EXHIBIT 10.12
EMPLOYMENT AGREEMENT
(XXXXX X. XXXXX)
EMPLOYMENT AGREEMENT (the "Agreement") dated July 30, 2004 by
and between Foundation Coal Corporation (the "Company") and Xxxxx X. Xxxxx
("Executive").
WHEREAS, RAG Coal International AG and American Coal
Acquisition Corp. ("ACA") have entered into a Stock Purchase Agreement, dated as
of May 24, 2004 (the "Purchase Agreement") pursuant to which, after giving
effect to the transactions contemplated by the Purchase Agreement, the Company
will be a subsidiary of ACA or one of its affiliates;
WHEREAS, Executive is currently employed by the Company and
has entered into an employment agreement between Executive and the Company (the
"Prior Employment Agreement") and a change in control agreement between
Executive and the Company (together with the Prior Employment Agreement, the
"Prior Agreements") and the Company desires that Executive continue to be
employed by the Company and to enter into this Agreement embodying the terms of
Executive's employment;
WHEREAS, Executive desires to continue to be employed by the
Company and to enter into this Agreement;
In consideration of the premises and mutual covenants herein
and for other good and valuable consideration, the parties agree as follows:
1. Effectiveness; Term of Employment.
a. Effectiveness. This Agreement shall constitute a binding
agreement between the parties as of the date hereof; provided, that
notwithstanding any other provision of this Agreement, the operative provisions
of this Agreement shall become effective only upon the Closing Date (as defined
in the Purchase Agreement (such date being hereinafter referred to as the
"Effective Date")). In the event the Purchase Agreement is terminated for any
reason without the Closing Date having occurred, this Agreement shall be
terminated without further obligation or liability of either party.
b. Term. Subject to the provisions of Section 7 of this
Agreement, Executive shall be employed by the Company for a period commencing on
the Effective Date and ending on the second anniversary of the Effective Date
(the "Employment Term") on the terms and subject to the conditions set forth in
this Agreement; provided, however, that commencing with the second anniversary
of the Effective Date and on each anniversary thereafter (each an "Extension
Date"), the Employment Term shall be automatically extended for an additional
one-year period, unless the Company or Executive provides the other party hereto
60 days' prior written notice before the next Extension Date that the Employment
Term shall not be so extended.
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2. Position.
a. During the Employment Term, Executive shall serve as the
Company's Senior Vice President, Development and Information Technology. In such
position, Executive shall be the most senior executive of the Company, shall
report directly to the Board of Directors of the Company (the "Board") and the
Chief Executive Officer of the Company and shall have such duties and authority
as shall be determined from time to time by the Board. During the Employment
Term, Executive will devote Executive's full business time and best efforts to
the performance of Executive's duties hereunder and will not engage in any other
business, profession or occupation for compensation or otherwise which would
conflict or interfere with the rendition of such services either directly or
indirectly, without the prior written consent of the Board; provided that
nothing herein shall preclude Executive from (i) subject to the prior approval
of the Board (which shall not unreasonably be withheld), accepting appointment
to or continue to serve on any board of directors or trustees of any business
corporation, (ii) engaging in charitable activities and community affairs or
(iii) managing his personal investments and affairs; provided in each case, and
in the aggregate, that such activities do not conflict or interfere with the
performance of Executive's duties hereunder or conflict with Section 9.
3. Base Salary. During the Employment Term, the Company shall
pay Executive a base salary at the annual rate of $183,855, payable in regular
installments in accordance with the Company's usual payment practices. Executive
shall be entitled to increases (but not decreases) in Executive's base salary,
if any, as may be determined from time to time in the sole discretion of the
Board and the Board shall be obligated to annually review Executive's base
salary for increases but not decreases. Executive's annual base salary, as in
effect from time to time, is hereinafter referred to as the "Base Salary."
