EXHIBIT 10.1
RESIGNATION AND RELEASE AGREEMENT
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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This RESIGNATION AND RELEASE ("Agreement") is entered into by and
between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") and NATIONAL TOBACCO COMPANY, L.P. (the
"Company").
RECITALS:
▇. ▇▇▇▇▇▇▇▇ resigned his employment with the Company, effective
immediately, on June 8, 2005 (hereinafter referred to as the "Resignation
Date").
▇. ▇▇▇▇▇▇▇▇ and the Company (the "Parties") desire to settle any and
all claims and disputes, known and unknown, that exist or might be claimed to
exist by ▇▇▇▇▇▇▇▇ against the Released Parties (as defined in Paragraph 2.1 of
this Agreement) including, but not limited to, claims of any nature that have
been, or could have been, asserted that arise out of or relate to ▇▇▇▇▇▇▇▇'▇
employment, terms and conditions of employment, resignation from that employment
or any other event, transaction, or communication between ▇▇▇▇▇▇▇▇ and the
Company or the other persons or entities identified herein.
C. This Agreement sets forth the entire agreement between ▇▇▇▇▇▇▇▇
and the Company and supersedes any and all prior oral or written agreements or
understandings between them, including but not limited to the letter agreement
dated March 28, 2002 (the "Letter Agreement"), except as otherwise expressly
provided in Paragraph 1.3.
AGREEMENT:
Now, therefore, the Parties agree as follows:
PART 1
1.1 SEVERANCE BENEFIT. In exchange for ▇▇▇▇▇▇▇▇'▇ execution of this
Agreement and in consideration of the promises made by ▇▇▇▇▇▇▇▇ in the remainder
of this Agreement, the Company agrees to provide to ▇▇▇▇▇▇▇▇ the following
Severance Benefit:
1.1.1 The Company shall continue to carry ▇▇▇▇▇▇▇▇ on its health
insurance plan, as if he were still an employee, for a period of twelve (12)
months following the Resignation Date. During such period, the Company shall
make periodic premium payments with respect to such coverage in the same amounts
and at the same intervals as if ▇▇▇▇▇▇▇▇ were still an employee. Likewise,
during such period, the Company shall deduct from ▇▇▇▇▇▇▇▇'▇ periodic payments
under the Letter Agreement (see Paragraph 1.3), and direct toward the cost of
such insurance, amounts equivalent to those amounts that would be deducted if
▇▇▇▇▇▇▇▇ were still an employee. The actual insurance benefits provided and
amounts deducted shall be consistent with the provisions of the plan in effect
at any given time, and may vary from time to time, during the aforementioned
twelve (12) month period. The Company shall issue appropriate notices under the
Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") at the end of
the aforementioned twelve (12) month period.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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1.1.2 The Company agrees to sell to ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ agrees to
purchase for the sum of THIRTY THOUSAND FOUR HUNDRED FIFTY-FIVE AND ZERO/100
DOLLARS ($30,455.00), the Company vehicle assigned to and being driven by
▇▇▇▇▇▇▇▇ as of the Resignation Date.
1.1.3 The Company agrees to sell to ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ agrees to
purchase for the sum of ONE THOUSAND FIVE HUNDRED AND ZERO/100 DOLLARS
($1,500.00), the Company computer equipment assigned to and being used by
▇▇▇▇▇▇▇▇ in his home as of the Resignation Date.
1.1.4 The Company agrees to allow ▇▇▇▇▇▇▇▇ to keep the Company
cellular telephone assigned to and being used by ▇▇▇▇▇▇▇▇ as of the Resignation
Date. ▇▇▇▇▇▇▇▇ shall not retain, and the Company shall not maintain, the
telephone service then associated with that telephone.
1.1.5 CONTINGENT BENEFIT. Provided that ▇▇▇▇▇▇▇▇ cooperates--to the
Company's satisfaction--in the transition of his responsibilities, duties and
authority to his successor, the Company shall pay to ▇▇▇▇▇▇▇▇ the sum of
FIFTY-SIX THOUSAND FIVE HUNDRED THIRTY-EIGHT AND FORTY-EIGHT/100 DOLLARS
($56,538.48). Such sum shall, contingent upon the foregoing condition precedent,
be disbursed in installments concurrent with the Company's normal payroll cycle,
in the amounts that ▇▇▇▇▇▇▇▇ would have received if he were still an employee,
commencing on the Resignation Date and continuing for two months thereafter (the
"Transition Period").
The foregoing payments and benefits constitute the "Severance
Benefit," none of which ▇▇▇▇▇▇▇▇ would be entitled to receive but for ▇▇▇▇▇▇▇▇'▇
execution of this Agreement.
1.2 ACCRUED BENEFITS. Separately and apart from this Agreement,
▇▇▇▇▇▇▇▇ shall also receive any accrued, unused vacation benefits to which
▇▇▇▇▇▇▇▇ is entitled as of ▇▇▇▇▇▇▇▇'▇ resignation date, if such has not already
been provided to ▇▇▇▇▇▇▇▇. Additionally, ▇▇▇▇▇▇▇▇ shall retain all rights
pertaining to the 5,937 vested stock options that he had as of the Resignation
Date, such options to remain vested subject to the terms of the stock option
agreement.
