Exhibit 14(10)(F)
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into as of
the 6th day of June 1997, by and between Culbro Corporation, a New York
corporation ("Culbro"), and A. Xxxx Xxxxxx ("Wollen").
WHEREAS, Wollen is employed by Culbro in an executive capacity and Culbro
desires to secure the continued services of Wollen, which are considered by
Culbro to be valuable to it, for an extended period of time upon the terms and
conditions herein provided; and
WHEREAS, Wollen desires to continue in the full and active employ of
Culbro in accordance with the terms and conditions herein provided.
NOW, THEREFORE, in consideration of the premises and of the respective
covenants and agreements herein contained, the parties hereto hereby covenant
and agree as follows:
1. EMPLOYMENT. Culbro hereby agrees to employ Wollen, and Wollen hereby agrees
to remain an employee of Culbro, on the terms and conditions set forth herein,
for the period commencing June 6, 1997 and expiring on June 6, 2000 unless
sooner terminated as hereafter set forth. Subject to the terms of this
Agreement, the period referred to in this Paragraph 1 shall be referred to as
the "Employment Period".
2. POSITION AND DUTIES.
(a) During the Employment Period, Wollen shall occupy the position and
perform the duties of Senior Vice President - General Counsel and Secretary of
Culbro (which duties shall be of the same general nature as those performed by
the chief legal officer of similarly situated companies and substantially the
same as those previously performed by Wollen) and shall perform such other
duties not inconsistent with his position as may be assigned to him from time to
time by the Board of Directors of Culbro (the "Board").
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(b) Wollen shall devote his best efforts and full business time to the
diligent, faithful, efficient, and competent performance of his duties and
responsibilities hereunder and will not engage in any other ventures or
enterprises without the consent of the Board. The parties anticipate Wollen will
also perform the duties of manager of investor relations and may become
affiliated with a mutual fund company in a manner that will not conflict with
his position and duties hereunder.
3. COMPENSATION.
(a) Base Compensation. Subject to the provisions of Paragraph 4 hereof,
Wollen shall receive an annual base salary of $236,250, payable in substantially
equal periodic installments. Wollen's annual base salary shall be reviewed at
least annually by the Compensation Committee of the Board (the "Compensation
Committee") and may be increased in the sole discretion of the Compensation
Committee.
(b) Bonus. In connection with the close of each fiscal year of Culbro
through the fiscal year ending prior to the end of the Employment Period, the
Compensation Committee shall review the services provided by Wollen and the
performance of Culbro for such fiscal year and shall award Wollen such bonus, if
any, as the Compensation Committee in its sole discretion shall determine.
(c) Benefits. Wollen shall be entitled to participate in or receive
benefits during the Employment Period under all employee benefit plans or
programs of Culbro, including but not limited to term life insurance,
hospitalization and surgical and major medical coverage, vacations and holidays,
long-term disability, long-term performance, pension, 401(k) and other fringe
benefits which are from time to time generally made available to executives of
Culbro, subject to and on a basis consistent with the terms, conditions and
overall administration of such plans or arrangements.
(d) Expenses. During the Employment Wollen shall be entitled to receive
reimbursement for reasonable expenses actually incurred by him in the
performance of his duties (in accordance with past practice and the policies and
procedures established by the
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Board for executive officers of Culbro), provided that any such expenses shall
be reimbursable only to the extent that Wollen proper accounts therefor in
accordance with established policy, and further provided that political
contributions shall under no circumstances be reimbursable.
4. TERMINATION.
(a) Death. If Wollen's employment terminates by reason of his death,
Wollen's designated beneficiary or personal representative shall be entitled to
any unpaid portion of his annual base salary prorated to the date of death and
shall be entitled to exercise any options then held by him, to the extent
exercisable by Wollen on the date of his death or which became exercisable by
virtue of his death, within one year of Wollen's death but in no event later
than the date such options would have expired if Wollen had lived. Wollen's
designated beneficiary or personal representative shall also be entitled to a
prorated portion of any bonus awarded to Wollen by the Compensation Committee
with respect to the year of his death. Wollen's designated beneficiary or
personal representative shall be eligible for those death benefits, if any,
available under the employee benefit plans and programs of Culbro and in which
Wollen has participated.
(b) Disability. If Culbro terminates Wollen's employment, as a result of
Wollen's Disability, as hereinafter defined, Wollen shall be entitled to any
unpaid portion of his annual base salary prorated to the date of such
termination. For purposes of this Agreement, "Disability" shall mean Wollen's
inability to discharge his duties and responsibilities under this Agreement due
to either his physical or mental incapacity for a period of four (4) consecutive
months or for an aggregate of five (5) months in any eight (8) consecutive month
period. In the event Culbro terminates Wollen's employment due to Disability, he
shall be entitled to continue participation in the employee benefit plans and
programs of Culbro if and to the extent permitted by such plans. In the event
Culbro terminates Wollen's employment due to Disability, he may exercise any
options then held by him, to the extent such options were exercisable on the
date his employment terminated or
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became exercisable by virtue of such termination, within one year of such date,
but in no event later than the date such options would have expired in
accordance with its terms.
