EXHIBIT 10.35
CONSULTING AGREEMENT
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AGREEMENT made as of this 29th day of October, 1997 between
NATIONAL TOBACCO COMPANY, L.P., a Delaware limited partnership with offices at
000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, (the "COMPANY"), and XXXXXXX
XXXXXXXX, who resides at 00000 Xxxxxxx 000, Xxxxxxxx, Xxxxxxx 00000 (the
"CONSULTANT").
W I T N E S E T H
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WHEREAS, the Company, its parent, North Atlantic Trading Company,
Inc. ("NATC"), and the Consultant are parties to that certain Agreement dated as
of October 29, 1997 (the "Agreement") pursuant to which the Consultant has
agreed to resign as Executive Vice President - Sales of the Company and become
Vice Chairman of the Board of NATC, and remain a full time employee of the
Company until February 28, 1998, (the "Termination Date"); and
WHEREAS, the Company desires to retain the Consultant to perform
consulting services for the Company after the Termination Date, and the
Consultant desires to render such services to the Company after the Termination
Date, in each case upon the terms and subject to the conditions hereinafter set
forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and conditions hereinafter set forth, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Retention as Consultant. The Company agrees to retain the
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Consultant to perform consulting services after the Termination Date, and the
Consultant agrees to render such services to the Company after the Termination
Date, upon the terms and subject to the conditions hereinafter set forth. The
retention of the Consultant by the Company hereunder shall be effective and
shall commence immediately following the Termination Date until the first
anniversary of the Termination Date (the "INITIAL TERM"), and, thereafter, for
successive periods of 12 months each (each such successive period of 12 months
being referred to as an "Additional Term") unless either party notifies the
other party in writing at least 60 days prior to the expiration of the Initial
Term or any Additional Term of its or his election not to renew the Consulting
Term, in which event the retention of the Consultant by the Company hereunder
shall terminate as of the conclusion of the Initial Term or such Additional
Term, as the case may be. For purposes hereof, the period of the Consultant's
retention hereunder shall be referred to as the "Consulting Term."
2. Duties and Extent of Services. The Consultant agrees that,
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during the Consulting Term, he shall act as a consultant to the Company under
the direction of the Chief Executive Officer or his designee. The Consultant
shall maintain his contacts with the smokeless tobacco industry and shall attend
related industry functions approved by the Company in advance. In addition, the
Consultant shall have such other or more specific responsibilities with respect
to the business of the Company or any of its affiliates as may be determined and
assigned to the Consultant from time to time by or upon the authority of the
Chief Executive Officer of Company. The Consultant shall serve the Company
faithfully and to the best of his ability in such capacities, devoting such
portion of his business time, attention, knowledge, energy and skills to such
service as shall be reasonable to perform his duties hereunder. The Consultant
shall travel as reasonably required in connection with the performance of his
duties hereunder and shall serve during any part of the Consulting Term as a
director of the Company or any other affiliate of the Company without any
compensation therefor other than as specified in this Agreement.
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3. Compensation and Benefits. The Company agrees to pay the
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Consultant, as compensation for consulting services to be rendered by the
Consultant under and pursuant to this Agreement, a consulting fee consisting of
the following:
(a) A base fee, payable in accordance with the Company's standard
payroll practices for senior executive employees, at an annual rate of $50,000
during the Consulting Term (THE "CONSULTING FEE").
(b) Prompt reimbursement for all reasonable business-related
expenses incurred by the Consultant in accordance with the policies and
procedures of the Company.
(c) The use of a company car in accordance with the policies and
procedures of the Company.
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4. Confidentiality; Non-Competition.
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(a) The Consultant agrees that during the Consulting Term and for
a period of one year commencing upon the termination of the Consulting Term, the
Consultant will not, directly or indirectly, without the prior written consent
of the Company:
(i) disclose (unless required by law or court order or
other judicial or administrative process) or use any confidential
or secret information relating to Company or any of its
subsidiaries; or
(ii) engage in (other than through the ownership of five
percent (5%) or less or any class of securities registered under
the Securities Exchange Act of 1934, as amended), the marketing
and distribution of smokeless tobacco products in the United
States.
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(b) The Consultant consents and agrees that if he violates any of
the provisions of Section 4(a), the Company would sustain irreparable harm and,
therefore, in addition to any other remedies which the Company may have under
this Agreement or otherwise, the Company shall be entitled to apply to any court
of competent jurisdiction for an injunction restraining the Consultant from
committing or continuing any such violation of this Agreement, and the
Consultant shall not object to any such application. Nothing in this Agreement
shall be construed as prohibiting the Company from pursuing any other remedy or
remedies including, without limitation, recovery of damages.
5. Notices. All notices, requests, demands and other
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communications hereunder shall be in writing and shall be delivered personally
or sent by registered or certified mail, return receipt requested, to the other
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party hereto at its address as set forth at the beginning of this Agreement, in
either case with a copy to counsel at the following address: (a) with respect to
the Company, National Tobacco Company, L.P., 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, XX
00000 and (b) with respect to the Consultant, Attention: Xxxxxxx Xxxxxxxx at the
address set forth in the recital, with a copy to Xxxxxxxxx X. Xxxxxxxxx, Esq.,
Ganz Xxxxxxxxx & Xxxx, 0000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Any party
may change the address to which notices, requests, demands and other
communications hereunder shall be sent by sending written notice of such change
of address to the other parties hereto.
6. Assignability, Binding Effect and Survival. This Agreement
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shall inure to the benefit of and shall be binding upon the Company, the
Consultant and their respective heirs, successors and assigns. Notwithstanding
the foregoing, the obligations of the Consultant may not be delegated and the
Consultant may not assign, transfer, pledge, encumber, hypothecate or otherwise
dispose of this Agreement, or any of his rights hereunder, and any such
attempted delegation or disposition shall be null and void and without effect;
provided, however, the Company shall be permitted to assign or transfer this
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Agreement to Company or any of its subsidiaries so long as the duties and
responsibilities of the Consultant remain substantially similar to those
contained in this Agreement. The provisions of Sections 4 and 5 shall survive
the termination of the Consultant's consulting services pursuant to this
Agreement and, to the extent appropriate to the intention of the parties and the
subject matter of this Agreement, other rights and obligations of the parties
may survive the termination of this Agreement.
7. Complete Understanding; Amendment. This Agreement constitutes
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the complete understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior negotiations,
representations and agreements made by and between such parties. This Agreement
shall not be altered, modified, amended or terminated except by written
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instrument signed by each of the parties hereto. Waiver by either party hereto
of any breach hereunder by the other party shall not operate as a waiver of any
other breach, whether similar to or different from the breach waived.
8. Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York.
9. Section Headings. The Section headings contained in this
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Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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10. Severability. If any provision of this Agreement or the
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application of any such provision to any party or circumstances shall be
determined by any court of competent jurisdiction to be invalid and
unenforceable to any extent, the remainder of this Agreement or the application
of such provision to such person or circumstances other than those to which it
is so determined to be invalid and enforceable, shall not be affected thereby,
and each provision hereof shall be validated and shall be enforced for the
maximum period and to the fullest extent permitted by law.
11. Counterparts. This Agreement may be executed in one or more
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counterparts, each of which will be deemed an original, but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
NATIONAL TOBACCO COMPANY, L.P.
By: National Tobacco Finance Corporation
, its general partner
By: /s/ Xxxxxx X. Xxxxx, Xx.
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Name: Xxxxxx X. Xxxxx, Xx.
Title: President and Chief Executive Officer
/s/ Xxxxxxx Xxxxxxxx
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XXXXXXX XXXXXXXX
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