Exhibit 10.1


 


EXECUTION VERSION


 


22nd CENTURY GROUP, INC.


EMPLOYMENT AGREEMENT


 





This EMPLOYMENT AGREEMENT (“Agreement”)
is dated as of November 15, 2021, between 22nd CENTURY GROUP, INC., a Nevada corporation (“Company”) and Richard
Fitzgerald (“Employee”).


 


WHEREAS, the Company desires to engage the Employee
as a full-time executive employee to provide services to the Company pursuant to the terms of this Agreement, and the Employee desires
to accept such employment.


 


NOW, THEREFORE, in consideration of the covenants
and agreements hereinafter set forth, the parties agree as follows:


 


1.       EFFECTIVE
DATE


 


The Employee’s employment with the Company
shall commence on November 15, 2021 (the “Effective Date”).


 


2.       EMPLOYMENT
DUTIES AND TERM


 


2.1       General.
As of the Effective Date, the Company employs the Employee as, and the Employee agrees to serve as, Chief Financial Officer of the Company
upon the terms and conditions specified in this Agreement. The Employee shall perform such duties and services for the Company as may
be determined from time to time by the Company’s Board of Directors (the “Board”) and the Chief Executive
Officer (“CEO”) provided that such duties and services shall be consistent in all material respects with the
Employee’s position Chief Financial Officer of the Company. Unless otherwise determined by the Board, the Employee will be a direct
report to the CEO. The Employee agrees to serve the Company faithfully and to the best of his ability under the direction of the Board.


 





2.2       Exclusive
Services. The Employee shall devote his full working time throughout the Employment Term (as defined in Section 2.3) to the performance
of services for the Company. During the Employment Term, the Employee will not be employed by any other person or entity, or be self-employed,
without the prior approval of the Board. The Employee shall use his best efforts, judgment and energy to improve and advance the business
and interests of the Company in a manner consistent with the duties of his position. Upon the Employee’s execution of this Agreement
and during the Employment Term, the Employee will disclose to the Company any existing or proposed participation or membership in trade
or professional associations, and any existing or proposed appointments as a member of the board of directors (or similar governing body)
of any for-profit or not-for-profit entity; all such participations, memberships and appointments shall be subject to approval by the
CEO.


 






    	 	



     


    

 


2.3       Employment
Term. The Employee’s employment under this Agreement shall commence as of the Effective Date and shall continue until the earlier
of (1) the 3-year anniversary of the Effective Date or (2) termination pursuant to Section 5 of this Agreement. For the purposes
of this Agreement, “Employment Term” means the period beginning on the Effective Date and ending on the date
that Employee’s employment with the Company terminates for any reason.


 


3.       COMPENSATION


 


3.1       Base
Salary. During the Employment Term, the Employee shall be paid an annual base salary (“Base Salary”) in
the amount of $325,000.00, payable in accordance with the Company’s payroll practices. Base Salary is subject to increase or decrease,
from time to time, in the sole and absolute discretion of the Board.


 


3.2       Signing
Bonus. Within fifteen (15) days of the execution of this Agreement, Company shall pay to Employee a one-time cash payment of $75,000.00
(“Signing Bonus”). The Signing Bonus shall be subject to full repayment by Employee for a period of sixty (60)
days from November 15, 2021 (“Clawback Period”), should Employee (i) resign from his employment with the Company
during the Clawback Period or (ii) be terminated for Cause, as defined in Section 5.4 herein during the Clawback Period. For the avoidance
of doubt, the Employee shall not be subject to any repayment obligations for the Signing Bonus after the expiration of the Clawback Period.


 


3.3       Cash
Bonus Opportunity. During the Employment Term, the Employee will be eligible to earn an annual cash bonus targeted at 75% of Base
Salary. The amount of cash bonus awarded to the Employee in any year will be determined by the Board, in consultation with the CEO, based
on annual performance metrics and strategic goals for the Company and annual individual objectives for the Employee. Payment of a cash
bonus in respect of a Company fiscal year will be made not later than 120 days following the end of the applicable Company fiscal year,
provided that, if the Employment Term ends prior to payment, the Employee shall not be entitled to such cash award.