(c) Voluntary Termination. In the event of a voluntary termination of
employment by Wollen, Wollen shall be entitled to any unpaid position of his
annual base salary prorated to the date of such termination. He may exercise any
options then held by him, to the extent such options were exercisable on the
date his employment terminated, within 90 days from such event, but in no event
later than the date such options would have expired in accordance with their
terms.
(d) Termination For Cause. Culbro may terminate Wollen's employment
hereunder for Cause. For purposes of this Agreement the term "Cause" shall mean
gross negligence and gross misconduct which is materially injurious to Culbro or
any of its subsidiaries, conviction of a felony or its equivalent under local
law after appeal, continued failure by Wollen substantially to perform his
employment duties and obligations (other than any such failure resulting from
his Disability), or material violation of Paragraphs 6, 7 or 8 of this
Agreement. Upon a termination of employment by Culbro for Cause, Wollen shall be
entitled to any unpaid portion of his annual base salary prorated to the date of
such termination. Other than Options which have already been exercised, no
Vested Stock Options may be exercised in the event that Wollen's employment has
been terminated for Cause.
(e) Termination Without Cause. A "Termination Without Cause" shall mean a
termination of Wollen's employment (i) by Culbro other than due to the events
described in Paragraph 4(a), (b), (c) and (d) respectively; or (ii) by Wollen
following: (A) a reduction, without his prior written consent, inn his then
current annual base salary, (B) the loss, without his prior written consent, of
his title or position as Senior Vice President General Counsel and Secretary,
(C) a significant diminution, without his prior written consent, of his ongoing
duties and responsibilities as Senior Vice President - General Counsel and
Secretary, (D) a significant diminution, without his prior written consent, of
his benefits, or
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(E) the occurrence of a Change of Control as defined in Paragraph 4(f). Culbro
shall have the right to terminate Wollen in a Termination Without Cause at any
time. In addition, a Termination Without Cause shall be deemed to have taken
effect if Wollen shall have delivered a written notice to the Board within two
months of the occurrence of one of the events listed in clause (ii) above,
stating which one of those events has occurred and stating that he is
terminating his employment pursuant to the provisions of Paragraph 4(e) of this
Agreement. If a Termination Without Cause occurs, Wollen shall be entitled to
(i) a cash payment equal to 299.99% of his current annual base salary in effect
on the date of termination, (ii) exercise any options he then holds which will
be deemed vested and exercisable for 90 days following the date of such
termination and (iii) receive a proportion of any amounts earned or accrued
under any annual, long term or other incentive compensation program in which
Wollen was eligible to participate.
(f) Change of Control. A Change of Control is defined as (i) any person or
"group" (within the meaning of Section 13(d) or 14(d) of the Securities and
exchange Act of 1934, as amended) other than the group consisting of Xxxxx X.
Xxxxxxx, Xxxxx X. Xxxxxxx, Xx., Xxxxx X. Xxxxxxx, Xxxx X. Xxxxx, Xxxxxxxxx X.
Xxxxxxxx and the members of their families and trusts for their benefit,
partnerships in which they own substantial interests and charitable foundations
on whose boards of directors they sit (the "Cullman Group") shall own, directly
or indirectly, shares of Capital Stock of Holdings having an aggregate voting
power equal to or greater than that of the shares of Capital Stock of Holdings
owned, in the aggregate, directly or indirectly, by the Cullman Group; or (ii)
the Board of Directors of Holdings shall not consist of a majority of Continuing
Directors (defined for this purpose as the directors of Holdings on May 2, 1997
and any other director the nomination of whom for election to the Board of
Directors of Holdings is recommended by a majority of the then Continuing
Directors of Holdings).
5. AGREEMENT NOT TO COMPETE. Wollen agrees that in consideration of the benefits
defined in this Agreement, until 18 months following the termination of his
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employment and regardless of the reason for any termination of employment
(whether voluntary or involuntary and whether for Cause or otherwise), Wollen,
except when acting on behalf of Culbro or any affiliate thereof, shall not
engage in, be employed directly or indirectly by, hold a greater than one (1)
percent equity interest in, or provide advice or act as a consultant to, any
person or entity which is, or is about to be, engaged in any business
substantially the same as any business engaged in (or actively being planned to
be engaged in) by Culbro or its subsidiaries without Board approval. For
purposes of the preceding sentence, a real estate business shall not be
considered substantially the same as a business engaged in by Culbro or its
subsidiaries unless that real estate business is conducted, in whole or in part,
in the greater Hartford, Connecticut area.
6. NONSOLICITATION. Wollen agrees that until three years following the
termination of this Agreement (regardless of whether his employment is
continuing hereunder or has been terminated), he shall not, except when acting
on behalf of Culbro or any affiliate of Culbro:
(i) directly or indirectly solicit any person, corporation, partnership or
other business entity which is, at the time of such solicitation, a customer of
Culbro or its subsidiaries or affiliates, for the purpose of engaging in any
business transactions of the nature performed by or conducted by Culbro or its
subsidiaries at any time during this three year period with any such customer;
or
(ii) directly or indirectly employ, solicit for employment, or advise or
recommend to any other person that he employ or solicit for employment, any
person employed at that time by Culbro or its affiliates. This Paragraph shall
not be construed to prohibit Wollen from responding, in accordance with Culbro
policy, to reference requests received from prospective employers of former
employees, if such reference requests are not related to an activity by Wollen
prohibited under this Agreement; or
(iii) solicit any employee of Culbro or its subsidiaries to terminate his
employment.
