EXHIBIT 10.5
AGREEMENT
THIS AGREEMENT is made and entered into effective the 21st day of August, 1998,
by and between XXXX X. BICQUE (the "Executive"), and STANDARD COMMERCIAL TOBACCO
SERVICES (U.K.), LTD., an English corporation (the "Company"); and STANDARD
COMMERCIAL CORPORATION, a North Carolina (USA) corporation, in the limited
capacity as Guarantor (the "Guarantor").
W I T N E S S E T H:
WHEREAS, the Company is a subsidiary of Guarantor, and as such is a member of
the Standard group of companies (the "Standard Group"); and
WHEREAS, the Company, INTER ALIA, provides management and administrative support
services to the Wool Division of the Standard Group (the "Wool Division"),
including without limitation the employment of the Wool Division's managing
director; and
WHEREAS, the Company and Executive desire to provide for Executive's continued
employment with the Company as an Executive; and
WHEREAS, the Company is willing to employ Executive and Executive is willing to
accept such employment upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the mutual promises and premises herein
expressed, and other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties, intending to be legally bound,
hereby agree as follows:
1. Employment of Executive; Duties.
a. Company hereby employs the Executive and the Executive agrees to be
employed by the Company in the capacity of Managing Director of the Wool
Division, subject to the terms and conditions herein set forth. The Executive
will report directly to the President and CEO of Guarantor.
b. The Executive shall devote his full time, skill, attention, and best
efforts to the business of the Company. Such time of the Executive shall be
devoted as reasonably required to promote and protect the best interests of the
Company. The Executive may serve as a director or consultant to other
corporations only to the extent that such duties are known to and approved by
Guarantor's CEO. The Executive shall not be restricted in making personal
investments unless prohibited under this Agreement or unless such pursuits
detract from the time and attention devoted by the Executive to the business of
the Company.
2. Compensation.
a. The Company shall pay Executive such salary as shall be determined
and set from time to time by the Company's management.
b. Executive shall be entitled to participate in any fringe benefit
program that the Company may establish and modify from time to time for the
benefit of all its executive and management employees, including without
limitation, health insurance, disability insurance, qualified stock option
plans, non-qualified stock option plans, qualified retirement plans,
non-qualified retirement plans, life insurance plans, and executive incentive
compensation plans, provided that benefits shall not be duplicated for any
specific benefit afforded Executive under the terms of this Agreement.
3. Vacation and Sick Leave.
a. During the term of his employment hereunder, Executive shall be
entitled to receive as an additional benefit annual vacation leave of four (4)
weeks per year, during which time his compensation shall be paid in full.
Vacation leave shall be taken by the Executive at such times as may be
reasonably mutually agreed upon by the Executive and the Company. Earned
vacations not taken in a calendar year may be accrued and carried forward to the
following calendar year, or for such longer period, if any, as shall be
consistent with the vacation policy of the Company for its executive officers.
Any unused vacation time existing at the time Executive ceases to be employed by
the Company shall be paid to him in cash at his then-current Annual Base Salary.
b. Executive shall also be eligible for, and shall receive as an
additional benefit, annual sick leave in accordance with the then-existing rules
and regulations adopted and modified by the Company from time to time for its
executive officers.
4. Restrictive Covenants; Confidentiality of Customer List and Trade
Secrets.
Executive agrees that during the term of his employment and permanently
following the termination of such employment for whatever reason, he will not
disclose, directly or indirectly, to any person, firm, association, partnership,
corporation, or other business entity, other than in discharge of his duties
hereunder or pursuant to order of any court, governmental agency, or at the
request of the Company, any information, the disclosure of which is or would be
adverse to the business of the Company, its affiliates, subsidiaries, and/or
Guarantor, including without limitation, information relating to:
(1) Business operations or internal corporate structure of
the Company, its affiliates, subsidiaries, and Guarantor;
(2) Customers of the Company, its affiliates, subsidiaries,
and Guarantor;
(3) Financial condition of the Company, its affiliates,
subsidiaries, and Guarantor; and
(4) Any other information of a confidential or proprietary
nature, including without limitation, trade secrets, technical data, sales
figures and forecasts, marketing analyses and studies, and customer and price
lists of the Company, its affiliates, subsidiaries, and Guarantor. All papers
and records of every kind and description, including all memoranda, lists,
tapes, notes, sketches, designs, plans, data, and other documents, whether or
not made by Executive, relating to the business and affairs of the Company, its
successors, affiliates, subsidiaries, and Guarantor, which shall at any time
come into possession or control of the Executive, shall be surrendered to the
Company, at the Company's expense, upon the Company's written request.
