EXHIBIT 10.13
EXECUTIVE EMPLOYMENT AGREEMENT
between
AMERICAN VANTAGE COMPANIES
and
XXXX X. XXXXXXXX
This Executive Employment Agreement (this "Agreement"), dated as of
January 1, 2006 (the "Effective Date"), is by and between American Vantage
Companies, a Nevada corporation (the "Corporation"), and Xxxx X. Xxxxxxxx
("Executive").
WHEREAS, Executive has been employed by the Company as the
Company's Chief Accounting Officer 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 August 1,
2004 (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 Accounting Officer 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 herself to serve
the Company on the terms provided in this Agreement.
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. Termination of Prior Agreement. This Agreement supersedes the Prior Agreement
and the Prior Agreement hereby is terminated in its entirety and hereby made
null and void with no party to the Prior Agreement having any rights,
obligations or liabilities under the Prior Agreement. Notwithstanding the
immediately preceding sentence, all benefits received by Executive under the
Prior Agreement, including, but not limited to, compensation, bonuses,
contributions to retirement programs and option grants, shall remain the
property of Executive and, with respect to option grants, remain exercisable and
vested in accordance with their terms.
2. Employment and Duties.
(a) The Corporation employs Executive for the Term of this Agreement (as such
term is defined in paragraph 3(b) of this Agreement) as, and Executive
accepts 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.
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(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.
3. 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 December 31, 2006
(the "Initial Term").
(b) The term of employment of Executive and this Agreement, as set forth in
paragraph 3(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 8, 9, 10 and 11 of this Agreement, (ii) the Corporation's
obligations to Executive pursuant to section 6 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.
4. 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 5 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.
5. 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.
(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.
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6. Compensation; Reimbursement.
(a) Commencing as of the Effective Date, the Corporation shall pay to
Executive an annual base salary (the "Base Salary") of $215,500, 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 January 1, 2007 (assuming an extension of the
Term of this Agreement pursuant to paragraph 3(b) of this Agreement) 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 6(a) and shall, retroactively, establish the COLA Index to be
used for the denominator for the purposes of this paragraph 6(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 6(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.
(c) 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.
(d) 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.
7. 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 7(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 7(b), "cause" shall mean that the Board has
made a reasonable determination that Executive has:
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(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) The Executive may terminate this Employment Agreement should the
Corporation insist that the Executive relocate to offices located at a
distance in excess of 50 miles from the location of the Executive's
employment as of the Effective Date.
(d) If, for any reason, Executive's employment is terminated under paragraph
7(a) or clause (vii) of paragraph 7(b) of this Agreement, any compensation
payable under section 6 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.
(e) 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 7(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 (the "Severance Payment") equal to 100% of Executive's
Base Salary as in effect on the date of such termination, payable in
substantially equal bi-weekly installments over a period commencing on the
first payroll payment date following such termination and ending on the
payroll payment date immediately preceding March 15 of the calendar year
following the calendar year in which such termination occurred.
(f) For the purposes of paragraph 7(d) 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 30% or more of the
combined voting power of the Company's then outstanding voting
securities;
(ii) two or more directors, whose election or nomination for
election is not approved by a majority of the "incumbent
board," are elected within any single 24-month consecutive
period to serve on the Board;
(iii) 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
(iv) any merger (other than a merger where the Corporation is the
survivor and there is no accompanying change in control under
clauses (i), (ii) or (iii) of this paragraph 7(e),
consolidation, liquidation or dissolution of the Corporation,
or the sale of all or substantially all of the assets of the
Corporation.
Notwithstanding the foregoing, a change in control shall not be deemed to
occur pursuant to clause (i) of this paragraph 7(f) solely because 30% or
more of the combined voting power of the Corporation's outstanding
securities is acquired by one or more employee benefit plans maintained by
the Corporation or by any other employer, the majority interest in which
is held, directly or indirectly, by the Corporation. For purposes of this
paragraph 7(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.
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(g) 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 Internal Revenue
Code of 1986, as amended (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 "change in ownership or effective
control" within the meaning of such term under Section 409A of
the Code.
8. 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.
9. Restrictive Covenants.
(a) (i) 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,
(A) 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, (B) assist others in engaging
in any Competing Business in the manner described in the foregoing clause
(A) of this subparagraph 9(a)(i), (C) 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 (D) 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 of the termination of Executive is without cause under
paragraph 7(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; provided however, that, in the event
that the provisions of paragraph 7(g) shall become applicable and the
Severance Payment cannot be made until six months following the
termination of employment, the restrictions set forth in subparagraph
9(a)(i) shall terminate at the end of Executive's term of employment by
the Company and shall not be applicable to the six-month period referred
to in paragraph 9(a)(i) or other period referred to in the immediately
preceding clause of this subparagraph 9(a)(ii).
(b) Executive understands that the restrictions contained in paragraph 9(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 9(a) of this Agreement;
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(ii) Executive has had the opportunity to discuss the provisions of
the covenants as set forth this section 9 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 9(a)
of this Agreement;
(iv) the scope of activities covered as set forth in paragraph 9(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 9(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 7 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 9(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 9 in
entering into this Agreement and, without such representations,
warranties and covenants, the Corporation would not enter into this
Agreement.
10. 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.
11. 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.
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12. 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.
13. 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 8, 9 and 10 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 8, 9 and 10 of this Agreement
shall survive the expiration or other termination of this Agreement
until, by their terms, such provisions are no longer operative.
12. 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
0000 Xxxxx Xxxxxxx Xxxxx - Xxxxx 000
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 Xxxxxx Xxxxxx Xxx.
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 section 14, 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.
15. Indemnification.
(a) 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.
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(b) The indemnification provision of this section 15 shall be in
addition to any liability which the Corporation may otherwise have
to Executive.
(c) 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.
16. 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.
17. 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.
18. 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.
19. Governing Law. This Agreement will be governed by, and construed and
enforced in accordance with the laws of the State of Nevada.
20. 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.
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(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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
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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
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