EXHIBIT 10.21
AMENDED EMPLOYMENT AGREEMENT
This Amended Employment Agreement (hereinafter referred to as "Agreement")
entered into as of September 16, 2004, by and between National Coal Corporation,
a corporation organized and existing under the laws of the State of Tennessee
with its principal place of business at 0000 Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx (hereinafter referred to as "Company"), and Xxxxxx X. Xxx residing at
0000 Xxxxxx Xxxx Xxxx, Xxxxxxxxx, XX 00000 (hereinafter referred to as
"Employee").
WITNESSETH:
WHEREAS, the Company desires to hire the Employee to fill the position of
Secretary/Treasurer and Assistant Counsel; and
WHEREAS, the Employee desires to fill the position in the Company as
Secretary/Treasurer and Assistant Counsel; and
WHEREAS, the parties have determined it to be in their respective best interests
to enter into this Employment Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
hereinafter set forth, and of other good and valuable consideration, the receipt
of which is hereby acknowledged by each party to the other, the parties hereto
agree as follows:
SECTION 1: POSITION AND DUTIES
1.1 EMPLOYMENT. The Company hereby employs Employee and Employee accepts
employment as Secretary/Treasurer and Assistant Counsel of the Company.
1.2 DUTIES.
a. During the term of her employment pursuant to this Agreement, Employee
shall serve the Company faithfully and to the best of her ability and shall
devote her business and professional time, energy, and diligence to the
performance of the duties of such position and he shall perform such services
and duties in connection with the business and affairs of the Company (i) as are
customarily incident to such position and (ii) subject to Section 1.2(b) hereof,
as may reasonably be assigned or delegated to her from time to time by the Board
of Directors or President of the Company.
b. Notwithstanding the foregoing, Employee shall be principally
responsible for and shall have full power and authority to perform all duties
incidental to the secretarial, head treasurer and legal affairs of the Company.
c. Notwithstanding the foregoing, it is understood that Employee shall
continue to provide services to the law firm of Kite, Xxxxx & Associates, P. A.,
and to provide legal counsel to Kyten Energy Corporation, Strata Coal, LLC,
Perdase Holdings, Inc., Xxxxx Capital Corporation,
and to other individuals or entities, and that the performance of such services
shall not be used as a basis of termination under Section 3 and shall not
constitute a breach of the Employee's representations or obligations under
Section 6.9.
1.3 TERM OF EMPLOYMENT. Unless earlier terminated pursuant to the
provisions hereof, the initial term of Employee's employment under this
Agreement shall be for the period beginning as of the date hereof and ending two
(2) years from April 21, 2003. Said term shall be automatically renewed
thereafter for successive two-year terms unless the Board of Directors of the
Company or any successor entity provides Employee with written notice that the
Agreement will not be renewed (Notice of Non-Renewal) no later than 120 days
prior to the expiration of the then-current term. Notwithstanding the foregoing,
in the event a Change in Control (as defined below) occurs during the
then-current term, the term of this Agreement shall not end prior to the first
anniversary of such Change in Control.
SECTION 2: COMPENSATION. BENEFITS AND OTHER ENTITLEMENTS
2.1 BASE SALARY.
a. As compensation for her services hereunder and as consideration for her
covenant not to compete provided for in Section 4 hereof, Employee shall be paid
a base annual salary at the rate of One Hundred Forty Four Thousand and 00/00
Dollars ($144,000.00) per year, which rate of compensation shall be in effect
from the Effective Date until two years after the Effective Date of this
Agreement. Thereafter, the base annual salary shall be at the rate determined in
good faith by the Company's Board of Directors at the Board's regularly
scheduled meeting next following the end of each fiscal year or upon any special
meeting, based upon the Company's review of Employee's performance during the
preceding fiscal year or lesser period, but shall not be reduced below the base
annual salary in effect at the end of the immediately preceding fiscal year. The
base annual salary shall be payable at such periodic intervals, not less than
semi-monthly, as from time to time are applicable with respect to salaried
executive personnel of the Company, and shall be inclusive of all applicable
income taxes, Social Security, and other taxes and charges that are required by
law to be withheld by the Company or that are requested to be withheld by
Employee.