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7. NONDISCLOSURE.
(a) Wollen agrees that during the Employment Period and until three years
following the termination of this Agreement, Wollen shall not, without the prior
written consent of the Board or a person authorized thereby, disclose or use
(except (1) in the course of his employment hereunder and in furtherance of the
business of Culbro or its affiliates or (2) when required to do so by a court of
competent jurisdiction, by any governmental agency having supervisory authority
over the business of Culbro, or by any administrative body or legislative body
(including a committee thereof) with purported or apparent jurisdiction to order
Wollen to divulge, disclose or make accessible such information) any
confidential information or proprietary date of Culbro or its subsidiaries;
provided, however, that confidential information shall not include any
information known generally to the public (other than as a result of
unauthorized disclosure by Wollen) or any information of a type not otherwise
considered confidential or proprietary by persons engaged in the same business
or a business similar to that conducted by Culbro or its subsidiaries.
(b) Wollen agrees that upon termination of his employment with Culbro, for
any reason, he will return to Culbro immediately any property, customer lists,
information, forms, formulae, plans, documents or other written or computer
material, software or firmware, or copies of the same, belonging to Culbro or
its subsidiaries, or any of their customers, within his possession, and will not
at any time thereafter copy or reproduce the same, except that he may retain
personal notes, notebooks and diaries. Wollen further agrees that he will not
retain or use for his own account at any time any trade names, trademark,
service xxxx, or other proprietary business designation used or owned in
connection with the business of Culbro or its subsidiaries.
8. CONTINUATION OF EMPLOYMENT. Unless the parties otherwise agree in writing,
continuation of Wollen's employment with Culbro beyond the expiration of the
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Employment Period shall be deemed an employment at will and shall not be deemed
to extend any of the provisions of this Agreement, and Wollen's employment may
thereafter be terminated at will by Wollen or Culbro.
9. SUCCESSORS AND ASSIGNS. This Agreement and all rights hereunder shall inure
to the benefit of and be enforceable by Wollen's personal or legal
representatives, executors, administrators, heirs, distributees, devisees and
legatees and by Culbro's successors and assigns. This Agreement is personal in
nature and shall not be assignable by Wollen without the written consent of the
Board. Culbro may not assign or transfer this Agreement or any right or
obligation hereunder to any other person, firm, corporation or entity except (i)
in connection with any transfer of a majority of the assets of Culbro, (ii) with
the written consent of Wollen or (iii) in accordance with paragraph 17 hereof.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the substantive law but not the choice of law rules of the State
of New York.
11. ARBITRATION. Any dispute or controversy arising under this Agreement
relating to money damages or in connection with the interpretation of this
Agreement shall be arbitrated and settled before and pursuant to the commercial
rules of the American Arbitration Association which are then in effect.
12. AMENDMENT. No amendment, modification or waiver of this Agreement or any of
its provisions shall be binding upon either party unless made in writing and
signed by all parties.
13. VALIDITY. It is the desire and intent of the parties that the provisions of
this Agreement shall be enforced to the fullest extent permissible under the
laws and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, the invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement, which shall
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remain in full; force and effect, nor shall the invalidity or unenforceability
of any portion of any provision of this Agreement affect the validity or
enforceability of the balance of such provisions.
14. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together will
constitute one and the same instrument.
15. ENTIRE AGREEMENT. This Agreement, constitutes the entire Agreement between
the parties hereto with respect to the subject matter hereof, and supersedes all
other prior agreements, understandings and arrangements between the parties
hereto, all of which are merged herein. There are no restrictions, promises,
warranties, covenants or undertakings other than those expressly set forth
herein or incorporated herein by reference.
16. WAIVER. The observation or performance of any condition or obligation
imposed upon Wollen hereunder may be waived only upon the written consent of the
Board. Such waiver shall be limited to the terms thereof an shall not constitute
a waiver of any other condition or obligation of Wollen under this Agreement.
17. ASSUMPTION. The parties intend this Agreement to be assumed by Holdings on
or prior to the merger of Culbro into Holdings and this Agreement shall be fully
enforceable by Wollen and his representatives against Holdings.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
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GENERAL CIGAR HOLDINGS, INC. CULBRO CORPORATION
By: /s/ XXXXX X. XXXXXXX, XX. By: /s/ XXXXX X. XXXXXXX, XX.
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Xxxxx X. Xxxxxxx, Xx. Xxxxx X. Xxxxxxx, Xx.
President and Chief Executive Officer President and Chief Executive Officer
A. XXXX XXXXXX
By: /s/ A. XXXX XXXXXX
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A. Xxxx Xxxxxx
