THIRD AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.29
THIRD
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
Third Amended and Restated Employment Agreement ("Agreement"), dated this 31st
day of July, 2009, is entered into by and between Alpha Natural Resources
Services, LLC, on behalf of itself and its parent entities, subsidiaries and
affiliates as may employ Employee from time to time (collectively, the "Employer"), and
Xxxxx X. Xxxxxxxxxxx ("Employee") and is effective as of March 22, 2006 (the
"Effective Date").
WITNESSETH:
WHEREAS,
Employer employs Employee pursuant to the terms and conditions set forth in that
certain Employment Agreement dated as of March 22, 2006, as amended and restated
on February 26, 2007 and November 17, 2008, between Employee and Employer (the
"Second Amended and Restated Agreement") and Employer and Employee desire to
amend and restate the Second Amended and Restated Agreement and to continue the
employment of Employee by Employer pursuant to the terms and conditions set
forth in this Agreement;
NOW,
THEREFORE, for and in consideration of the mutual promises, covenants and
obligations contained herein, Employer and Employee agree as
follows:
ARTICLE
1: EMPLOYMENT
AND DUTIES:
1.1 Employer
agrees to employ Employee, and Employee agrees to be employed by Employer,
beginning as of the Effective Date and continuing through December 31, 2010 (the
"Term"), subject to the terms and conditions of this Agreement. The
Term shall be automatically extended for successive 12-month periods unless
either party provides written notice to the other at least 90 days prior to the
end of the then current Term of such party's election not to extend the
Term.
1.2 Beginning
as of the Effective Date, Employee shall continue to be employed by Employer
and, as of July 31, 2009, be Chief Executive Officer (the "CEO") of Alpha
Natural Resources, Inc., the indirect parent of Employer ("Alpha Natural
Resources"), and shall be nominated for re-election to the Board of Directors
(the "Board of Directors") of Alpha Natural Resources. Employee shall
report to the Chairman of the Board of Directors of Alpha Natural Resources.
Employee shall serve in the assigned positions or in such other executive
capacities as may be agreed to, from time to time, between Employee and the
Employer, the Board of Directors, and/or the Employer Entities (as defined
below). Employee agrees to perform diligently and to the best of
Employee's abilities, and in a trustworthy, businesslike and efficient manner,
the duties and services pertaining to such positions as reasonably determined by
the Employer and the Board of Directors, as well as such additional or different
duties and services appropriate to such positions which Employee from time to
time may be reasonably directed to perform by the Board of Directors and/or
Employer.
1.3 Employee
shall at all times comply with, and be subject to, such policies and procedures
as Employer and/or the Employer Entities may establish from time to time,
including, without limitation, Alpha Natural Resources' Code of Business Ethics
(the "Code of Ethics").
1.4 Except as
expressly approved by the Board of Directors, Employee shall, during the period
of Employee's employment by Employer, devote Employee's full business time,
energy, and best efforts to the business and affairs of Employer and the
Employer Entities. Employee may not engage, directly or indirectly,
in any other business, investment, or activity that interferes with Employee's
performance of Employee's duties hereunder, is contrary to the interest of
Employer or any of its parent entities, affiliated subsidiaries and divisions
(each an "Employer Entity," or collectively, the "Employer Entities") or
requires any significant portion of Employee's business time. The
foregoing notwithstanding, the parties recognize and agree that Employee may
engage in passive personal investments and other business activities which do
not conflict with the business and affairs of the Employer Entities or interfere
with Employee's performance of his duties hereunder. Employee may not
serve on the board of directors of any entity (other than an Employer Entity,
related industry trade association, public institution, government appointed
public or quasi-public body, or not-for-profit charitable organization so long
as such activities do not interfere with Employee’s performance of his duties
hereunder) during the Term without prior approval, which will not be
unreasonably withheld, by the Board of Directors. Employee shall be permitted to
retain any compensation received for approved service on any unaffiliated
corporation's board of directors.
1.5 Employee
acknowledges and agrees that Employee owes a fiduciary duty of loyalty,
fidelity, and allegiance to act at all times in the best interests of the
Employer and the other Employer Entities and to do no act which would, directly
or indirectly, injure any such entity's business, interests, or
reputation. It is agreed that any direct or indirect interest in,
connection with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer, or any
Employer Entity, involves a possible conflict of interest. In keeping
with Employee's fiduciary duties to Employer and the Employer Entities, Employee
agrees that Employee shall not knowingly become involved in a conflict of
interest with Employer or any Employer Entity, or upon discovery thereof, allow
such a conflict to continue. Moreover, Employee shall not engage in
any activity that might involve a possible conflict of interest without first
obtaining approval in accordance with Employer's and Employer Entities' policies
and procedures.
1.6 Nothing
contained in this Agreement shall be construed to preclude the transfer of
Employee's employment to another Employer Entity ("Subsequent Employer") as of,
or at any time after, the Effective Date and no such transfer shall be deemed to
be a termination of employment for purposes of Article 3 hereof; provided,
however, that, effective with such transfer, all of Employer's obligations
hereunder shall be assumed by and be binding upon, and all of Employer's rights
hereunder shall be assigned to, such Subsequent Employer and the defined term
"Employer" as used herein and any other terms referring and/or relating to
Employer shall thereafter be deemed amended to mean and refer to such Subsequent
Employer. Except as otherwise provided above, all of the terms and
conditions of this Agreement, including without limitation, Employee's rights,
compensation, benefits and obligations, shall remain in all material respects
and taken as a whole, no less favorable to Employee following such transfer of
employment.
ARTICLE
2: COMPENSATION AND
BENEFITS:
2.1 Employee's
base salary during the Term shall be $875,000 (Eight Hundred, Seventy-Five Thousand Dollars) per annum which shall be
paid in accordance with the Employer's standard payroll
practice. Employee's base salary shall be reviewed and approved
annually by the Compensation Committee of the Board of
Directors (the "Compensation Committee") and then recommended by the
Compensation Committee to the Board of Directors for its approval and may be increased, in
the Board of Directors' sole discretion, from time to time. Such
increased base salary shall become the minimum base salary under this Agreement
and may not be decreased thereafter without the written consent of Employee
unless otherwise permitted by this Agreement.
2.2 During
the Term, Employee shall participate in a bonus plan pursuant to which an annual
bonus shall be paid to Employee in an amount to be reviewed and approved by the
Compensation Committee and then recommended by the Compensation Committee to the
Board of Directors for its approval, which annual bonus shall have a threshold
of 50% of Employee's then current Base Salary, a target of 100% of Employee's
then current base salary (the "Target Bonus"), with a maximum bonus opportunity
of 200% of
Employee's then current base salary. Payment of the bonus shall be
made at the same time as bonuses are paid to other senior executive officers in
accordance with the applicable plan terms and shall be based on parameters,
including, without limitation, performance goals applicable to Employee, and
such parameters shall be approved by the Compensation Committee.
2.3 During
the Term, Employee shall participate in Alpha Natural Resources' long-term
incentive plans, including its equity incentive plans, on the terms established
from time to time by the Compensation Committee; provided that, to the extent
that the Compensation Committee or the Board of Directors makes regular annual
cycle grants of equity securities under such plans to senior executive officers
who report directly to Employee (collectively, the "Direct Reports"), Employee
shall receive an equity grant of the same type of security to be granted to such
Direct Reports which shall be targeted at 150% of the highest number of such
security granted to any Direct Report on a particular grant date and under the
same terms and conditions of such award. Notwithstanding the
foregoing, this Section 2.3 shall not apply to any award made in connection with
the merger between Foundation Coal Holdings, Inc. and Alpha Natural Resources,
Inc., any retention equity award, or any inducement award which the Compensation
Committee or the Board of Directors determines to make to any potential new
employee of Employer, Alpha Natural Resources, or any affiliate.
2.4 During
the Term, in the event of a Change in Control (as defined below), Employee shall
be entitled to receive a lump sum cash payment equal to a pro rata
Target Bonus for the year in which the Change in Control occurs, which shall be
based on the portion of such year that Employee was employed by Employer prior
to the effective date of the Change in Control. Such payment, if any, shall be
made no later than 60 days after the effective date of the Change in
Control.
2.5 The
Employee shall be entitled to at least four (4) weeks paid vacation in each
calendar year, or such greater amount of vacation as may be determined in
accordance with Employer's vacation policy as in effect from time to
time. The Employee shall also be entitled to all paid holidays given
by Employer to its executives.
2.6 During
the Term, Employer shall pay or reimburse Employee for all actual, reasonable
and customary expenses incurred by Employee in the course of his employment;
provided that such expenses are incurred and accounted for in accordance with
Employer's applicable policies and procedures.
2.7 While
employed by Employer, Employee shall be allowed to participate, on the same
basis generally as other employees of Employer, in all general employee benefit
plans and programs, including improvements or modifications of the same, which
on the Effective Date or thereafter are made available by Employer and/or the
Employer Entities to all or substantially all of Employer's similarly situated
employees. Such benefits, plans, and programs may include, without
limitation, medical, health, and dental care, life insurance, disability
protection, qualified and non-qualified retirement plans, retiree medical plans
and stock option and stock grant programs, if any. Except as
specifically provided in this Agreement, nothing in this Agreement is to be
construed or interpreted to increase or alter in any way the rights,
participation, coverage, or benefits under such benefit plans or programs than
provided to similarly situated employees pursuant to the terms and conditions of
such benefit plans and programs.
