Exhibit 10.1
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "Agreement"), entered
into as of November 1, 2001, by and between XXXXXX ENERGY COMPANY ("Parent"),
A.T. XXXXXX COAL COMPANY, INC., ("Xxxxxx"), and XXX X. XXXXXXXXXXX (the
"Executive").
WITNESSETH:
WHEREAS, Parent and Xxxxxx desire to retain the experience, abilities and
service of the Executive upon the terms and conditions specified herein; and
WHEREAS, the Executive is willing to provide such services upon the terms
and conditions specified herein; and
WHEREAS, the parties previously entered into an Employment Agreement, as
previously amended and restated (the "Prior Agreement"), effective as of
November 1, 2001; and
WHEREAS, the parties desire to amend and restate the Prior Agreement as set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises, the terms and provisions
set forth herein, the mutual benefits to be gained by the performance thereof
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Employment. Parent and Xxxxxx hereby offer employment to the
Executive and the Executive hereby accepts such offers, all upon the terms and
conditions set forth herein.
SECTION 2. Term. Subject to the terms and conditions of this Agreement,
the Executive shall be employed by Parent and Xxxxxx commencing on November 1,
2001, (the "Effective Date") and terminating on April 30, 2005, (the "Primary
Term") unless sooner terminated pursuant to Section 5 of this Agreement.
SECTION 3. Duties and Responsibilities.
A. Capacity. The Executive shall serve as Chairman and Chief Executive
Officer of Parent and Xxxxxx. The Executive shall perform the duties ordinarily
expected of a Chairman and Chief Executive Officer and shall also perform such
other duties consistent therewith as the Organization and Compensation Committee
of Parent's Board of Directors (the "Committee") from time to time, reasonably
determines.
B. Full-Time Duties. The Executive shall devote his full business time,
attention and energies to the business of Parent and Xxxxxx. Notwithstanding
anything herein to the contrary, the Executive shall be allowed to (a) manage
the Executive's personal investments and affairs, and (b)(i) serve on boards or
committees of civic or charitable organizations or trade
associations, and (ii) with the permission of the Committee, serve on the board
of directors of any corporation or as an advisory director of any corporation;
provided that such activities do not interfere with the proper performance of
his duties and responsibilities specified in Section 3(A).
SECTION 4. Compensation.
A. Base Salary. During the term of this Agreement, the Executive shall
receive a salary (the "Base Salary") of $1,000,000 per annum. The Base Salary
shall be payable by Xxxxxx in accordance with the general payroll practices of
Xxxxxx in effect from time to time.
B. Annual Incentive Bonus. The Executive shall be eligible for an
annual bonus pursuant to the Xxxxxx Energy Company 1999 Executive Performance
Incentive Plan ("PIP") with a target amount of at least $700,000, $800,000,
$900,000 and $450,000, based upon company performance for fiscal years ending in
2002, 2003, 2004 and 2005, respectively. The bonus amounts will be paid in
installments on August 15 and February 15 between Xxxxxx and the Executive. The
following table shows the target payment amounts and payment dates for each
fiscal year's performance:
---------------------------------------------------------------------------
FYE August 15 February 15 TOTAL
---------------------------------------------------------------------------
2002 $350,000 $350,000 $700,000
---------------------------------------------------------------------------
2003 $400,000 $400,000 $800,000
---------------------------------------------------------------------------
2004 $450,000 $450,000 $900,000
---------------------------------------------------------------------------
2005 $450,000 N/A $450,000
---------------------------------------------------------------------------
The bonus payments will be based on the financial performance of Parent,
Xxxxxx or both for each of the stated fiscal years. There will be predetermined
performance goals and objectives established and mutually agreed to by the
Committee and the Executive. The award payments will be made in accordance with
standard Xxxxxx practices.
C. Long Term Incentive Award. The Executive shall participate in
Parent's Long Term Incentive Program. The Executive will participate in the
fiscal year 2002, 2003, 2004 and 2005 performance cycles.
The Long Term Incentive Award for each cycle shall consist of a target cash
award of $300,000 (except for the four month fiscal 2005 performance cycle for
which the target cash award shall be $150,000). The amount payable under each
Long Term Incentive Award may range up to 2 times the target level as determined
by the Committee in a manner consistent with Xxxxxx'x established Long Term
Incentive Program based on predetermined performance of Parent, Xxxxxx or both
over the performance cycle. Each of the cash awards will be evidenced by an
Award Agreement between Parent and the Executive pursuant to the PIP.
