EXHIBIT 10.2
CONSULTING AGREEMENT
This Consulting Agreement ("Agreement") is effective as of January 3,
2008 ("Effective Date"), by and between National Coal Corp., a Florida
corporation, and its Subsidiaries whose address is 0000 Xxxxxx Xxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxx 00000 (collectively the "Company"), and T. Xxxxxxx Xxxx,
whose address is 0000 XX 00xx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Consultant"),
in reference to the following:
PRELIMINARY STATEMENT
A. The Company is in the business of mining coal principally in
Eastern Tennessee, Southern Kentucky, and Alabama.
B. Consultant previously has been employed by the Company, as
Chief Financial Officer, and is voluntarily terminating that
employment prior to the Effective Date. The Company desires to
continue to utilize the services of Consultant, and Consultant
desires to continue to provide services to the Company as an
independent contractor, on the terms set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Consultant
agree as follows:
AGREEMENT
1. TERM. The Company retains the Consultant and the Consultant accepts
this appointment with the Company for an initial period beginning on the
Effective Date and terminating on March 31, 2008 (the "Term"), unless terminated
earlier, as provided in below Sections 3.1 and 5, or continued thereafter, as
provided in below Sections 3.1 and 3.2. The Consultant accepts the appointment
with the Company to provide Services after March 31, 2008 on an "as need, as
requested" basis.
2. DUTIES OF CONSULTANT, AS AN INDEPENDENT CONTRACTOR.
2.1 During the initial Term, the Consultant shall perform,
solely as requested from time to time by the President & CEO or the
Chief Financial Officer of the Company, accounting services and
assistance with the filing with the SEC of the 2007 10-K for the
Company and/or its Subsidiaries (the "Services"). The Consultant
agrees, to the extent requested, to perform all Services requested of
the Consultant during the Term. The Consultant will determine, in his
sole discretion, the method, details and means of performing the
Services. The Consultant may, as the Consultant's determines and with
the approval of the CEO or CFO,, use employees or other subcontractors
to assist the Consultant with the performance of the Services.
2.2 The Consultant shall provide the Services hereunder as an
Independent Contractor. The Consultant agrees and acknowledges that he
is not an employee of the Company and is not entitled to or have any
rights to the benefits provided by the Company to its employees.
3. COMPENSATION.
3.1 The Company will pay to the Consultant as full
compensation for the Services the amount of $11,458.34 on each of
January 15 and 31, February 15 and 29, and March 15 and 31, 2008;
provided, however, if the Consultant shall obtain fulltime employment,
he shall provide notice thereof to the Company within three (3) days of
the earlier of (i) the date employment is offered and accepted or (ii)
the actual date of employment, and thereafter the Consultant shall
provide the Services to the Company on an hourly basis and be
compensated pursuant to the provisions of below section 3.2.
3.2 If the Company determines that it requires the Services of
the Consultant subsequent to March 31, 2008, the Company will pay the
Consultant at a rate of One Hundred Dollars ($150.00) per hour as
compensation for Service provided by the Consultant. All invoices shall
be payable within ten (10) days of presentment.
4. NONDISCLOSURE.
4.1 ACCESS TO CONFIDENTIAL INFORMATION. The Consultant agrees
that during the Term the Consultant will have access to and become
acquainted with confidential proprietary information ("Confidential
Information") which is owned by the Company and is regularly used in
the operation of the Company's business. The Consultant agrees that the
term "Confidential Information" as used in this Agreement is to be
broadly interpreted and includes (i) information that has, or could
have, commercial value for the business in which the Company is
engaged, or in which the Company may engage at a later time, and (ii)
information that, if disclosed without authorization, could be
detrimental to the economic interests of the Company. The Consultant
agrees that the term "Confidential Information" includes, without
limitation, any patent, patent application, copyright, trademark, trade
name, service xxxx, service name, "know-how," negative "know-how,"
trade secrets, customer and supplier identities, characteristics and
terms of agreement, details of customer or consultant contracts,
pricing policies, operational methods, marketing plans or strategies,
product development techniques or plans, business acquisitions plans,
science or technical information, ideas, discoveries, designs, computer
programs (including source codes), financial forecasts, unpublished
financial information, budgets, processes, procedures, formulae,
improvements or other proprietary or intellectual property of the
Company, whether or not in written or tangible form, and whether or not
registered, and including all memoranda, notes, summaries, plans,
reports, records, documents and other evidence thereof. The Consultant
acknowledges that all Confidential Information, whether prepared by the
Consultant or otherwise acquired by the Consultant in any other way,
will remain the exclusive property of the Company.
