EXHIBIT 10.1
RESIGNATION AND RELEASE AGREEMENT
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Robert Milliken and National Tobacco Company, L.P.
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This RESIGNATION AND RELEASE ("Agreement") is entered into by
and
between ROBERT MILLIKEN ("Milliken") and
NATIONAL TOBACCO COMPANY, L.P. (the
"Company").
RECITALS:
A. Milliken resigned his employment with the Company, effective
immediately, on June 8, 2005 (hereinafter
referred to as the "Resignation
Date").
B. Milliken and the Company (the "Parties") desire to settle any
and
all claims and disputes, known and unknown,
that exist or might be claimed to
exist by Milliken against the Released
Parties (as defined in Paragraph 2.1 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 Milliken's
employment, terms and conditions of
employment, resignation from that employment
or any other event, transaction, or
communication between Milliken and the
Company or the other persons or entities
identified herein.
C. This Agreement sets forth the entire agreement between
Milliken
and the Company and supersedes any and all
prior oral or written agreements or
understandings between them, including but
not limited to the letter agreement
dated March 28, 2002 (the "Letter
Agreement"), except as otherwise expressly
provided in Paragraph 1.3.
AGREEMENT:
Now, therefore, the
Parties agree as follows:
PART 1
1.1 SEVERANCE BENEFIT. In exchange for Milliken's execution of
this
Agreement and in consideration of the
promises made by Milliken in the remainder
of this Agreement, the Company agrees to
provide to Milliken the following
Severance Benefit:
1.1.1 The Company shall continue to carry Milliken on its
health
insurance plan, as if he were still an
employee, for a period of twelve (12)
months following the Resignation Date.
During such period, the Company shall
make periodic premium payments with respect
to such coverage in the same amounts
and at the same intervals as if Milliken
were still an employee. Likewise,
during such period, the Company shall
deduct from Milliken's periodic payments
under the Letter Agreement (see Paragraph
1.3), and direct toward the cost of
such insurance, amounts equivalent to those
amounts that would be deducted if
Milliken were still an employee. The actual
insurance benefits provided and
amounts deducted shall be consistent with
the provisions of the plan in effect
at any given time, and may vary from time
to time, during the aforementioned
twelve (12) month period. The Company shall
issue appropriate notices under the
Consolidated Omnibus Budget Reconciliation
Act of 1985 ("COBRA") at the end of
the aforementioned twelve (12) month
period.
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RESIGNATION AND RELEASE AGREEMENT
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Robert Milliken and National Tobacco Company, L.P.
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1.1.2 The Company agrees to sell to Milliken, and Milliken agrees
to
purchase for the sum of THIRTY THOUSAND
FOUR HUNDRED FIFTY-FIVE AND ZERO/100
DOLLARS ($30,455.00), the Company vehicle
assigned to and being driven by
Milliken as of the Resignation Date.
1.1.3 The Company agrees to sell to Milliken, and Milliken agrees
to
purchase for the sum of ONE THOUSAND FIVE
HUNDRED AND ZERO/100 DOLLARS
($1,500.00), the Company computer equipment
assigned to and being used by
Milliken in his home as of the Resignation
Date.
1.1.4 The Company agrees to allow Milliken to keep the Company
cellular telephone assigned to and being
used by Milliken as of the Resignation
Date. Milliken shall not retain, and the
Company shall not maintain, the
telephone service then associated with that
telephone.
1.1.5 CONTINGENT BENEFIT. Provided that Milliken cooperates--to
the
Company's satisfaction--in the transition
of his responsibilities, duties and
authority to his successor, the Company
shall pay to Milliken the sum of
FIFTY-SIX THOUSAND FIVE HUNDRED
THIRTY-EIGHT AND FORTY-EIGHT/100 DOLLARS
($56,538.48). Such sum shall, contingent
upon the foregoing condition precedent,
be disbursed in installments concurrent
with the Company's normal payroll cycle,
in the amounts that Milliken would have
received if he were still an employee,
commencing on the Resignation Date and
continuing for two months thereafter (the
"Transition Period").