b. If Employee's base annual salary is hereafter increased by the Board of
Directors, it shall not thereafter be reduced below a figure equal to the amount
of base annual salary in effect immediately prior to such increase, together
with an amount equal to the product of (x) the amount of base annual salary in
effect immediately prior to such increase, multiplied by (y) the percentage
increase in the consumer price index in Nashville, Tennessee to the last day of
the fiscal year preceding any such reduction.
2.2 BONUS. For each full fiscal year during which Employee is employed as
the Company's Secretary/Treasurer and/or Assistant Counsel pursuant to this
Agreement, commencing with the fiscal year ending on December 31, 2004, Employee
shall be eligible, at the discretion of the Board of Directors, to receive a
cash bonus in an amount to be determined in good faith by the Board of
Directors, which bonus shall be payable in a lump sum on or before December 31
of each year or at quarterly intervals as approved by the Board of Directors of
the Company .
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2.3 INSURANCE. The Company shall provide to Employee the standard package
of family insurance benefits which are from time to time provided to other
executive employees, including medical, dental and major medical insurance
coverage.
2.4 OTHER BENEFITS. The Company shall provide Employee the following
additional benefits:
a. Reimbursement of all reasonable expenses incurred for Company
business, provided the same are of a type which are allowable for
deductions under applicable federal tax law.
b. Paid vacation of four (4) weeks per year, or such greater
amount as may be permitted from time to time by the Company's vacation
policy, to be taken at such time as selected by Employee. If Employee
does not use at least two (2) weeks' vacation in any fiscal year of the
Company, Employee shall be entitled, at her option by notice to the
Company no later than (10) days after the end of such fiscal year, to
add any and all unused vacation days to the paid vacation permitted
under this Agreement for the following fiscal year.
c. Employee shall be entitled to short-term medical leave
benefits for up to three months for time out of work due to a
psychological or physical illness, injury, or condition. Such benefits
shall include full pay to Employee for any leave which is due to
medical or psychological conditions as supported by appropriate written
verification from Employee's treating medical or
psychological/psychiatric professional.
d. The payment of Employee's professional privilege taxes to the
State of Tennessee, the payment of Employee's malpractice insurance
premiums, and the payment on behalf of Employee of the costs of all
continuing legal education courses necessary to keep Employee's license
in good standing or other continuing legal education courses deemed
desirable by Employee to aid in her work (exclusive of travel
expenses), all of which, combined, shall not exceed $1,500.00 per year.
e. The use of a Company owned cellular phone, which cellular
phone shall remain the personal property of the Company and shall be
returned to the Company by the Employee promptly upon her leaving
employment with the Company or upon her employment being terminated by
the Company as herein provided. The Company reserves the right to
discontinue this benefit for excessive misuse of the cellular phone in
the Company's own discretion, and the Employee shall have the same
obligation to promptly return said cellular phone into the possession
of the Company.
f. The Company agrees that the Company paid "key man life
insurance" shall, upon Employee's death, be distributable fifty percent
(50%) to the Company and fifty percent (50%) to the Employee's heirs as
he may direct in her will or by intestate succession.
g. In addition to the benefits bestowed upon Employee in this
Agreement, Employee shall be entitled to participate in and enjoy
benefits as are generally extended to employees serving in an executive
capacity, including any capacity similar to that of Employee, in
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accordance with the Company's customary practices and policies.
SECTION 3: TERMINATION OF EMPLOYMENT
3.1 DEATH. Employee's employment hereunder shall be terminated upon her
death.
3.2 DISABILITY. If due to physical or mental disability, Employee is not
able to perform her material duties hereunder on a full-time basis for a period
of four (4) months (whether consecutive or not" within any twelve (12)-month
period, the Company may terminate her employment hereunder for "Disability." The
determination of "disability" shall be based upon a certificate as to such
physical or mental disability issued by a licensed physician and/or psychiatrist
(as the case may be) mutually agreed upon by the Employee and the Company.