4. Annual Bonus. With respect to each full calendar year of
the Company during the Employment Term, Executive shall be eligible to earn an
annual bonus award (an "Annual Bonus") based upon the achievement of certain
individual and Company performance targets established by the Board, in
consultation with Executive (such targets to be established no later than 90
days following the beginning of the year in which they relate) as set forth
below;
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COMPANY PERCENT OF INDIVIDUAL PERCENT OF
PERFORMANCE BASE SALARY PERFORMANCE BASE SALARY
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125% of Target 83.33% Maximum 41.67%
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100% of Target 33.33% Target 16.67%
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85% of Target 16.67% Below Target 8.33%
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Below 85% of Target 0.00%
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Straight line interpolation between each percentage.
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provided, that Executive shall be eligible for an Annual Bonus for the full
calendar year 2004 (the "2004 Bonus"); provided, that Executive agrees that
Executive shall not be entitled to any other annual bonus for calendar year 2004
under any other plan, program, agreement or arrangement of the Company. The
Company Performance targets for the 2004 Bonus shall be based (i) two-thirds on
target free cash flow (cash from operations and cash from investing activities
plus net interest expense plus taxes paid plus the Capex True-Up (as defined in
the Purchase Agreement) (including related post-closing adjustments)) generated
following the Effective Date through December 31, 2004, pursuant to the Q1
forecast and (ii) one-third based on target EBITDA (as defined in the credit
agreement among the Company, Citicorp North America, Inc and the other parties
thereto, dated July 30, 2004) for the entire 2004 calendar year, pursuant to the
Q1 forecast.
5. Employee Benefits.
a. During the Employment Term, Executive shall be entitled
to participate in the Company's employee benefit plans (other than annual bonus
plans) as in effect from time to time (collectively "Employee Benefits"), on
terms no less favorable than those generally made available to other senior
executives of the Company. Executive will be provided with five (5) weeks of
paid vacation.
b. The Company shall be unconditionally obligated to issue
the options described on Exhibit A on the terms and conditions set forth
therein, as soon as practicable following the date hereof. The Company and
Executive agree to document and finalize, or cause to be documented and
finalized, the grant of stock options pursuant to a stock incentive plan to be
adopted by FC 1 Corp. (as well as any other supporting documentation) on terms
set forth on Exhibit A as soon as practicable following the date hereof.
6. Business Expenses. During the Employment Term, reasonable
travel and other expenses incurred by Executive in the performance of
Executive's duties hereunder shall be reimbursed by the Company in accordance
with Company policies.
7. Termination. The Employment Term and Executive's employment
hereunder may be terminated by either party at any time and for any reason;
provided that Executive will be required to give the Company at least 60 days'
advance written notice of any resignation of Executive's employment.
Notwithstanding any other provision of this Agreement, the provisions of this
Section 7 shall exclusively govern Executive's rights upon termination of
employment with the Company and its affiliates.
a. By the Company For Cause or By Executive Resignation
Without Good Reason.
(i) The Employment Term and Executive's employment hereunder
may be terminated by the Company for Cause (as defined below) and shall
terminate automatically upon Executive's resignation without Good Reason (as
defined in Section 7(c)). Any termination of Executive's employment by the
Company for Cause shall be effective only upon the vote of a majority of the
members of the Board (other than Executive).
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(ii) For purposes of this Agreement, "Cause" shall mean (A)
Executive's continued and willful, intentional or grossly negligent failure to
substantially perform Executive's duties hereunder (other than as a result of
total or partial incapacity due to physical or mental illness), (B) Executive's
conviction of, or plea of nolo contendere to a crime constituting (x) a felony
under the laws of the United States or any state thereof or (y) a misdemeanor
involving moral turpitude, deceit, dishonesty or fraud that relates to the
Company property, (C) the willful, intentional or grossly negligent conduct of
Executive which is demonstrably and materially injurious to the Company,
monetarily or otherwise or (D) Executive's material breach of the provisions of
Sections 8 or 9 of this Agreement. For purposes of this definition of Cause, no
act, or failure to act, on Executive's part shall be deemed willful, intentional
or grossly negligent if Executive acted in good faith and in a manner that
Executive reasonably believed to be in, or not opposed to, the best interests of
the Company.