2.8 Notwithstanding
anything to the contrary in this Agreement, it is specifically understood and
agreed that Employer and the Employer Entities shall not be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing any
incentive, employee benefit or stock or stock option program or plan, so long as
such actions are similarly applicable to covered employees
generally.
2.9 Employer
shall withhold from any compensation, benefits, or amounts payable under this
Agreement all federal, state, city, or other taxes as may be required pursuant
to any law or governmental regulation or ruling.
ARTICLE
3: TERMINATION
OF EMPLOYMENT AND EFFECTS OF SUCH TERMINATION
3.1 Employee's
employment with Employer shall be terminated prior to the end of the Term: (i)
upon the death of Employee, (ii) upon Employee's Retirement (as defined below),
(iii) upon Employee's Permanent Disability (as defined below), (iv) at any time
by Employer upon written notice to Employee, or (v) by Employee upon 90 days
prior written notice to Employer.
3.2 If
Employee's employment is terminated by reason of any of the following
circumstances (i), (ii), (iii), or (iv), Employee shall be entitled to receive
only the benefits set forth in Section 3.3 below:
(i) Termination due to
Employee's Retirement. "Retirement" shall mean Employee's
retirement at or after normal retirement age (either voluntarily or pursuant to
Employer's retirement policy).
(ii) Termination by Employer for
Employer Cause. Termination of Employee's employment for
"Employer Cause" shall mean termination of Employee's employment by Employer for
any of the following: (a) Employee's gross negligence or willful
misconduct in the performance of the duties and services required of Employee
pursuant to this Agreement, (b) Employee's final conviction of, or plea of
guilty or nolo contendere to, a felony or Employee engaging in fraudulent or
criminal activity relating to the scope of Employee's employment (whether or not
prosecuted), (c) a material violation of Alpha Natural Resources' Code of
Ethics, (d) Employee's material breach of any material provision of this
Agreement, provided that Employee has received written notice from the Employer
and been afforded a reasonable opportunity (not to exceed 30 days) to cure such
breach, (e) any continuing or repeated failure to perform the duties as
requested in writing by the Employee's supervisor(s) or the Board of Directors
after Employee has been afforded a reasonable opportunity (not to exceed 30
days) to cure such breach, (f) the conviction of a felony or crime involving
moral turpitude, or (g) conduct which brings Employer and/or the Employer
Entities into public disgrace or disrepute in any material
respect. Determination as to whether or not Employer Cause exists for
termination of Employee's employment will be made by the Board of
Directors.
(iii) Termination by Employee by
Resignation (Other Than for Good Reason). Employee's
resignation, other than for Good Reason (as defined below), shall mean
termination of Employee's employment by Employee's resignation of employment
with Employer and any Employer Entity, but not including any
termination of employment by Employee for Good Reason as described in Section
3.4(i) or a Termination In Connection With A Change in Control (as defined
below) by Employee described in Section 3.7.
(iv) Election Not to Renew Term
by Employee. Employee elects not to renew the Term pursuant to
Section 1.1 of this Agreement.
3.3 If
Employee's employment is terminated by reason of Section 3.2 (i), (ii), (iii),
or (iv), Employee shall be entitled to each of the following:
(i) Except as
provided in Section 3.3(iii) below, Employee shall be entitled to: (a) any base
salary earned, accrued or owing to Employee through the effective date of
termination of employment, (b) reimbursement for all reasonable and customary
expenses incurred by Employee in performing services for the Employer and/or
Employer Entities prior to the effective date of termination of employment, (c)
payment of vested amounts under the Alpha Natural Resources, Inc. and its
Subsidiaries Deferred Compensation Plan (as amended, the "Deferred Compensation
Plan"), (d) payment equal to the amount of any accrued, but unused, vacation
time, and (e) any individual bonuses or individual incentive compensation not
yet paid, but due and payable under Employer's and/or Employer Entities' plans
for years prior to the year of Employee's termination of employment; provided
that, Employee shall not be entitled to: (1) any bonus or incentive compensation
for the year in which he terminates employment unless specifically granted by
the Compensation Committee or Board of Directors, or (2) any other payments or
benefits by or on behalf of Employer and/or the Employer Entities except for
those which may be payable pursuant to the terms of Employer's and/or Employer
Entities' employee benefit plans, stock, option, or other equity plans or the
applicable agreements underlying such plans. All payments shall be
paid no later than 60 days after the effective date of termination of
employment, provided, however, that all payments under clause (c) shall be paid
in accordance with such plan's terms and all payments under clause (e) shall be
paid no later than the time that such amounts are paid to similarly situated
employees in accordance with the applicable plan terms.
(ii) Except
for (i) above, it is specifically understood that all future compensation to
which Employee is entitled and all future benefits for which Employee is
eligible, shall cease and terminate as of the effective date of termination of
employment except, if applicable, retiree medical benefits under the Alpha
Natural Resources, LLC and Subsidiaries Retiree Medical Benefit Plan (including
any successors thereto, the "Retiree Medical Benefit Plan").
(iii) If
Employee terminates employment with Employer pursuant to Section 3.2(iii), the
non-competition and non-solicitation provisions of Article 5 herein shall only
apply if the Employer, at its sole option, invokes such provisions by written
notice to Employee and pays the Employee the following: (a) two and one-half (2 1/2)
times Employee's base salary in effect as of the effective date of termination
of employment plus (b) two and one-half (2 1/2) times Employee's
Target Bonus for the year in which the effective date of termination of
employment occurs, which shall be paid to Employee in accordance with the
following payment schedule: (1) one-half of such compensation shall
be paid to Employee on the six (6) month anniversary of the effective date of
termination of employment ("Six Month Payment Date") and (2) the remaining
balance of such compensation shall be paid to Employee in equal installments in
accordance with Employer's customary payroll practices commencing the first pay
period after the Six Month Payment Date and ending on the earlier to occur of
(A) the 12-month anniversary of the effective date of such termination of
employment or (B) the date Employee violates any of the covenants set forth in
Article 4 and Article 5 hereof.
3.4 If
Employee's employment is terminated by reason of (i), (ii), (iii), or (iv)
below, and, in the case of (i) and (ii), other than a Termination In Connection
With A Change in Control, as otherwise provided in Section 3.7, Employee shall
be entitled to receive the benefits set forth in Section 3.5 or Section 3.6, as
applicable.
|
|
(i)
|
Termination by
Employee for Good Reason (Other Than A Termination In Connection With A
Change in Control). "Good Reason" shall mean a
termination of Employee's employment by Employee with the Employer and any
Employer Entity as a result of the occurrence, without Employee's written
consent, of one of the following events: (a) a material
reduction in Employee's (1) annual base salary or (2) Target Bonus
opportunity (unless such reduction in (1) and/or (2) relates to an
across-the-board reduction similarly affecting Employee and all or
substantially all other executives of Employer and the Employee Entities);
(b) a failure to provide Employee with the opportunity to materially
participate in any material equity-based plans of Employer and/or the
Employer Entities on a similar basis to those of other similarly situated
executives of Employer and/or the Employer Entities; (c) Employer makes or
causes to be made a material adverse change in Employee's position,
authority, duties or responsibilities which results in a significant
diminution in Employee's position, authority, duties or responsibilities,
including, without limitation, Employee being required to report to any
person other than the Board of Directors, except in connection with a
termination of Employee's employment with Employer for Permanent
Disability, Employer Cause, death, or temporarily as a result of
Employee's incapacity or other absence for an extended period; (d) a
relocation of Employer's principal place of business, or of Employee's own
office as assigned to Employee by Employer, to a location that increases
Employee's normal work commute by more than 50 miles; or (e) Employer or
the Board of Directors engages in any illegal activity or material violation of
governmental laws, rules or regulations in connection with the Employer
and/or the Employer Entities; provided, that such illegal activity or
material violation has a material adverse effect on Employer and the
Employer Entities, taken as a whole, thereby causing a material adverse
change in the conditions under which Employee services are to be
performed. In order for Employee to terminate for Good Reason,
(a) Employer must be notified by Employee in writing within 90 days of the
event constituting Good Reason, (b) the event must remain uncorrected by
Employer for 30 days following such notice (the "Notice Period"), and (c)
such termination must occur within 60 days after the expiration of the
Notice Period.
|
|
|
(ii)
|
Employer Termination
Without Employer Cause (Other Than A Termination In Connection With A
Change in Control). Termination of Employee's employment
by Employer for any reason other than for Employer Cause including,
without limitation, termination due to Employer's election not to renew
the Term pursuant to Section 1.1, but not including a
Termination In Connection With A Change in Control by Employer described
in Section 3.7.
|
|
|
(iii)
|
Death. Termination
due to the death of Employee.
|
|
|
(iv)
|
Termination due to
Employee's Permanent Disability. "Permanent Disability"
shall mean Employee's physical or mental incapacity to perform his usual
duties with such condition likely to remain continuously and permanently
as determined by Employer.
|
3.5 Subject
to the provisions of Section 3.7, Section 3.8, and Section 3.9, if Employee's
employment is terminated by Employee under Section 3.4(i) or by Employer under
Section 3.4(ii), Employee shall be entitled to each of the
following:
(i) Employer
shall pay to Employee an amount equal to the sum of: (a) two (2)
times Employee's base salary in effect as of the effective date of termination
of employment plus (b) two (2) times Employee's Target
Bonus for the year in which the effective date of termination of employment
occurs. Except as otherwise provided herein, such compensation shall
be paid to Employee in accordance with the following payment schedule: (a) an
amount equal to the maximum amount eligible to be paid under Treas. Reg.