3.3. BY THE COMPANY FOR "CAUSE". The Company, upon a majority vote of the
Board of Directors after notice to Employee (as described below) and advice of
independent legal counsel, may terminate Employee's employment immediately for
"Cause," which shall mean and be limited to the following:
i. Habitual and continued unavailability to act or respond on
behalf of the Company;
ii. Willful misconduct or fraud;
iii. Conviction, by a court of competent jurisdiction, of a felony
(whether or not committed during the term hereof or in the course of
employment hereunder);
iv. Willful, continued, and material failure to observe or perform
the duties of her employment hereunder; and
v. Willfully acting in a manner materially adverse to the best
interests of the Company.
With regard to Section 3.3, Company shall first provide Employee with
45 days written notice of such alleged misconduct, including a specific
description of such breach, failure, or neglect of duty or obligation sufficient
to allow Employee an opportunity to correct such noted problems. Employee shall
not be terminated under paragraph 3.3 unless, after the notice period expires,
Employee continues to fail to satisfactorily perform her duties. Prior to any
vote regarding misconduct, Employee will be given the opportunity to appear
before the Board, with her legal counsel, to present any relevant information he
believes the Board should consider in making such a decision.
3.4 CHANGE IN CONTROL. Employee's employment may be terminated by either
the Company or Employee in the event of a Change in Control, which shall, for
purposes of this Agreement, be defined as set forth in the attached Exhibit A,
which is incorporated herein by reference; provided, however, that in the case
of termination pursuant to this Section 3.4, the Board of Directors of the
Company shall make a determination either to terminate Employee's employment
hereunder or continue such employment within six (6) months after the effective
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date of the Change in Control and shall give Employee ninety (90) days' notice
of any such determination to terminate Employee's employment hereunder, and the
failure to make such determination within such six-month period will be deemed
an election by the Company to continue Employee's employment hereunder.
3.5 TERMINATION BY EMPLOYEE FOR "GOOD REASON." Employee may terminate her
employment at any time without "Good Reason" by providing the Company thirty
(30) days written notice. Employee may also terminate her employment for "Good
Reason" as provided below. "Good Reason shall mean any of the following:
i. A material change in Employee's function, authority, duties,
title, compensation or responsibilities, without Employee's express
written consent;
ii. A substantial difference of opinion between Employee and the
Board and/or ownership of the Company develops, or other circumstances
should arise such that Employee, in good faith, no longer believes that
he can function effectively as Secretary Treasurer and/or Assistant
Counsel of the Company;
iii. A significant increase in the amount of travel required for
Employee to perform her job, without Employee's consent;
iv. Any material failure by the Company to comply with any of the
provisions of this Agreement;
v. Upon a Change in Control, as defined herein, or upon any other
material change in the financial condition or ownership of the Company;
or
vi. Any other matter or circumstance requested by the Board of
Directors of the Company if either (a) made with the intent of
hindering Employee in the performance of her duties hereunder or
creating an incentive for Employee to exercise her rights under Section
3.5 hereof or (b) the effect of such request could reasonably be
expected to hinder Employee in the performance of her duties hereunder
or create an incentive for Employee to exercise her rights under
Section 3.5 hereof.
With regard to Section 3.5, if Employee determines that Good Reason as defined
herein exists, Employee shall so notify the Company in writing. The Company
shall have fourteen (14) days to remedy the facts and circumstances that
provided Good Reason as defined herein. If adequate remedy has occurred,
Employee shall continue in the employ of the Company as if no notice had been
given. If adequate remedy has not occurred, Employee may, at her option,
terminate her employment for Good Reason as defined herein.