(iii) If Executive's employment is terminated by the Company
for Cause, or if Executive resigns without Good Reason, Executive shall be
entitled to receive:
(A) the Base Salary through the date of termination;
(B) any Annual Bonus earned but unpaid as of the date of
termination for any previously completed fiscal year;
(C) reimbursement for any unreimbursed business expenses
properly incurred by Executive in accordance with Company policy prior
to the date of Executive's termination; and
(D) such Employee Benefits, if any, as to which Executive
may be entitled under the employee benefit plans of the Company (the
amounts described in clauses (A) through (D) hereof being referred to
as the "Accrued Rights").
Following such termination of Executive's employment by the
Company for Cause or resignation by Executive without Good Reason, except as set
forth in this Section 7(a)(iii), Executive shall have no further rights to any
compensation or any other benefits under this Agreement.
b. Disability or Death.
(i) The Employment Term and Executive's employment hereunder
shall terminate upon Executive's death. If Executive becomes physically or
mentally incapacitated so as to be unable to perform the essential functions of
Executive's duties (such incapacity is hereinafter referred to as "Disability"),
then (A) the Board may allow another officer of the Company to perform
Executive's duties and responsibilities during the period of such Disability,
and (B) if such Disability continues for 120 consecutive days or 180 days during
any consecutive 360 day period, the Board may terminate Executive's employment
under this Agreement. If any question shall arise as to whether, during any
period Executive is disabled so as to be unable to perform the essential
functions of Executive's then existing position or positions with or without
reasonable accommodation, Executive may, and at the request of the Company
shall, submit to
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the Company a certification in reasonable detail by a physician selected by the
Company, to whom Executive or Executive's guardian has no reasonable objection,
as to whether Executive is so disabled and how long such disability is expected
to continue, and such certification shall for the purposes of this Agreement be
conclusive of the issue. Executive shall cooperate with any reasonable request
of the physician in connection with such certification. If such question shall
arise and Executive shall fail to submit such certification, the Company's
determination of such issue shall be binding on Executive. Nothing in this
Section 7(b) shall be construed to waive Executive's rights, if any, under
existing law including, without limitation, the Family and Medical Leave Act of
1993, 29 U.S.C. ss.2601 et seq. and the Americans with Disabilities Act, 42
U.S.C. ss.12101 et seq.
(ii) Upon termination of Executive's employment hereunder for
either Disability or death, Executive or Executive's estate (as the case may be)
shall be entitled to receive:
(A) the Accrued Rights; and
(B) fifty percent (50%) of the Base Salary (the "Target
Annual Bonus") multiplied by a fraction, the numerator of which is the
number of days of the calendar year of termination that shall have
elapsed through the date of Executive's termination of employment and
the denominator of which is 365.
Following Executive's termination of employment due to death
or Disability, except as set forth in this Section 7(b)(ii), Executive shall
have no further rights to any compensation or any other benefits under this
Agreement.
c. By the Company Without Cause or Resignation by Executive
for Good Reason.
(i) The Employment Term and Executive's employment hereunder
may be terminated by the Company without Cause or by Executive's resignation for
Good Reason.
(ii) For purposes of this Agreement, "Good Reason" shall mean
(A) the failure of the Company to pay or cause to be paid Executive's Base
Salary or Annual Bonus, when due hereunder or (B) any substantial diminution in
Executive's authority or responsibilities from those described in Section 2
hereof, (C) the requirement by the Company that Executive's principal office be
located outside the greater Baltimore, Maryland metropolitan area or (D) any
failure of the Company to obtain the assumption in writing of its obligation to
perform this Agreement by any successor to all or substantially all of the
business or assets of the Company upon a merger, consolidation, sale or similar
transaction (other than an assumption that occurs by operation of law); provided
that any of the events described in clauses (A) through (D) of this Section
7(c)(ii) shall constitute Good Reason only if the Company fails to cure such
event within 30 days after receipt from Executive of written notice of the event
which constitutes Good Reason.