 


3.4       Performance
Unit Awards. During the Employment Term, the Employee will be eligible to receive an annual award of Performance Units (as defined
in the 2021 Plan). The target annual Performance Unit award to the Employee will be 100% of Base Salary, and each such award shall be
subject to performance,vesting and other requirements specified by, or determined in accordance with, the 2021 Plan.


 


3.5       Reimbursement
of Expenses. The Company shall reimburse the Employee for reasonable travel and other business expenses incurred by him in the fulfillment
of his duties hereunder upon presentation by the Employee of an itemized account of such expenditures, in accordance with Company practices
and policies.


 






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4.       EMPLOYEE
BENEFITS


 


The Employee shall, during the Employment Term, be
included to the extent eligible thereunder in all employee benefit plans, programs or arrangements (including plans, programs or arrangements
providing for retirement benefits, disability benefits, health and life insurance, or vacation and paid holidays) which shall from time
to time be established by the Company for, or made available to, its management employees generally.


 


5.       TERMINATION
OF EMPLOYMENT


 


5.1       Termination
Events.


 


5.1.1. By
the Company. The Company may terminate the Employee’s employment at any time for Cause (as hereinafter defined), without Cause,
or upon the Employee’s Disability (as hereinafter defined).


 


5.2       Termination
Without Cause.


 


5.2.1 Severance Benefits.
If the Employee’s employment is terminated by the Company without Cause:


 


(i) The Company shall continue to pay
the Employee the Base Salary (at the rate in effect immediately prior to such termination) for a period of 12 months following the
effective date of termination (such period being referred to hereinafter as the “Severance Period”). The payments
shall occur in installments in the same amount in effect immediately prior to such termination and at the same regular payment intervals
as the Employee’s Base Salary was being paid on the Effective Date and such installments shall be deemed a series of separate payments
within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii).


 


(ii) If the Employee timely elects
continue health insurance coverage under  the Company’s applicable group health insurance plan pursuant to the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), then the Company shall directly pay, or reimburse Employee
for, the COBRA premium for the Employee and Employee’s covered dependents under such plan during the  Severance Period, provided
that (a) the Employee will be responsible for paying the same portion of the premium that the Company requires to be paid by its
management employees under the applicable plan,  and (b) the Company’s obligation to pay or reimburse the Employee for
such premiums will terminate on the date Employee becomes eligible to receive reasonably  comparable health insurance coverage from
a subsequent employer (and Employee agrees to promptly notify the Company of such eligibility).  If the Company determines that it
cannot provide the benefit required by this Section 5.2.1(ii) without potentially breaching the Company’s applicable group health
insurance contract,  violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring
an excise tax, the Company shall in lieu thereof during the Severance Period pay to the Employee a taxable monthly payment in an amount
equal to the portion of the COBRA premium otherwise payable or reimbursable by the Company under this Section 5.2.1(ii).


 






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(iii) The Employee shall have no further
right to receive any other compensation or benefits after such termination of employment except as specifically determined in accordance
with the terms of the employee benefit plans or programs of the Company. In the event of the Employee’s death during the Severance
Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period
to the beneficiary designated in writing for this purpose by the Employee or, if no such beneficiary is specifically designated, to the
Employee’s estate.


 


5.2.2 Termination of Severance Benefit.
If, during the Severance Period, the Employee breaches any of his obligations under this Agreement (including, without limitation, the
Employee’s obligations under Section 6), the Company may, in addition to all other rights and remedies upon written notice
to the Employee, terminate the Severance Period and cease to make any further payments or provide any benefits described in Section 5.2.1.


 


5.2.3 Release. The Company’s obligation
to make the Base Salary and provide health insurance benefits described in Section 5.2.1 shall be subject to the following conditions:
(i) within 21 days after the effective date of termination or resignation, the Employee shall have executed and delivered to the Company
a Termination Agreement and Release (“Release”) in the form of Exhibit A attached hereto, and (ii)
the Release shall not have been revoked by the Employee during the revocation period specified therein. If the Employee fails to deliver
a fully executed Release to the Company before expiration of such 21 day period, or such release is revoked as permitted therein, then
the Company will have no obligation to make any of the payments or provide any of the benefits specified in Section 5.2.1.