3.6 PAYMENT OF SEVERANCE BENEFITS UPON TERMINATION.
(a) In the event Employee voluntarily terminates her employment at anytime
during this
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Agreement without Good Reason as defined herein, Employee shall continue to
receive the Insurance Coverage as described in paragraph 2.3, for a period of
one (1) month, upon execution of a Release of Claims in a form substantially
similar to that attached hereto as Exhibit B, which is incorporated herein by
reference. All vested but unexercised stock options shall expire one hundred and
twenty (120) days after the effective date of Employee's voluntary termination
without Good Reason.
(b) In the event the Company terminates Employee's employment for Cause as
defined herein, the Company shall pay Employee all accrued compensation, if any.
All salary and benefits (other than vested benefits under any pension, profit
sharing or other compensation or benefit plan) shall cease at the time of
termination. All vested but unexercised stock options shall expire without
value.
(c) In the event Employee terminates her employment for Good Reason as
defined herein, or their is a Change in Control as defined herein, or the
Company terminates Employee's employment without Cause as defined herein, or
Employee's employment is terminated due to Death or Disability as defined
herein, Employee will be entitled to the severance benefits listed below
(collectively "Severance"). Except in the case of termination due to the Death
of Employee, the Severance is conditioned upon Employee executing, within 21
days of her separation, a Release of Claims form substantially similar to that
attached hereto as Exhibit B, which is incorporated herein by reference.
i. Continuation of Employee's base annual salary for the
Severance Period (as defined below) at the rate in effect at the time
of such termination and payable at the time and in the manner such
payments would have been made to Employee if such termination had not
occurred;
ii. A prorated annual cash bonus payment, if any, calculated by
multiplying the target amount (50% of base salary) by a fraction, the
numerator of which is the number of calendar months (full or partial)
during which Employee was employed by the Company in the fiscal year of
her separation from employment and the denominator of which is 12, said
prorated bonus to be payable as soon as practicable following
Employee's separation from employment;
iii. Continued insurance coverage, as described in Section 2.3 and
to include medical and major medical coverage for Employee, at the
Company's expense for the Severance Period; provided, however, that
Employee will be responsible for any co-payments, deductibles, or other
out-of-pocket expenses associated with use of any health coverage; and
iv. Employee's stock in the Company shall continue to vest in
accordance with the terms of Employee's stock option agreement for a
period of up to forty eight (48) months after the date of termination.
Employee may exercise her stock options for a period commencing with
the date of termination and expiring one hundred and twenty (120)
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days following the end of the Severance Period.
(d) For purposes of this Agreement, the Severance Period shall be
twenty-four (24) months if employee's separation from employment does not occur
within twelve (12) months of a Change in Control, but, in the event that
Employee's separation from employment does occur within twelve (12) months of a
Change in Control, the Severance Period shall be thirty-six (36) months. The
full amount of the total salary continuation payments provided for above shall
be payable in full within thirty (30) days after the effective date of
Employee's severance-qualifying termination to an escrow agent mutually
satisfactory to the Company and Employee under irrevocable written instructions
to make payments of the Severance to Employee (or in the event of Employee's
death, to her estate), at the time and in the manner that such payments would
have been made to Employee if such termination had not taken place.
(e) In the event of a Change in Control, the Company, at its sole expense,
shall cause its independent auditors promptly to review all payments,
distributions, and benefits that have been made to or provided to, and are to be
made to or provided to, Employee under this Agreement, and any other agreement
and plan benefiting Employee, to determine the applicability of Section 4999 of
the United States Internal Revenue Code of 1986, as amended (the "Code"). If the
Company's independent auditors determine that any such payments, distributions,
or benefits are subject to excise taxes as provided under Section 4999 of the
Code (the "Excise Tax"), then such payment, distributions, or benefits (the
"Original Payments") shall be increased by an amount (the "Gross-Up Amount")
such that, after the Company withholds all taxes due, including any excise and
employment taxes imposed on the Gross-Up Amount, Employee will retain a net
amount equal to the Original Payments less income and employment taxes on that
amount. Employee agrees to cooperate with the Company's independent auditors by
providing necessary information to perform this analysis/calculation, and the
Company agrees that Employee shall be entitled to copies of the calculations.