The Long Term Incentive Program will also consist of annual grants of
50,000 non-qualified stock options, 12,700 shares of restricted stock, and a
cash bonus equal to the fair market value of 7,300 shares of Parent stock
(except for the four month fiscal 2005 performance cycle the Long Term Incentive
Program will consist of 25,000 non-qualified stock options, 6,350
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shares of restricted stock and a cash bonus equal to the fair market value of
3,650 shares of Parent stock). Each of the stock options will be evidenced by an
Award Agreement between Parent and the Executive pursuant to the Xxxxxx Energy
Company 1996 Executive Stock Plan (the "ESP") or the PIP and each of the
restricted stock grants and the cash bonuses will be evidenced by an Award
Agreement between Parent and the Executive pursuant to the PIP.
D. Shadow Stock. Subject to the following terms and conditions, the
Executive shall be granted units of shadow stock ("Units") pursuant to the
Xxxxxx Energy Company 1982 Shadow Stock Plan (the "Shadow Plan"), and such Units
shall vest, at the time and in the amounts set forth in the following table:
Date of Grant Vesting Date Number of Units
November 1, 2001 October 31, 2002 300,000 Units
November 1, 2002 October 31, 2003 300,000 Units
November 1, 2003 October 31, 2004 300,000 Units
November 1, 2004 April 30, 2005 150,000 Units
Notwithstanding the foregoing, these grants will become effective only if
the Committee affirmatively authorizes such grant at a meeting prior to November
1 of each year and the Committee may in its sole discretion, at any time prior
to the granting of Units pursuant to this Section 4(D) alter the number of such
Units to be granted and/or condition the vesting of such Units on the
performance of such criteria as the Committee shall elect.
In the event the Executive remains continuously employed by Parent or
Xxxxxx until the applicable vesting date, then all restrictions on the Units
shall expire and the Units shall vest. On each date that Units vest in
accordance with the foregoing table, the then value of the Units will thereupon
be credited to the Executive's account in the Xxxxxx Executive Deferred
Compensation Program. In the event the Executive's employment with Parent and
Xxxxxx terminates prior to the expiration of the Primary Term and following a
"Change of Control" (as such term is hereinafter defined) or if the Executive's
employment is terminated by Parent or Xxxxxx for reasons which do not constitute
"Cause" as defined herein, then any Units which have not vested in accordance
with the foregoing table shall be vested as of such termination date and all
restrictions on the Units will expire and the then value of the Units will
thereupon be credited to the Executive's account in the Xxxxxx Executive
Deferred Compensation Program. Subject to the provisions of Section 7 below, in
the event the Executive's employment with Parent and Xxxxxx terminates prior to
the expiration of the Primary Term for any reason other than those set forth in
the preceding sentence, then all of the Executive's rights in the Units which
have not previously vested in accordance with the foregoing table shall
terminate as of the date of termination, and all rights thereunder shall cease.
The Units will be evidenced by a Shadow Stock Agreement between Parent and the
Executive.
E. Stock Appreciation Rights (SARs). As of the Effective Date, the
Executive shall be granted units of Stock Appreciation Rights (SARs) pursuant to
the Xxxxxx Energy Company 1997 Stock Appreciation Rights Plan (the "SAR Plan").
The number of shares awarded shall be
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787,500. All restrictions on the SARs will expire and the then value of the SARs
will thereupon be credited to Executive's account in the Xxxxxx Executive
Deferred Compensation Program in the event that the Executive remains
continuously employed by Parent or Xxxxxx from the Effective Date until the
applicable vesting date in accordance with the following table:
Vesting Date Number of SARs
October 31, 2002 225,000 SARs
October 31, 2003 225,000 SARs
October 31, 2004 225,000 SARs
April 30, 2005 112,500 SARs
In addition, all restrictions on the SARs will expire and the then value of
the SARs will thereupon be credited to the Executive's account in the Xxxxxx
Executive Deferred Compensation Plan in the event that the Executive's
employment with Parent and Xxxxxx terminates prior to the expiration of the
Primary Term following a "Change of Control" (as such term is hereinafter
defined) or the Executive's employment is terminated by Parent or Xxxxxx for
reasons which do not constitute "Cause" as defined herein.