The foregoing payments and benefits constitute the "Severance
Benefit," none of which Milliken would be
entitled to receive but for Milliken's
execution of this Agreement.
1.2 ACCRUED BENEFITS. Separately and apart from this Agreement,
Milliken shall also receive any accrued,
unused vacation benefits to which
Milliken is entitled as of Milliken's
resignation date, if such has not already
been provided to Milliken. Additionally,
Milliken shall retain all rights
pertaining to the 5,937 vested stock
options that he had as of the Resignation
Date, such options to remain vested subject
to the terms of the stock option
agreement.
1.3 ADDITIONAL BENEFIT. Separate and apart from the Severance
Benefit, and consistent with the Letter
Agreement, the Company shall pay
Milliken THREE HUNDRED SIXTY-SEVEN THOUSAND
FIVE HUNDRED AND ZERO/100 DOLLARS
($367,500.00). Such sum shall be disbursed
in installments concurrent with the
Company's normal payroll cycle, in the
amounts that Milliken would have received
if he were still an employee, during the
twelve (12) month period immediately
following the end of the Transition Period
(Paragraph 1.1.5).
1.4 EFFECTIVE DATE. Milliken's signing of this Agreement in the
presence of a Notary Public shall
constitute employee's execution of this
Agreement. The "Effective Date" of this
Agreement shall be the date on which the
Revocation Period expires (except as
otherwise provided in Paragraph 3.3).
PART 2
2.1 GENERAL RELEASE. In consideration of the Severance Benefit,
the
sufficiency of which Milliken acknowledges,
Milliken hereby settles, waives,
releases and discharges any and all claims,
demands, actions or causes of
action, known or unknown, which Milliken
has or may have against the Company,
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RESIGNATION AND RELEASE AGREEMENT
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Robert Milliken and National Tobacco Company, L.P.
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its parent, sister, subsidiaries,
affiliates, divisions, related corporations,
limited liability corporations,
partnerships, insurers, successor and
predecessor entities and each of their
respective current and former employees,
directors, officers, shareholders, agents,
attorneys, or representatives
(collectively, the "Released Parties")
including, but not limited to, claims
arising from or during Milliken's
employment with the Company, the terms and
conditions of that employment, Milliken's
resignation from that employment, or
any other event, transaction or
communication between Milliken and any Released
Party. Additionally, Milliken expressly
acknowledges and agrees that this
general release settles, waives, releases
and discharges any and all claims,
demands, actions or causes of action, known
or unknown, which Milliken has or
may have against any current or former
employee, director, officer, shareholder,
agent, attorney or representative of the
Company in such person's individual and
representative capacities. Milliken
recognizes that by signing this Agreement,
Milliken may be giving up some claim,
demand or cause of action, which Milliken
now may have, whether known or unknown.
2.1.1 This General Release includes, but is not limited to, the
release of any and all claims or charges of
discrimination that Milliken has, or
could have, filed against any Released
Party with federal, state or local court
of law or equity, the Equal Employment
Opportunity Commission, the United States
Department of Labor, the Kentucky Labor
Cabinet, the Kentucky Commission on
Human Rights or any other federal, state or
local agency under: Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ss.
2000e, et seq.; the Civil Rights Act of
1991, P.L. 102-166; the Civil Rights Act of
1866, 42 U.S.C. ss. 1981; the Civil
Rights Act of 1871, 42 U.S.C. ss. 1983; the
Americans with Disabilities Act of
1990, 42 U.S.C. ss. 12101, et seq.; the
Fair Labor Standards Act of 1938, 29
U.S.C. ss. 201, et seq.; the Family and
Medical Leave Act of 1993, 29 U.S.C. ss.