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(iii) If Executive's employment is terminated by the Company
without Cause (other than by reason of death or Disability) or if Executive
resigns for Good Reason, Executive shall be entitled to receive:
(A) the Accrued Rights;
(B) the Target Annual Bonus multiplied by a fraction, the
numerator of which is the number of days of the calendar year of
termination that shall have elapsed through the date of Executive's
termination of employment and the denominator of which is 365; and
(C) subject to Executive's continued compliance with the
provisions of Sections 8 and 9, the product of (i) the sum of (x) the
Base Salary and (y) the Target Annual Bonus multiplied by (ii) a
fraction, the numerator of which is the greater of (x) the number of
full months remaining in the Employment Term and (y) twelve and the
denominator of which is twelve, payable in equal bi-monthly
installments over the Restricted Period (as defined in Section 8) in
accordance with the Company's usual payroll practices; provided that
the aggregate amount described in this clause (C) shall be reduced, but
not below zero, by the present value of any other cash severance or
cash termination benefits payable to Executive under any other plans,
programs or arrangements of the Company or its affiliates, including,
without limitation, any severance plan of the Company in which
Executive is entitled to participate.
Following Executive's termination of employment by the Company
without Cause (other than by reason of Executive's death or Disability) or by
Executive's resignation for Good Reason, except as set forth in this Section
7(c)(iii), Executive shall have no further rights to any compensation or any
other benefits under this Agreement.
d. Expiration of Employment Term.
(i) Election Not to Extend the Employment Term. In the event
either party elects not to extend the Employment Term pursuant to Section 1,
unless Executive's employment is earlier terminated pursuant to paragraphs (a),
(b) or (c) of this Section 7, Executive's termination of employment hereunder
(whether or not Executive continues as an employee of the Company thereafter)
shall be deemed to occur on the close of business on the day immediately
preceding the next scheduled Extension Date and Executive shall be entitled to
receive the Accrued Rights.
Following such termination of Executive's employment hereunder
as a result of either party's election not to extend the Employment Term, except
as set forth in this Section 7(d)(i), Executive shall have no further rights to
any compensation or any other benefits under this Agreement.
(ii) Continued Employment Beyond the Expiration of the
Employment Term. Unless the parties otherwise agree in writing, continuation of
Executive's employment with the Company beyond the expiration of the Employment
Term shall be deemed an employment at-
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will and shall not be deemed to extend any of the provisions of this Agreement
and Executive's employment may thereafter be terminated at will by either
Executive or the Company; provided that the provisions of Sections 8, 9 and 10
of this Agreement shall survive any termination of this Agreement or Executive's
termination of employment hereunder.
e. Notice of Termination. Any purported termination of
employment by the Company or by Executive (other than due to Executive's death)
shall be communicated by written Notice of Termination to the other party hereto
in accordance with Section 12(i) hereof. For purposes of this Agreement, a
"Notice of Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth in
reasonable detail the facts and circumstances claimed to provide a basis for
termination of employment under the provision so indicated.
f. Board/Committee Resignation. Upon termination of
Executive's employment for any reason, Executive agrees to resign, as of the
date of such termination and to the extent applicable, from the Board and the
LLC Board (and any committees thereof) and the Board of Directors (and any
committees thereof) of any of the Company's affiliates.
8. Non-Competition.
a. Executive acknowledges and recognizes the highly
competitive nature of the businesses of the Company and its affiliates and
accordingly agrees as follows:
(1) During the Employment Term and for a period of nine months
following the date Executive ceases to be employed by the Company for any
reason, other than due to the Company's failure to renew the Employment Term
pursuant to Section 1(b) (the "Restricted Period"), Executive will not, whether
on Executive's own behalf or on behalf of or in conjunction with any person,
firm, partnership, joint venture, association, corporation or other business
organization, entity or enterprise whatsoever ("Person"), directly or indirectly
solicit or assist in soliciting in competition with the Company, the business of
any customer of the Company or prospective customer of the Company:
(i) with whom Executive had personal contact or dealings
on behalf of the Company during the one year period
preceding Executive's termination of employment;
(ii) with whom employees reporting to Executive have had
personal contact or dealings on behalf of the Company
during the one year immediately preceding Executive's
termination of employment; or
(iii) for whom Executive had direct or indirect
responsibility during the one year immediately
preceding Executive's termination of employment.