 


5.3       Termination
for Cause; Resignation. If the Employee’s employment is terminated by the Company for Cause, or the Employee resigns from his
employment hereunder for any reason, the Employee shall be entitled only to payment of his Base Salary as then in effect through and including
the date of termination or resignation. The Employee shall have no further right to receive any other compensation or benefits after such
termination or resignation of employment, except as determined in accordance with the terms of the employee benefit plans or programs
of the Company.


 


5.4       Cause.
Termination for “Cause” shall mean termination of the Employee’s employment by the Company because of:


 


(i)       any
act or omission that constitutes a breach by the Employee of any of his obligations under this Agreement or any written Company policy
or procedure and failure to cure such breach after notice of, and a reasonable opportunity to cure, such breach;


 






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(ii)       the
continued willful failure or refusal of the Employee to substantially perform the duties reasonably required of him as an employee of
the Company;


 


(iii)       an
act of moral turpitude, dishonesty or fraud by, or criminal conviction (excluding non-felony convictions relating solely to vehicle and
traffic offenses) of, the Employee which in the sole determination of the Board would render his continued employment by the Company damaging
or detrimental to the Company;


 


(iv)       any
material misappropriation of Company property by the Employee; or


 


(v)       any
other willful misconduct by the Employee which is materially injurious to the financial condition or business reputation of, or is otherwise
materially injurious to, the Company.


 


5.5        Termination
by the Employee For Good Reason.


 


(i)        This
Agreement may be terminated by the Employee upon notice to the Company of any event constituting “Good Reason” as defined
herein.


 


(ii)        As
used herein, the term “Good Reason” means: the failure of the Company to pay Employee’s compensation in
accordance with this Agreement without the prior written consent of the Employee; a material reduction in the Employee’s Base Salary;
a material reduction in the Employee’s bonus opportunity; any material breach by the Company of any material provision of this Agreement
or any material provision of any other agreement between the Employee and the Company; or a material, adverse change in the Employee’s
title, authority, duties, or responsibilities (other than temporarily while the Employee is physically or mentally incapacitated or as
required by applicable law). Provided, however, that the Employee shall not be deemed to have Good Reason pursuant to this provision unless
the Employee gives the Company written notice that the specified conduct or event has occurred and making specific reference to this Section
5.5 and the Company fails to cure such conduct or event within thirty (30) days of receipt of such notice.


 


(iii)       In the event the Employee terminates this
Agreement under this Section 5.5, Employee shall be entitled to the severance benefits described under Section 5.2, pertaining to Severance
Benefits, provided that the Employee elects to comply with the Restrictive Covenants set forth in Section 6. If Employee disavows the
Restrictive Covenants and chooses to compete with the Company in violation of the covenants set forth in Section 6, then Employee forfeits
all Severance Benefits provided in Section 5.2.


 


5.6       Death or Disability.
In the event of termination of employment by reason of death or Disability, the Employee (or his estate, as applicable) shall be entitled
to Base Salary and benefits through the date of termination. Other benefits shall be determined in accordance with the benefit plans maintained
by the Company, and the Company shall have no further obligation hereunder. For purposes of this Agreement, “Disability”
means a physical or mental disability or infirmity of the Employee that, in the sole opinion of the Board, prevents (with or without reasonable
accommodation) the normal performance of substantially all his material duties as an employee of the Company, which disability or infirmity
shall exist for any continuous period of 90 days.


 






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5.7       Resignation
of Positions. Upon termination of Employee’s employment with the Company for any reason, the Employee agrees to immediately
resign from all positions and offices in which he is then serving the Company and its subsidiaries.