1.3 ADDITIONAL BENEFIT. Separate and apart from the Severance
Benefit, and consistent with the Letter Agreement, the Company shall pay
▇▇▇▇▇▇▇▇ THREE HUNDRED SIXTY-SEVEN THOUSAND FIVE HUNDRED AND ZERO/100 DOLLARS
($367,500.00). Such sum shall be disbursed in installments concurrent with the
Company's normal payroll cycle, in the amounts that ▇▇▇▇▇▇▇▇ would have received
if he were still an employee, during the twelve (12) month period immediately
following the end of the Transition Period (Paragraph 1.1.5).
1.4 EFFECTIVE DATE. ▇▇▇▇▇▇▇▇'▇ signing of this Agreement in the
presence of a Notary Public shall constitute employee's execution of this
Agreement. The "Effective Date" of this Agreement shall be the date on which the
Revocation Period expires (except as otherwise provided in Paragraph 3.3).
PART 2
2.1 GENERAL RELEASE. In consideration of the Severance Benefit, the
sufficiency of which ▇▇▇▇▇▇▇▇ acknowledges, ▇▇▇▇▇▇▇▇ hereby settles, waives,
releases and discharges any and all claims, demands, actions or causes of
action, known or unknown, which ▇▇▇▇▇▇▇▇ has or may have against the Company,
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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its parent, sister, subsidiaries, affiliates, divisions, related corporations,
limited liability corporations, partnerships, insurers, successor and
predecessor entities and each of their respective current and former employees,
directors, officers, shareholders, agents, attorneys, or representatives
(collectively, the "Released Parties") including, but not limited to, claims
arising from or during ▇▇▇▇▇▇▇▇'▇ employment with the Company, the terms and
conditions of that employment, ▇▇▇▇▇▇▇▇'▇ resignation from that employment, or
any other event, transaction or communication between ▇▇▇▇▇▇▇▇ and any Released
Party. Additionally, ▇▇▇▇▇▇▇▇ expressly acknowledges and agrees that this
general release settles, waives, releases and discharges any and all claims,
demands, actions or causes of action, known or unknown, which ▇▇▇▇▇▇▇▇ has or
may have against any current or former employee, director, officer, shareholder,
agent, attorney or representative of the Company in such person's individual and
representative capacities. ▇▇▇▇▇▇▇▇ recognizes that by signing this Agreement,
▇▇▇▇▇▇▇▇ may be giving up some claim, demand or cause of action, which ▇▇▇▇▇▇▇▇
now may have, whether known or unknown.
2.1.1 This General Release includes, but is not limited to, the
release of any and all claims or charges of discrimination that ▇▇▇▇▇▇▇▇ has, or
could have, filed against any Released Party with federal, state or local court
of law or equity, the Equal Employment Opportunity Commission, the United States
Department of Labor, the Kentucky Labor Cabinet, the Kentucky Commission on
Human Rights or any other federal, state or local agency under: Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ss. 2000e, et seq.; the Civil Rights Act of
1991, P.L. 102-166; the Civil Rights Act of 1866, 42 U.S.C. ss. 1981; the Civil
Rights Act of 1871, 42 U.S.C. ss. 1983; the Americans with Disabilities Act of
1990, 42 U.S.C. ss. 12101, et seq.; the Fair Labor Standards Act of 1938, 29
U.S.C. ss. 201, et seq.; the Family and Medical Leave Act of 1993, 29 U.S.C. ss.
2601, et seq.; the Employee Retirement Income Security Act of 1974, 29 U.S.C.
ss. 1001, et seq.; the Federal Rehabilitation Act of 1973, 29 U.S.C. ss. 701, et
seq.; the Equal Pay Act of 1963, 29 U.S.C. ▇▇.▇▇. 206(d) and 216(b); the Age
Discrimination in Employment Act of 1967, 29 U.S.C. ss. 621-634, as amended by
the Older Workers' Benefit Protection Act, P.L. 101-433; the Worker Adjustment
and Retraining Notification Act of 1988, 29 U.S.C. ss. 2101, et seq.; the
Consolidated Omnibus Budget Reconciliation Act of 1985; the Occupational Safety
and Health Act, 29 U.S.C. ▇▇.▇▇. 651-678; the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C. ss. 4301, et seq.; the National Labor
Relations Act, 29 U.S.C. ss. 151, et seq.; the Labor Management Relations Act,
29 U.S.C. ss.141, et seq.; the Kentucky Civil Rights Act, KRS 344.010, et seq.;
the Kentucky Equal Pay Act, KRS 337.420 to 337.433; the Kentucky Equal
Opportunities Act, KRS 207.140 to 207.240; the Kentucky Wages and Hours Act, KRS
337.010, et seq.; Kentucky's Workers' Compensation Retaliation statute, KRS
342.197; the Kentucky Occupational Safety and Health Act, KRS 338.011, et seq.;
Kentucky's "catch-all" damages statute, KRS 446.070; the New York Human Rights
Law; the New York Equal Pay Law; the New York Civil Rights Law; the New York
Rights of Persons with Disabilities Law; the New York Smokers' Rights Law; the
New York Equal Rights Law; the New York Workers' Compensation Retaliation laws;
the New York Whistleblower Protection laws; the New York Non-Discrimination for
Legal Activities Law; federal, state and local occupational, safety and health
laws; and any other claims of employment discrimination, disparate treatment,