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(2) During the Restricted Period, Executive will not directly
or indirectly:
(i) engage in any coal-related business that competes
with the business of the Company or its affiliates
(including, without limitation, businesses which the
Company or its affiliates have specific plans to
conduct in the future and as to which Executive is
aware of such planning) in the United States (a
"Competitive Business");
(ii) enter the employ of, or render any services to, any
Person (or any division or controlled or controlling
affiliate of any Person) who or which engages in a
Competitive Business;
(iii) acquire a financial interest in, or otherwise become
actively involved with, any Competitive Business,
directly or indirectly, as an individual, partner,
shareholder, officer, director, principal, agent,
trustee or consultant; or
(iv) interfere with, or attempt to interfere with,
business relationships (whether formed before, on or
after the date of this Agreement) between the Company
or any of its affiliates and customers, clients,
suppliers partners, members or investors of the
Company or its affiliates.
(3) Notwithstanding anything to the contrary in this
Agreement, Executive may, directly or indirectly own, solely as an investment,
securities of any Person engaged in the business of the Company or its
affiliates which are publicly traded on a national or regional stock exchange or
on the over-the-counter market if Executive (i) is not a controlling person of,
or a member of a group which controls, such person and (ii) does not, directly
or indirectly, own 5% or more of any class of securities of such Person.
(4) During the Employment Term and, for a period of two years
following the date Executive ceases to be employed by the Company, Executive
will not, whether on Executive's own behalf or on behalf of or in conjunction
with any Person, directly or indirectly:
(i) solicit or encourage any employee of the Company or
its affiliates to leave the employment of the Company
or its affiliates; or
(ii) hire any such employee who was employed by the
Company or its affiliates as of the date of
Executive's termination of employment with the
Company or who left the employment of the Company or
its affiliates coincident with, or within one year
prior to or after, the termination of Executive's
employment with the Company.
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(5) During the Restricted Period, Executive will not, directly
or indirectly, solicit or encourage to cease to work with the Company or its
affiliates any consultant then under contract with the Company or its
affiliates.
b. It is expressly understood and agreed that although
Executive and the Company consider the restrictions contained in this Section 8
to be reasonable, if a final judicial determination is made by a court of
competent jurisdiction that the time or territory or any other restriction
contained in this Agreement is an unenforceable restriction against Executive,
the provisions of this Agreement shall not be rendered void but shall be deemed
amended to apply as to such maximum time and territory and to such maximum
extent as such court may judicially determine or indicate to be enforceable.
Alternatively, if any court of competent jurisdiction finds that any restriction
contained in this Agreement is unenforceable, and such restriction cannot be
amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein.
9. Confidentiality; Intellectual Property.
a. Confidentiality.
(i) Executive will not at any time (whether during or after
Executive's employment with the Company) (x) retain or use for the benefit,
purposes or account of Executive or any other Person; or (y) disclose, divulge,
reveal, communicate, share, transfer or provide access to any Person outside the
Company (other than its professional advisers who are bound by confidentiality
obligations), any non-public, proprietary or confidential information
--including without limitation trade secrets, know-how, research and
development, software, databases, inventions, processes, formulae, technology,
designs and other intellectual property, information concerning finances,
investments, profits, pricing, costs, products, services, vendors, customers,
clients, partners, investors, personnel, compensation, recruiting, training,
advertising, sales, marketing, promotions, government and regulatory activities
and approvals -- concerning the past, current or future business, activities and
operations of the Company, its subsidiaries or affiliates and/or any third party
that has disclosed or provided any of same to the Company on a confidential
basis ("Confidential Information") without the prior written authorization of
the Board; provided, that Executive may disclose such information to Executive's
legal and/or financial advisor for the limited purpose of enforcing Executive's
rights under this Agreement; provided, that Executive shall request that such
legal and/or financial advisors not disclose such information.