§1.409A-1(b)(9)(iii) shall be paid to Employee no later than 60 days after the
effective date of termination of employment; and (b) the remaining balance of
such compensation shall be paid to Employee in equal installments in accordance
with Employer's customary payroll practices commencing the first pay period
after the Six Month Payment Date and ending on the earlier to occur of (1) the
12-month anniversary of the effective date of such termination of employment, or
(2) the date Employee violates any of the covenants set forth in Article 4 or
Article 5 hereof.
(ii) Employee
shall be entitled to a pro rata share of any individual annual cash incentive
bonuses or individual annual cash incentive compensation under Employer's and/or
Employer Entities' plans for the year of Employee's termination of employment
based on the portion of such year that Employee was employed by Employer;
provided, however, that the payment of individual annual cash incentive bonuses
or individual annual cash incentive compensation will continue to be subject to
the attainment of performance goals as specified in the applicable plan which
amounts, if any, would be paid no later than the time such amounts are paid to
similarly situated employees in accordance with the applicable plan's
terms.
(iii) Employee
shall be entitled to: (a) any base salary earned, accrued or owing to him under
this Agreement through the effective date of termination of employment, (b) any
individual bonuses or individual incentive compensation not yet paid, but due
and payable under Employer's and/or Employer Entities' plans for years prior to
the year of Employee's termination of employment, (c) reimbursement for all
reasonable and customary expenses incurred by Employee in performing services
for the Employer and/or the Employer Entities prior to the effective date of
termination of employment, (d) payment of vested amounts under the Deferred
Compensation Plan, and (e) payment equal to the amount of accrued, but unused,
vacation time. All payments shall be paid no later than 60 days after
the effective date of termination of employment; provided, however, that all
payments under clause (b) of this Section 3.5(iii) shall be paid no later than
the time that such amounts are paid to similarly situated employees in
accordance with the applicable plan terms and all payments under clause (d) of
this Section 3.5(iii) shall be paid in accordance with such plan's
terms.
(iv) To the
extent permitted by applicable law and the insurance and benefits policies to
which Employee is entitled to participate (collectively, "Benefit Plans"),
Employer shall maintain Employee's paid coverage for health and dental insurance
(through the payment of Employee's COBRA premiums) and life insurance benefits
(through the reimbursement of Employee's premiums upon conversion to individual
policy) for the earliest to occur of: (a) Employee obtaining the age of 65, (b)
the date Employee is provided by another employer benefits substantially
comparable to the benefits provided by the above-referenced Benefit Plans (which
Employee must provide prompt notice with respect thereto to the Employer), or
(c) the expiration of the COBRA Continuation Period (as defined
below). During the applicable period of coverage described in the
foregoing sentence, Employee shall be entitled to benefits, on substantially the
same basis as would have otherwise been provided had Employee not been
terminated and Employer will have no obligation to pay any benefits to, or
premiums on behalf of, Employee after such period ends. To the extent
that such benefits are available under the above-referenced Benefit Plans and
Employee had such coverage immediately prior to termination of employment, such
continuation of benefits for Employee shall also cover Employee's dependents for
so long as Employee is receiving benefits under this paragraph
(iv). The COBRA Continuation Period for medical and dental insurance
under this paragraph (iv) shall be deemed to run concurrent with the
continuation period federally mandated by COBRA (generally 18 months), or any
other legally mandated and applicable federal, state, or local coverage period
for benefits provided to terminated employees under the health care
plan. For purposes of this Agreement, (a) "COBRA" means the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (b)
"COBRA Continuation Period" shall mean the continuation period for medical and
dental insurance to be provided under the terms of this Agreement which shall
commence on the first day of the calendar month following the month in which the
date of termination falls and generally shall continue for an 18 month
period. Employee shall be entitled to reimbursement of life insurance
premiums as provided in this Section 3.5(iv) to the extent such expense is
actually incurred for such calendar year and reasonably
substantiated. Any such reimbursement shall be made no later than the
end of the calendar year following the calendar year in which such expense is
incurred by Employee; provided, however, that any life insurance premiums
incurred prior to the Six Month Payment Date shall not be reimbursed prior to
such Six Month Payment Date. Notwithstanding the foregoing, no reimbursement
provided for any expense incurred in one taxable year will affect the amount
available in another taxable year, and the right to this reimbursement is not
subject to liquidation or exchange for another benefit.
3.6 If
Employee's employment is terminated by reason of Section 3.4(iii) or (iv),
Employee's estate, in the case of death, or Employee (or his legal guardian), in
the case of Permanent Disability, shall be entitled to payment of: (a) any base
salary earned, accrued or owing to Employee's estate or Employee (or his legal
guardian), as applicable, through the effective date of termination of
employment, (b) any individual bonuses or individual incentive compensation not
yet paid but due and payable under Employer's and/or Employer Entities' plans
for years prior to the year of Employee's termination of employment, (c) a pro
rata share of any individual bonuses or individual incentive compensation, based
on the target levels set for such bonuses, under Employer's and/or Employer
Entities' plans for the year of Employee's termination of employment based on
the portion of such year that Employee was employed by Employer, (d) all
reasonable and customary expenses incurred by Employee in performing services
for the Employer and/or Employer Entities prior to the effective date of
termination of employment, (e) vested amounts under the Deferred Compensation
Plan, (f) the amount of accrued, but unused, vacation time, and (g)
participation in the Retiree Medical Benefit Plan, if applicable, and in the
event of Employee's death, Employee's spouse shall be entitled to any benefits
which she is eligible to receive under such plan. All payments shall
be paid no later than 60 days after the effective date of termination of
employment; provided, however, that all payments under clause (b) shall be paid
no later than the time that such amounts are paid to similarly situated
employees in accordance with the applicable plan terms and all payments under
clause (e) shall be paid in accordance with such plan's terms.
3.7 Involuntary Termination In
Connection with a Change in Control. In the event the
Employee's employment is terminated during the 90-day period immediately
preceding a Change in Control, or on or within the one-year period immediately
following a Change in Control (a "Termination In Connection With A Change In
Control") by: (i) the Employee for Good Reason or (ii) the Employer other than
(a) for Employer Cause, (b) due to the Employee's death or (c) due to Permanent
Disability, the Employee shall be entitled to receive the benefits set forth in
Section 3.8. For purposes of this Agreement, "Change in Control"
shall mean the occurrence of any of the following after the date of this
Agreement: (a) any merger, consolidation or business combination in which the
stockholders of Alpha Natural Resources immediately prior to the merger,
consolidation or business combination do not own at least a majority of the
outstanding equity interests of the surviving parent entity, (b) the sale of all
or substantially all of Alpha Natural Resources' assets in a single transaction
or a series of related transactions, (c) the acquisition of beneficial ownership
or control of (including, without limitation, power to vote) a majority of the
outstanding common stock of Alpha Natural Resources by any person or entity
(including a "group" as defined by or under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended), (d) the stockholders of Alpha Natural
Resources approve any plan for the dissolution or liquidation of Alpha Natural
Resources, or (e) a contested election of directors, as a result of which or in
connection with which the persons who were directors of Alpha Natural Resources
before such election or their nominees cease to constitute a majority of Alpha
Natural Resources' Board of Directors.
3.8 Subject
to the provisions of Section 3.9, if Employee's employment is terminated
pursuant to Section 3.7, Employee shall be entitled to each of the
following:
(i) Employer
shall pay to Employee a lump sum cash payment equal to (a) three (3) times Employee's
base salary in effect as of the effective date of termination, plus (b) three
(3) times
Employee's Target Bonus for the year in which the effective date of the
termination occurs. Except as otherwise provided herein, such
compensation shall be paid to Employee in accordance with the following payment
schedule: (a) an amount equal to the maximum amount eligible to be paid under
Treas. Reg. §1.409A-1(b)(9)(iii) shall be paid to Employee no later than 60 days
after the effective date of termination of employment; and (b) the remaining
balance of such compensation shall be paid to Employee in equal installments in
accordance with Employer's customary payroll practices commencing the first pay
period after the Six Month Payment Date and ending on the earlier to occur of
(1) the 12-month anniversary of the effective date of such termination of
employment, or (2) the date Employee violates any of the covenants set forth in
Article 4 or Article 5 hereof.
(ii) Employee
shall be entitled to a pro rata share of any individual annual cash incentive
bonuses or individual annual cash incentive compensation, based on the target
levels set for such bonuses, under Employer's and/or Employer Entities' plans
for the year of Employee's termination of employment based on the portion of
such year that Employee was employed by Employer. Payment shall be
made, in lump sum, no later than 60 days after effective date of termination of
employment.
(iii) Employee
shall be entitled to: (a) any base salary earned, accrued or owing to him under
this Agreement through the effective date of termination of employment, (b) any
individual bonuses or individual incentive compensation not yet paid, but due
and payable under Employer's and/or Employer Entities' plans for years prior to
the year of Employee's termination of employment, (c) reimbursement for all
reasonable and customary expenses incurred by Employee in performing services
for the Employer and/or the Employer Entities prior to the effective date of
termination of employment, (d) payment of vested
amounts under the Deferred Compensation Plan, and (e) payment equal to the
amount of accrued, but unused, vacation time. All payments shall be
paid no later than 60 days after the effective date of termination of
employment; provided, however, that all payments under clause (b) shall be paid
no later than the time that such amounts are paid to similarly situated
employees in accordance with the applicable plan terms and all payments under
clause (d) shall be paid in accordance with such plan's terms.