hostile work environment, sexual, racial or other unlawful harassment,
retaliation, whistle-blowing, intentional or negligent infliction of emotional
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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distress, defamation, invasion of privacy, tortious interference with
contractual relations, wrongful discharge, constructive discharge, outrage,
promissory estoppel, claims or demands arising under either express or implied
contract, breach of contract, tort, public policy, the common law or any
federal, state or local statute, ordinance, regulation or constitutional
provision (including, but not limited to, the laws of the Commonwealth of
Kentucky and the State of New York), and all other liabilities, suits, union or
other grievances, debts, claims for lost wages or benefits, overtime, unpaid
wages or benefits, back pay, front pay, compensatory or punitive damages, actual
damages, consequential damages, incidental damages, damages for emotional
distress, damages for humiliation or embarrassment, contractual damages, damages
in quantum meruit, expectation or for detrimental reliance, injunctive relief,
severance pay, costs, reinstatement, attorneys' fees, business expenses,
commissions, bonuses, incentive compensation, vacation pay, pension benefits,
payment or reimbursement under any health insurance or other employee benefit
plan or agreement, insurance premiums or other sums of money, grievances,
expenses, demands, and controversies of every kind and description, whether
liquidated or unliquidated, known or unknown, contingent or otherwise and
whether specifically mentioned or not, against any Released Party that ▇▇▇▇▇▇▇▇
now has or has had or that may exist or that might be claimed to exist at or
prior to the date of this Agreement. ▇▇▇▇▇▇▇▇ specifically waives any claim or
right to assert that any cause of action, alleged cause of action, claim,
demand, charge or other right of ▇▇▇▇▇▇▇▇ has been, through design, oversight or
error, intentionally or unintentionally, omitted from this Agreement.
PART 3
3.1 SPECIFIC RELEASE OF AGE CLAIMS. ▇▇▇▇▇▇▇▇ agrees that, in exchange
for a portion of the Severance Benefit received from the Company under this
Agreement (which ▇▇▇▇▇▇▇▇ agrees constitutes full and adequate consideration for
all covenants and commitments made herein, in addition to anything of value to
which ▇▇▇▇▇▇▇▇ is already entitled), that this Agreement constitutes a knowing
and voluntary release and waiver of all rights or claims ▇▇▇▇▇▇▇▇ has or may
have against any and all of the Released Parties including, but not limited to,
all rights or claims of discrimination or retaliation arising under the Age
Discrimination in Employment Act of 1967, 29 U.S.C. ▇▇.▇▇. 621-634, as amended
by the Older Workers' Benefit Protection Act, P.L. 101-433 ("ADEA"), and any and
all such claims as might otherwise be available under any state or local law
pertaining to age discrimination or retaliation.
3.1.1 The Company and ▇▇▇▇▇▇▇▇ agree that, by entering into this
Agreement, ▇▇▇▇▇▇▇▇ does not waive rights or claims that may arise after the
Effective Date of this Agreement.
3.2 CONSULTATION PERIOD. ▇▇▇▇▇▇▇▇ represents and warrants that the
Company advised ▇▇▇▇▇▇▇▇ in writing to consult with an attorney prior to
executing this Agreement and that ▇▇▇▇▇▇▇▇ was provided the opportunity to do
so. ▇▇▇▇▇▇▇▇ further represents and warrants that the Company provided ▇▇▇▇▇▇▇▇
a period of at least twenty-one (21) calendar days in which to consider this
Agreement prior to executing it.
3.2.1 ▇▇▇▇▇▇▇▇ agrees that if ▇▇▇▇▇▇▇▇ executes this Agreement at any
time prior to the end of the Consultation Period, such early execution was a
knowing and voluntary waiver of ▇▇▇▇▇▇▇▇'▇ right to consider this Agreement for
at least twenty-one (21) calendar days, and resulted from ▇▇▇▇▇▇▇▇'▇ desire to
receive immediately the consideration provided hereunder and ▇▇▇▇▇▇▇▇'▇ belief
that ▇▇▇▇▇▇▇▇ had ample time in which to consider and understand this Agreement,
and in which to review this Agreement with an attorney.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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3.3 REVOCATION PERIOD. The Company and ▇▇▇▇▇▇▇▇ agree that, for a
period of seven (7) calendar days following ▇▇▇▇▇▇▇▇'▇ execution of this
Agreement (see Paragraph 1.4), ▇▇▇▇▇▇▇▇ has the right to revoke this Agreement,
and the Company and ▇▇▇▇▇▇▇▇ further agree that this Agreement--with the
exception of Paragraph 4.9, which shall be binding immediately upon ▇▇▇▇▇▇▇▇'▇
execution of this Agreement--shall not become effective or enforceable until the
seven (7) day revocation period has expired (see Paragraph 1.4). ▇▇▇▇▇▇▇▇ hereby
agrees that ▇▇▇▇▇▇▇▇'▇ failure to revoke within the seven (7) day revocation
period shall constitute ▇▇▇▇▇▇▇▇'▇ waiver of the right to assert any claim,
charge or cause of action whatsoever against any Released Party based on any
event that occurred or failed to occur during the seven (7) day revocation
period.
