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EXHIBIT 10.1 - EXECUTION COPY
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT, dated as of January 31, 2001, by and among
PLACEMENT 2000.COM, INC., a Delaware corporation (the "COMPANY"), AMERICAN
VANTAGE COMPANIES, a Nevada corporation ("AMERICAN VANTAGE") and MICHAEL
WOLOSHIN ("WOLOSHIN"). For purposes of this Agreement, an "AFFILIATE" of a
person is any person that controls, is controlled by, or is under common control
with such other person. A "PERSON" includes any natural person and any
corporation, partnership, joint venture, limited liability company, governmental
agency or other legal entity.
RECITALS
The Company, American Vantage and Woloshin entered into a Stock
Purchase Agreement, dated as of December 1, 1999 (the "PURCHASE AGREEMENT"),
pursuant to which American Vantage purchased shares of the Company's capital
stock such that after such purchase American Vantage owned eighty percent (80%)
of the Company's issued and outstanding common stock (collectively, the
"SHARES"). Under the Purchase Agreement, American Vantage agreed to deposit Five
Hundred Thousand Dollars ($500,000) in escrow pursuant to the terms of an Escrow
Agreement, dated as of December 1, 1999 (the "1999 ESCROW AGREEMENT"), among the
Company, American Vantage, and Security Trust Company of Nevada, as Escrow
Agent, pursuant to which the Escrow Agent agreed to disburse the Escrow Funds
(as defined in the 1999 Escrow Agreement) as provided in Section 1.1(a) of the
Purchase Agreement.
Certain disputes have arisen between Woloshin and American Vantage as
to the Company's rights to the Escrow Funds and Woloshin's management and
operation of the Company. Accordingly, the parties have agreed to resolve such
disputes by providing that American Vantage will transfer the Shares to Woloshin
and pay him $125,000, American Vantage will cancel all stock options granted to
Woloshin, the parties and certain other persons will exchange general releases,
Woloshin and the Company will indemnify American Vantage against any and all
claims, and the parties will direct the Escrow Agent to distribute the Escrow
Funds to American Vantage under the 1999 Escrow Agreement, all in accordance
with the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. TRANSFER OF THE SHARES TO WOLOSHIN.
Concurrently with the execution and delivery of this Agreement,
American Vantage is delivering to Woloshin one or more certificates representing
the Shares, together with Stock Powers duly executed in blank on behalf of
American Vantage. American Vantage hereby represents and warrants to Woloshin
that the Shares represent all of the capital stock that American Vantage owns in
the Company and that American Vantage does not own any warrants, options or
other rights to purchase, or any securities convertible into or exchangeable for
capital stock of the Company. American Vantage is transferring the Shares to
Woloshin free and clear of any liens, claims, encumbrances, or restrictions
whatsoever, other than those imposed on the transfer of the Shares under federal
and state securities laws.
2. PAYMENT TO WOLOSHIN.
Concurrently with the execution and delivery of this Agreement,
American Vantage is delivering to Woloshin a good check in the amount of One
Hundred Twenty-Five Thousand Dollars ($125,000), subject to collection.
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3. TERMINATION OF WOLOSHIN OPTIONS.
Woloshin hereby acknowledges and agrees that effective the date hereof,
all options granted to Woloshin by American Vantage are hereby terminated and
are null, void and of no effect. Concurrently with the execution and delivery of
this Agreement, Woloshin is delivering to American Vantage all original Option
Agreements representing the options granted to him by American Vantage.
4. TERMINATION OF THE 1999 ESCROW AGREEMENT.
The Company, American Vantage and Woloshin hereby agree that the 1999
Escrow Agreement is hereby terminated effective the date hereof, and Jason
Cooper, as the Company's sole designee to the Board of Directors of the Company,
hereby consents to such termination as provided in clause (ii) of Section 5.2 of
the 1999 Escrow Agreement. The Company, American Vantage, Woloshin and Cooper
shall instruct the Escrow Agent to disburse the Escrow Funds under the 1999
Escrow Agreement to American Vantage in accordance with an Instruction Letter
substantially in the form of EXHIBIT 4 hereto.
