EXHIBIT 10.31
EXECUTIVE EMPLOYMENT AGREEMENT
between
AMERICAN VANTAGE COMPANIES
and
XXXX X. XXXXXXXX
This Executive Employment Agreement (this "Agreement"), dated as of August 1,
2004 (the "Effective Date"), is by and between American Vantage Companies, a
Nevada corporation (the "Corporation"), and Xxxx X. Xxxxxxxx ("Executive").
WHEREAS, Executive is employed by the Corporation pursuant to an Executive
Employment Agreement, dated as of April 16, 2003 (the "Prior Agreement"),
between the Corporation and Executive; and
WHEREAS, the Corporation desires to continue 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. 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.
(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, 2005 (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.
6. Compensation; Reimbursement.
(a) Commencing as of the Effective Date, the Corporation shall pay
to Executive an annual base salary (the "Base Salary") of $205,000, 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 January 1, 2006 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. Whether or not
available to others, Executive shall specifically be entitled to medical
insurance coverage, paid for by the Corporation, provided that Executive shall
qualify for such coverage.
(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) In addition to receiving the Base Salary provided for in
paragraph 6(a) of this Agreement and the fringe benefits provided for in
paragraph 6(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.
(e) 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:
(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 the Executive terminates this Agreement for the reason set forth
in paragraph 7(c) or if there is a "change in control" and Executive shall have
terminated Executive's employment with the Corporation within twelve months 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 payments shall commence with the first pay period
immediately following the date of such termination.
(f) For the purposes of paragraph 7(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 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(f), 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.
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) 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 9(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 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.
(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;
(ii) Executive has had the opportunity to discuss the provisions of the
covenants as set forth in 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 Corporation to restore the Corporation's 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.
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.
14. 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 Xxxxxx
Xxx Xxxxx, Xxxxxx 00000
or, in the case of any of the parties hereto, at such other address as such
party shall have furnished in writing, in accordance with this 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.
(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.
(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.
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
