EXHIBIT 10.36
RELEASE AGREEMENT
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This RELEASE AGREEMENT (AAgreement@) is made and entered into by and
among XXXXXXX XXXXXXXX (ALangston@); and NATIONAL TOBACCO COMPANY, L.P.
(ANational Tobacco@ or the ACompany@) and North Atlantic Trading Company, Inc.
("NATC").
RECITALS:
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1. Pursuant to the terms of an Agreement (the "Separation Agreement")
dated as of October 29, 1997 among Xxxxxxxx, the Company and NATC, effective
November 1, 1997, Xxxxxxxx will be resigning as National Tobacco's Executive
Vice President of Sales and will assume the position of Vice-Chairman of NATC.
Effective February 28, 1998, Xxxxxxxx'x employment with the Company will be
terminated, and he will be assuming a consulting role with the Company pursuant
to a Consulting Agreement dated as of October 29, 1997 (the "Consulting
Agreement").
2. Xxxxxxxx, National Tobacco and NATC are desirous of settling any and
all claims and disputes, known and unknown, that exist or might be claimed to
exist between Xxxxxxxx, National Tobacco and NATC (including the AReleasees@ as
defined in Paragraph 2 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 Xxxxxxxx=s employment, terms and conditions of employment, separation
from that employment or any other event, transaction, or communication between
Xxxxxxxx, National Tobacco, NATC or the other persons or entities named herein.
AGREEMENT:
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1. Financial Settlement. In consideration of the promises made by
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Xxxxxxxx in the remainder of this Agreement, National Tobacco and NATC agree to
enter into the Separation Agreement and to perform their respective obligations
thereunder, including the retention of Xxxxxxxx as a Consultant and the
repurchase of certain shares of NATC common stock Xxxxxxxx currently holds,
which Xxxxxxxx is not otherwise entitled to receive, upon the execution of this
Agreement.
2. General Release. In consideration of the Separation Agreement,
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Xxxxxxxx hereby settles, waives, releases and discharges any and all claims,
demands, actions or causes of action, known or unknown, which he has or may have
against National Tobacco, NATC, any of their respective subsidiaries,
affiliates, directors, officers, shareholders, agents, attorneys, or current or
former employees, (collectively, the "Releasees"). This Agreement includes, but
is not limited to, the release of claims arising from or during Xxxxxxxx=s
employment with National Tobacco, the terms and conditions of that employment,
his separation from that employment, or any other event, transaction or
communication between Xxxxxxxx and the Releasees. Xxxxxxxx recognizes that by
signing this Agreement, he may be giving up some claim, demand or cause of
action, which he now may have, whether known or unknown.
This Agreement includes, but is not limited to, the release of any and
all claims or charges of discrimination Xxxxxxxx could have filed against
Releasees with the Equal Employment Opportunity Commission ("EEOC"), the United
States Department of Labor, the Kentucky Labor Cabinet, the Kentucky Commission
on Human Rights, or any other state or local civil rights agency; claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq.; the Civil
Rights Act of 1991, P.L. 102-166; the Civil Rights Act of 1866, 42 U.S.C. '
1981; the Civil Rights Act of 1871, 42 U.S.C. ' 1983; the Americans with
Disabilities Act, 42 U.S.C. ' 12101 et seq.; the Fair Labor Standards Act of
1938, 29 U.S.C. ' 201 et seq.; the Family and Medical Leave Act of 1993, 29
U.S.C. ' 2601 et seq.; the Employee Retirement Income Security Act of 1974, 29
U.S.C. ' 1001 et seq.; the Federal Rehabilitation Act of 1973, 29 U.S.C. ' 701
et seq.; the Equal Pay Act of 1963, 29 U.S.C. " 206(d) and 216(b); the Uniformed
Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. ' 4301, et
seq.; the Kentucky Civil Rights Act, KRS 344.010 et seq.; the Kentucky Equal
Opportunities Act, KRS 207.140 et seq.; the Kentucky Wages and Hours Act, KRS
337.010 et seq.; KRS 342.197 (Workers' Compensation Retaliation); and any other
claims of employment discrimination, retaliation, infliction of emotional
distress, defamation, invasion of privacy, loss of consortium, tortious
interference with contractual relations, wrongful termination, 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, or other liabilities, suits, debts, claims for back pay, front pay,
compensatory or punitive damages, actual damages, consequential damages,
emotional distress, damages for humiliation and embarrassment, contractual
damages, injunctive relief, severance pay, costs, reinstatement, attorneys'
fees, business expenses, commissions, bonuses, vacation pay, incentive
compensation plans, pension benefits, or payment or reimbursement under any
health insurance or other employee benefit plan, insurance premiums or other
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sums of money, grievances, expenses, demands, controversies of every kind and
description, whether liquidated or unliquidated, known or unknown, contingent or
otherwise and whether specifically mentioned or not, that Xxxxxxxx now has or
has had or which may exist or might be claimed to exist at or prior to the date
of this Agreement against Releasees. Xxxxxxxx specifically waives any claim or
right to assert that any cause of action, alleged cause of action, claim, charge
or demand has been, through oversight or error, intentionally or
unintentionally, omitted from this Agreement.