 


6.       CONFIDENTIALITY;
NONSOLICITATION AND NONCOMPETITION


 


6.1       Confidentiality.
The Employee covenants and agrees with the Company that he will not any time during the Employment Term and thereafter, except in performance
of his obligations to the Company hereunder or with the prior written consent of the Company, directly or indirectly, disclose any secret
or Confidential Information that he may learn or has learned by reason of his association with the Company. The term “Confidential
Information” includes information not previously made generally available to the public by the Company, with respect to
the Company’s products, facilities, applications and methods, trade secrets and other intellectual property, systems, procedures,
manuals, confidential reports, product price lists, customer lists, technical information, financial information (including the revenues,
costs or profits associated with any of the Company’s products), business and strategic plans, prospects or opportunities, but shall
exclude any information which the Company intentionally makes generally available to the public other than as a result of disclosure by
the Employee in violation of this Section 6.1. The Employee will be released of his obligations under this Section 6.1 to the extent the
Employee is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority
having jurisdiction in the matter or under subpoena or other process of law provided that the Employee provides the Company with prompt
written notice of such requirement. In addition, the Employee will not be in breach of any obligations under Section 6.1, and will not
be  criminally or civilly liable under any Federal or state trade secret law, for the disclosure of Confidential Information that
is made in confidence to a Federal, state or local government official, either directly or indirectly, or to an attorney, solely for the
purpose of reporting or investigating a suspected violation of law involving the Company or is made in a complaint or other document filed
in a lawsuit or other proceeding, if such filing is made under seal.  If the Employee  files a lawsuit for retaliation by the
Company  for reporting a suspected violation of law involving the Company, the Employee may disclose Confidential Information, including
trade secrets, to his attorney and use such Confidential Information in the court proceeding if such Confidential Information is filed
under seal.


 


6.2       Acknowledgment
of Company Assets. The Employee acknowledges that the Company, at the Company’s expense, has acquired, created and maintains,
and will continue to acquire, create and maintain, significant goodwill with its current and prospective customers, strategic partners,
vendors and employees and significant Confidential Information, and that such goodwill and Confidential Information is valuable property
of the Company. The Employee further acknowledges that to the extent such goodwill and Confidential Information will be generated through
the Employee’s efforts, such efforts will be funded by the Company and the Employee will be fairly compensated for such efforts.
The Employee acknowledges that all goodwill developed by the Employee relative to the Company’s customers, strategic partners, vendors
and employees, and all Confidential Information developed by the Employee, shall be the sole and exclusive property of the Company and
shall not be personal to the Employee. Accordingly, in order to afford the Company reasonable protection of such goodwill and of the Company’s
Confidential Information, the Employee agrees as follows:


 






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6.2.1.       No
solicitation; Non-Interference. During the Employment Term and for a period of two years after termination of employment for any reason
(such two-year period, the “Post-Termination Restrictive Covenant Period”), the Employee shall not, directly
or indirectly, as an investor, lender, officer, director, manager, or as an employee, associate, consultant or agent of any individual
or entity, or in any other capacity: (i) solicit or endeavor to entice away from the Company any individual who is employed by the
Company; (ii) solicit or endeavor to entice away from the Company any entity who is, or was within the then most recent 12-month
period, a customer (or reasonably anticipated to become a customer) of the Company; (iii) interfere with the business relationship
between the Company and any customer, strategic partner, supplier or vendor of the Company or attempt to persuade or encourage any
customer, strategic partner, supplier or vendor of the Company to cease doing business with the Company or to engage in any activity competitive
with the Company; or (iv) make or publish any disparaging remarks about the Company, its products, prospects or management.


 


6.2.2       Change
of Control Activity. The Employee agrees that during the Post-Termination Restrictive Covenant Period, the Employee shall not, directly
or indirectly, or in any individual or representative capacity, engage or otherwise participate in any Change of Control Activity with
respect to the Company. “Change of Control Activity” means (a) effect, seek, offer or propose (whether publicly
or otherwise) to effect, or cause or participate in, or in any way assist any other individual or entity to effect, seek, offer or propose
(whether publicly or otherwise) to effect or participate in: (i) any acquisition of any securities (or beneficial ownership thereof) or
all or substantially all of the assets of the Company, (ii) any tender or exchange offer, merger or other business combination involving
the Company, (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the
Company, or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities
and Exchange Commission) or consents to vote any voting securities of the Company; (b) form, join or in any way participate in a “group”
(as defined under the Securities Exchange Act of 1934, as amended) with respect to the securities of the Company; (c) make any public
announcement with respect to, or submit an unsolicited proposal for or offer of (with or without condition), any extraordinary transaction
involving the Company or its securities or assets; or (d) enter into any discussions or arrangements with any third party with respect
to any of the foregoing.