4.2 NO UNFAIR USE BY CONSULTANT. The Consultant promises and
agrees that the Consultant (which shall include his employees and
contractors) will not misuse, misappropriate, or disclose in any way to
any person or entity any of the Company's Confidential Information,
either directly or indirectly, nor will the Consultant use the
Confidential Information in any way or at any time except as required
in the course of the Consultant's business relationship with the
Company.
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5. TERMINATION.
5.1 TERMINATION ON DEFAULT. Should either party default in the
performance of this Agreement or materially breach any of its
provisions, the non-breaching party may terminate this Agreement by
giving written notification to the breaching party. Termination shall
be effective immediately on receipt of said notice. For purposes of
this section, material breaches of this Agreement shall include, but
not be limited to, (i) the failure by the Company to pay the
compensation set forth in Section 3 above; (ii) the Consultant's
commission of acts of material fraud or material misrepresentation; and
(iii) the failure by the Consultant to conform in all material respects
to all laws and regulations governing the Consultant's duties under
this Agreement.
5.2 AUTOMATIC TERMINATION. This Agreement terminates
automatically on the occurrence of any of the following events: (i) the
bankruptcy or insolvency of the Company; or (ii) the death or
disability of the Consultant.
5.3 RETURN OF COMPANY PROPERTY. Upon the termination or
expiration of this Agreement, the Consultant will immediately transfer
to the Company all files (including, but not limited to, electronic
files), records, documents, drawings, specifications, equipment and
similar items in its possession relating to the business of the Company
or its Confidential Information (including the work product of the
Consultant created pursuant to this Agreement).
6. REPRESENTATIONS AND WARRANTIES.
6.1 COMPANY REPRESENTATIONS. The Company hereby represents and
warrants to the Consultant as follows:
(a) the Company is a corporation duly organized,
validly existing and in good standing under the laws of the
States of Florida and Tennessee; and the Company has all
requisite corporate power and authority to enter into this
Agreement and to consummate the transactions set forth in
herein;
(b) the execution and delivery by the Company of this
Agreement, and the consummation by the Company of the
transactions set forth herein, have been duly authorized by
all necessary corporate action on the part of the Company;
(c) this Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms; and
(d) the execution and delivery of this Agreement by
the Company and the consummation by the Company of the
transactions set forth herein do not conflict with, or result
in a breach or violation of, any law or regulation of any
governmental authority applicable to the Company or any
material agreement to which the Company is a party.
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6.2 CONSULTANT REPRESENTATIONS. The Consultant hereby
represents and warrants to the Company as follows:
(a) this Agreement has been duly executed and
delivered by the Consultant and constitutes a valid and
binding obligation of the Consultant enforceable against the
Consultant in accordance with its terms;
(b) the Consultant has the qualifications and ability
to perform the Services in a professional manner, without the
advice, control, or supervision of the Company; and
(c) the execution and delivery of this Agreement by
the Consultant and the consummation by the Consultant of the
transactions set forth herein do not conflict with, or result
in a breach or violation of, any law or regulation of any
governmental authority applicable to the Consultant or any
material agreement to which the Consultant is a party.
7. BUSINESS EXPENSES. The Company will reimburse the Consultant for all
reasonable, pre-approved (by the Chief Financial Officer) business expenses
incurred by the Consultant in connection with the provision of Services under
this Agreement.