2601, et seq.; the Employee Retirement
Income Security Act of 1974, 29 U.S.C.
ss. 1001, et seq.; the Federal
Rehabilitation Act of 1973, 29 U.S.C. ss. 701, et
seq.; the Equal Pay Act of 1963, 29 U.S.C.
ss.ss. 206(d) and 216(b); the Age
Discrimination in Employment Act of 1967,
29 U.S.C. ss. 621-634, as amended by
the Older Workers' Benefit Protection Act,
P.L. 101-433; the Worker Adjustment
and Retraining Notification Act of 1988, 29
U.S.C. ss. 2101, et seq.; the
Consolidated Omnibus Budget Reconciliation
Act of 1985; the Occupational Safety
and Health Act, 29 U.S.C. ss.ss. 651-678;
the Uniformed Services Employment and
Reemployment Rights Act of 1994, 38 U.S.C.
ss. 4301, et seq.; the National Labor
Relations Act, 29 U.S.C. ss. 151, et seq.;
the Labor Management Relations Act,
29 U.S.C. ss.141, et seq.; the Kentucky
Civil Rights Act, KRS 344.010, et seq.;
the Kentucky Equal Pay Act, KRS 337.420 to
337.433; the Kentucky Equal
Opportunities Act, KRS 207.140 to 207.240;
the Kentucky Wages and Hours Act, KRS
337.010, et seq.; Kentucky's Workers'
Compensation Retaliation statute, KRS
342.197; the Kentucky Occupational Safety
and Health Act, KRS 338.011, et seq.;
Kentucky's "catch-all" damages statute, KRS
446.070; the New York Human Rights
Law; the New York Equal Pay Law; the New
York Civil Rights Law; the New York
Rights of Persons with Disabilities Law;
the New York Smokers' Rights Law; the
New York Equal Rights Law; the New York
Workers' Compensation Retaliation laws;
the New York Whistleblower Protection laws;
the New York Non-Discrimination for
Legal Activities Law; federal, state and
local occupational, safety and health
laws; and any other claims of employment
discrimination, disparate treatment,
hostile work environment, sexual, racial or
other unlawful harassment,
retaliation, whistle-blowing, intentional
or negligent infliction of emotional
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RESIGNATION AND RELEASE AGREEMENT
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Robert Milliken and National Tobacco Company, L.P.
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distress, defamation, invasion of privacy,
tortious interference with
contractual relations, wrongful discharge,
constructive discharge, 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 (including, but not limited to,
the laws of the Commonwealth of
Kentucky and the State of New York), and
all other liabilities, suits, union or
other grievances, debts, claims for lost
wages or benefits, overtime, unpaid
wages or benefits, back pay, front pay,
compensatory or punitive damages, actual
damages, consequential damages, incidental
damages, damages for emotional
distress, damages for humiliation or
embarrassment, contractual damages, damages
in quantum meruit, expectation or for
detrimental reliance, injunctive relief,
severance pay, costs, reinstatement,
attorneys' fees, business expenses,
commissions, bonuses, incentive
compensation, vacation pay, pension benefits,
payment or reimbursement under any health
insurance or other employee benefit
plan or agreement, insurance premiums or
other sums of money, grievances,
expenses, demands, and controversies of
every kind and description, whether
liquidated or unliquidated, known or
unknown, contingent or otherwise and
whether specifically mentioned or not,
against any Released Party that Milliken
now has or has had or that may exist or
that might be claimed to exist at or
prior to the date of this Agreement.
Milliken specifically waives any claim or
right to assert that any cause of action,
alleged cause of action, claim,
demand, charge or other right of Milliken
has been, through design, oversight or
error, intentionally or unintentionally,
omitted from this Agreement.
