FIRST AMENDED AND RESTATED EMPLOYMENT AGREEMENT
EXHIBIT
10.9
FIRST
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
This
First Amended and Restated Employment Agreement ("Agreement"), dated this 26th
day of February, 2007, 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
January 5, 2007 (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 between Employee and
Employer (the "Prior Agreement") and Employer and Employee desire to amend
and
restate the Prior 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:
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ARTICLE
1:
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EMPLOYMENT
AND DUTIES:
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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, 2007
(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
be President, or serve in a more senior capacity, of Alpha Natural Resources,
Inc., the indirect parent of Employer ("Alpha Natural Resources"). Employee
shall report to the Chairman of the Board of Directors of Alpha Natural
Resources (the "Board of Directors") and Chief Executive Officer of Alpha
Natural Resources (the "CEO"). 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 CEO, 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 CEO, 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 CEO, 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").
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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.
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ARTICLE
2:
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COMPENSATION
AND BENEFITS:
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2.1 Employee's
base salary during the Term shall be $525,000 (Five Hundred, Twenty-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 annually by the CEO and the
Compensation Committee of
the
Board of Directors (the "Compensation Committee") or the Board of
Directors and
may
be increased, in the Compensation Committee's or 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 determined by the
Compensation Committee or the Board of Directors, which annual bonus shall
have
a threshold of 45% of Employee's then current Base Salary, a target of 90%
of
Employee's then current base salary (the "Target Bonus"), with a maximum bonus
opportunity of 180% 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 and shall
be
based on parameters, including, without limitation, performance goals applicable
to Employee, and such parameters shall be approved by the Compensation Committee
or Board of Directors.
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 or the Board of Directors.
2.4 The
Employee shall participate in Alpha Natural Resources' Retention Compensation
Plan, dated November 10, 2005 (the "Retention Compensation Plan").
2.5 During
the Term, in the event of a Change in Control (as defined below), Employee
shall
be entitled to receive a minimum 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.
2.6 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.
2.7 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.
2.8 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.
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2.9 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.
2.10
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.
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ARTICLE
3:
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TERMINATION
OF EMPLOYMENT AND EFFECTS OF SUCH
TERMINATION
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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:
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(i)
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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).
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(ii)
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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.
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(iii)
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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.
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(iv)
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Election
Not to Renew Term by Employee.
Employee elects not to renew the Term pursuant to Section 1.1 of
this
Agreement.
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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:
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(i)
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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 equal to the amount of any
accrued,
but unused, vacation time, and (d) 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; and, provided further 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.
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(ii)
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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").
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(iii)
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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) one and one-half (1 1/2) times Employee's base salary
in
effect as of the effective date of termination of employment plus
(b) one
and one-half (1 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 equal installments in accordance with Employer's
customary payroll practices during the period commencing on the effective
date of termination of employment and ending on the earlier to occur
of
(a) the 12-month anniversary of the effective date of termination
of
employment or (b) the date Employee violates any of the covenants
set
forth in Article 4 or Article 5 hereof; provided, however, that if
Employer determines that such compensation is subject to Section
409A of
the Internal Revenue Code of 1986, as amended (the "Code"), such
compensation 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.
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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.
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(i)
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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 participate
in
any 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 CEO, 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 could reasonably be expected to have a material
adverse
effect on Employer and the Employer Entities, taken as a whole. 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.
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(ii)
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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.
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(iii)
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Death.
Termination due to the death of Employee.
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(iv)
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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.
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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:
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(i)
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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 equal installments
in
accordance with Employer's customary payroll practices during the
period
commencing on the effective date of termination of employment and
ending
on the earlier to occur of (a) the 24-month anniversary of the effective
date of termination of employment or (b) the date Employee violates
any of
the covenants set forth in Article 4 or Article 5 hereof; provided,
however, that if Employer determines that such compensation is subject
to
Section 409A of the Code, such compensation shall be paid to Employee
in
accordance with the following payment schedule: (1) one-third of
such
compensation shall be paid to Employee on the 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 24-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 or Article 5
hereof.