Subject to the provisions of Section 7 below, in the event that the
Executive's employment with Parent and Xxxxxx terminates prior to the expiration
of the Primary Term for any reason other than those set forth in the preceding
sentence, then all of the Executive's rights in the SARs which have not
previously vested in accordance with the foregoing table shall terminate as of
the date of termination, and all rights thereunder shall cease. The SARs shall
have a ten-year term from the Effective Date, subject to earlier expiration in
accordance with the plan documents. The SARs will be evidenced by an SAR
Agreement between Parent and the Executive.
F. Retention Stock Award. A subaccount, denominated as the "Retention
Stock Account" will be established for the Executive under the Xxxxxx Executive
Deferred Compensation Plan. As of the Effective Date, the Retention Stock
Account will be credited with the then value of 350,000 shares of Parent stock.
The Executive's interest in the Retention Stock Account will vest on April 30,
2005 if the Executive remains in the continuous employ of Parent or Xxxxxx from
the Effective Date until April 30, 2005. In addition Executive's interest in the
Retention Stock Account will vest on the date of the Executive's termination of
employment if the Executive's employment with Parent and Xxxxxx terminates prior
to April 30, 2005 and following a "Change in Control" (as such term is
hereinafter defined) or if the Executive's employment is terminated by Parent or
Xxxxxx for reasons which do not constitute "Cause" as defined herein. In the
event that the Executive's employment with Parent and Xxxxxx terminates prior to
April 30, 2005 due to death or permanent and total disability as defined by
Xxxxxx personnel policy, then the Executive will vest in a pro rata interest in
the Retention Stock Account in accordance with the following table and the
portion of the Retention Stock Account which does not vest shall terminate and
be forfeited:
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------------------------------------------------------------------------
Date of Death Pro rata Portion
or Disability to be Vested
------------------------------------------------------------------------
November 1, 2001 through 2/7
October 31, 2002
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November 1, 2002 through 4/7
October 31, 2003
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November 1, 2003 through 6/7
October 31, 2004
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On or after November 1, 2004 7/7
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Except as provided in the three preceding sentences, the Executive's
interest in the Retention Stock Account shall terminate and be forfeited if the
Executive's employment with Parent and Xxxxxx terminates prior to April 30,
2005.
The value of the Retention Stock Account shall be determined based on the
value of the Parent stock as if the amount credited thereto was invested in
Parent stock and received dividends and other distributions thereon to the same
extent as if it was invested in Parent stock.
G. Retention Cash Award. The Executive's account in the Xxxxxx
Executive Deferred Compensation Plan will be credited with $400,000 on each of
October 31, 2002, October 31, 2003 and October 31, 2004 and an additional
$200,000 on April 30, 2005. All restrictions on such amounts and the bookkeeping
earnings thereon shall lapse on April 30, 2005 if the Executive remains in the
continuous employ of Parent or Xxxxxx from the Effective Date until April 30,
2005. In the event the Executive's employment with Parent and Xxxxxx terminates
prior to April 30, 2005 and following a "Change in Control" (as such term is
hereinafter defined) or if the Executive's employment is terminated by Parent or
Xxxxxx for reasons which do not constitute "Cause" as defined herein, then the
date for the addition any credits to the Xxxxxx Executive Deferred Compensation
Plan referred to in the first sentence of this paragraph shall be accelerated to
such termination date and all restrictions on all such amounts (including
amounts credited before the termination date) and the bookkeeping earnings
thereon shall lapse as of such termination date. In the event that the
Executive's employment with Parent and Xxxxxx terminates prior to April 30, 2005
due to death or permanent and total disability as defined by Xxxxxx personnel
policy, all restrictions shall lapse on amounts scheduled to be credited to the
Executive's account in the Xxxxxx Executive Deferred Compensation Plan on or
before the Executive's termination date and the bookkeeping earnings thereon. In
the event that the Executive's employment with Parent and Xxxxxx terminates
prior to April 30, 2005 for any reason other than those set forth in the two
preceding sentences, then all of the Executive's rights with respect to amounts
credited or to be credited to the Executive's account in the Xxxxxx Executive
Deferred Compensation Plan pursuant to the first sentence of this paragraph
shall terminate as of the date of such termination of employment.