PART 3
3.1 SPECIFIC RELEASE OF AGE CLAIMS. Milliken agrees that, in
exchange
for a portion of the Severance Benefit
received from the Company under this
Agreement (which Milliken agrees
constitutes full and adequate consideration for
all covenants and commitments made herein,
in addition to anything of value to
which Milliken is already entitled), that
this Agreement constitutes a knowing
and voluntary release and waiver of all
rights or claims Milliken has or may
have against any and all of the Released
Parties including, but not limited to,
all rights or claims of discrimination or
retaliation arising under the Age
Discrimination in Employment Act of 1967,
29 U.S.C. ss.ss. 621-634, as amended
by the Older Workers' Benefit Protection
Act, P.L. 101-433 ("ADEA"), and any and
all such claims as might otherwise be
available under any state or local law
pertaining to age discrimination or
retaliation.
3.1.1 The Company and Milliken agree that, by entering into
this
Agreement, Milliken does not waive rights
or claims that may arise after the
Effective Date of this Agreement.
3.2 CONSULTATION PERIOD. Milliken represents and warrants that
the
Company advised Milliken in writing to
consult with an attorney prior to
executing this Agreement and that Milliken
was provided the opportunity to do
so. Milliken further represents and
warrants that the Company provided Milliken
a period of at least twenty-one (21)
calendar days in which to consider this
Agreement prior to executing it.
3.2.1 Milliken agrees that if Milliken executes this Agreement at
any
time prior to the end of the Consultation
Period, such early execution was a
knowing and voluntary waiver of Milliken's
right to consider this Agreement for
at least twenty-one (21) calendar days, and
resulted from Milliken's desire to
receive immediately the consideration
provided hereunder and Milliken's belief
that Milliken had ample time in which to
consider and understand this Agreement,
and in which to review this Agreement with
an attorney.
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RESIGNATION AND RELEASE AGREEMENT
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Robert Milliken and National Tobacco Company, L.P.
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3.3 REVOCATION PERIOD. The Company and Milliken agree that, for
a
period of seven (7) calendar days following
Milliken's execution of this
Agreement (see Paragraph 1.4), Milliken has
the right to revoke this Agreement,
and the Company and Milliken further agree
that this Agreement--with the
exception of Paragraph 4.9, which shall be
binding immediately upon Milliken's
execution of this Agreement--shall not
become effective or enforceable until the
seven (7) day revocation period has expired
(see Paragraph 1.4). Milliken hereby
agrees that Milliken's failure to revoke
within the seven (7) day revocation
period shall constitute Milliken's waiver
of the right to assert any claim,
charge or cause of action whatsoever
against any Released Party based on any
event that occurred or failed to occur
during the seven (7) day revocation
period.
PART 4
4.1 DISMISSAL OF CLAIMS. Milliken represents and certifies that
Milliken has not filed or otherwise
initiated any complaint, charge or other
action against any Released Party in any
local, state or federal court, or with
any local, state or federal administrative
agency or board, relating to any
event occurring prior to or on the date on
which Milliken executed this
Agreement.
4.2 NO REINSTATEMENT OR REAPPLICATION. Milliken agrees not to
attempt
to procure employment or seek reinstatement
with any Released Party at any time,
now or in the future, either as an
employee, an independent contractor or in any
other capacity.
4.3 NON-PARTICIPATION. Milliken specifically represents and
agrees
that Milliken will not participate in the
future, in any way, in any claim,
charge or other action undertaken by any
federal, state or local governmental
agency, or by any association, business,
organization, entity or individual, or
any combination thereof, in any local,
state or federal court or before or with
any local, state or federal agency or board
(except as required by law, subject
to numerical Paragraph 4.6.1, or at the
request of the Company), relating to any
event occurring prior to or on the date on
which Milliken executed this
Agreement. Milliken agrees that Milliken
shall never seek nor accept any
damages, remedy or other relief, either
personally or on behalf of another,
resulting from any charge or cause of
action filed by any person, entity or
government agency, in any administrative or
judicial forum, that in any way
relates to Milliken's employment with the
Company or in any way relates to any
right or cause of action otherwise released
or settled under this Agreement.
Milliken further agrees that Milliken shall
not knowingly