 


6.2.3.       Non-Competition.
During the Employment Term and during the Post-Termination Restrictive Covenant Period, the Employee shall not, directly or indirectly,
as an investor, lender, officer, director, manager, or as an employee, associate, consultant or agent of any individual or entity, or
in any other capacity, (other than as an investor owning not more than a 1% interest in a publicly-traded entity), engage in the Restricted
Business (as hereinafter defined) anywhere in the world other than on behalf of the Company. The Employee acknowledges and agrees that
the Company conducts business throughout the world, that the Company’s legitimate and protectable business interests are throughout
the world, and therefore this Section 6.2.3 is intended to prohibit competitive activities by the Employee throughout the world.
 “Restricted Business” means research and product development with respect to, the manufacture, distribution,
marketing or sale of, or the licensing of intellectual property related to, tobacco products, hemp products, cannabis products, cannabinoids
or other products made from or related to the tobacco plant or the cannabis plant, including but not limited to hemp, hemp/cannabis, industrial
hemp, marijuana, marijuana/cannabis, Cannabis sativa, Cannabis indica, and Cannabis ruderalis.


 






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6.3       Exclusive
Property. The Employee confirms that all Confidential Information is and shall remain the exclusive property of the Company. All business
records, and documents (whether in paper or electronic media) kept or made by Employee relating to the business of the Company shall be
and remain the property of the Company. Upon termination of the Employee’s employment with the Company for any reason, the Employee
promptly deliver to the Company all of the following that are in the Employee’s possession or under his control: (i) all computers,
telecommunication devices and other tangible property of the Company and its affiliates, and (ii) all documents and other materials, in
whatever form, which include Confidential Information or which otherwise relate in whole or in part to the present or prospective business
of the Company, including but not limited to, drawings, graphs, charts, specifications, notes, reports, memoranda, and computer disks
and tapes, and all copies thereof.


 


6.4       Injunctive
Relief; Tolling. Without intending to limit the remedies available to the Company, the Employee acknowledges that a breach of any
of the covenants contained in this Section 6 may result in material and irreparable injury to the Company or its affiliates or subsidiaries
for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in
the event of such a breach or threat thereof, the Company shall be entitled to seek a temporary restraining order and/or a preliminary
or permanent injunction restraining the Employee from engaging in activities prohibited by this Section 6 or such other relief as may
be required specifically to enforce any of the covenants in this Section 6. If for any reason, it is held that the restrictions under
this Section 6 are not reasonable or that consideration therefore is inadequate, such restrictions shall be interpreted or modified
to include as much of the duration and scope identified in this Section 6 as will render such restrictions valid and enforceable
including, if applicable, modifications to the geographic scope of Section 6.2.3. The Post-Termination Restrictive Covenant Period
will not include any period during which the Employee is in violation of Sections 6.1, 6.2.1, 6.2.2 or 6.2.3.


 


6.5       Communication
to Third Parties. The Employee agrees that the Company shall have the right to communicate the terms of this Section 6 to any third
parties, including but not limited to, any prospective employer of the Employee. The Employee waives any right to assert any claim for
damages against Company or any officer, employee or agent of Company arising from such disclosure of the terms of this Section 6.


 


6.6       Independent
Obligations. The provisions of this Section 6 shall be independent of any other provision of this Agreement. The existence of any
claim or cause of action by the Employee against the Company, whether predicated on this Agreement or otherwise, shall not constitute
a defense of the enforcement of this Section 6 by the Company.


 






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6.7       Non-Exclusivity.
The Company’s rights and the Employee’s obligations set forth in this Section 6 and in Section 7 are in addition to, and not
in lieu of, all rights and obligations provided by applicable statutory or common law.