H. Life Insurance Policy. The Executive's rights under the $4,000,000
split dollar life insurance policies or program owned by Parent and in force on
the Effective Date shall be vested if the Executive remains in the continuous
employ of the Parent or Xxxxxx from the Effective
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Date until April 30, 2005 or, if earlier, the termination of the Executive's
employment (x) following a "Change in Control" (as such term is hereinafter
defined), (y) by Parent or Xxxxxx for reasons which do not constitute "Cause" as
defined herein or (z) due to death or permanent and total disability as defined
by Xxxxxx'x personnel policy. The Executive's rights under the $4,000,000 split
dollar life insurance policies or program owned by Parent and in force on the
Effective Date shall be determined without regard to this paragraph if the
Executive's employment with Parent and Xxxxxx terminates before April 30, 2005
for a reason other than those set forth in items (z), (y) or (z) of the
preceding sentence.
SECTION 5. Termination of Employment.
Notwithstanding the provisions of Section 2, the Executive's employment
hereunder may terminate under any of the following conditions:
A. Death. The Executive's employment under this Agreement shall
terminate automatically upon his death.
B. Disability. The Executive's employment under this Agreement may be
terminated due to his Disability. "Disability" shall mean permanent and total
disability as defined by Xxxxxx personnel policy.
C. Termination by Company for Cause. The Executive's employment
hereunder may be terminated for Cause by Parent or Xxxxxx. For purposes of this
Agreement, "Cause" means:
(1) willful and persistent failure by the Executive to reasonably
perform his duties:
(2) conviction of a misdemeanor involving moral turpitude which
materially affects the Executive's ability to perform his duties hereunder or
materially adversely affects the Executive's, the Parent's or Xxxxxx'x
reputation or conviction of a felony;
(3) material dishonesty, defalcation, or embezzlement or
misappropriation of corporate assets or opportunities; or
(4) any material default by the Executive in the performance of any
covenants or agreements of the Executive set forth in this Agreement.
Any termination of the Executive's employment for Cause under this Section
5(C) shall be authorized by the Parent's Board of Directors (the "Board"). The
Executive shall be given notice by the Board specifying in detail the particular
act or failure to act on which the Board is relying in proposing to terminate
him for Cause and offering the Executive an opportunity, on a date at least 1
day after the receipt of such notice, to have a hearing, with counsel, before
the Board.
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SECTION 6. Change of Control.
A. Upon the Executive's termination of employment for any reason
(including, by way of example and not of limitation, the Executive's death or
permanent and total disability as defined by Xxxxxx personnel policy),within two
years following a Change of Control, as defined below, any restrictions on any
stock option, restricted stock, stock appreciation right, Unit or other
equity-based incentive provided under the PIP, ESP, the SAR Plan, the Shadow
Plan or any other plan of Parent (a "Stock Plan") shall lapse immediately.
B. Upon the Executive's termination of employment for any reason
(including, by way of example and not of limitation, the Executive's death or
disability as defined by Xxxxxx personnel policy), within two years following a
Change of Control, as defined below, the Executive's account in the Xxxxxx
Executive Deferred Compensation Plan shall be credited with any credits
accelerated in accordance with Section 4(G) and the Executive shall be vested in
his rights under the split dollar life insurance policies or program in
accordance with Section 4(H).
C. A Change of Control shall have the meaning set forth in the PIP as of
the Effective Date, or any definition that is more favorable to the Executive
that is set forth in any subsequent Stock Plan or that is approved by the Board
for the benefit of Xxxxxx'x senior executives.
SECTION 7. Voluntary Termination
A. Notwithstanding any other provisions of this Agreement, if Executive
voluntarily terminates his employment with Xxxxxx at any time after October 31,
2002 and prior to October 31, 2004, Executive's rights with respect to the
compensation described in paragraphs A, B, C, D, E and H of Section 4 of this
Agreement shall be determined, and Executive shall receive such compensation, as
if Executive terminated his employment as of the next succeeding October 31
after the actual date of his termination of employment (the "Deemed Termination
Date").
B. In consideration of the foregoing and without any further compensation,
Executive shall, for a period of six months after the actual date of his
termination of employment, provide to Parent and Xxxxxx such advice and other
consulting services as Parent or Xxxxxx shall request. During such six month
period, Executive shall make himself available to Parent and Xxxxxx on a
full-time basis and shall not enter into any employment, consulting or other
business arrangement with any competitor or potential competitor of Parent or
Xxxxxx.
SECTION 8. Payments Upon Termination.