(iv) To the
extent permitted by applicable law and the Benefit Plans, Employer shall
maintain Employee's paid coverage for health insurance (through the payment of
Employee's COBRA premiums) and other dental and life insurance benefits (through
the reimbursement of Employee's premiums upon conversion to individual policy)
until the earlier to occur of: (a) Employee obtaining the age of 65, (b) the
date Employee is provided by another employer benefits substantially comparable
to the benefits provided by the above-referenced Benefit Plans (which Employee
must provide prompt notice with respect thereto to the Employer), or (c) the
expiration of the COBRA Continuation Period. During the applicable
period of coverage described in the foregoing sentence, Employee shall be
entitled to benefits on substantially the same basis as would have otherwise
been provided had Employee not been terminated and Employer will have no
obligation to pay any benefits to, or premiums on behalf of, Employee after such
period ends. To the extent that such benefits are available under the
above-referenced Benefit Plans and Employee had such coverage immediately prior
to termination of employment, such continuation of benefits for Employee shall
also cover Employee's dependents for so long as Employee is receiving benefits
under this paragraph (iv). The COBRA Continuation Period for medical
and dental insurance under this paragraph (iv) shall be deemed to run concurrent
with the continuation period federally mandated by COBRA (generally 18 months),
or any other legally mandated and applicable federal, state, or local coverage
period for benefits provided to terminated employees under the health care plan.
Employee shall be entitled to reimbursement of life insurance premiums as
provided in this Section 3.8(iv) to the extent such expense is actually incurred
for such calendar year and reasonably substantiated. Any such
reimbursement shall be made no later than the end of the calendar year following
the calendar year in which such expense is incurred by Employee; provided,
however, that any life insurance premiums incurred prior to the Six Month
Payment Date shall not be reimbursed prior to such Six Month Payment Date.
Notwithstanding the foregoing, no reimbursement provided for any expense
incurred in one taxable year will affect the amount available in another taxable
year, and the right to this reimbursement is not subject to liquidation or
exchange for another benefit.
(v) If
applicable, Employer shall pay to Employee a lump sum cash payment equal to the
difference between the present value of the Employee's accrued pension benefits
on the effective date of Employee's termination under any qualified defined
benefit plan and (if eligible) any related supplemental retirement plan
(together, the "pension plans") sponsored by Employer or any Employer Entity and
the present value of the accrued pension benefits to which the Employee would
have been entitled under the pension plans if Employee had continued
participation in those plans for the 24-month period after the effective date of
Employee's termination. Such amount shall be determined based on an average of
the amount contributed by Employee in the two (2) years prior to the
effective date of Employee's termination. Payment shall be made, in lump sum, no
later than 60 days after the effective date of termination of
employment.
(vi) Employer
shall pay to Employee a lump sum cash payment of $15,000 in order to cover the
cost of outplacement assistance services for Employee and other expenses
associated with seeking another employment position. Payment shall me made, in
lump sum, no later than 60 days after the effective date of termination of
employment.
3.9 The
severance benefit paid and provided to Employee pursuant to Section 3.3,
Section 3.5, 3.8 and/or Section 3.10 shall be in consideration of
Employee's continuing obligations hereunder after such termination of
employment, including, without limitation, Employee's obligations under Article
4 and Article 5. Further, as a condition to the receipt of such
severance benefit, Employer shall require Employee to first execute a release,
in substantially the form attached hereto as Annex A, releasing
Employer and all other Employer Entities, and their respective officers,
directors, employees, and agents, from any and all claims and from any and all
causes of action of any kind or character, including, but not limited to, all
claims and causes of action arising out of Employee's employment with Employer
and any other Employer Entities or the termination of such
employment. Unless otherwise required by applicable law, the release
must be executed by the Employee within thirty (30) days of the date of
termination of employment. If the Employee fails or otherwise refuses
to execute a release within the time specified herein, or revokes the release,
the Employee will not be entitled to any such severance benefits and the
Employer shall have no further obligations with respect to the payment of the
severance benefits. The performance of Employer's obligations under
Section 3.3, Section 3.5, Section 3.8 and/or Section 3.10 and the receipt of the
severance benefit provided thereunder by Employee shall constitute full
settlement of all such claims and causes of action. Employee shall
not be under any duty or obligation to seek or accept other employment following
a termination of employment pursuant to which a severance benefit payment or
benefit under Section 3.3, Section 3.5, Section 3.8 and/or Section 3.10 is owing
and the amounts and benefits due Employee pursuant to Section 3.3, Section 3.5,
Section 3.8 and/or Section 3.10 shall not be reduced or suspended, except as
otherwise provided, if Employee accepts subsequent employment or earns any
amounts as a self-employed individual, provided, however that in the event
Employee breaches any of Employee's obligations under Articles 4 or 5 of this
Agreement, then, in addition to Employer's right to specific performance
pursuant to Section 5.5 or any other rights that Employer or each Employer
Entity may have under this Agreement or otherwise, Employer and each Employer
Entity shall have the right to terminate payment of any amounts or benefits to
which Employee would otherwise be entitled pursuant to this Article
3. Employee's rights under Section 3.3, Section 3.5, Section 3.8
and/or Section 3.10 are Employee's sole and exclusive rights against the
Employer, or any affiliate of Employer, and the Employer's and the Employer
Entities' sole and exclusive liability to Employee under this Agreement, whether
such claim is based in contract, tort or otherwise, for the termination of his
employment relationship with Employer. Employee agrees that all
disputes relating to Employee's employment or termination of employment shall be
resolved through Employer's Dispute Resolution Plan as provided in Section 7.7
hereof; provided, however, that decisions as to whether there is "Employer
Cause" for termination of the employment relationship with Employee and whether
and as of what date Employee has become Permanently Disabled shall be limited to
whether such decision was reached in good faith. Nothing contained in
this Article 3 shall be construed to be a waiver by Employee of any benefits
accrued for or due Employee under any employee benefit plan (as such term is
defined in the Employees' Retirement Income Security Act of 1974, as amended)
maintained by Employer except that Employee shall not be entitled to any
severance benefits pursuant to any severance plan or program of the Employer
and/or the Employer Entities except as outlined in this Agreement.
3.10 Vesting of
Equity. With respect to any equity awards or grants made by
Employer and/or any Employer Entity after the date of this Agreement and
notwithstanding any provision to the contrary in any applicable plan, program or
agreement, upon a termination of Employee's employment with Employer pursuant to
any of the subparagraphs of Section 3.4 or Section 3.7, all stock options,
performance share, restricted stock, restricted stock unit and other equity
rights held by the Employee will become fully vested and/or exercisable, as the
case may be, on the date on which such termination of employment occurs, and all
stock options held by the Employee shall remain exercisable until the earlier to
occur of: (i) the expiration date of the applicable option term or (ii) the two
(2) year anniversary of Employee's termination date; provided, however, that the
payment of performance-based awards will continue to be subject to the
attainment of the performance goals as specified in the applicable plan or award
agreement.
3.11 Termination
of the employment relationship does not terminate those obligations imposed by
this Agreement, which are continuing obligations, including, without limitation,
Employee's obligations under Article 4 and Article 5.
3.12 The
payment of any monies to Employee under this Agreement after the date of
termination of employment does not constitute an offer or a continuation of
employment of the Employee. In no event shall Employee represent or
hold himself out to be an employee of Employer or any Employer Entity after the
effective date of termination of employment. Except where Employer is
lawfully required to withhold any federal, state, or local taxes, Employee shall
be responsible for any and all federal, state, or local taxes that arise out of
any payments to Employee hereunder.
3.13 During
any period during which any monies are being paid to Employee under this
Agreement after the effective date of termination of employment, Employee shall
provide to Employer and any Employer Entity reasonable levels of assistance in
answering questions concerning the business of Employer and any Employer Entity,
transition of responsibility, or litigation, provided that all out of pocket
expenses of Employee reasonably incurred in connection with such assistance are
fully and promptly reimbursed and that any such assistance after the Non-Compete
Period (as defined below) shall not interfere or conflict with the obligations
which Employee may owe to any other employer, and shall always be less than 8
hours per week.
ARTICLE
4: OWNERSHIP
AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
4.1 All
information, ideas, concepts, improvements, innovations, developments, methods,
processes, designs, analyses, drawings, reports, discoveries, and inventions,
whether patentable or not or reduced to practice, which are conceived, made,
developed or acquired by Employee, individually or in conjunction with others,
during Employee's employment by Employer or any of the Employer Entities, both
before and after the date hereof (whether during business hours or otherwise and
whether on Employer's premises or otherwise) which relate to the business,
products or services of Employer or the Employer Entities (including, without
limitation, all such information relating to corporate opportunities, research,
financial and sales data, pricing and trading terms, evaluations, opinions,
interpretations, acquisition prospects, the identity of customers or their
requirements, the identity of key contacts within the customer's organizations
or within the organization of acquisition prospects, or marketing and
merchandising techniques, prospective names, marks, and any copyrightable work,
trade xxxx, trade secret or other intellectual property rights (whether or not
composing confidential information, and all writings or materials of any type
embodying any of such items (collectively, "Work Product")), shall be the sole
and exclusive property of Employer or an Employer Entity, as the case may be,
and shall be treated as "work for hire." It is recognized that
Employee is an experienced executive in the business of the Employer Entities
and through several decades of prior work in the industry acquired and retains
knowledge, contacts, and information which are not bound by this Article
4.