The intent of the parties is that the Company shall be solely responsible for,
and shall pay, any Excise Tax on the Original Payments and Gross-Up Amount and
any income and employment taxes (including, without limitation, penalties and
interest) imposed on the Gross-Up Amount. If no determination by the Company's
independent auditors is made prior to the time Employee is required to file a
tax return reflecting any portion of the Original Payments, Employee will be
entitled to receive a Gross-Up Amount calculated on the basis of the Original
Payments Employee reported in such tax return within 30 days of the filing of
such tax return. If any tax authority finally determines that a greater Excise
Tax should be imposed upon the Original Payments than is determined by the
Company's independent auditors or reflected on Employee's tax returns, Employee
shall be entitled to receive the full Gross-Up Amount calculated on the basis of
such additional amount of Excise Tax determined to be payable by such tax
authority (including related penalties and. interest) from the Company within 30
days of such determination as long as Employee has taken all reasonable actions
to minimize any such amounts. If any tax authority finally determines the Excise
Tax to be less than the amount taken into account hereunder in calculating the
Gross-Up Amount, Employee shall repay to the Company, within 30 days of her
receipt of a refund resulting from that determination, the portion of the
Gross-Up Amount attributable to such reduction (plus the refunded portion of the
Gross-Up Amount attributable to the Excise Tax and federal, state, and local
income and
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employment taxes imposed on the portion of the Gross-Up Amount being repaid,
less any additional income tax resulting from such refund).
SECTION 4: NONCOMPETITION
The parties recognize that in the course of Employee's employment with the
Company, Employee has had and will continue to have access to a substantial
amount of confidential and proprietary information and trade secrets relating to
the business of the Company, and that it would be detrimental to the business of
the Company, and have a substantial detrimental effect on the value to the
Company of Employee's employment if Employee were to compete with the Company
upon termination of his employment. Employee therefore agrees, in consideration
of the Company entering this Agreement and establishing the base annual
compensation and other compensation and benefits at the level herein provided
for, that during the period of the term of her employment with the Company,
whether pursuant to this Agreement or otherwise, and, if and only if Employee's
employment is terminated by the Company for Cause, as defined herein, or by
Employee without Good Reason, as defined herein, for a period of one (1) year
thereafter, he shall not, without the prior written consent of the Company,
directly as principal, partner, director, or stockholder or through any
corporation, partnership, or other entity (including, without limitation, a sole
proprietorship), engage or participate in, or assist in any manner or in any
capacity, or have any interest in or make any loan to, or otherwise be related
with, any person, firm, corporation, association, or other entity located
anywhere within fifty (50) miles of any of the Company's business locations and
engaged in any business competing in any material way with the business of the
Company or any subsidiary of the Company as such business exists as of the date
of termination of employment; provided, however, that the foregoing shall not
prevent Employee from owning up to five percent (5%) of the outstanding
securities of, or being employed by, a publicly held corporation that may
compete with the Company. For purposes hereof, a business shall not be deemed to
be competing with the Company in a material way unless it manufactures, sells,
distributes, or otherwise deals in one or more products manufactured, sold,
distributed or otherwise dealt in by the Company and which product or products
account for at least five percent (5%) of the Company's gross sales volume at
the time in question.
The parties believe, in light of the facts known as of the date hereof, and
after considering the nature and extent of the Company's business, the amount of
compensation and other benefits provided herein, and the damage that could be
done to the Company's business by Employee's competing with the Company, that
the foregoing covenant not to compete is reasonable in time, scope, and
geographical limitation. However, if any court should construe the time, scope,
or geographical limitation of the covenant not to compete to be too broad or
extensive, it is the intention of the parties that the contract be automatically
reformed, and as so reformed, enforced, to the maximum limits which may be found
to be reasonable by such court.
