/or the Companies to obtain
and maintain the entire right and title thereto throughout the world;
and
(b) Executive shall render to the Corporation and/or
the Companies at the Corporation's and/or the Companies' expense
(including a reasonable payment for the time involved in case Executive
is not then in the Corporation's employ) all such assistance as the
Corporation and/or the Companies may require in the prosecution of
applications for said patents or copyrights or reissues thereof, in the
prosecution or defense of interferences which may be declared involving
any of said applications, patents or copyrights and in any litigation
in which the Corporation and/or the Companies may be involved relating
to any such patents, inventions, improvements or technical information.
10. Enforcement.
It is the desire and intent of the parties hereto that the
provisions of this Agreement shall be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, to the extent that a restriction contained
in this Agreement is more restrictive than permitted by the laws of any
jurisdiction where this Agreement may be subject to review and interpretation,
the terms of such restriction, for the purpose only of the operation of such
restriction in such jurisdiction, shall be the maximum restriction allowed by
the laws of such jurisdiction and such restriction shall be deemed to have been
revised accordingly in this agreement.
11. Representations, Warranties, and Covenants of the Executive.
Executive hereby represents, warrants and covenants to the
Corporation that Executive has the capacity to enter into this Agreement, and
the execution, delivery and performance of this Agreement and compliance with
the provisions hereof by Executive will not conflict with or result in any
breach of any of the terms, conditions, covenants or provisions of, or
constitute a default under, any note, mortgage, agreement, contract or
instrument to which Executive is a party or which Executive may be bound or
affected.
12. Remedies; Survival.
(a) Executive acknowledges and understands that the provisions
of this Agreement are of a special and unique nature, the loss of which cannot
be accurately compensated for in damages by an action at law, and that the
breach or threatened breach of the provisions of this Agreement would cause the
Corporation and/or the Companies irreparable harm. In the event of a breach or
threatened breach by the Executive of any of the provisions of sections 7, 8 and
9 of this Agreement, the Corporation and/or any of the Companies shall be
entitled to an injunction restraining Executive from such breach. Nothing herein
contained shall be construed as prohibiting the Corporation from pursuing any
other remedies available for any breach or threatened breach of this Agreement.
(b) Notwithstanding anything contained in this Agreement to
the contrary, the provisions of sections 7, 8 and 9 of this Agreement shall
survive the expiration or other termination of this Agreement until, by their
terms, such provisions are no longer operative.
13. 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 or (c) mailed by registered or certified mail, postage
prepaid, addressed as follows:
If to the Corporation, to: American Vantage Companies
X.X. Xxx 00000
Xxx Xxxxx, Xxxxxx 00000
Attention: President
with a copy to: Xxxx Xxxxxx, Esq.
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
If to Executive, to: Xxxx X. Xxxxxxxx
0000 Xxxxxxx Xxxxxxx - Xxxx 0X
XXX #000
Las Vegas, Nevada 89122
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 section 13, to
the other party hereto. Each such request, demand, notice or other communication
shall be deemed given (a) on the date of delivery by hand, (b) on the first
business day following the date of delivery to an overnight courier or (c) three
business days following mailing by registered or certified mail.
14. Indemnification.
The Corporation agrees to indemnify Executive and hold
Executive harmless against any and all losses, claims, damages, liabilities and
costs (and all actions in respect thereof and any legal or other expenses in
giving testimony or furnishing documents in response to a subpoena or
otherwise), including, without limitation, the costs of investigating, preparing
or defending any such action or claim, whether or not in connection with
litigation in which Executive is a party, as and when incurred, directly or
indirectly caused by, relating to, based upon or arising out of any work
performed by Executive in connection with this Agreement to the full extent
permitted by the Nevada General Corporation Law and by the Certificate of
Incorporation and Bylaws of the Corporation, as may be amended from time to
time.
The indemnification provision of this section 14 shall be in
addition to any liability which the Corporation may otherwise have to Executive.
If any action, proceeding or investigation is commenced as to
which Executive proposes to demand such indemnification, Executive shall notify
the Corporation with reasonable promptness. The Corporation shall have the right
to retain counsel of the Corporation's own choice to represent Executive in such
action, proceeding or investigation, which counsel may be, subject to such
counsel's professional responsibilities, counsel to the Corporation. In the
event that a conflict exists between the interests of Executive and interests of
the Corporation with respect to such action, proceeding or investigation,
separate counsel for Executive shall be retained. In either event, the
Corporation shall pay all reasonable fees and expenses of such counsel(s) and
such counsel(s) shall, to the fullest extent consistent with such counsel's
professional responsibilities, cooperate with the Corporation and any other
counsel designated by the Corporation. The Corporation shall be liable for any
settlement of any claim against Executive made with the Corporation's written
consent, which consent shall not be unreasonably withheld, to the fullest extent
permitted by the Nevada General Corporation Law and the Certificate of
Incorporation and Bylaws of the Corporation, as may be amended from time to
time.
15. Prior Agreements/Oral Modification.
This Agreement supersedes all prior agreements and constitutes
the entire agreement and understanding between parties. 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; provided, however, that Executive's compensation
may be increased at any time by the Corporation without in any way affecting any
of the other terms and conditions of this Agreement which in all other respects
shall remain in full force and effect.
16. 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.
17. 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.
18. Governing Law.
This Agreement will be governed by, and construed and enforced
in accordance with the laws of the State of Nevada.
19. 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.
20. Proper Construction.
(a) 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.
(b) 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.
21. 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.
22. Entire Agreement; Amendments.
This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and supersedes all prior
agreements or understandings among the parties with respect thereto. This
Agreement may be amended only by an agreement in writing signed by the parties
hereto.
23. 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.
24. 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.
25. Assignment.
This Agreement is personal in its nature and the parties
hereto shall not, without the consent of the other, assign or transfer this
Agreement or any rights or obligations hereunder; provided, however, that the
provisions hereof shall inure to the benefit of, and be binding upon, each
successor of the Corporation whether by merger, consolidation, transfer of all
or substantially all assets, or otherwise.
26. 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.
CORPORATION:
American Vantage Companies
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
EXECUTIVE:
/s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Xxxx X. Xxxxxxxx
