EXHIBIT 10.29
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") dated as of December 15, 1997,
between NORTH ATLANTIC TRADING COMPANY, INC. (the "Company") and XXXX XXXXXX
(the "Executive").
STATEMENT OF PURPOSE
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1. The Executive currently is serving as a consultant to the Company
pursuant to the terms of that certain Consulting Agreement dated as of June 25,
1997 between the Company and the Executive.
2. The Company desires to employ the Executive as its President and
Chief Operating Officer, and the Executive desires to accept employment as the
Company's President and Chief Operating Officer, all on the terms and conditions
set forth herein.
AGREEMENT
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1. Employment, Duties and Acceptance. (a) The Company shall employ the
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Executive during the Term (as hereinafter defined) as the President and Chief
Operating Officer of the Company. The Executive shall report directly to the
Chairman of the Board and Chief Executive Officer of the Company, and the
Executive's duties shall include responsibility over the Company's
manufacturing, marketing, sales and other operational activities.
(b) The Executive hereby accepts such employment and agrees to devote
such time as is reasonably required to fulfill his obligations hereunder. The
parties acknowledge that Executive has other professional commitments and agree
that he will be afforded time to manage such commitments so long as they do not
unreasonably interfere with his performance hereunder. The Executive further
agrees to accept election and to serve during all or any part of the Term as an
officer, director or representative of any subsidiary or affiliate of the
Company, without any compensation therefor other than that specified in this
Agreement.
(c) The duties to be performed by the Executive hereunder shall be
performed primarily in New York, New York and Louisville, Kentucky, subject to
reasonable travel requirements on behalf of the Company. The Company
acknowledges that Executive lives in Florida and agrees that it shall reimburse
Executive for all his reasonable travel expenses. The Company shall not require
the Executive to relocate outside of Florida without his prior written consent,
which may be withheld in the Executive's discretion.
2. Term of Employment; Consulting Agreement. (a) As used herein, the
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"Term" means the period commencing as of January 1, 1998 and continuing until
terminated by either party by written notice (subject to earlier termination
pursuant to Section 4(c) below).
(b) Effective January 1, 1998, the Company and the Executive
agree that their respective obligations under the Consulting Agreement shall be
suspended and, subject to the following sentence, shall have no further force
and effect. In the event that, either (i) the Company terminates the Executive's
employment under this Agreement without Cause (as defined in Section 4(c)) or
(ii) the Executive terminates this Agreement with Good Reason (as defined in
Section 4(c)), the parties agree that the terms of the Consulting Agreement
shall take effect and become operative effective on the date of such termination
and shall remain in full force and effect in accordance with its terms until the
later of (a) June 30, 1999 or (b) the ninetieth (90th) day following the
effective date of such termination, at which time the Consulting Agreement shall
terminate unless extended in writing on mutually agreeable terms.
3. Compensation. (a) During the Term, the Company agrees to pay to the
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Executive a salary in cash (the "Salary") as compensation for the services to be
performed by him as provided herein. The Salary shall be paid at the rate of
$325,000 per annum, less such deductions or amounts to be withheld as shall be
required by applicable law and regulations. The Salary shall be paid in
accordance with the Company's salaried payroll payment policy. The Salary shall
be reviewed annually and may be increased at the sole discretion of the Board of
Directors of the Company.
(b) In addition to the Salary, the Executive shall also be eligible
throughout the Term to receive cash bonuses (each a "Bonus") as a member of
Group A in accordance with the Company's bonus plan, as in effect from time to
time.
(c) In addition to the foregoing, the Executive shall be entitled to
all rights and benefits for which he shall be eligible under any other incentive
program, retirement, retirement savings, profit-sharing, pension or welfare
benefit plan and all other so-called "fringe" benefits or perquisites, in each
case at the highest level which the Company shall from time to time provide for
any of its senior executives of the same or similar stature; provided, however,
that the Executive agrees he will not participate in the Company's health plans.