PART 4
4.1 DISMISSAL OF CLAIMS. ▇▇▇▇▇▇▇▇ represents and certifies that
▇▇▇▇▇▇▇▇ has not filed or otherwise initiated any complaint, charge or other
action against any Released Party in any local, state or federal court, or with
any local, state or federal administrative agency or board, relating to any
event occurring prior to or on the date on which ▇▇▇▇▇▇▇▇ executed this
Agreement.
4.2 NO REINSTATEMENT OR REAPPLICATION. ▇▇▇▇▇▇▇▇ agrees not to attempt
to procure employment or seek reinstatement with any Released Party at any time,
now or in the future, either as an employee, an independent contractor or in any
other capacity.
4.3 NON-PARTICIPATION. ▇▇▇▇▇▇▇▇ specifically represents and agrees
that ▇▇▇▇▇▇▇▇ will not participate in the future, in any way, in any claim,
charge or other action undertaken by any federal, state or local governmental
agency, or by any association, business, organization, entity or individual, or
any combination thereof, in any local, state or federal court or before or with
any local, state or federal agency or board (except as required by law, subject
to numerical Paragraph 4.6.1, or at the request of the Company), relating to any
event occurring prior to or on the date on which ▇▇▇▇▇▇▇▇ executed this
Agreement. ▇▇▇▇▇▇▇▇ agrees that ▇▇▇▇▇▇▇▇ shall never seek nor accept any
damages, remedy or other relief, either personally or on behalf of another,
resulting from any charge or cause of action filed by any person, entity or
government agency, in any administrative or judicial forum, that in any way
relates to ▇▇▇▇▇▇▇▇'▇ employment with the Company or in any way relates to any
right or cause of action otherwise released or settled under this Agreement.
▇▇▇▇▇▇▇▇ further agrees that ▇▇▇▇▇▇▇▇ shall not knowingly communicate with any
current or former employee of any Released Party for the purpose or effect of
assisting such person with actual or potential claims or charges against any of
the Released Parties, unless expressly required by law to do so.
4.4 COOPERATION. ▇▇▇▇▇▇▇▇ agrees to cooperate fully, completely and
without the necessity of subpoena or other compulsion to assist the Released
Parties in the defense of any and all lawsuits, administrative charges or
actions, claims, demands or other causes of action brought against any Released
Party by any third party and arising out of events that are alleged to have
occurred during, or which relate to, ▇▇▇▇▇▇▇▇'▇ employment with the Company.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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4.5 COMPLETE RELEASE. It is the specific intent and purpose of this
Agreement to release and discharge the Released Parties from liability for any
and all claims, employment discrimination charges and causes of action of any
kind or nature whatsoever, whether known or unknown and whether or not
specifically mentioned herein, which may exist or might be claimed to exist at
or prior to the Effective Date of this Agreement, and ▇▇▇▇▇▇▇▇ specifically
waives any claim or right to assert that any cause of action or alleged cause of
action or charge has been, through design, oversight or error, intentionally or
unintentionally, omitted from this Agreement.
4.5.1 ▇▇▇▇▇▇▇▇ expressly agrees that this Agreement shall extend and
apply to all unknown, unsuspected and unanticipated injuries and damages, as
well as to those that are known, suspected, anticipated or disclosed as of the
date of ▇▇▇▇▇▇▇▇'▇ execution of this Agreement. ▇▇▇▇▇▇▇▇ expressly agrees that
any and all facts, circumstances and events occurring prior ▇▇▇▇▇▇▇▇'▇ execution
of this Agreement cannot and shall not be used by ▇▇▇▇▇▇▇▇ as part of any future
proceeding against any Released Party.
4.6 RESTRICTIVE COVENANTS. As part of the consideration given in
exchange for the Severance Benefit, ▇▇▇▇▇▇▇▇ unequivocally agrees to be bound by
the restrictive covenants set forth in this Part 4.6 and its subparts. ▇▇▇▇▇▇▇▇
acknowledges and agrees that each of the following restrictive covenants is a
material element of this Agreement without which the Company would not have
entered into this Agreement.