4.2 Employee
shall promptly and fully disclose all Work Product to Employer and shall
cooperate and perform all actions reasonably requested by Employer (whether
during or after the Term of employment) to establish, confirm and protect
Employer's and/or Employer Entities' right, title and interest in such Work
Product. Without limiting the generality of the foregoing, Employee
agrees to assist Employer, at Employer's expense, to secure Employer's and
Employer Entities' rights in the Work Product in any and all countries,
including the execution by Employee of all applications and all other
instruments and documents which Employer and/or the Employer Entities shall deem
necessary in order to apply for and obtain rights in such Work Product and in
order to assign and convey to Employer and/or the Employer Entities the sole and
exclusive right, title and interest in and to such Work Product. If
Employer is unable because of Employee's mental or physical incapacity or for
any other reason (including Employee's refusal to do so after request therefor
is made by Employer) to secure Employee's signature to apply for or to pursue
any application for any United States or foreign patents or copyright
registrations covering Work Product belonging to or assigned to Employer and/or
the Employer Entities pursuant to Section 4.1 above, then Employee by this
Agreement irrevocably designates and appoints Employer and its duly authorized
officers and agents as Employee's agent and attorney-in-fact to act for and in
Employee's behalf and stead to execute and file any such applications and to do
all other lawfully permitted acts to further the prosecution and issuance of
patents or copyright registrations thereon with the same legal force and effect
as if executed by Employee. Employee agrees not to apply for or
pursue any application for any United States or foreign patents or copyright
registrations covering any Work Product other than pursuant to this Section in
circumstances where such patents or copyright registrations are or have been or
are required to be assigned to Employer or any Employer Entity.
4.3 Employee
acknowledges that the businesses of Employer and the Employer Entities are
highly competitive and that their strategies, methods, books, records, and
documents, their technical information concerning their products, equipment,
services, and processes, procurement procedures and pricing techniques, the
names of and other information (such as credit and financial data) concerning
their former, present or prospective customers and business affiliates, all
comprise confidential business information and trade secrets which are valuable,
special, and unique assets which Employer and/or the Employer Entities use in
their business to obtain a competitive advantage over their
competitors. Employee further acknowledges that protection of such
confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to Employer and the Employer
Entities in maintaining their competitive position. Employee
acknowledges that by reason of Employee's duties to, and association with,
Employer and the Employer Entities, Employee has had and will have access to,
and has and will become informed of, confidential business information which is
a competitive asset of Employer and the Employer Entities. Employee
hereby agrees that Employee will not, at any time during or after his employment
by Employer, make any unauthorized disclosure of any confidential business
information or trade secrets of Employer or the Employer Entities, or make any
use thereof, except in the carrying out of his employment responsibilities
hereunder. Employee shall take all necessary and appropriate steps to
safeguard confidential business information and protect it against disclosure,
misappropriation, misuse, loss and theft. Confidential business
information shall not include information in the public domain (but only if the
same becomes part of the public domain through a means other than a disclosure
prohibited hereunder). The above notwithstanding, a disclosure shall
not be unauthorized if (i) it is required by law or by a court of competent
jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute
resolution or other legal proceeding in which Employee's legal rights and
obligations as an employee or under this Agreement are at issue; provided,
however, that Employee shall, to the extent practicable and lawful in any such
events, give prior notice to Employer of his intent to disclose any such
confidential business information in such context so as to allow Employer or an
Employer Entity an opportunity (which Employee will not oppose) to obtain such
protective orders or similar relief with respect thereto as may be deemed
appropriate. Any information not specifically related to the Employer
Entities would not be considered confidential to the Employer.
4.4 All
written materials, records, and other documents made by, or coming into the
possession of, Employee during the period of Employee's employment by Employer
which contain or disclose confidential business information or trade secrets of
Employer or the Employer Entities, or which relate to Employee's Work Product
described in Section 4.1 above, shall be and remain the property of Employer, or
the Employer Entities, as the case may be. Upon termination of
Employee's employment, for any reason, Employee promptly shall deliver the same,
and all copies thereof, to Employer.
ARTICLE
5: COVENANT
NOT TO COMPETE:
5.1 In
consideration of the compensation to be paid to Employee under this Agreement,
Employee acknowledges that in the course of Employee's employment with certain
Employer Entities, he has prior to the date of this Agreement, and will during
the Term of employment, become familiar with Employer's and the Employer
Entities' trade secrets, business plans and business strategies and with other
confidential business information concerning Employer and the Employer Entities
and that Employee's services have been and shall be of special, unique and
extraordinary value to Employer and the Employer Entities. Employee
also acknowledges that in the course of his employment he will have access to
Employer's and the Employer Entities' relationships and goodwill with their
customers, distributors, suppliers and employees. In light of
Employee's value to, and knowledge of, Employer, the Employer Entities, and the
Business (as defined below) and Employee's compensation pursuant to this
Agreement, Employee agrees that, during the Term and for a period of one (1)
year thereafter (the "Non-Compete Period"), he will not, in association with or
as an officer, principal, manager, member, advisor, agent, partner, director,
material stockholder, employee or consultant of any corporation (or sub-unit, in
the case of a diversified business) or other enterprise, entity or association,
work on the acquisition or development of, or engage in any line of business,
property or project which is, directly or indirectly, competitive with any
business that Employer or any Employer Entity engages in during the Term of
employment, including but not limited to, the mining, processing,
transportation, distribution, trading and sale of synfuel, coal and coal
byproducts (the "Business"). Such restriction shall cover Employee's
activities anywhere in the states in which Employer conducts operations during
the Term of this Agreement.
5.2 During
the applicable Non-Compete Period, Employee will not solicit or induce any
person who is or was employed by any of the Employer Entities at any time during
such term or period (i) to interfere with the activities or businesses of
Employer or any Employer Entity or (ii) to discontinue his or her employment
with any of the Employer Entities.
5.3 During
the applicable Non-Compete Period, Employee will not, directly or indirectly,
influence or attempt to influence any customers, distributors or suppliers of
any of the Employer Entities to divert their business to any competitor of
Employer or any Employer Entity or in any way interfere with the relationship
between any such customer, distributor or supplier and Employer and/or any
Employer Entity (including, without limitation, making any negative statements
or communications about Employer and the Employer Entities). During
the applicable Non-Compete Period, Employee will not, directly or indirectly,
acquire or attempt to acquire any business in the states in which Employer
conducts operations during the Term of this Agreement; prior to the termination
of the Term of employment, has made an acquisition proposal relating to the
possible acquisition of such business by Employer or any Employer Entity, (such
business, an "Acquisition Target"); or take any action to induce or attempt to
induce any Acquisition Target to consummate any acquisition, investment or other
similar transaction with any person other than Employer or any Employer
Entity.
5.4 Employee
understands that the provisions of Sections 5.1, 5.2 and 5.3 hereof may limit
his ability to earn a livelihood in a business in which he is involved, but as a
member of the management group of Employer and the Employer Entities he
nevertheless agrees and hereby acknowledges that: (i) such provisions do not
impose a greater restraint than is necessary to protect the goodwill or other
business interests of Employer and any of the Employer Entities; (ii) such
provisions contain reasonable limitations as to time, scope of activity, and
geographical area to be restrained; and (iii) the consideration provided
hereunder, including without limitation, any amounts or benefits provided under
Article 3 hereof, is sufficient to compensate Employee for the restrictions
contained in Sections 5.1, 5.2 and 5.3 hereof. Subject to the final
sentence of Section 5.1, in consideration of the foregoing and in light of
Employee's education, skills and abilities, Employee agrees that he will not
assert that, and it should not be considered that, any provisions of Sections
5.1, 5.2 or 5.3 otherwise are void, voidable or unenforceable or should be
voided or held unenforceable.
5.5 If, at
the time of enforcement of Articles 4 or 5 of this Agreement, a court shall hold
that the duration, scope, or area restrictions stated herein are unreasonable
under circumstances then existing, the parties hereto agree that the maximum
period, scope or geographical area reasonable under such circumstances shall be
substituted for the stated period, scope or area and that the court shall be
allowed and directed to revise the restrictions contained herein to cover the
maximum period, scope and area permitted by law. Employee acknowledges that he
is a member of Employer's and the Employer Entities' management group with
access to Employer's and Employer Entities' confidential business information
and his services are unique to Employer and the Employer
Entities. Employee therefore agrees that the remedy at law for any
breach by him of any of the covenants and agreements set forth in Articles 4 and
5 will be inadequate and that in the event of any such breach, Employer and the
Employer Entities may, in addition to the other remedies which may be available
to them at law, apply to any court of competent jurisdiction to obtain specific
performance and/or injunctive relief prohibiting Employee (together with all
those persons associated with him) from the breach of such covenants and
agreements and to enforce, or prevent any violations of, the provisions of this
Agreement. In addition, in the event of a breach or violation by
Employee of this Article 5, the applicable Non-Compete Period set forth in this
Article shall be tolled until such breach or violation has been
cured.
5.6 Each of
the covenants of this Article 5 are given by Employee as part of the
consideration for this Agreement and as an inducement to Employer to enter into
this Agreement and accept the obligations hereunder.