The Company shall provide the Executive with a secretary in his Florida office
on mutually agreeable terms. In addition, the Executive shall be entitled to the
following benefits:
(i) a car allowance of $1,000.00 per month;
(ii) prompt reimbursement for all reasonable office expenses
incurred by the Executive in connection with maintaining an office in
Florida,
plus $500.00 per month for the rental of office space; and
(iii) Four weeks of paid vacation.
4. Termination. (a) If during the Term the Executive shall die, the
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Executive's legal representative shall be entitled to receive in cash an amount
calculated as the sum of (i) any accrued and unpaid Salary to the date of such
death and (ii) any accrued and unpaid Bonus to the date of such death, including
any Bonus for the year in which the termination occurs, calculated by reviewing
the Company's performance for such entire year and prorating any such Bonus for
the number of days elapsed during such year prior to such termination.
(b) If during the Term the Executive shall become physically or
mentally disabled, whether totally or partially, so that he is unable
substantially to perform his services hereunder for a period of at least 90
consecutive days (which condition is referred to herein as the Executive
becoming "Disabled"), the Company may at any time, by written notice to the
Executive, terminate the Executive's employment, in which event the Executive
(or his legal representative) shall be entitled to receive in cash an amount
calculated as the sum of (i) any accrued and unpaid Salary to the date of such
notice and (ii) any accrued and unpaid Bonus to the date of such notice,
including any Bonus for the year in which the termination occurs, calculated by
reviewing the Company's performance for such entire year and prorating any such
Bonus for the number of days elapsed during such year prior to such termination.
(c) The Executive's employment may be terminated by the Company during
the Term for Cause (as hereinafter defined). If during the Term the Executive's
employment shall be lawfully terminated by the Company for Cause or the
Executive shall voluntarily resign without Good Reason (as hereinafter defined),
the Company's obligation to pay Salary and Bonus for the benefit of the
Executive, and the Executive's obligation to render services hereunder for the
benefit of the Company, shall cease on the date of such termination or
resignation; provided, however, that within 30 days of the date of such
termination or resignation, the Company shall pay the Executive in cash (i) an
amount calculated as the sum of any accrued and unpaid Salary to such date and
(B) any accrued and unpaid Bonus for any year preceding such termination or
resignation and (ii) all business expenses, amounts payable under any benefit
plan or program or other amounts that were accrued or incurred but unpaid or
unreimbursed at such date.
As used herein, the term "Cause" shall mean only (i) a felony
conviction of the Executive (as determined by a court of competent jurisdiction,
not subject to further appeal), (ii) the commission by the Executive of an act
of fraud or embezzlement against the Company or any of its affiliates (as
determined by a court of competent jurisdiction, not subject to further appeal),
(iii) gross misconduct which is demonstrably willful and deliberate on the
Executive's part and which is materially detrimental to the Company or any of
its
affiliates, (iv) any material breach by the Executive of any agreement with the
Company or any affiliate thereof not cured within 10 days after receiving
written notice thereof or any material violation of any policies or procedures
of the Company if the Company has given Executive written notice of such
violation and Executive persists in such violation or (v) insubordination
consisting of the Executive's continued failure to take specific action which is
within his individual control and consistent with his status as a senior
executive of the Company and his duties and responsibilities hereunder after
written notice from the Chief Executive Officer of the Company of not less than
10 days.
As used herein, the term "Good Reason" for the Executive means any of
the following:
(i) the assignment to the Executive of any duties inconsistent
with his status as President and Chief Operating Officer of the Company
or a material adverse alteration in the nature or status of his
responsibilities from those provided herein or the transfer of a
significant portion of such responsibilities to one or more other
persons;
(ii) the failure by the Company to pay or provide to the
Executive, within 30 days of a written demand therefor, any amount of
compensation or any benefit which is due, owing and payable pursuant to
the terms hereof or of any applicable plan, program, arrangement or
policy; or
(iii) the breach in any material respect by the Company of any
of its other obligations or agreements set forth herein and the failure
by the Company to cure such breach within 30 days after written notice
thereof from the Executive.