SECTION 5: CONFIDENTIAL INFORMATION.
5.1 COMPANY INFORMATION. Employee agrees at all times during the term
hereof and thereafter, to hold in strictest confidence, and not to use or
disclose, except for the benefit of the Company
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or as authorized by the Company, the Confidential Information of Company.
Employee understands that "Confidential Information" means any Company
proprietary information, trade secrets and other information not generally known
to the public, such as technical and non- technical data, know-how, research,
product plans, marketing plans, products, business forecasts, services, customer
lists and customers (including, but not limited to, customers of Company on whom
Employee may call or with whom Employee becomes more acquainted during the term
of this Agreement or has become acquainted with during any prior period in which
he performed services for the Company), information regarding employees of the
Company, software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information, marketing,
financial or. other business information disclosed to Employee by the Company,
either directly or indirectly in writing, electronically, orally or by drawings
or observation of parts or equipment prior to or after the commencement of this
Agreement.
In light of the highly competitive nature of the industry in which Company
conducts its business, Employee agrees that all Confidential Information
heretofore or in the future obtained by the Employee as a result of the
Employee's association with Company, shall be considered confidential. In
recognition of this fact, Employee agrees that he will not, except in the
performance of her duties under this Agreement or except as otherwise provided
herein, during and after the execution of this Agreement (for so long as such
information otherwise remains confidential), disclose any of such Confidential
Information to any person or entity for any reason or purpose whatsoever, and he
will not make use of any Confidential Information for her own purposes or for
the benefit of any person or entity (except Company) under any circumstances not
authorized by the Company. The provisions contained in this paragraph shall also
apply to information obtained by Employee with respect to any subsidiary of or
company otherwise affiliated with Company.
In the event that Employee is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, any informal or formal investigation by any government or
governmental agency or authority or otherwise) to disclose any of the
Confidential Information, Employee will notify Company promptly in writing so
that Company may seek a protective order or other appropriate remedy or, in
Company's sole discretion, waive compliance with the terms of this Agreement.
Employee agrees not to oppose any action by Company to obtain a protective order
or other appropriate remedy. In the event that no such protective order or other
remedy is obtained, or that Company waives compliance with the terms of this
Agreement, Employee will furnish only that portion of the Confidential
Information which Employee is advised in writing by her own independent counsel
that he is legally required to furnish and will exercise her reasonable best
efforts, at Company's expense, to obtain reliable assurance that confidential
treatment will be accorded to the Confidential Information. To the extent that
Employee retains counsel to assist her in any situation covered by this
paragraph, he shall be entitled to reimbursement for reasonable fees incurred in
obtaining advice and representation.
5.2 THIRD PARTY INFORMATION. Employee recognizes that Company has received
and in the future will receive from third parties their confidential or
proprietary information subject to a duty on Company's part to maintain the
confidentiality of such information and to use it only for
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certain limited purposes. Employee agrees to hold all such confidential or
proprietary information in the strictest confidence and not to disclose it to
any person, firm or corporation or to use it except as necessary in carrying out
Employee work for Company consistent with Company' agreement with such third
party. Employee agrees to comply with Company's policies and procedures, as
applicable from time to time with respect to such information.
SECTION 6: MISCELLANEOUS PROVISIONS
6.1 OUTPLACEMENT SERVICE. In the event of termination of Employee's
employment by the Company without Cause, the Company shall, upon the request of
Employee (a) pay for outplacement service for Employee for a period of twelve
(12) months, such payment to be made to an agency selected by Employee, based
upon the customary fees charged by nationally rated firms engaged in providing
such services for executives of similar level, qualifications, and experience,
and (b) provide to Employee, for a reasonable time following termination of
employment, not to exceed twelve (12) months, office space and secretarial
support to assist Employee in searching for and obtaining a new position, such
office space to be provided in a location reasonably determined by the Company.
6.2 INDEMNITY. The Company shall indemnify Employee and hold her harmless
for all acts or decisions made by her in good faith while performing services
for the Company to the full extent permitted by applicable law.