5. DELIVERY OF RELEASES.
(a) Concurrently with the execution and delivery of this Agreement,
the parties hereto and certain other persons are delivering General Releases as
specified below. Notwithstanding the execution of this agreement by any party
prior to its or his receipt of a General Release as specified below, this
Agreement shall not be deemed to have been delivered by such party until such
time as it or he shall have received such General Release or shall have waived
the requirement for delivery in writing.
(i) Woloshin is delivering to American Vantage a General Release
substantially in the form of EXHIBIT 5-1 hereto.
(ii) The Company is delivering to American Vantage a General
Release substantially in the form of EXHIBIT 5-2 hereto.
(iii) American Vantage is delivering to Woloshin and the Company
a General Release substantially in the form of EXHIBIT 5-3 hereto.
(iv) Joseph Lara, Charles Lee, Lara & Lee LLC, Christian
Thorkelson, Patricia Hamblett, Stephen Kiernan, Wilbur and Deborah
Witham, and Janusz Pawlek are each delivering to American Vantage, the
Company and Woloshin a General Release substantially in the form of
EXHIBIT 5-4 through EXHIBIT 5-11 hereto.
(v) American Vantage is delivering to each of Joseph Lara,
Charles Lee, Lara & Lee LLC, Christian Thorkelson, Patricia Hamblett,
Stephen Kiernan, Wilbur and Deborah Witham, and Janusz Pawlek a General
Release substantially in the form of EXHIBIT 5-12 through EXHIBIT 5-19
hereto.
(vi) The Company is delivering to each of Joseph Lara, Charles
Lee, Lara & Lee LLC, Christian Thorkelson, Patricia Hamblett, Stephen
Kiernan, Wilbur and Deborah Witham, and Janusz Pawlek a General Release
substantially in the form of EXHIBIT 5-20 through EXHIBIT 5-27 hereto.
(vii) Woloshin is delivering to each of Joseph Lara, Charles
Lee, Lara & Lee LLC, Christian Thorkelson, Patricia Hamblett, Stephen
Kiernan, Wilbur and Deborah Witham, and Janusz Pawlek a General Release
substantially in the form of EXHIBIT 5-28 through EXHIBIT 5-35 hereto.
(b) Woloshin represents and warrants that (i) Christian Thorkelson,
Patricia Hamblett, Stephen Kiernan, Wilbur and Deborah Witham, and Janusz Pawlek
are the only persons, other than American Vantage, who have purchased capital
stock from the Company for cash and (ii) all other stockholders of the Company
have received their shares of capital stock or rights to purchase or acquire
capital stock from the Company in consideration of the provision of goods and
services.
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6. INDEMNIFICATION.
(a) Woloshin and the Company, jointly and severally, hereby agree to
indemnify, hold harmless and defend American Vantage and any subsidiaries and
Affiliates of American Vantage and any of their respective partners, members,
managers, directors, shareholders, officers, employees, attorneys, agents,
contractors, consultants and representatives (collectively, "AMERICAN VANTAGE
INDEMNIFIED PERSONS") from and against any and all demands, claims, actions or
causes of action, assessments, losses, damages, liabilities, judgments, costs
and expenses, including, without limitation, interest, penalties and reasonable
attorneys' fees and expenses (collectively, "CLAIMS") asserted against,
resulting to, imposed upon or incurred by the American Vantage Indemnified
Persons, directly or indirectly, by reason of or arising from (i) any act taken
by the Company or any of its representatives or any omission by the Company or
any of its representatives to take any act, regardless of when such act or
omission occurred or (ii) any Claim by a Company stockholder other than American
Vantage against such American Vantage Indemnified Person.