A. Upon termination of the Executive's employment for any reason prior to
the expiration of the Primary Term, Parent and/or Xxxxxx shall be obligated to
pay, and the Executive shall be entitled to receive:
(1) all accrued and unpaid Base Salary under Section 4(A) to the date
of termination;
(2) any unpaid bonus under Section 4(B) or long-term incentive award
under Section 4(C) for the fiscal year or performance cycle ending prior to the
date of termination;
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provided that if such termination occurs after October 31 of a calendar year,
such unpaid bonus or long-term incentive award shall accrue as of October 31;
(3) any benefits to which he is entitled under the terms of the Xxxxxx
Executive Deferred Compensation Program, the Long Term Incentive Program, and
any other applicable employee pension or benefit plan or program, or applicable
law.
B. Upon termination of the Executive's employment by Parent or Xxxxxx
without Cause pursuant to Section 5(C), Parent and/or Xxxxxx shall be obligated
to pay and the Executive shall be entitled to receive:
(1) all of the amounts and benefits described in Section 8(A);
(2) Base Salary under Section 4(A) for the remainder of the Primary
Term, as if there had been no termination;
(3) annual bonuses under Section 4(B)for the remainder of the Primary
Term equal to the target bonus for each such fiscal year, such bonuses to be
paid at the same time annual bonuses are regularly paid by Xxxxxx to him;
(4) accelerated vesting of Units of shadow stock and corresponding
credits to the Executive's account under the Xxxxxx Executive Deferred
Compensation Plan in accordance with Section 4(D);
(5) accelerated vesting of SARs and corresponding credits to the
Executive's account under the Xxxxxx Executive Deferred Compensation Plan in
accordance with Section 4(E);
(6) accelerated vesting of the Executive's interest in the Retention
Stock Account in accordance with Section 4(F);
(7) accelerated credits to the Executive's account under the Xxxxxx
Executive Deferred Compensation Plan in accordance with Section 4(G) and
accelerated vesting of such amounts;
(8) accelerated vesting of the Executive's rights under the split
dollar life insurance policy in accordance with Section 4(H).
C. Upon termination of the Executive's employment on account of the
Executive's death or permanent and total disability as defined by Xxxxxx
personnel policy, Parent and/or Xxxxxx shall be obligated to pay, and the
Executive shall be entitled to receive:
(1) all of the amounts and benefits described in Section 8(A);
(2) accelerated vesting of a pro rata interest in the Retention Stock
Account in accordance with Section 4(F);
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(3) accelerated credits to the Executive's account in the Xxxxxx
Executive Deferred Compensation Plan in accordance with Section 4(G) and
accelerated vesting of such amounts;
(4) accelerated vesting of the Executive's rights under the split
dollar life insurance policy in accordance with Section 4(H).
D. Upon voluntary termination of employment by Executive as set forth in
Section 7, Parent and/or Xxxxxx shall be obligated to pay and the Executive
shall be entitled to receive:
(1) all of the amounts and benefits described in Section 8(A);
(2) base salary under Section 4(A) for the remaining period through
the Deemed Termination Date;
(3) annual bonuses under Section 4(B), if any, for the remaining
period through the Deemed Termination Date;
(4) vesting of any long-term incentive awards under Section 4(C) that
would have vested had Executive's employment with Parent or Xxxxxx continued
through the Deemed Termination Date;
(5) vesting of any Units of shadow stock and corresponding credits to
the Executive's account under the Xxxxxx Executive Deferred Compensation Plan in
accordance with Section 4(D) that would have vested had Executive's employment
with Parent or Xxxxxx continued through the Deemed Termination Date, except
that, in lieu of credits to the Xxxxxx Executive Deferred Compensation Plan, the
value of such Units will be paid within 15 days of such vesting;
(6) vesting of SARs and corresponding credits to the Executive's
account under the Xxxxxx Executive Deferred Compensation Plan in accordance with
Section 4(E) that would have vested had Executive's employment with Parent or
Xxxxxx continued though the Deemed Termination Date, except that, in lieu of
credits to the Xxxxxx Executive Deferred Compensation Plan, the value of such
SARs will be paid within 15 days of such vesting; and
(7) a determination of the Executive's rights under the split dollar
life insurance policy as described in Section 4(H) as though Executive's
employment with Parent or Xxxxxx had terminated on the Deemed Termination Date.
E. In the event of any termination of employment under this Section 8, the
Executive shall be under no obligation to seek other employment, and there shall
be no offset against amounts due the Executive under this Agreement on account
of any remuneration attributable to any subsequent employment that he may
obtain.