4.6.1 CONFIDENTIALITY OF AGREEMENT. ▇▇▇▇▇▇▇▇ acknowledges and agrees
that the existence of this Agreement, the terms of this Agreement (individually
and in their entirety) and all offers, comments, discussions, negotiations and
other communications, documents and events of every kind relating to this
Agreement are and shall forever remain strictly confidential. ▇▇▇▇▇▇▇▇ warrants
not to divulge, disclose, communicate, disseminate or publicize, or cause or
permit to be disclosed, communicated, disseminated or publicized, either
directly or indirectly, specifically or generally, whether by act or omission,
the existence of this Agreement, any term of this Agreement or the circumstances
of ▇▇▇▇▇▇▇▇'▇ resignation, to any person, business organization, corporation,
association, governmental agency or other entity, except as follows: (i) to the
extent necessary to report income to appropriate taxing authorities; (ii) to
communicate with ▇▇▇▇▇▇▇▇'▇ attorneys or agents as necessary for obtaining legal
and/or financial planning advice (in which case ▇▇▇▇▇▇▇▇ agrees to instruct and
require ▇▇▇▇▇▇▇▇'▇ attorneys and agents to agree, in writing, to abide by the
terms of this Agreement), except that ▇▇▇▇▇▇▇▇'▇ attorney or agent shall not
raise or disclose the existence of this Agreement, any term hereof or any
underlying fact related hereto, in any administrative or legal action of any
kind; (iii) in response to any order of a court of competent jurisdiction or in
response to a legitimate discovery request pursuant to state or federal rules of
civil procedure; or (iv) in response to a subpoena issued by a state or federal
court or governmental agency; provided, however, that ▇▇▇▇▇▇▇▇ shall immediately
notify the Released Parties' Attorney of Record herein (see Paragraph 4.17), by
telephone and confirmed immediately thereafter in writing, of ▇▇▇▇▇▇▇▇'▇ receipt
of such discovery request, judicial order or subpoena, so that the Released
Parties may have the opportunity to intervene to assert what rights they may
have in non-disclosure prior to ▇▇▇▇▇▇▇▇'▇ response to the discovery request,
order or subpoena.
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and National Tobacco Company, L.P.
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4.6.2 NON-DISCLOSURE. ▇▇▇▇▇▇▇▇ agrees not to use, disclose, give,
sell or otherwise divulge to any person, agency, board, firm, customer or former
customer of the Released Parties, corporation or other entity any Released
Party's confidential business information, trade secrets, strategies, financial
information, business plans, prices, customer lists, discounts, profit margins,
wholesale prices, designs, plans, data, technical information, intellectual
property or other proprietary information, except as required by law (subject to
Paragraph 4.6.1) or upon the Company's request. ▇▇▇▇▇▇▇▇ covenants that ▇▇▇▇▇▇▇▇
has not and shall not hereafter use or retain without the Released Parties'
express written consent any figures, calculations, letters, papers, drawings,
computer printouts, computer discs or tapes, or copies thereof or other
confidential information of any type or description pertaining to any Released
Party.
4.6.3 NON-DISPARAGEMENT. ▇▇▇▇▇▇▇▇ agrees not to do or say anything
that a reasonable person would expect to diminish, impugn or constrain any
Released Party's good will or good reputation, or that of any Released Party's
employees, officers, agents, products or services. ▇▇▇▇▇▇▇▇ agrees not to
disparage or seek to injure any Released Party's reputation or that of any of
any Released Party's employees, officers, agents, products or services. ▇▇▇▇▇▇▇▇
agrees to refrain from making negative statements regarding any Released Party's
methods of doing business, the quality, wisdom or effectiveness of any Released
Party's business policies and practices, or the quality of any Released Party's
employees, officers, agents, products or services.
4.6.4 NON-COMPETITION. ▇▇▇▇▇▇▇▇ acknowledges and agrees that, during
the course of his employment with the Company, ▇▇▇▇▇▇▇▇: (i) received
significant training in and generated and used the Company's good will and
experience; (ii) was exposed to confidential aspects of the Company's business
and had access to and became familiar with confidential, proprietary and trade
secret information including, but not limited to, business methods, unique
technical services, financial information, management practices, advertising
techniques and information, customer relations, customer lists, lists of
potential customers, market strategies and development projects and other
aspects of the Company's relationships with its various customers, potential
customers and business associates; and (iii) performed services for the Company
that are special, unique, extraordinary and intellectual in character--none of
which is commonly known or readily accessible to the public and all of which
placed ▇▇▇▇▇▇▇▇ in a position of confidence and trust with the customers,
potential customers, vendors, employees of the Company and other persons, the
loss of which cannot adequately be compensated by damages in an action at law.
▇▇▇▇▇▇▇▇ acknowledges and agrees that the Company desires to enter into this
Agreement to protect the Company's vital interest in maintaining its
Confidential Information (see Paragraph 4.6.4.1), to protect the Company's
investment in ▇▇▇▇▇▇▇▇'▇ training and development, to protect the Company's
Business and good will and to avoid competition with ▇▇▇▇▇▇▇▇ for a time certain
following ▇▇▇▇▇▇▇▇'▇ separation from employment.
▇▇▇▇▇▇▇▇ agrees that, for a period of fourteen (14) months following
the Effective Date of this Agreement (see Paragraph 1.4), ▇▇▇▇▇▇▇▇ shall not,
directly or indirectly, alone or with others, either by disclosure or use of the
Company's confidential information or by any other unfair means, engage in, aid,
assist, or own or control any interests in (whether as a shareholder, principal,
partner, employee, trustee, officer, director agent or independent contractor),
any firm, corporation, business or other entity which is (or with any other
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person(s) who are) engaged in competition, directly or indirectly, with the
Company or the Company's Business anywhere in the United States of America.
▇▇▇▇▇▇▇▇ expressly agrees not to engage in the same type of employment or line
of business within the United States of America that could, in any way, be
construed as competing with the Company or the Company's Business, during the
aforementioned period.