3. Specific Release Of Age Claims.
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(a) Xxxxxxxx agrees that in exchange for the consideration received
from National Tobacco and NATC described in Paragraph 1 of this Agreement (which
Xxxxxxxx agrees constitutes consideration for all commitments made herein in
addition to anything of value to which he is already entitled), that this
Agreement constitutes a knowing and voluntary release and waiver of all rights
or claims he may have against Releasees including, but not limited to, all
rights or claims 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"), including, but not limited to, all claims of age
discrimination in employment and all claims of retaliation in violation of the
ADEA and any state statute or local ordinance barring age discrimination.
(b) Xxxxxxxx and Releasees agree that, by entering into this Agreement,
Xxxxxxxx does not waive rights or claims that may arise after the date this
Agreement is executed.
(c) Xxxxxxxx represents and warrants that Releasees advised him in
writing to consult with an attorney prior to executing this Agreement and that
he in fact did consult with an attorney. Xxxxxxxx further represents and
warrants that Releasees provided him a period of at least twenty-one (21) days
in which to consider this Agreement before executing this Agreement.
(d) Xxxxxxxx and Releasees agree that, for a period of seven (7) days
following the execution of this Agreement, Xxxxxxxx has the right to revoke this
Agreement, and Xxxxxxxx and Releasees further agree that this Agreement shall
not become effective or enforceable until the revocation period of seven (7)
days has expired. Xxxxxxxx agrees that if he revokes this Agreement within such
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time period or if he otherwise breaches this Agreement, he will return to
National Tobacco and NATC the full amount of consideration provided to him in
this Agreement, without offset for any reason, at the time of the revocation or
breach, and agrees that the Separation Agreement and all obligations of National
Tobacco and NATC thereunder shall thereupon terminate.
(e) Xxxxxxxx agrees that if he executes this Agreement at any time
prior to the end of the period that Releasees provided him in which to consider
this Agreement, such early execution was a knowing and voluntary waiver of his
right to consider this Agreement for at least twenty-one (21) days, and was due
to his desire to immediately receive consideration provided hereunder and his
belief that he had ample time in which to consider and understand this
Agreement, and in which to review this Agreement with an attorney.
4. Dismissal Of Claims. Xxxxxxxx represents that he has not filed any
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complaint or charges against the Releasees with any local, state or federal
court, agency or board, based on events occurring prior to and including the
date of the signing of this Agreement.
5. No Reinstatement Or Reapplication. Xxxxxxxx agrees that he will not
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attempt to procure employment or seek reinstatement with National Tobacco or
NATC at any time, now or in the future.
6. Non-participation. Xxxxxxxx specifically represents and agrees that
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he will not in the future participate in any way in any claims filed by any
other governmental agency(ies), association(s), business(es), organization(s),
entity(ies), or individual(s) in any local, state or federal court or any
actions before any local, state or federal agency or board (except as required
by law, or at the request of National Tobacco or NATC) based upon any events or
facts occurring prior to and including the date of the signing of this
Agreement.
7. Complete Release. It is the specific intent and purpose of this
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Agreement to release and discharge the Releasees 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 specifically mentioned
or not, which may exist or might be claimed to exist at or prior to the date
hereof, and Xxxxxxxx specifically waives any claim or right to assert that any
cause of action or alleged cause of action or charge has been, through oversight
or error, intentionally or unintentionally, omitted from this Agreement.
Xxxxxxxx expressly agrees that this Agreement shall extend and apply to all
unknown, unsuspected and unanticipated injuries and damages as well as those
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that are now disclosed. Any and all facts, circumstances and events occurring
prior to the signing of this Agreement cannot be used by Xxxxxxxx as part of any
future proceeding against the Releasees.