SECTION 9. Amendment; Waiver. The terms and provisions of this
Agreement may be modified or amended only by a written instrument executed by .
each of the parties hereto, and compliance with the terms and provisions hereof
may be waived only by a written instrument executed by each Party entitled to
the benefits thereof. No failure or delay on the part of any
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party in exercising any right, power or privilege granted hereunder shall
constitute a waiver thereof, nor shall any single or partial exercise of any
such right, power or privilege preclude any other or further exercise thereof or
the exercise of any other right, power or privilege granted hereunder.
SECTION 10. Entire Agreement. Except as contemplated herein, this
Agreement constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes any and all prior written or oral
agreements, arrangements of understandings between Parent, Xxxxxx and the
Executive with respect thereto; provided, however, that this Agreement shall not
affect or impair in any way the rights and obligations of Parent and Executive
under the Special Successor Development and Retention Program established in
August, 1998.
SECTION 11. Notices. All notices or communications hereunder shall be in
writing, addressed as follows or to any ddress subsequently provided to the
other party:
To Parent:
Xxxxxx Energy Company
Attention: Chief Legal Officer
0 Xxxxx 0/xx/ Xxxxxx
Xxxxxxxx, XX 00000
To Xxxxxx:
A. T. Xxxxxx Coal Company, Inc.
Attention: Chief Legal Officer
0 Xxxxx 0/xx/ Xxxxxx
Xxxxxxxx, XX 00000
To the Executive:
Xxx Xxxxxxxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000
All such notices shall be conclusively deemed to be received and shall be
effective, (i) if sent by hand delivery or overnight courier, upon receipt, (ii)
if sent by telecopy or facsimile transmission, upon confirmation of receipt by
the sender of such transmission or (iii) if sent by registered or certified
mail, on the fifth day after the day on which such notice is mailed.
SECTION 12. Severability. In the event that any term or provision of
this Agreement is found to be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining terms and provisions hereof shall
not be in any way affected or impaired thereby, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision had never been
contained therein.
SECTION 13. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns (it being understood and agreed that, except as expressly provided
herein, nothing contained in this Agreement is
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intended to confer upon any other person or entity any rights, benefits or
remedies of any kind or character whatsoever). No rights or obligations of
Parent or Xxxxxx under this Agreement may be assigned or transferred by Parent
or Xxxxxx except that such rights or obligations may be assigned or transferred
pursuant to a merger or consolidation in which Parent or Xxxxxx is not the
continuing entity, or the sale or liquidation as described of all or
substantially all of the assets of Parent or Xxxxxx, provided that the assignee
or transferee is the successor to all or substantially all of the assets of
Parent or Xxxxxx and such assignee or transferee assumes the liabilities,
obligations and duties of Parent or Xxxxxx, as contained in this Agreement,
either contractually or as a matter of law. Parent and Xxxxxx further agree
that, in the event of a sale of assets or liquidation as described in the
preceding sentence, each shall take whatever action it legally can in order to
cause such assignee or transferee to expressly assume the liabilities,
obligations and duties of Parent or Xxxxxx hereunder. In the event of the sale,
liquidation, consolidation, or merger of Xxxxxx or substantially all the assets
of Xxxxxx in which Parent does not retain an ownership interest of more than
50%, Parent agrees to guarantee payment to Executive of all amounts due under
this or related agreements referenced herein.
SECTION 14. Governing Law; Dispute Resolution. This Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Virginia (except that no effect shall be given to any conflicts of law
principles thereof that would require the application of the laws of another
jurisdiction). Any dispute or misunderstanding arising out of or in connection
with this Agreement shall first be settled, if possible, by the parties
themselves through negotiation and, failing success at negotiation through
mediation, and failing success at mediation, shall be arbitrated at Richmond,
Virginia. Unless otherwise agreed upon by Xxxxxx and the Executive, the
arbitration shall be had before three arbitrators, each party designating an
arbitrator and the two designees naming a third arbitrator experienced in
employment related controversies. The procedure shall be in accordance with the
rules and regulations of the American Arbitration Association.
SECTION 15. Headings. The headings of the sections contained in this
Agreement are for convenience only and shall not be deemed to control or affect
the meaning or construction of any provision of this Agreement.
SECTION 16. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement effective
as of the date set forth above.
XXXXXX ENERGY COMPANY
By: __________________________________
A.T. XXXXXX COAL COMPANY, INC.
By: ___________________________________
Executive:
_______________________________________
Xxxxxx X. Xxxxxxxxxxx
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