(b) The obligation of Woloshin or the Company, as applicable (the
"INDEMNIFYING PERSON"), to indemnify, hold harmless, defend and reimburse an
American Vantage Indemnified Person under Section 6(a) hereof with respect to
any claim for which such indemnification is sought (an "INDEMNIFICATION CLAIM")
is conditioned upon receiving from such American Vantage Indemnified Person
written notice of such Indemnification Claim promptly after such American
Vantage Indemnified Person becomes aware of such Indemnification Claim;
provided, however, that any delay in giving such notice shall not release an
Indemnifying Party from its obligations under this Section 6 except to the
extent and only to the extent that such American Vantage Indemnified Person was
prejudiced by such delay. The Indemnifying Person shall at its sole expense
defend, contest, settle or otherwise protect against any Claim (including
without limitation by taking reasonably necessary or appropriate action to
remediate) with legal counsel or other appropriate consultants or experts
(collectively, "EXPERTS") of its own selection that are reasonably satisfactory
to such American Vantage Indemnified Person. The Indemnified Person shall have
the right, but not the obligation, to (i) elect to defend, contest, settle or
otherwise protect against such claims with Experts of its own choice, (ii)
participate in the defense, contest, settlement or other protection of such
claims with Experts of its own choice, and (iii) assert any and all defenses,
cross claims or counterclaims it may have; provided, however, that such
election, participation and assertion shall be at the Indemnified Person's sole
cost and expense, notwithstanding anything in this Agreement to the contrary,
unless (x) the American Vantage Indemnified Person and Indemnifying Person have
agreed otherwise, (y) representation of both parties by the same Experts would
be inappropriate due to actual or potential differing interests between them or
(z) the Indemnifying Person fails to take reasonably necessary or appropriate
action and employ appropriate Experts that are reasonably satisfactory to the
American Vantage Indemnified Person within a reasonable period of time. The
Indemnifying Person shall not be liable for any settlement of an Indemnified
Claim effected without its prior written consent (which shall not be
unreasonably withheld, delayed or conditioned). The Indemnifying Person shall
not settle any Claim without the relevant American Vantage Indemnified Person's
prior written consent (which shall not be unreasonably withheld, conditioned or
delayed) unless the settlement includes an unconditional general release of such
American Vantage Indemnified Person from all Claims that are the subject matter
of the proceeding. The American Vantage Indemnified Person shall cooperate, and
shall cause each other American Vantage Indemnified Person to at all times
cooperate, in all reasonable ways with, make (subject to the assertion of
attorney-client and other applicable privileges) its respective relevant files
and records available for inspection and copying by, and make its employees
available or otherwise render reasonable assistance to, the Indemnifying Person
in its defense, contest, settlement or protection of any Indemnified Claim
subject to indemnification hereunder.
7. AGREEMENT NOT TO SUE.
(a) In consideration of this Agreement, Woloshin and the Company
each agrees that he or it will not commence any action or proceeding against
American Vantage, any subsidiary or Affiliate thereof, or any of their
respective partners, members, managers, directors, shareholders, officers,
employees, attorneys, agents, contractors, consultants or representatives, in
any court of law or before any administrative agency or arbitration tribunal
based on any action or omission occurring prior to his execution and delivery of
this Agreement, whether arising out of the Purchase Agreement, the 1999 Escrow
Agreement, the Employment Agreement, dated as of December 1, 1999, between the
Company and Woloshin (the "EMPLOYMENT AGREEMENT"), the Non-Competition
Agreement, dated as of December 1, 1999, among American Vantage, the Company and
Woloshin (the "NON-COMPETITION AGREEMENT"), the Non-Qualified Stock Option
Agreement, dated as of December 1, 1999, between American
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Vantage and Woloshin (the "STOCK OPTION AGREEMENT"), or otherwise, including, in
the case of Woloshin, in connection with his being an officer, director,
employee or stockholder of the Company or American Vantage.