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(ii)
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Employee
shall be entitled to 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; provided, however, that there
shall not be any pro-ration of any amounts payable under the Retention
Compensation Plan. Payment shall be made, in lump sum, no later
than 60
days after the effective date of termination of employment unless
Employer
determines that such compensation is subject to Section 409A of the
Code
in which case it shall be paid to Employee on the Six Month Payment
Date.
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(iii)
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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 and (d) 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 at the
time that
such amounts are paid to similarly situated employees.
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(iv)
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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 insurance (through the payment of Employee's COBRA premiums)
and
other dental and life insurance benefits for 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 (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.
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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; provided,
however, that there shall not be any pro-ration of any amounts payable under
the
Retention Compensation Plan, (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) the amount of
accrued, but unused, vacation time, and (f) 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 (c) shall be paid at the time that such amounts are paid to similarly
situated employees.
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.
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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) two and one-half
(2
1/2) times Employee's base salary in effect as of the effective date of
termination, plus (b) two and one-half (2 1/2) times
Employee's Target Bonus for the year in which the effective date of the
termination occurs. Payment shall be made, in lump sum, no later than 60 days
after the effective date of termination of employment unless Employer determines
that such compensation is subject to Section 409A of the Code in which case
it
shall be paid to Employee on the Six Month Payment Date.
(ii) Employee
shall be entitled to 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; provided, however, that there shall not be any pro-ration
of any amounts payable under the Retention Compensation Plan. Payment shall
be
made, in lump sum, no later than 60
days
after the effective date of termination of employment unless Employer determines
that such compensation is subject to Section 409A of the Code in which case
it
shall be paid to Employee on the Six Month Payment Date.
(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, and (d) 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 at the time that such amounts are paid
to similarly situated employees.
(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 for
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.
10
(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) 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 unless Employer
determines that such compensation is subject to Section 409A of the Code in
which case it shall be paid to Employee on the Six Month Payment
Date.
(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 unless Employer determines that such compensation is subject to
Section 409A of the Code in which case it shall be paid to Employee on the
Six
Month Payment Date.
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.
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.
11
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, restricted stock 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.
12
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.
|
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.
13
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.
14
|
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.
15
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.
16
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).
|
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.
17
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 unless Employer determines that such compensation is subject
to Section 409A of the Code in which case it shall be paid to Employee on the
Six Month Payment Date. 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 or any other person has a 20% or more direct
or
indirect equity interest or entity or entities that have a 20% or more direct
or
indirect equity interest in Employer or such other person.
7.2 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). If the Employer
determines in good faith that any amounts to be paid to Employee under this
Agreement are subject to Section 409A of the Code, then the Employer may, to
the
extent necessary, adjust the form and/or the timing of such payments as
determined to be necessary or advisable to be in compliance with Section 409A.
If any payment must be delayed to comply with Section 409A, then, except as
otherwise specifically provided in this Agreement, the deferred payment
will be paid at the earliest practicable date permitted by Section 409A.
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:
18
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.
19
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 Prior
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.
20
[Signature
Page Follows]
21
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:
Vice President
|
||||
|
EMPLOYEE
|
||||
|
/s/
Xxxxx X. Xxxxxxxxxxx
|
||||
|
Xxxxx
X. Xxxxxxxxxxx
|
||||
22
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 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 effective as of January 1, 2006 between
Executive and the Company, that was amended and restated as of January __,
2007
(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) 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, 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 Family and Medical Leave Act of 1993, the Employee
Retirement Income Security Act of 1974, 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.
A-1
(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.
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 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.
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.
A-2
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 acknowledges that if the
Executive had not executed this Agreement containing a release of all claims
against the Releasees, the Executive would not have been 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.
A-3
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.
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-4
(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]
A-5
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:
|
A-6