5.7 Provisions
of Article 5 shall not be binding on Employee if Employer fails to perform any
material obligation under this Agreement, including, without limitation, the
failure of Employer to make timely payments of monies due to Employee under
Article 3 of this Agreement; provided, that (a) Employee has notified Employer
in writing within 30 days of the date of the failure of Employer to perform such
material obligation and (b) such failure remains uncorrected and/or uncontested
by Employer for 15 days following the date of such notice.
5.8 Notwithstanding
anything to the contrary contained in this Article 5, the non-competition and
non-solicitation provisions of this Article 5 shall not apply in the event that
this Agreement (a) shall be terminated by Employee for Good Reason pursuant to
Section 3.4 or (b) Employee or Employer, as the case may be, elects not to renew
the Term of this Agreement pursuant to Section 3.2(iv) or Section 3.4(ii),
respectively, or (iii) Employee resigns from the Employer pursuant to Section
3.2(iii) and
Employer elects not to exercise its option, in its sole discretion, to subject
Employee to the non-competition and non-solicitation provisions of this Article
5 in accordance with Section 3.3(iii) herein; provided that Employee does not
receive, or does not elect to receive, any of the benefits or payments under
Sections 3.5, 3.8 and/or 3.10 of this Agreement (if applicable).
5.9 If
Employee breaches any obligation under Article 4 and/or Article 5 hereof,
Employer shall provide notice of such breach to Employee. The
Employee agrees that, within 30 days after Employer provides such notice,
Employee shall pay to Employer, in cash, an amount equal to any and all payments
paid to or on behalf of Employee under Article 3 of this Agreement including,
without limitation, to the extent Employee has sold any equity which vested
pursuant to Section 3.10 hereof, any cash proceeds received from such
sale. Employee agrees that failure to make such timely payment to
Employer constitutes an independent and material breach of this Agreement by
Employee, for which Employer may seek recovery of the unpaid amount as
liquidated damages, in addition to all other rights and remedies Employer may
have resulting from Employee's breach of the obligations set forth in Article 4
and/or Article 5 hereof. Employee agrees that timely payment to
Employer as set forth herein is reasonable and necessary because the damages
that will result from a breach of Article 4 and/or Article 5 hereof cannot
readily be ascertained. Further, Employee agrees that timely payment
to Employer as set forth herein is not a penalty, and it does not preclude
Employer from seeking all other remedies that may be available to Employer,
including, without limitation, those set forth in this Article 5.
ARTICLE
6: CERTAIN
ADDITIONAL PAYMENTS BY EMPLOYER:
6.1 The
provisions of this Article 6 shall apply notwithstanding anything in this
Agreement to the contrary. Subject to Section 6.2 below, in the event
that it shall be determined that any payment or distribution by Employer to, or
for the benefit of, the Employee, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise (a
"Payment"), would constitute an "excess parachute payment" within the meaning of
Section 280G of the Code, Employer shall pay the Employee an additional amount
(the "Gross-Up Payment") such that the net amount retained by the Employee after
deduction of any excise tax imposed under Section 4999 of the Code, and any
federal, state and local income tax, employment tax, excise tax and other tax
imposed upon the Gross-Up Payment, shall be equal to the Payment.
6.2 Notwithstanding
Section 6.1, and notwithstanding any other provisions of this Agreement to the
contrary, if the net after-tax benefit to the Employee of receiving the Gross-Up
Payment does not exceed the Safe Harbor Amount (as defined below) by more than
10% (as compared to the
net-after tax benefit to the Employee resulting from elimination of the Gross-Up
Payment and reduction of the Payments to the Safe Harbor Amount), then (i)
Employer shall not pay the Employee the Gross-Up Payment, and (ii) the
provisions of Section 6.3 below shall apply. The term "Safe Harbor Amount" means
the maximum dollar amount of parachute payments that may be paid to the Employee
under Section 280G of the Code without imposition of an excise tax under Section
4999 of the Code.
6.3 The
provisions of this Section 6.3 shall apply only if Employer is not required to
pay the Employee a Gross-Up Payment as a result of Section 6.2
above. If Employer is not required to pay the Employee a Gross-Up
Payment as a result of the provisions of Section 6.2, Employer will apply a
limitation on the Payment amount as set forth below (a "Parachute Cap") as
follows: The aggregate present value of the Payments under Section
3.8 and Section 3.10 of this Agreement ("Agreement Payments") shall be reduced
(but not below zero) to the Reduced Amount. The "Reduced Amount" shall be an
amount expressed in present value which maximizes the aggregate present value of
Agreement Payments without causing any Payment to be subject to the limitation
of deduction under Section 280G of the Code. For purposes of this
Article 6, "present value" shall be determined in accordance with Section
280G(d)(4) of the Code.
6.4 Except as
set forth in the next sentence, all determinations to be made under this
Article 6 shall be made by the nationally recognized independent public
accounting firm used by Employer immediately prior to the Change in Control
("Accounting Firm"), which Accounting Firm shall provide its determinations and
any supporting calculations to Employer and the Employee within ten (10) days of
the Employee's termination date. The value of the Employee's
non-competition covenant under Article 5 of this Agreement shall be determined
by independent appraisal by a nationally-recognized business valuation firm
acceptable to both the Employee and Employer, and a portion of the Agreement
Payments shall, to the extent of that appraised value, be specifically allocated
as reasonable compensation for such non-competition covenant and shall not be
treated as a parachute payment. If any Gross-Up Payment is required
to be made, Employer shall make the Gross-Up Payment within 60 days after
receiving the Accounting Firm's calculations, but in no event later than the end
of the Employee's taxable year following the Employee's taxable year in which
the Employee remits the related taxes. Any such determination by the
Accounting Firm shall be binding upon Employer and the Employee.
6.5 All of
the fees and expenses of the Accounting Firm in performing the determinations
referred to in this Article 6 shall be borne solely by
Employer.
ARTICLE
7: MISCELLANEOUS:
7.1 For
purposes of this Agreement, the terms "affiliate" or "affiliates" mean an entity
or entities in which Employer, Alpha Natural Resources, or any parent entity of
Alpha Natural Resources has a 20% or more direct or indirect equity
interest.
7.2 Section
409A.
(i) The
provisions of this Agreement will be administered, interpreted and construed in
a manner intended to comply with Section 409A of the Code, the regulations
issued thereunder or any exception thereto (or disregarded to the extent such
provision cannot be so administered, interpreted, or construed).
(ii) For
purposes of Section 409A, each payment hereunder, including each salary
continuation installment payment, shall be treated as a separate
payment. For purposes of this Agreement, each payment is intended to
be excepted from Section 409A to the maximum extent provided under Section 409A
as follows: (i) each payment that is scheduled to be made following Employee's
termination date and within the applicable 2½ month period specified in Treas.
Reg. § 1.409A-1(b)(4) is intended to be excepted under the short-term deferral
exception as specified in Treas. Reg. § 1.409A-1(b)(4); (ii) post-termination
medical benefits are intended to be excepted under the medical benefits
exception as specified in Treas. Reg. § 1.409A-1(b)(9)(v)(B), and
(iii) each payment that is not otherwise excepted under the short-term deferral
exception or medical benefits exception is intended to be excepted under the
involuntary separation pay exception as specified in Treas. Reg. §
1.409A-1(b)(9)(iii). The Employee shall have no right to designate the date of
any payment hereunder.
(iii) With
respect to payments subject to Section 409A of the Code (and not excepted
therefrom), if any, it is intended that each payment is paid on permissible
distribution event and at a specified time consistent with Section 409A of the
Code. The Employer reserves the right to accelerate and/or defer any
payment to the extent permitted and consistent with Section 409A.
Notwithstanding any provision of this Agreement to the contrary, to the extent
that a payment hereunder is subject to Section 409A of the Code (and not
excepted therefrom) and payable on account or a termination of employment, such
payment shall be delayed for a period of six months after the date of
termination (or, if earlier, the death of the Employee ) if the Employee is a
"specified employee" (as defined in Section 409A of the Code and determined in
accordance with the procedures established by the Employer). Any
payment that would otherwise have been due or owing during such six-month period
will be paid immediately following the end of the six-month period in the month
following the month containing the 6-month anniversary of the date of
termination.
(iv) For
purposes of the Agreement, the Employee shall be considered to have experienced
a termination of employment only if the Employee has terminated
employment with the Company and all of its controlled group members within the
meaning of Section 409A of the Code. For purposes hereof, the
determination of controlled group members shall be made pursuant to the
provisions of Section 414(b) and 414(c) of the Code; provided that the language
"at least 50 percent" shall be used instead of "at least 80 percent" in each
place it appears in Section 1563(a)(1),(2) and (3) of the Code and Treas. Reg. §
1.414(c)-2. Whether the Employee has terminated employment will be
determined based on all of the facts and circumstances and in accordance with
the guidance issued under Section 409A of the Code.
(v) Notwithstanding
any provision of this Agreement to the contrary, Employee acknowledges and
agrees that the Employer shall not be liable for, and nothing provided or
contained in this Agreement will be construed to obligate or cause the
Employer to be liable for, any tax, interest or penalties imposed on
Employee related to or arising with respect to any violation of Section
409A.