 


7.       INVENTIONS


 


The term “Invention” means any discovery,
concept or idea, whether or not patentable or copyrightable, including but not limited to processes, methods, formulae and techniques,
as well as improvements thereof or know- how related thereto.  The Employee will promptly and fully inform the Company in writing
of any Invention which is conceived, made, or reduced to practice by the Employee, either solely or jointly with another or others, during
the Employment Term or within 12 months after termination of the Employee’s employment for any reason, setting forth in detail
the procedures employed and the results achieved.  The Company and/or its nominee or assign will be the sole owner, without payment
of royalty or any other compensation to the Employee, of any such Invention which (i) is conceived, made or reduced to practice with
the use of Confidential Information or the Company’s equipment, facilities, materials, personnel or other resources, or (ii) at
the time it is conceived, made or reduced to practice relates to the Company’s present or prospective business or actual or demonstrably
anticipated research or development, or (iii) is the result of any work performed by the Employee for the Company.  With respect
to each such Invention of which the Company is the owner, the Employee will execute and deliver promptly to the Company (without charge
to the Company but at its expense) such written instruments and do such other acts as may be necessary in the opinion of the Company to
obtain and maintain United States and/or foreign letters patent or United States and/or foreign copyright registrations and to vest the
entire right and title thereto in the Company.


 


8.       CERTAIN
PAYMENTS


 


Notwithstanding anything in this Agreement to the
contrary, if any amounts due to the Employee under this Agreement and any other plan or program of the Company constitute a “parachute
payment” (as defined in Section 280G(b)(2) of the Internal Revenue Code of 1986, as amended (the “Code”)),
then the aggregate of the amounts constituting the parachute payment shall be reduced to an amount that will equal three times his “base
amount” (as defined in Section 280G(b)(3) of the Code) less $1.00. The determination to be made with respect to this Section 8 shall
be made by an accounting firm jointly selected by the Company and the Employee and paid by the Company, and which may be the Company’s
independent auditors.


 






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9.       MISCELLANEOUS.


 


9.1       Notices.
All notices or communications hereunder shall be in writing, addressed as follows:


 


To the Company,


 


22nd Century Group, Inc.


500 Seneca Street, Suite 507


Buffalo, New York 14204


Attention: General Counsel


 


To the Employee, at such address maintained in the
Company’s records as the Employee’s primary residential address.


 


All such notices shall be conclusively deemed to be received and shall
be effective, (i) if sent by hand delivery, upon receipt, (ii) if sent by nationally recognized overnight carrier, upon receipt;
or (iii) if sent by registered or certified mail, on the fifth day after the day on which such notice is mailed.


 


9.2       Severability.
Each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.


 


9.3       Assignment.
Neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to hypothecation by the Employee.


 


9.4       Entire
Agreement. This Agreement represents the entire agreement of the parties and shall supersede any and all previous contracts, arrangements
or understandings between the Company and the Employee relating to the subject matter hereof. This Agreement may be amended at any time
by mutual written agreement of the parties hereto.


 


9.5       Withholding.
The payment of any amount pursuant to this Agreement shall be subject to applicable withholding and payroll taxes, and such other deductions
as may be required under the applicable law or Company’s employee benefits plans, if any.


 


9.6       Governing
Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable
to contracts executed in and to be performed entirely within that state. The Company and the Employee agree that any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the Employee’s
employment with the Company will be brought only to the exclusive jurisdiction of the courts of the State of New York or the federal courts
located in the State of New York, in each case located in Buffalo, New York, and each of the Company and the Employee hereby consents
to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such
suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought
in an inconvenient forum.  Further, the Company and the Employee agree  that, after a legal dispute is before a court as specified
in this Section 9.6, and during the pendency of such dispute before such court, all actions, suits, or proceedings with respect to such
dispute or any other dispute, including without limitation, any counterclaim, cross-claim or interpleader, will be subject to the exclusive
jurisdiction of such court.


 






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9.7       Costs
of Enforcement.  In the event of a dispute or action to enforce the terms of this Employment Agreement, the prevailing party
shall be entitled to its costs and expenses incurred in connection therewith, including all attorneys' fees.


 


9.8       Legal
Advice.  The Employee hereby represents and warrants to the Company that he has had the opportunity to seek independent legal
advice prior to the execution and delivery of this Agreement and that he has availed himself of that opportunity prior to signing this
Agreement and that he is signing this Agreement voluntarily without any undue pressure. Employee represents that he: (i) is familiar with
the covenants set forth in Section 6 and (ii) is fully aware of his obligations hereunder, including, without limitation, the reasonableness
of the length of time, scope and geographic coverage of such covenants.