(d) If during the Term the Executive's employment shall be terminated
by the Company without Cause (and other than pursuant to Section 4(b)) or by the
Executive for Good Reason, the Executive shall not be entitled to receive any
severance pay, and Executive's sole remedy for such termination is his right
pursuant to Section 2(b) above.
(e) During the term of the Executive's employment with Company and for
five years after the date of termination of Executive's employment (the
"Non-competition Period"), Executive hereby agrees not to Compete with the
Company. For purposes of this section, the term Compete means:
(i) directly or indirectly soliciting or counseling,
personally or by or on behalf of any person, firm or corporation, the
employment of any employee of Company, or requesting, inducing or
attempting to influence any employee of the Company to terminate his
employment with Company; or
(ii) directly or indirectly (A) requesting, inducing or
attempting to influence
any supplier of goods or services to Company to curtail or cancel any
business it transacts with Company; or (B) requesting, inducing or
attempting to influence any customer of Company to curtail or cancel
any business they may transact with Company; or (C) engaging in the
manufacturing, marketing or distribution of smokeless tobacco and
cigarette papers in the United States and Canada (other than through
the ownership of five percent (5%) or less of any class of securities
registered under the Securities Act of 1934, as amended).
5. Expenses. In the event that the Executive institutes any legal
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action to enforce his rights under, or to recover damages from breach of, this
Agreement, the Executive, if he is the prevailing party, shall be entitled to
recover from the Company any actual expenses for attorneys' fees and
disbursements reasonably incurred by him.
6. Assignment. This Agreement is binding upon and shall inure to the
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benefit of the parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, neither party shall assign or transfer any rights
or obligations hereunder, except that the Company may assign or transfer this
Agreement to (a) a successor corporation in the event of a merger,
consolidation, or transfer or sale of all or substantially all of the assets, of
the Company or (b) an affiliate of the Company; provided that no such assignment
referred to in the foregoing clause (a) or (b) shall relieve the Company from
liability for its obligations hereunder. Any purported assignment, other than as
provided above, shall be null and void.
7. Indemnification. The Company shall indemnify the Executive in
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accordance with its Certificate of Incorporation and Bylaws against all costs,
charges and expenses incurred or sustained by him in connection with any action,
suit or proceeding to which he may be made a party by reason of his being an
officer, director or employee of the Company or of any subsidiary or affiliate
of the Company. The Company agrees to maintain directors and officers liability
insurance coverage during the Term of this Agreement with coverage levels not
less than those in place as of the date hereof. The Company's obligations under
this Section 7 shall survive any termination of this Agreement or the
Executive's employment hereunder.
8. Notices. All notices, requests, consents and other communications,
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required or permitted to be given hereunder, shall be in writing and shall be
delivered personally or sent by prepaid telegram, telex, facsimile transmission,
overnight courier or mailed, first-class, postage prepaid by registered or
certified mail, as follows:
If to the Company: North Atlantic Trading Company, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chief Executive Officer
Fax Number: (000) 000-0000
If to the Executive: Xxxx Xxxxxx
16680 Echo Xxxxxx Xxxxxx
Xxxx Xxxx
Xxx Xxx, Xxxxxxx 00000
Fax Number: 000 000-0000
or such other address as either party shall designate by notice in writing to
the other in accordance herewith. Any such notice shall be deemed given when so
delivered personally, by facsimile transmission or telegram, or if sent by
overnight courier, one day after delivery to such courier by the sender or if
mailed, five days after deposit by the sender in the U.S.
mails.
10. Waiver. No waiver of any provision of this Agreement or
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modification or amendment of the same shall be effective, binding or enforceable
unless in writing and signed by the party to be charged therewith.
11. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely within such State.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
NORTH ATLANTIC TRADING COMPANY, INC
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Xxxxxx X. Xxxxx, Xx.
Chairman of the Board and Chief
Executive Officer
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