6.3 NON-DISPARAGEMENT. Except as compelled to do so by law, the Company and
its past and present affiliated companies and their officers, directors, and
employees shall refrain from making any remark or taking any action which
disparages, defames, or places Employee in a negative light, and Employee shall
refrain from making any remark or taking any action which disparages, defames,
or places the Company or any of its parent, subsidiary, or affiliated companies
or their 'past or present officers, directors, or employees in a negative light.
6.4 EMPLOYEE BENEFITS. This Agreement shall not be construed to be in lieu
or to the exclusion of any other rights, benefits, and privileges to which
Employee may be entitled as an employee of the Company under any retirement,
pension, profit-sharing, insurance, hospital, or other plans or benefits that
may now be in effect or that may hereafter be adopted.
6.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee, and jurisdiction shall lie
in the courts of competent jurisdiction in Xxxx County.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
of the Company and Employee with respect to its subject matter, supersedes any
prior agreement or arrangement relative to Employee's employment by the Company,
and no modification, supplement, or amendment of any provision hereof shall be
valid unless made in writing and signed by the parties.
6.7 SUCCESSORS AND ASSIGNS; PERMITTED ASSIGNMENT. This Agreement shall
inure to the benefit
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of and be binding upon the Company and Employee and their respective successors,
executors, administrators, heirs and/or permitted assigns; provided, however,
that neither Employee nor the Company may make any assignment of this Agreement
or any interest therein, by operation of law or otherwise, without the prior
written consent of the other parties hereto, except that, without such consent,
the Company may assign this Agreement to any successor to all or substantially
all of its assets and business by means of dissolution, merger, consolidation,
transfer of assets, or otherwise, provided that such successor assumes in
writing all of the obligations of the Company under this Agreement, subject,
however, to Employee's right of termination as provided in Section 3.5 hereof.
6.8 CAPTIONS. The captions set forth in this Agreement are for convenience
only and shall not be considered as part of this Agreement or as in any way
limiting or amplifying the terms and conditions hereof.
6.9 NO CONFLICTING OBLIGATIONS. Employee represents and warrants to the
Company that he is not under, or bound to be under in the future, any obligation
to any person, firm, or corporation that is or would be inconsistent or in
conflict with this Agreement or would prevent, limit, or impair in any way the
performance by her of her obligations hereunder.
6.10 WAIVERS. The failure of any party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.
6.11 NOTICES. Any notice given hereunder shall be in writing and delivered
or mailed BY registered or certified mail, return receipt requested:
(a) if to the Company: 0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(b) if to the Employee: 0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
6.12 SEVERABILITY. In the event that any court having jurisdiction shall
determine that any restrictive covenant or other provision contained in this
Agreement shall be unreasonable or unenforceable in any respect, then such
covenant or other provision shall be deemed limited to the extent that such
other court deems it reasonable or enforceable, and as so limited shall remain
in full force and effect. In the event that such court shall deem any such
covenant or other provision wholly unenforceable, the remaining covenants and
other provisions of this Agreement shall nevertheless remain in full force and
effect.
6.13 COUNTERPARTS. More than one counterpart of this Agreement may be
executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed under seal and delivered as of the date first above written.