7.3 For
purposes of this Agreement, notices and all other communications provided for
herein shall be in writing and shall be deemed to have been duly given when
received by or tendered to Employee or Employer, as applicable, by pre-paid
courier or by United States registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to
Employer:
Alpha
Natural Resources Services, LLC
Xxx Xxxxx
Xxxxx
X.X. Xxx
0000
Xxxxxxxx,
XX 00000
Attn: General
Counsel of Alpha Natural Resources
If to
Employee: To his last known personal residence
7.4 This
Agreement shall be governed by and construed and enforced, in all respects in
accordance with; the law of the Commonwealth of Virginia, without regard to
principles of conflicts of law, unless preempted by federal law, in which case
federal law shall govern; provided, however, that Employer's Dispute Resolution
Plan, or if no such plan is in place, then the rules of the American Arbitration
Association shall govern in all respects with regard to the resolution of
disputes hereunder as provided in Section 7.7.
7.5 No
failure by either party hereto at any time to give notice of any breach by the
other party of, or to require compliance with, any condition or provision of
this Agreement shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time.
7.6 It is a
desire and intent of the parties that the term, provisions, covenants, and
remedies contained in this Agreement shall be enforceable to the fullest extent
permitted by law. If any such term, provision, covenant, or remedy of
this Agreement or the application thereof to any person, association, or entity
or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
applicable law to the fullest extent permitted by law. In any case,
the remaining provisions of this Agreement or the application thereof to any
person, association, or entity or circumstances other than those to which they
have been held invalid or unenforceable, shall remain in full force and
effect.
7.7 It is the
mutual intention of the parties to have any dispute concerning this Agreement
resolved out of court. Accordingly, the parties agree that any such
dispute shall, as the sole and exclusive remedy, be submitted for resolution,
then pursuant to binding arbitration to be held in Abingdon, Virginia, in
accordance with the employment arbitration rules (except as modified below) of
the American Arbitration Association and with the Expedited Procedures thereof
(collectively, the "Rules"); provided, however, that the Employer, on its own
behalf and on behalf of any of the Employer Entities, and the Employers Entities
shall be entitled to seek a restraining order or injunction in any court of
competent jurisdiction to prevent any breach or the continuation of any breach
of the provisions of Articles 4 and 5 and Employee hereby consents that such
restraining order or injunction may be granted without the necessity of the
Employer or any Employer Entity posting any bond. Each of the parties
hereto agrees that such arbitration shall be conducted by a single arbitrator
selected in accordance with the Rules; provided that such arbitrator shall be
experienced in deciding cases concerning the matter which is the subject of the
dispute. Each of the parties agrees that in any such arbitration that
pre-arbitration discovery shall be limited to the greatest extent provided by
the Rules, that the award shall be made in writing no more than 30 days
following the end of the proceeding, that the arbitration shall not be conducted
as a class action, that the arbitration award shall not include factual findings
or conclusions of law. Any award rendered by the arbitrator shall be
final and binding and judgment may be entered on it in any court of competent
jurisdiction. Each of the parties hereto agrees to treat as
confidential the results of any arbitration (including, without limitation, any
findings of fact and/or law made by the arbitrator) and not to disclose such
results to any unauthorized person.
7.8 This
Agreement shall be binding upon and inure to the benefit of Employer, the
Employer Entities, their respective successors in interest, or any other person,
association, or entity which may hereafter acquire or succeed to all or
substantially all of the business assets of Employer and the Employer Entities
by any means, whether indirectly or directly, and whether by purchase, merger,
consolidation, or otherwise. Employee's rights and obligations under
this Agreement are personal and such rights, benefits, and obligations of
Employee shall not be voluntarily or involuntarily assigned, alienated, or
transferred, whether by operation of law or otherwise, without the prior written
consent of Employer, other than in the case of death or Permanent Disability of
Employee.
7.9 This
Agreement replaces and merges any previous agreements and discussions pertaining
to the subject matter covered herein, including, without limitation, the Second
Amended and Restated Agreement. This Agreement constitutes the entire
agreement of the parties with regard to the terms of Employee's employment,
termination of employment and severance benefits, and contains all of the
covenants, promises, representations, warranties, and agreements between the
parties with respect to such matters. Each party to this Agreement
acknowledges that no representation, inducement, promise, or agreement, oral or
written, has been made by either party with respect to the foregoing matters
which is not embodied herein, and that no agreement, statement, or promise
relating to the employment of Employee by Employer that is not contained in this
Agreement shall be valid or binding. This Agreement may not be
amended orally, but only by an instrument in writing signed by each of the
parties to this Agreement; provided, however, the Employer may, solely to the
extent necessary to comply with Section 409A of the Code, modify the terms of
this Agreement if it is determined that such terms would subject any payments or
benefits hereunder to the additional tax and/or interest assessed under Section
409A of the Code.
7.10 Notwithstanding
any provision of this Agreement to the contrary, the parties' respective rights
and obligations under Articles 3, 4, 5, 6, and this Article 7 will survive any
termination or expiration of this Agreement or the termination of Employee's
employment for any reason whatsoever.
7.11 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 remain in full force and effect.
7.12 This
Agreement may be executed in one or more counterparts, each of which shall
deemed to be in an original but all of which together will constitute one and
the same instrument.
[Signature
Page Follows]
IN WITNESS WHEREOF, Employer
and Employee have duly executed this Agreement in multiple originals to be
effective as of the Effective Date.
EMPLOYER
ALPHA
NATURAL RESOURCES SERVICES, LLC
By: /s/ Xxxxxx
X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title: Executive
Vice President
EMPLOYEE
/s/ Xxxxx
X.
Xxxxxxxxxxx
Xxxxx X.
Xxxxxxxxxxx
ANNEX A
SEPARATION OF EMPLOYMENT
AGREEMENT AND GENERAL RELEASE
THIS
SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made
as of this _____ day of ___________, _____, by and between Alpha Natural
Resources Services, LLC (the “Company”) and Xxxxx X. Xxxxxxxxxxx
(“Executive”).
WHEREAS,
the Company advises Executive to consult with Executive's own legal counsel
before signing this Agreement; and
WHEREAS,
the Executive formerly was employed by the Company as ____________;
and
WHEREAS,
the Company employs Executive pursuant to the terms and conditions set forth in
that certain Employment Agreement dated as of March 22, 2006 between Executive
and the Company, that was amended and restated as of February 26, 2007, November
17, 2008 and July 31, 2009, (as amended from time to time, the “Employment
Agreement”) which provides for certain payments and benefits in the event that
the Executive's employment is terminated under certain circumstances;
and
WHEREAS,
an express condition of the Executive's entitlement to the payments and benefits
under the Employment Agreement is the execution of a general release in the form
set forth below; and
WHEREAS,
the Executive and the Company mutually desire to terminate the Executive's
employment effective _____________ ____, ____ (“Date of
Termination”).
NOW,
THEREFORE, IT IS HEREBY AGREED by and between the Executive and the Company as
follows:
1. (a) To
the fullest extent permitted by law, the Executive, for and in consideration of
the commitments of the Company as set forth in paragraph 5 of this Agreement,
and intending to be legally bound, does hereby REMISE, RELEASE AND FOREVER
DISCHARGE the Company, its affiliates, predecessors, subsidiaries and parents,
and their present or former officers, directors, shareholders, employees, and
agents, and its and their respective successors, assigns, heirs, executors, and
administrators and the current and former trustees or administrators of any
pension or other benefit plan applicable to the employees or former employees of
the Company (collectively, “Releasees”) from all causes of action, suits, debts,
claims and demands whatsoever in law or in equity, which the Executive ever had,
now has, or hereafter may have, whether known or unknown, or which the
Executive's heirs, executors, or administrators may have, by reason of any
matter, cause or thing whatsoever, from any time prior to the date of this
Agreement, and particularly, but without limitation of the foregoing general
terms, any claims arising from or relating in any way to the Executive's
employment relationship with the Company and/or its affiliates, the terms and
conditions of that employment relationship, and the termination of that
employment relationship, including, but not limited to, any claims arising under
the Age Discrimination in Employment Act, the Older Workers Benefit Protection
Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
Act, the Employee Retirement Income Security Act of 1974, the Virginians with
Disabilities Act, the Virginia Human Rights Act, the Virginia Wage Payment and
Collection Act, and any other claims under any federal, state or local common
law, statutory, or regulatory provision, now or hereafter recognized, and any
claims for attorneys' fees and costs. This Agreement is effective
without regard to the legal nature of the claims raised and without regard to
whether any such claims are based upon tort, equity, implied or express contract
or discrimination of any sort. This release is intended to be a
general release, and excludes only those claims that Executive cannot release as
a matter of law under any statute or common law. Executive is advised
to seek independent legal counsel if Executive seeks clarification on the scope
of this release.
(b) To the
fullest extent permitted by law, and subject to the provisions of
paragraph 10 and paragraph 12 below, the Executive represents and affirms
that the Executive has not filed or caused to be filed on the Executive's behalf
any charge, complaint or claim for relief against the Company or any Releasee
and, to the best of the Executive's knowledge and belief, no outstanding
charges, complaints or claims for relief have been filed or asserted against the
Company or any Releasee on the Executive's behalf; and the Executive has not
reported any improper, unethical or illegal conduct or activities to any
supervisor, manager, department head, human resources representative, agent or
other representative of the Company or any Releasee, to any member of the
Company's or any Releasee's legal or compliance departments, or to the ethics
hotline, and has no knowledge of any such improper, unethical or illegal conduct
or activities. In the event that there is outstanding any such
charge, complaint or claim for relief, Executive agrees to seek its immediate
withdrawal and dismissal with prejudice. In the event that for any
reason said charge, complaint or claim for relief cannot be withdrawn, Executive
shall not voluntarily testify, provide documents or otherwise participate in any
investigation or litigation arising therefrom or associated therewith and shall
execute such other papers or documents as the Company's counsel determines may
be necessary to have said charge, complaint or claim for relief dismissed with
prejudice. Nothing herein shall prevent Executive from testifying in
any cause of action when required to do so by process of
law. Executive shall promptly inform the Company if called upon to
testify.