8. Tax Responsibility. Xxxxxxxx is advised that National Tobacco and
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NATC will be reporting the existence of this Agreement and the Separation
Agreement to the appropriate taxing authorities. Xxxxxxxx agrees to pay all
federal, state and local taxes related to his receipt of any and all income
pursuant to this Agreement and the Separation Agreement (other than the
employer's FICA responsibility while Xxxxxxxx is an employee). Xxxxxxxx further
understands that (other than the employer's FICA responsibility while Xxxxxxxx
is an employee)he will be responsible for all liability, including any
penalties, tax assessments or interest, arising out of payments made pursuant to
this Agreement. Xxxxxxxx also understands and agrees that he will defend and
indemnify National Tobacco and NATC for any tax, interest or penalty assessed
against National Tobacco as a result of payments received by him under this
Agreement, and will solely bear all such costs associated with any assessment.
9. Non-Admission. Xxxxxxxx acknowledges that this Agreement is being
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entered into as a full and final settlement of any disputed claims and is not to
be construed in any manner as an admission of any liability or obligation on the
part of the Releasees.
10. Complete Agreement. This Agreement, the Separation Agreement and
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Consulting Agreement constitute the entire agreement between the parties and
supersede any and all prior contemporaneous, oral or written agreements or
understandings between the parties. No representation, promise, inducement or
statement of intention has been made by the Releasees that is not embodied in
this Agreement, the Separation Agreement or the Consulting Agreement. No party
shall be bound by or liable for any alleged representation, promise, inducement,
or statement of intention not contained in this Agreement. This Agreement cannot
be amended, modified, or supplemented in any respect except by subsequent
written agreement signed by all parties hereto.
11. Indemnification. Xxxxxxxx agrees to indemnify and hold the
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Releasees harmless from and against any and all loss, cost, damage, or expense,
including, but not limited to, reasonable attorneys= fees, incurred by the
Releasees arising out of any breach by Xxxxxxxx of this Agreement.
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12. Legal Rights. The Releasees will have all of the rights and
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remedies available at law and equity to enforce their rights under this
Agreement. Should it be held at any time by a court of competent jurisdiction
that any of the obligations, covenants or agreements set forth in this Agreement
are illegal, invalid or unenforceable, the validity of the remaining parts,
terms, or provisions shall not be affected thereby and any illegal, invalid or
unenforceable parts, terms or provisions shall be deemed not to be a part of
this Agreement.
13. Choice Of Law. This Agreement shall be interpreted and enforced in
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accordance with the laws of the Commonwealth of Kentucky. Xxxxxxxx consents to
the exclusive jurisdiction of courts located in Kentucky, agreeing 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,
Xxxxxxxx=s employment with National Tobacco, Xxxxxxxx=s separation from that
employment, and any other event, contact or communication involving Xxxxxxxx and
the Releasees.
PLEASE READ CAREFULLY
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I, XXXXXXX XXXXXXXX, 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 AND NEGOTIATE 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: October 29, 1997
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
STATE OF NEW YORK )
)SS:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the State and County aforesaid,
personally appeared Xxxxxxx Xxxxxxxx. I hereby certify that the foregoing
Release Agreement was subscribed and sworn to before me by the foregoing person,
who acknowledged that the execution thereof was his free act and deed.
In TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal this 29th day of October, 1997.
My Commission expires: September 15, 1999
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/s/ Xxxxxxxxx Xxxxxxxxx
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NOTARY PUBLIC
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NATIONAL TOBACCO COMPANY, L.P.
By: NATIONAL TOBACCO FINANCE
CORPORATION
Its:General Partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Its: President and
Chief Executive Officer
STATE OF NEW YORK )
)SS:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the State and County
aforesaid, personally appeared Xxxxxx X. Xxxxx, Xx. as President and Chief
Executive Officer of National Tobacco Finance Corporation. I hereby certify that
the foregoing Release Agreement was subscribed and sworn to before me by the
foregoing person, who acknowledged that the execution thereof was his free act
and deed.
In TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal this 29th day of October, 1997.
My Commission expires: September 15, 1999
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/s/ Xxxxxxxxx Xxxxxxxxx
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NOTARY PUBLIC
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NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Its: President and
Chief Executive Officer
STATE OF NEW YORK )
)SS:
COUNTY OF NEW YORK )
Before me, a Notary Public in and for the State and County
aforesaid, personally appeared Xxxxxx X. Xxxxx, Xx. as President and Chief
Executive Officer of North Atlantic Trading Company, Inc. I hereby certify that
the foregoing Release Agreement was subscribed and sworn to before me by the
foregoing person, who acknowledged that the execution thereof was his free act
and deed.
In TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed
my official seal this 29th day of October, 1997.
My Commission expires: September 15, 1999
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/s/ Xxxxxxxxx Xxxxxxxxx
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NOTARY PUBLIC
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