(b) In consideration of this Agreement, American Vantage agrees that
it will not commence any action or proceeding against Woloshin or the Company in
any court of law or before any administrative agency based on any action or
omission occurring prior to their execution and delivery of this Agreement,
whether arising out of the Purchase Agreement, the 1999 Escrow Agreement, the
Employment Agreement, the Non-Competition Agreement, the Stock Option Agreement,
or otherwise, including, in the case of Woloshin, in connection with his being
an officer, director, employee or stockholder of the Company or American
Vantage.
(c) Each of the parties hereto acknowledges and agrees that if he or
it (each, a "BREACHING PARTY") breaches, or threatens to commit a breach of, any
of the provisions of this Section 7 (the "AGREEMENT NOT TO Sue"), the other
party or parties (each, a "NON-BREACHING PARTY") shall have no adequate remedy
at law. Therefore, the Non-Breaching Party shall be entitled to enforce the
Agreement Not to Sue by temporary or permanent injunctive or mandatory relief
obtained in any court of competent jurisdiction without the necessity of proving
damages, posting any bond or other security, and without prejudice to any other
rights and remedies which may be available at law or in equity.
8. PARTICIPATION IN EVCI JOINT VENTURE.
If Company or any Affiliate of the Company or Woloshin enters into a
joint venture with Education Video Conferencing, Inc. or any Affiliate thereof,
whether through a corporation, partnership, limited liability company, or other
business entity or contractual relationship (the "EVCI JOINT VENTURE") within
one (1) year after the date hereof, Woloshin and the Company will cause the EVCI
Joint Venture to grant American Vantage or an Affiliate an option to purchase a
one-third (1/3) equity interest in the EVCI Joint Venture, such equity interest
to be the same as the equity interest of EVCI and the Company (or their
respective Affiliates). Such option will provide that American Vantage or its
Affiliate can exercise such option for a period of two years after the date of
grant and may purchase such equity interest for One Hundred Dollars ($100) and
will have customary anti-dilution provisions. In addition, Woloshin and the
Company will cause the EVCI Joint Venture to issue American Vantage a promissory
note in the principal amount of One Hundred Fifty-Five Thousand Dollars
($155,000), payable one (1) year after the EVCI Joint Venture is organized and
bearing interest at the prime rate.
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9. MISCELLANEOUS.
(a) Any and all notices, requests, demands, consents and other
communications required or permitted under this Agreement shall be in writing,
signed by or on behalf of the party by which given, and shall be (i) delivered
by hand, (ii) sent by telecopier (with receipt confirmed), provided that a copy
is mailed (on the same date) by certified or registered mail, return receipt
requested, postage prepaid, (iii) sent by Express Mail, Federal Express or other
reputable express delivery service (receipt requested), or (iv) sent by first
class certified or registered mail, return receipt requested, postage prepaid,
in each case to the party for which intended at its address and/or telecopier
number set forth in SCHEDULE A (or to such other addresses and telecopier
numbers as a party may from time to time designate as to itself by notice
similarly given to the other parties in accordance with this Section 8(a)). A
notice shall be deemed duly given and received on (x) the date that it is given
pursuant to clauses (i) or (ii) above, (y) the business day after it is sent to
the other party if sent by express mail or express delivery service pursuant to
clause (iii) above, and (z) the third business day following the date it is
deposited in the U.S. mail pursuant to clause (iv) above.
(b) The parties hereto shall at any time make, execute and deliver
any and all such further and other agreements, documents, and instruments, as
may be reasonably required for the purposes of giving full force and effect to
this Agreement and to the provisions hereof.
(c) This Agreement constitutes the entire agreement of the parties
hereto with respect to the matters contained herein and supersedes all prior
agreements of the parties, whether written or oral. The provisions of this
Agreement may from time to time be amended, supplemented or otherwise modified
or waived only by a written agreement signed by all of the parties hereto.
(d) This Agreement and the rights, and obligations of the parties
hereunder shall be governed by, and construed and interpreted in accordance
with, the laws of the State of New York applicable to agreements made and to be
performed in such State without application of the principles of conflicts of
laws of such State.