(c) Executive
does not waive any right to file a charge with the Equal Employment Opportunity
Commission (“EEOC”) or participate in an investigation or proceeding conducted
by the EEOC, but explicitly waives any right to file a personal lawsuit or
receive monetary damages that the EEOC might recover if said charge results in
an EEOC lawsuit against the Company or Releasees. Executive does not
waive the right to challenge the validity of this Agreement.
2. In
consideration of the Company's agreements as set forth in paragraph 5 herein,
the Executive agrees to comply with the limitations described in Article 4 and
Article 5 of the Employment Agreement.
3. The
Executive further agrees and recognizes that the Executive has permanently and
irrevocably severed the Executive's employment relationship with the Company,
that the Executive shall not seek employment with the Company or any affiliated
entity at any time in the future, and that the Company has no obligation to
employ him in the future. Effective as of the Date of Termination,
Executive is removed from all boards and committees of the Company and its
affiliates on which Executive may have previously served. The Company
shall deliver to Executive a copy of the documents delivered to the Office of
Mine Safety which are necessary for that office to establish an ending date of
your positions as an officer and director of Alpha Natural Resources, Inc., the
Company and their respective subsidiaries.
4. The
Executive further agrees that the Executive will not disparage or subvert the
Company or any Releasee, or make any statement reflecting negatively on the
Company, its affiliated corporations or entities, or any of their officers,
directors, employees, agents or representatives, including, but not limited to,
any matters relating to the operation or management of the Company or any
Releasee, the Executive's employment and the termination of the Executive's
employment, irrespective of the truthfulness or falsity of such
statement.
5. In
consideration for the Executive's promises, as set forth herein, the Company
agrees to pay or provide to or for the Executive the payments and benefits
described in the Employment Agreement, the provisions of which are incorporated
herein by reference. Except as set forth in this Agreement, it is
expressly agreed and understood that Releasees do not have, and will not have,
any obligations to provide the Executive at any time in the future with any
payments, benefits or considerations other than those recited in this paragraph,
or those required by law, other than under the terms of any benefit plans which
provide benefits or payments to former employees according to their
terms.
6. The
Executive understands and agrees that the payments, benefits and agreements
provided in this Agreement are being provided to him in consideration for the
Executive's acceptance and execution of, and in reliance upon the Executive's
representations in, this Agreement. The Executive agrees that absent
execution without revocation of this Agreement containing a release of all
claims against the Releasees, the Executive is not entitled to the payments and
benefits set forth in the Employment Agreement.
7. The
Executive acknowledges and agrees that this Agreement and the Employment
Agreement supersede any employment agreement or offer letter the Executive has
with the Company or any Releasee. To the extent Executive has entered
into any other enforceable written agreement with the Company or any Releasee
that contains provisions that are outside the scope of this Agreement and the
Employment Agreement and are not in direct conflict with the provisions in this
Agreement or the Employment Agreement, the terms in this Agreement and the
Employment Agreement shall not supercede, but shall be in addition to, any other
such agreement. Except as set forth expressly herein, no
promises or representations have been made to Executive in connection with the
termination of the Executive's Employment Agreement, if any, or offer letter, if
any, with the Company, or the terms of this Agreement.
8. The
Executive agrees not to disclose the terms of this Agreement or the Employment
Agreement to anyone, except the Executive's spouse, attorney and, as necessary,
tax/financial advisor. It is expressly understood that any violation
of the confidentiality obligation imposed hereunder constitutes a material
breach of this Agreement.
9. The
Executive represents that the Executive does not, without the Company's prior
written consent, presently have in the Executive's possession any records and
business documents, whether on computer or hard copy, and other materials
(including but not limited to computer disks and tapes, computer programs and
software, office keys, correspondence, files, customer lists, technical
information, customer information, pricing information, business strategies and
plans, sales records and all copies thereof) (collectively, the “Corporate
Records”) provided by the Company and/or its predecessors, subsidiaries or
affiliates or obtained as a result of the Executive's prior employment with the
Company and/or its predecessors, subsidiaries or affiliates, or created by the
Executive while employed by or rendering services to the Company and/or its
predecessors, subsidiaries or affiliates. The Executive acknowledges
that all such Corporate Records are the property of the Company. In
addition, the Executive shall promptly return in good condition any and all
Company owned equipment or property, including, but not limited to, automobiles,
personal data assistants, facsimile machines, copy machines, pagers, credit
cards, cellular telephone equipment, business cards, laptops, computers, and any
other items requested by the Company. As of the Date of Termination,
the Company will make arrangements to remove, terminate or transfer any and all
business communication lines including network access, cellular phone, fax line
and other business numbers.
10. Nothing
in this Agreement shall prohibit or restrict the Executive
from: (i) making any disclosure of information required by law;
(ii) providing information to, or testifying or otherwise assisting in any
investigation or proceeding brought by, any federal regulatory or law
enforcement agency or legislative body, any self-regulatory organization, or the
Company's designated legal, compliance or human resources officers; or
(iii) filing, testifying, participating in or otherwise assisting in a
proceeding relating to an alleged violation of any federal, state or municipal
law relating to fraud, or any rule or regulation of the Securities and Exchange
Commission or any self-regulatory organization.
11. The
parties agree and acknowledge that the agreement by the Company described
herein, and the settlement and termination of any asserted or unasserted claims
against the Releasees, are not and shall not be construed to be an admission of
any violation of any federal, state or local statute or regulation, or of any
duty owed by any of the Releasees to the Executive.
12. The
Executive agrees and recognizes that should the Executive breach any of the
obligations or covenants set forth in this Agreement, the Company will have no
further obligation to provide the Executive with the consideration set forth
herein, and will have the right to seek repayment of all consideration paid up
to the time of any such breach. Further, the Executive acknowledges
in the event of a breach of this Agreement, Releasees may seek any and all
appropriate relief for any such breach, including equitable relief and/or money
damages, attorneys' fees and costs. Notwithstanding the foregoing, in the event
the Company fails to perform any material obligation under the Employment
Agreement, including, without limitation, the failure of the Company to make
timely payments of monies due to Executive under Article 3 of the Employment
Agreement, this Release shall be null and void and Executive shall have the
right to pursue any and all appropriate relief for any such failure, including
monetary damages, attorneys' fees and costs; provided, that (i) Executive has
notified the Company in writing within 30 days of the date of the failure of the
Company to perform such material obligation and (ii) such failure remains
uncorrected and/or uncontested by the Company for 15 days following the date of
such notice.
13. The
Executive further agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as to an equitable accounting of all earnings, profits and other benefits
arising from any violations of this Agreement, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may be
entitled. The dispute resolution provisions set forth in Section 7.7
of the Employment Agreement apply to any dispute regarding the termination of
Executive's employment, and any dispute related to and/or arising under this
Agreement, including without limitation any challenge Executive may make
regarding the validity of this Agreement.
14. This
Agreement and the obligations of the parties hereunder shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of
Virginia.
15. The
parties agree that this Agreement shall be deemed to have been made and entered
into in Abingdon, Virginia. Jurisdiction and venue in any proceeding
by the Company or Executive to enforce their rights hereunder is specifically
limited to any court geographically located in Virginia.
16. The
Executive certifies and acknowledges as follows:
(a) That the
Executive has read the terms of this Agreement, and that the Executive
understands its terms and effects, including the fact that the Executive has
agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action
arising out of the Executive's employment relationship with the Company and the
termination of that employment relationship; and
(b) That the
Executive has signed this Agreement voluntarily and knowingly in exchange for
the consideration described herein, which the Executive acknowledges is adequate
and satisfactory to him and which the Executive acknowledges is in addition to
any other benefits to which the Executive is otherwise entitled;
and
(c) That the
Executive has been and is hereby advised in writing to consult with an attorney
prior to signing this Agreement; and
(d) That the
Executive does not waive rights or claims that may arise after the date this
Agreement is executed; and
(e) That the
Company has provided Executive with a period of [twenty-one (21)] or [forty-five
(45)] days within which to consider this Agreement, and that the Executive has
signed on the date indicated below after concluding that this Separation of
Employment Agreement and General Release is satisfactory to Executive;
and
(f) The
Executive acknowledges that this Agreement may be revoked by him within seven
(7) days after execution, and it shall not become effective until the expiration
of such seven (7) day revocation period. In the event of a timely
revocation by the Executive, this Agreement will be deemed null and void and the
Company will have no obligations hereunder.
[SIGNATURE
PAGE FOLLOWS]
Intending
to be legally bound hereby, the Executive and the Company executed the foregoing
Separation of Employment Agreement and General Release this ______ day of
______________, _____.
_____________________
Witness:__________________
Xxxxx X.
Xxxxxxxxxxx
ALPHA
NATURAL RESOURCES SERVICES, LLC
By:______________________
Witness:_________________
Name:____________________
Title:_____________________