8. NOTICES. Unless otherwise specifically provided in this Agreement,
all notices or other communications (collectively and severally called
"Notices") required or permitted to be given under this Agreement, shall be in
writing, and shall be given by: (A) personal delivery (which form of Notice
shall be deemed to have been given upon delivery), (B) by telegraph or by
private airborne/overnight delivery service (which forms of Notice shall be
deemed to have been given upon confirmed delivery by the delivery agency), or
(C) by electronic or facsimile or telephonic transmission, provided the
receiving party has a compatible device or confirms receipt thereof (which forms
of Notice shall be deemed delivered upon confirmed transmission or confirmation
of receipt). Notices shall be addressed to the address set forth in the
introductory section of this Agreement, or to such other address as the
receiving party shall have specified most recently by like Notice, with a copy
to the other party.
9. INDEMNIFICATION Company, acknowledging that Consultant has
previously served as an executive officer of the Company, agrees that it will
(a) indemnify and hold Consultant harmless for any claims, demands, damages,
liabilities, losses, costs and expenses (including attorneys' and paralegal fees
and court costs) incurred or suffered by Consultant in connection with
Consultant's service to the Company or its affiliates to the fullest extent
(including advancement of expenses) permitted by Florida or Tennessee corporate
law (as applicable) for the indemnification of officers and directors of a
Florida or Tennessee corporation and (b) will include Consultant as a covered
party under Company's directors' and officers' liability insurance policy and
employment practices liability insurance policy, provided such policies permit
such extended coverage, until the applicable statutes of limitations have
expired.
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10. CHOICE OF LAW AND VENUE. This Agreement shall be governed according
to the laws of the state of Tennessee. Venue for any legal or equitable action
between the Company and the Consultant which relates to this Agreement shall be
in Xxxx County, Tennessee.
11. ENTIRE AGREEMENT. This Agreement and the Separation Agreement of
even date supersedes any and all other agreements, either oral or in writing,
between the parties hereto with respect to the services to be rendered by the
Consultant to the Company and contains all of the covenants and agreements
between the parties with respect to the services to be rendered by the
Consultant to the Company in any manner whatsoever. Each party to this Agreement
acknowledges that no representations, inducements, promises, or agreements,
orally or otherwise, have been made by any party, or anyone acting on behalf of
any party, which are not embodied herein, and that no other agreement,
statement, or promise not contained in this Agreement shall be valid or binding
on either party.
12. COUNTERPARTS. This Agreement may be executed manually or by
facsimile signature in two or more counterparts, each of which shall be deemed
an original, and all of which together shall constitute but one and the same
instrument. If a copy or counterpart of this Agreement is originally executed
and such copy or counterpart is thereafter transmitted electronically by
facsimile or similar device, such facsimile document shall for all purposes be
treated as if manually signed by the party whose facsimile signature appears
thereon.
13. SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any person or circumstance shall, to any extent, be
determined to be invalid, illegal or unenforceable under present or future laws
effective during the term of this Agreement, then and, in that event: (A) the
performance of the offending term or provision (but only to the extent its
application is invalid, illegal or unenforceable) shall be excused as if it had
never been incorporated into this Agreement, and, in lieu of such excused
provision, there shall be added a provision as similar in terms and amount to
such excused provision as may be possible and be legal, valid and enforceable,
and (B) the remaining part of this Agreement (including the application of the
offending term or provision to persons or circumstances other than those as to
which it is held invalid, illegal or unenforceable) shall not be affected
thereby and shall continue in full force and effect to the fullest extent
provided by law.
14. NO ASSIGNMENT OF RIGHTS OR DELEGATION OF DUTIES BY CONSULTANT;
COMPANY'S RIGHT TO ASSIGN. The Consultant's duties, rights and benefits under
this Agreement are personal to it and therefore no such duty, right or benefit
shall be subject to voluntary or involuntary alienation, assignment or transfer.
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WHEREFORE, the parties have executed this Consulting Agreement on this the 28th
day of November, 2007.
"CONSULTANT"
/S/ T. Xxxxxxx Xxxx
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T. Xxxxxxx Xxxx
"COMPANY"
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: President & CEO
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