NATIONAL COAL CORPORATION
By: /S/ XXX X. XXX
----------------------------------------
Xxx X. Xxx, President & CEO
EMPLOYEE:
/S/ XXXXXX X. XXX
--------------------------------------------
Xxxxxx X. Xxx
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EXHIBIT A
DEFINITION OF CHANGE IN CONTROL
The occurrence of any of the following events shall constitute a Change
in Control for purposes of this Agreement:
(a) any "person"(as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) other
than National Coal Corporation, any trustee or other fiduciary holding
securities under any employee benefit plan of National Coal Corporation, or any
company owned, directly or indirectly, by the stockholders of National Coal
Corporation in substantially the same proportions as their ownership of National
Coal Corporation is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of National Coal
Corporation representing thirty percent (30%) or more of the combined voting
power of National Coal Corporation's then-outstanding securities;
(b) during any period of two consecutive years (not including any
period prior to the effective date of this Agreement), individuals who, at the
beginning of such period, constitute the Board, and any new director (other than
a director designated by a person who has entered into an agreement with
National Coal Corporation to effect a transaction described in clause (a),(c),
or (d) of this Exhibit A) whose election by the Board or nomination for election
by National Coal Corporation's stockholders was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of the two-year period or whose election or nomination for
election was previously so approved, cease for any reason to constitute at least
a majority of the Board;
(c) the consummation of a merger or consolidation of National Coal
Corporation with any other corporation, other than a merger or consolidation
which would result in the voting securities of National Coal Corporation
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) more than fifty percent (50%) of the combined voting power of
the voting securities of National Coal Corporation or such surviving entity
outstanding immediately after such merger or consolidation; provided, however,
that a merger or consolidation effected to implement a recapitalization of
National Coal Corporation (or similar transaction) in which no person acquires
less than thirty percent (30%) of the combined voting power of National Coal
Corporation's then-outstanding securities shall not constitute a Change in
Control of National Coal Corporation; or
(d) the stockholders of National Coal Corporation approve a plan
of complete liquidation of National Coal Corporation or an agreement for the
sale or disposition by National Coal Corporation of all or substantially all of
National Coal Corporation's assets.
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EXHIBIT B
I acknowledge that I have been given twenty-one days to decide whether to
execute this Release of Claims ("Release") and that I have been advised to
consult an attorney before executing this Release. I acknowledge that I have
seven days from the date I execute this Release to revoke my signature. I
understand that if I choose to revoke this Release I must deliver my written
revocation to National Coal Corporation before the end of the seven-day period.
I, for myself, my heirs, successors, and assigns, do hereby settle, waive, and
release National Coal Corporation (the "Company") and any of its past and
present officers, owners, stockholders, partners, directors, agents, employees,
successors, predecessors, assigns, representatives, attorneys, divisions,
subsidiaries, or affiliates from any and all claims, charges, complaints,
rights, demands, actions, and causes of actions of any kind or character, in
contract, tort, or otherwise, based on actions or omissions occurring in the
past and/or present, and regardless of whether known or unknown to me at this
time, including those not specifically mentioned in this Release. Among the
rights, claims, and causes of action which I give up under this Release are
those arising in connection with my employment and the termination of that
employment, including, without limitation, rights or claims under federal,
state, and local fair employment practice or discrimination laws (including the
various Civil Rights Acts, the Age Discrimination in Employment Act, the Equal
Pay Act, and the Tennessee Human Rights Act), laws pertaining to breach of
employment contract, wrongful termination or other wrongful treatment, and any
other laws or rights relating to my employment with the Company and the
termination of that employment. I acknowledge that I am aware of my rights under
the Age Discrimination in Employment Act, and that I am knowingly and
voluntarily waiving and releasing any claim of age discrimination which I may
have under that statute as part of this Release. This agreement does not waive
or release any rights, claims, or causes of action that may arise from acts or
omissions occurring after the date I execute this Release, nor does this
agreement waive or release any rights, claims or causes of action relating to
(a) indemnification from the Company and its affiliates with respect to my
activities on behalf of the Company and its affiliates prior to my termination
of employment, (b) compensation or benefits to which I am entitled under any
compensation or benefits plan of the Company or its affiliates, (c) amounts to
which I am entitled pursuant to the agreement to which a form of this Release of
Claims was attached as Exhibit B, (d) my right to file a charge with, or
participate in any investigation conducted by, any federal, state, or local
agency charged with enforcing laws prohibiting employment discrimination, (e) my
right to challenge the voluntary and knowing nature of this release in court or
before any federal, state, or local agency charged with enforcing employment
laws, or (f) any right, claim, or cause of action arising after the effective
date of this Release.
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