(e) Words of the masculine gender used in this Agreement mean and
include correlative words of the feminine and neuter genders and words imparting
the singular number mean and include the plural number and vice versa.
(f) Each party hereto may assign its rights or delegate its
obligations hereunder only upon the written consent of the other party, and in
the event of any such delegation of obligations, the party delegating such
obligations shall remain primarily liable for the performance thereof. This
Agreement shall be binding upon and shall inure to the benefit of each of the
parties hereto and their respective successors and assignees.
(g) Any waiver by any party of a breach of any provision of this
Agreement shall not operate as or be construed to be a waiver of any other
breach of such provision or of any breach of any other provisions of this
Agreement. The failure of a party to insist upon strict adherence to any terms
of this Agreement on one or more occasions shall not be considered a waiver of,
or deprive that party of the right thereafter to insist upon strict adherence
to, that term or any other term of this Agreement. Any waiver must be in
writing.
(h) If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstances, it shall nevertheless
remain applicable to all other persons and circumstances.
(i) This Agreement may be executed by one or more of the parties
hereto in any number of separate counterparts, and all such counterparts taken
together shall be deemed to constitute one and the same instrument.
(j) Any headings preceding the text of the several sections hereof
shall be solely for convenience of reference and shall not constitute a part of
this Agreement, nor shall they affect its meaning, construction or effect.
(k) Concurrently with the execution and delivery of this Agreement,
Woloshin and American Vantage are each paying one-half (-1/2) of the legal fees
and expenses of Snow Becker Krauss P.C. incurred to the date of this Agreement
in connection with the settlement of claims asserted by each of them against the
other, and the Company
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is paying all outstanding fees and expenses of Snow Becker Krauss P.C. payable
by the Company as of the date hereof. Woloshin and American Vantage shall each
pay one-half (-1/2) of the legal fees and expenses of Snow Becker Krauss P.C.
incurred after the date of this Agreement in connection with any further
services rendered with respect to this Agreement or the settlement of any claims
by Woloshin against American Vantage.
(l) All parties to this Agreement agree to fully cooperate, to
execute any and all supplementary documents, and to take any and all additional
actions that may be necessary or appropriate to give full force and effect to
the basic terms, conditions, and intent of this Agreement, and which are not
inconsistent with its terms. Woloshin acknowledges and agrees that he was orally
advised by American Vantage and is hereby advised in writing by this Agreement
to consult with an attorney before signing this Agreement, he has read and fully
understands this Agreement, including the general release incorporated herein,
and has signed this Agreement, including such general release, freely and
involuntarily with the full knowledge that he is waiving all claims against
American Vantage, except to specifically enforce his rights pursuant to the
terms and conditions of this Agreement.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, Woloshin has hereunto set his hand and, pursuant to
the authorization from their respective Boards of Directors, the Company and
American Vantage have caused these presents to be executed in its name on its
behalf, all as of the day and year first above written.
/s/ Michael Woloshin
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Michael Woloshin
PLACEMENT 2000.COM, INC.
By:
Name:/s/ Michael Woloshin
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Title:
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AMERICAN VANTAGE COMPANIES
By:
Name:/s/ Ronald J. Tassinari
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Title:
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Jason Cooper, as to Section 5 only
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SCHEDULE A
NOTICES
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If to the Company
or Woloshin: Placement 2000.com, Inc.
116 John Street, Room 1705
New York, New York 10038
Attn: Mr. Michael Woloshin
Telephone:212-964-5200
Fax: 212-964-3471
If to the Company: American Vantage Companies
6787 West Tropicana, Suite 200
Las Vegas, Nevada 89103
Attn: Mr. Ronald J. Tassinari
Telephone: 702-227-9800
Fax: 702-227-8525
With a copy to: Snow Becker Krauss P.C.
605 Third Avenue
New York, New York 10158-0125
Attn: Jack Becker, Esq.
Telephone: 212-687-3860
Direct: 212-455-0400
Fax: 212-949-7052