5. Change in Control.
In the event at any time during the continuation of this Agreement
there is a change in control of the Wool Division, whether by way of spin-off,
sale of all or substantially all of the stock and/or assets of the companies
constituting the Wool Division, or otherwise (a "Change in Control"), which
includes an offer of employment to Executive from the resulting (i.e.,
non-Standard Group) entity that constitutes the same or a substantially similar
position as Executive's employment with the Company
(a "Similar Job Offer"), the parties agree that the Company shall pay
to Executive within thirty (30) days following the completion of the Change in
Control a lump sum severance benefit equal to one-half (1/2) of Executive's
then-annual base salary (i.e., six (6) months' salary).
In the event at any time during the continuation of this Agreement
there is a Change in Control which does not include a Similar Job Offer, the
parties agree that the Company shall retain Executive as an at-will employee,
terminable at any time, at the same level of salary and benefits as immediately
prior to the Change in Control, so as to allow the parties to evaluate whether
any long term opportunities exist for Executive with the Company. In the event
Executive's employment is terminated by the Company without cause during the one
(1) year period following the closing of the Change in Control, the parties
agree that the Company shall pay to Executive within thirty (30) days following
the termination of Executive's employment with the Company a lump sum severance
benefit equal to two (2) times Executive's then-annual base salary (i.e.,
twenty-four (24) months' salary).
The parties expressly agree that any payment made by the Company to or
on behalf of Executive pursuant to this Section shall be in lieu of any and all
other sums, severance and/or redundancy benefits to which Employee may be
entitled contractually or under applicable law, and that such payment shall be
and constitute Employee's sole and exclusive remedy following the termination of
Employee's employment subsequent to a Change in Control.
6. Guaranty.
Guarantor joins in the execution of this Agreement for the express
purpose of guaranteeing, absolutely and unconditionally, the obligations of the
Company to the Executive hereunder, which guaranty shall be deemed to be a
guaranty of payment and not of collection.
7. Miscellaneous.
a. This Agreement shall be governed by and construed in accordance with
the laws of England.
b. This Agreement is in addition to and not in lieu of the terms and
conditions of that certain letter agreement by and between the Company and
Executive dated February 7, 1996, a copy of which is attached hereto and
incorporated herein by reference (the "Letter Agreement"), provided, however,
that Paragraph 10 thereof is hereby amended to provide four (4) months' notice
or pay in lieu instead of three (3) months' as stated therein. Notwithstanding
anything to the contrary herein set forth, with respect to events arising out of
or relating to a Change in Control, the parties agree that the terms of this
Agreement shall be controlling and shall supersede the Letter Agreement in all
respects. Any amendments to this Agreement must be in writing and signed by the
Company, the Executive, and Guarantor.
c. The Company shall indemnify Executive in his capacity as an
executive officer of the Company consistent with and subject to the terms and
conditions relating to indemnification contained in the Company's Articles of
Association and Bylaws. This indemnity obligation shall survive the termination
of this Agreement.
d. This Agreement shall not be assignable by Executive, nor shall
Executive's duties hereunder be delegable by Executive. This Agreement shall
inure to the benefit of, and be binding upon any successor-in-interest to the
Company.
e. If any provision or any portion of any provision of this Agreement
or the application of any such provision or any portion thereof to any person or
circumstance shall be held to be invalid or
unenforceable, the remaining portion of such provision and the
remaining provisions of this Agreement, or the application of such provision or
portion of such provision as is held invalid or unenforceable to persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby.
f. All section titles or captions contained in this Agreement are for
convenience only, and shall not be deemed to be a part of the context, nor
affect the interpretation of this Agreement.
g. Failure by the Company to insist upon strict compliance with any of
the terms, conditions and covenants of this Agreement shall not be deemed to be
a waiver of such terms, conditions and covenants, nor shall any express written
waiver or relinquishment of any right or power hereunder at any one or more
times be deemed to be a waiver or relinquishment of such right or power at any
other time or times.
h. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, all of which shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the day and year first above written.
______________________________________
Xxxx X. Bicque
STANDARD COMMERCIAL TOBACCO SERVICES (U.K.), LTD.
By:_____________________________________
President
STANDARD COMMERCIAL CORPORATION,
Guarantor
By: _____________________________________
President