4.6.4.1 CONFIDENTIAL INFORMATION. This term means and includes any
information of any kind, nature or description concerning any matters related to
the Company's Business which are not generally known or readily accessible to
the public and which, if divulged, disclosed or otherwise communicated to a
person or entity other than the Company or its agents or employees, would be
deemed by a person exercising reasonable judgment to, or likely to, adversely
impact or affect the Company's Business or interests or to aid or assist a
competitor of the Company. Confidential Information includes, but is not
necessarily limited to, information pertaining to the Company's products,
services, business procedures, marketing plans, customer lists, inventions and
other information, as well as all other trade secrets, intellectual property and
information proprietary to the Company, including, but not limited to,
information pertaining to strategies, finances, sales, markets, business plans
and methods, future business plans and methods, future products and services,
discounts, profit margins, wholesale prices, identities of existing and
prospective customers, suppliers and vendors of the Company (including lists
thereof), and technical information pertaining to the Company's business,
products, services, manufacturing practices and techniques, tooling, machinery,
fixtures, formulas, compositions, research and computer programs. Information
that arguably meets the above description shall be deemed "Confidential
Information" under this Agreement, regardless of whether it has been stamped,
marked or otherwise expressly identified as such.
4.6.4.2 REASONABLENESS OF SCOPE AND DURATION. ▇▇▇▇▇▇▇▇ acknowledges
having carefully read and considered the non-competition provisions of this
Agreement and, having done so, agrees that the covenants and restrictions
contained herein are, taken as a whole, fair and reasonable in their duration,
geographic scope and scope of restricted activities, and are necessary to
protect the Company's good will, trade secrets, Confidential Information and
business interests, and ▇▇▇▇▇▇▇▇ expressly agrees not to raise any issue
disputing the reasonableness of the (i) geographic scope, (ii) type of
employment or line of business or (iii) duration of any such covenants in any
proceeding to enforce such covenants and restrictions.
4.7 RELIEF FOR BREACH OF RESTRICTIVE COVENANTS. The covenants
contained in Part 4.6 and its subparts, pertaining to confidentiality,
non-disclosure and non-disparagement, are material provisions of this Agreement
and shall be binding upon ▇▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ understands and agrees that the
Company would not have entered into this Agreement absent the consideration
received from ▇▇▇▇▇▇▇▇ in the form of the covenants contained in Part 4.6 and
its subparts. No action of any Released Party shall be taken as a waiver of the
Company's right to insist that ▇▇▇▇▇▇▇▇ abide by the restrictive covenants of
this Agreement, unless such waiver is in writing, expressly waives such rights
and is signed by the Released Parties' legal counsel (see Paragraph 4.17).
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4.7.1 ▇▇▇▇▇▇▇▇ acknowledges and agrees that any or all of the
Released Parties could be irreparably harmed by ▇▇▇▇▇▇▇▇'▇ breach of Part 4.6 or
any of its subparts of this Agreement. ▇▇▇▇▇▇▇▇ expressly waives any claim or
defense asserting that the Released Parties, or any of them, have an adequate
remedy at law for any breach by ▇▇▇▇▇▇▇▇ of Part 4.6 or any of its subparts of
this Agreement. ▇▇▇▇▇▇▇▇ agrees that, in the event of an actual or threatened
breach of this Agreement by ▇▇▇▇▇▇▇▇, the Released Parties shall be entitled to
immediate injunctive relief, including, but not necessarily limited to, a
restraining order to enjoin or otherwise prevent or limit such breach. ▇▇▇▇▇▇▇▇
agrees that such injunctive relief shall not be deemed to be any Released
Party's exclusive remedy for the ▇▇▇▇▇▇▇▇'▇ actual or threatened breach of this
Agreement, but shall be in addition to any and all other remedies available at
law or in equity.
4.7.2 In addition to any injunctive relief, ▇▇▇▇▇▇▇▇ agrees that,
upon ▇▇▇▇▇▇▇▇'▇ breach of any provision of Part 4.6 or any of its subparts of
this Agreement, ▇▇▇▇▇▇▇▇ shall immediately repay to the Company the entire
amount of the Severance Benefit, less the sum of Five Hundred and No/100 Dollars
($500), as agreed liquidated damages. ▇▇▇▇▇▇▇▇ acknowledges and agrees that
these liquidated damages represent a fair and reasonable assessment of the
actual damages that the Company would incur as a result of such a breach by
▇▇▇▇▇▇▇▇. This provision shall not limit or constrain any Released Party's
rights under Paragraph 4.12 of this Agreement, nor shall this provision be
deemed to be any Released Party's exclusive remedy for the ▇▇▇▇▇▇▇▇'▇ actual or
threatened breach of this Agreement, but shall be in addition to any and all
other remedies available at law or in equity.
4.8 RETURN OF PROPERTY. ▇▇▇▇▇▇▇▇ agrees to immediately return any and
all property of the Released Parties in ▇▇▇▇▇▇▇▇'▇ possession or control,
including all keys, credit cards, correspondence, business records, parking
permits, computer equipment and personal identification cards, badges and
similar items. ▇▇▇▇▇▇▇▇ also agrees to immediately return any and all documents,
recordings and similar materials in ▇▇▇▇▇▇▇▇'▇ possession or control, or that
subsequently come into ▇▇▇▇▇▇▇▇'▇ possession or control, containing information
that relates to the Released Parties' business or personnel.