 


9.9       Absence
of Conflicting Obligations. The Employee represents and warrants that his execution, and delivery of this Agreement, and his performance
of services for the Company as contemplated by this Agreement, do not conflict with or breach any contractual, fiduciary or other legal
obligation owed by the Employee to any other individual or entity.


 


9.10       Counterparts. 
This Employment Agreement may be executed in multiple counterparts (including by means of electronic signatures, or facsimile or PDF signature
pages), any one of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute
one and the same instrument.


 


[Signature page follows]


 






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IN WITNESS WHEREOF, the Company has caused this Agreement
to be duly executed and the Employee has hereunto set his hand, as of the day and year first above written.


 


22nd CENTURY GROUP, INC.


 


 


By: /s/ James A. Mish


Name: James A. Mish


Title: Chief Executive Officer





 


/s/ Richard Fitzgerald


Richard Fitzgerald


 









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EXHIBIT A


 


22nd CENTURY GROUP, INC.


TERMINATION AGREEMENT AND RELEASE


 


In consideration of the payments and benefits to
be provided to me by 22nd Century Group, Inc. (the “Company”) pursuant to Section 5.2.1 of the Employment Agreement
between the Company and me dated November 15, 2021 (the “Employment Agreement”), I agree as follows:


 


1.                 
Termination. My employment with the Company is terminated effective ____________ and I will not thereafter apply for employment
with the Company.


 


2.                 
Release. On behalf of myself and my heirs, successors, executors, administrators, trustees, legal representatives, agents
and assigns, I fully and forever release and discharge the Company, its subsidiaries, divisions and affiliates and its and all of their
predecessors, successors, assigns, directors and officers (collectively “Released Parties”) from any and all
claims, demands, suits, causes of action, obligations, promises, damages, fees, covenants, agreements, attorneys’ fees, debts, contracts
and torts of every kind whatsoever, known or unknown, at law or in equity, foreseen or unforeseen, which against the Released Parties
I ever had, now have or which I may have for, upon or by reason of any matter, cause or thing whatsoever relating to or arising from my
employment with the Company or the termination thereof, specifically including, but not limited to, all claims under the following: the
Civil Rights Acts of 1866, 1871, 1964 and 1991; the Age Discrimination in Employment Act of 1967; the Older Workers’ Benefit Protection
Act of 1990; the Americans with Disabilities Act; the Equal Pay Act; the Employee Retirement Income Security Act; the Worker Adjustment
Retraining Notification Act; the Family and Medical Leave Act; the National Labor Relations Act; the Occupational Safety and Health Act;
the New York State Human Rights Law; the New York City Human Rights Law; the New York State Labor Law; §§ 120 and 241 of the
New York State Workers’ Compensation Law; any contract of employment, express or implied; and any and all other federal, state or
local laws, rules or regulations.


 


I hereby waive the right to receive any personal
relief (i.e. monetary or equitable relief) as a result of any lawsuit or other proceeding brought by the EEOC or any other governmental
agency, based on or related to any of the matters from which I have released the Released Parties. I also will take all actions necessary,
if any, now or in the future, to make this Release effective.


 


The foregoing release shall not operate to release
the Company from its obligations to make payments and provide benefits as provided under Section 5.2.1 of the Employment Agreement.


 


In connection with the foregoing release (i) I
acknowledge that the payments and benefits under Section 5.2.1 of the Employment Agreement are good and sufficient consideration to which
I would not otherwise be entitled but for my execution and delivery to the Company of this instrument, (ii) I acknowledge that I have
been advised by the Company to consult with an attorney before signing this instrument, (iii) the Company has allowed me at least twenty-one
(21) days from the date I first receive this instrument to consider it before being required to sign it and return it to the Company,
and (iv) I may revoke this instrument, in its entirety, within seven (7) days after signing it by delivering written notice of such revocation
to the Company on or before 5:00 p.m. on the seventh day of such revocation period.


 


IN WITNESS WHEREOF, the undersigned has executed
this instrument as of the ____ day of ___________.