4.9 NON-ADMISSION. ▇▇▇▇▇▇▇▇ acknowledges that this Agreement is
offered and entered into as a full and final settlement of any and all claims,
demands, actions or causes of action, known or unknown, which ▇▇▇▇▇▇▇▇ has or
may have against any and all Released Parties, and shall not be construed in any
manner as an admission of any liability or obligation on the part of any
Released Party. ▇▇▇▇▇▇▇▇ further acknowledges that the offer of this Agreement
to ▇▇▇▇▇▇▇▇ cannot be construed as an admission of liability and, if rejected or
revoked by ▇▇▇▇▇▇▇▇, both this document and any communications relating to it
are inadmissible in any legal proceeding brought by or on behalf of ▇▇▇▇▇▇▇▇.
4.10 CLAIMS NOT ASSIGNABLE. ▇▇▇▇▇▇▇▇ represents and warrants that no
person other than ▇▇▇▇▇▇▇▇ is authorized or entitled to assert any claim based
on or arising out of any alleged discriminatory, unlawful, wrongful, tortious or
other conduct toward ▇▇▇▇▇▇▇▇ by any Released Party, including, but not limited
to, any and all claims for attorney's fees or damages resulting as a consequence
thereof based upon or seeking relief on account of any act or omission by any
Released Party that may have occurred or failed to occur prior to ▇▇▇▇▇▇▇▇'▇
execution of this Agreement. ▇▇▇▇▇▇▇▇ warrants and agrees that ▇▇▇▇▇▇▇▇ has not
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assigned and shall never assign any such claim, and that in the event any such
claim is filed or prosecuted by any other person or entity, ▇▇▇▇▇▇▇▇ will
cooperate fully with the Released Parties and will move immediately to withdraw
▇▇▇▇▇▇▇▇'▇ name and to disassociate ▇▇▇▇▇▇▇▇'▇ self completely from such claim,
will request such person or entity to withdraw such claim with prejudice and
will not voluntarily cooperate with or testify on behalf of the person or entity
prosecuting such claim.
4.11 ENTIRE AGREEMENT. This Agreement constitutes and sets forth the
entire agreement between ▇▇▇▇▇▇▇▇ and the Company and supersedes any and all
prior and contemporaneous oral or written agreements or understandings between
them including, but not limited to, the Letter Agreement. ▇▇▇▇▇▇▇▇ acknowledges
and agrees that no representation, promise, inducement or statement of intention
has been made by any Released Party that is not expressly set forth in this
Agreement. No party hereto shall be bound by, or liable for, any alleged
representation, promise, inducement or statement of intention not expressly set
forth in this Agreement. This Agreement cannot be amended, modified or
supplemented in any respect, except by a subsequent written agreement signed by
all Parties hereto.
4.12 INDEMNIFICATION. ▇▇▇▇▇▇▇▇ shall, to the same extent as any
similarly situated Company executive, enjoy the protections of the Company's
directors and officers liability insurance policy and bylaws to the extent
provided in the bylaws and the policy. ▇▇▇▇▇▇▇▇ agrees to indemnify and hold the
Released Parties harmless from and against any and all loss, cost, damage or
expense, including, but not limited to, reasonable attorneys' fees, incurred by
any Released Party in connection with any action at law, or other proceeding,
necessary (in the Company's judgment) to enforce any of the terms, covenants or
conditions of this Agreement, or in connection with any breach of this Agreement
by ▇▇▇▇▇▇▇▇. In the event that any court or other adjudicative body determines
that ▇▇▇▇▇▇▇▇ has materially breached this Agreement, including, but not limited
to, a breach in the form of reinstating or instituting any legal or
administrative proceeding against any Released Party in violation of this
Agreement, ▇▇▇▇▇▇▇▇ expressly acknowledges and agrees that ▇▇▇▇▇▇▇▇ will
promptly pay to the Company: (i) the Severance Benefit, less the sum of Five
Hundred and No/100 Dollars ($500); (ii) any sum recovered by ▇▇▇▇▇▇▇▇ as a
result of legal or administrative proceedings brought against any Released Party
in violation of this Agreement; and (iii) a sum equal to all attorneys' fees and
costs incurred by any and all Released Parties in defending against such
proceedings. This provision shall not apply to claims brought by ▇▇▇▇▇▇▇▇
pursuant to the ADEA, 29 U.S.C. ss. 621, et seq.
4.13 TAX CONSEQUENCES. ▇▇▇▇▇▇▇▇ understands and agrees that the
Company will report the payment of the Severance Benefit to the appropriate
taxing authorities. ▇▇▇▇▇▇▇▇ agrees to pay all federal, state and local taxes,
including any self-employment taxes, related to ▇▇▇▇▇▇▇▇'▇ receipt of the
Severance Benefit. ▇▇▇▇▇▇▇▇ understands and agrees that ▇▇▇▇▇▇▇▇ shall be solely
responsible for ▇▇▇▇▇▇▇▇'▇ personal tax liability, including any penalties,
assessments or interest, related to ▇▇▇▇▇▇▇▇'▇ receipt of the Severance Benefit.
▇▇▇▇▇▇▇▇ understands and agrees that, should the Company find it necessary to
issue 1099s or revised W-2s or take any other accounting action with respect to
executives' compensation (including, but not necessarily limited to,
reclassification of expenses as income) for tax years 2002, 2003 or 2004,
▇▇▇▇▇▇▇▇ shall be treated the same as other similarly situated Company
executives. ▇▇▇▇▇▇▇▇ agrees to defend and indemnify the Released Parties for any
tax liability or penalty assessed against any Released Party in connection with
any payment to ▇▇▇▇▇▇▇▇, and agrees that ▇▇▇▇▇▇▇▇ shall bear any and all costs,
including, but not limited to, penalties and attorney's fees, related to any
such assessment against any Released Party, including any such costs incurred by
any Released Party.
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4.14 LEGAL RIGHTS; SEVERABILITY. This Agreement shall be binding on
and inure to the benefit of the Parties' legal representatives, heirs,
successors and assigns. The Parties shall have all of the rights and remedies
available at law and equity to enforce their respective rights under this
Agreement. No action by either Party shall be taken as a waiver of its right to
insist that the other Party abide by the obligations under this Agreement,
unless such waiver is in writing, expressly waives such rights and is signed by
legal counsel for the Party making such waiver. Should any provision of this
Agreement be declared or determined by any court of competent jurisdiction to be
illegal, invalid, or unenforceable, the validity of the remaining parts, terms,
or provisions shall not be affected thereby and any illegal, invalid, or
unenforceable part, term, or provision shall be deemed not to be a part of this
Agreement. In such event, the Parties agree that such court may impose any
lesser restrictions it finds appropriate to protect the interests of ▇▇▇▇▇▇▇▇ or
any Released Party.
4.15 CHOICE OF LAW. This Agreement is made and entered into in the
Commonwealth of Kentucky, and shall in all respects be interpreted, enforced and
governed by the laws of the Commonwealth of Kentucky. The language of all parts
of this Agreement shall in all cases be interpreted as a whole, according to its
fair meaning, and not strictly for or against any of the Parties.
4.16 CHOICE OF FORUM. ▇▇▇▇▇▇▇▇ consents to the exclusive jurisdiction
of courts located in the Commonwealth of Kentucky, and agrees to waive any
argument of lack of personal jurisdiction or forum non-conveniens with respect
to any claim or controversy arising out of or relating to this Agreement,
▇▇▇▇▇▇▇▇'▇ employment with the Company, ▇▇▇▇▇▇▇▇'▇ resignation from that
employment and any other contact or communication involving ▇▇▇▇▇▇▇▇ and any
Released Party.
4.17 RELEASED PARTIES ATTORNEY OF RECORD. For the purposes of this
Agreement, the Released Parties' attorney of record is:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ PLLC
3500 National City Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
(remainder of this page intentionally blank)
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PLEASE READ CAREFULLY
---------------------
I, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), EXPRESSLY ACKNOWLEDGE, REPRESENT AND
WARRANT THAT I HAVE CAREFULLY REVIEWED THIS AGREEMENT; THAT I FULLY UNDERSTAND
THE TERMS, CONDITIONS AND SIGNIFICANCE OF THIS AGREEMENT; THAT I HAVE HAD AMPLE
TIME TO CONSIDER THIS AGREEMENT; THAT THE COMPANY HAS ADVISED ME IN WRITING TO
CONSULT WITH AN ATTORNEY CONCERNING THIS AGREEMENT; THAT I HAVE HAD A FULL
OPPORTUNITY TO REVIEW THIS AGREEMENT WITH AN ATTORNEY, AND HAVE DONE SO OR HAVE
DECLINED TO DO SO; AND THAT I HAVE EXECUTED THIS AGREEMENT KNOWINGLY,
VOLUNTARILY, AND WITH SUCH ADVICE FROM AN ATTORNEY AS I DEEMED APPROPRIATE.
Date: 06/29/05 /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------- ------------------------------------
▇▇▇▇▇▇▇▇'▇ SIGNATURE
State of New Hampshire )
) SS:
Rockingham County )
I hereby certify that the foregoing Release and Severance Agreement
was subscribed and sworn to before me this day by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, who
acknowledged that the execution thereof was a free act and deed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal this 29th day of June, 2005.
My Commission expires: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Notary Public
My Commission Expires January 4, 2006
--------------------------------------------
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
NOTARY PUBLIC
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NATIONAL TOBACCO COMPANY, L.P.
Date: 06/30/2005 By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------ --------------------------------
COMPANY REPRESENTATIVE
Title: SVP & CFO
-----------------------------
State of New York )
) SS:
County of New York )
I hereby certify that the foregoing Release and Severance Agreement
was subscribed and sworn to before me this day by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as SVP and
CFO of National Tobacco Company, L.P., who acknowledged that the execution
thereof was a free act and deed.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal this 30th day of June, 2005.
My Commission expires: 08/16/2008
-----------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
NOTARY PUBLIC
▇▇▇▇▇▇ ▇▇▇▇▇
Notary Public, State of New York
01AD6114477
Qualified in New York County
Commission Expires 08/16/2008
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