(ii) "Confidential Information" shall not include any
information that is (a) generally known to the industry or the public other than
as a result of Executive's breach of this covenant or any breach of other
confidentiality obligations by third parties; (b) made legitimately available to
Executive by a third party without breach of any confidentiality obligation; or
(c) required by law to be disclosed; provided that Executive shall give prompt
written notice to the Company of such requirement, disclose no more information
than is so required, and cooperate with any attempts by the Company to obtain a
protective order or similar treatment.
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(iii) Except as required by law, Executive will not disclose
to anyone, other than Executive's immediate family, legal or financial advisors
or members of the Company's senior management, the existence or contents of this
Agreement; provided that Executive may disclose to any prospective future
employer the provisions of Sections 8 and 9 of this Agreement provided they
agree to maintain the confidentiality of such terms.
(iv) Upon termination of Executive's employment with the
Company for any reason, Executive shall (x) cease and not thereafter commence
use of any Confidential Information or intellectual property (including without
limitation, any patent, invention, copyright, trade secret, trademark, trade
name, logo, domain name or other source indicator) owned or used by the Company,
its subsidiaries or affiliates; (y) immediately destroy, delete, or return to
the Company, at the Company's option, all originals and copies in any form or
medium (including memoranda, books, papers, plans, computer files, letters and
other data) in Executive's possession or control (including any of the foregoing
stored or located in Executive's office, home, laptop or other computer, whether
or not Company property) that contain Confidential Information or otherwise
relate to the business of the Company, its affiliates and subsidiaries, except
that Executive may retain only those portions of any personal notes, notebooks
and diaries that do not contain any Confidential Information; and (z) notify and
fully cooperate with the Company regarding the delivery or destruction of any
other Confidential Information of which Executive is or becomes aware.
b. Intellectual Property.
(i) If Executive has created, invented, designed, developed,
contributed to or improved any works of authorship, inventions, intellectual
property, materials, documents or other work product (including without
limitation, research, reports, software, databases, systems, applications,
presentations, textual works, content, or audiovisual materials) ("Works"),
either alone or with third parties, prior to Executive's employment by the
Company, that are relevant to or implicated by such employment ("Prior Works"),
Executive hereby grants the Company a perpetual, non-exclusive, royalty-free,
worldwide, assignable, sublicensable license under all rights and intellectual
property rights (including rights under patent, industrial property, copyright,
trademark, trade secret, unfair competition and related laws) therein for all
purposes in connection with the Company's current and future business.
(ii) If Executive creates, invents, designs, develops,
contributes to or improves any Works, either alone or with third parties, at any
time during Executive's employment by the Company and within the scope of such
employment and/or with the use of any the Company resources ("Company Works"),
Executive shall promptly and fully disclose same to the Company and hereby
irrevocably assigns, transfers and conveys, to the maximum extent permitted by
applicable law, all rights and intellectual property rights therein (including
rights under patent, industrial property, copyright, trademark, trade secret,
unfair competition and related laws) to the Company to the extent ownership of
any such rights does not vest originally in the Company.
(iii) Executive agrees to keep and maintain adequate and
current written records (in the form of notes, sketches, drawings, and any other
form or media requested by the
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Company) of all Company Works. The records will be available to and remain the
sole property and intellectual property of the Company at all times.
(iv) Executive shall take all requested actions and execute
all requested documents (including any licenses or assignments required by a
government contract) at the Company's expense (but without further remuneration)
to assist the Company in validating, maintaining, protecting, enforcing,
perfecting, recording, patenting or registering any of the Company's rights in
the Prior Works and Company Works. If the Company is unable for any other reason
to secure Executive's signature on any document for this purpose, then Executive
hereby irrevocably designates and appoints the Company and its duly authorized
officers and agents as Executive's agent and attorney in fact, to act for and in
Executive's behalf and stead to execute any documents and to do all other
lawfully permitted acts in connection with the foregoing.
(v) Executive shall not improperly use for the benefit of,
bring to any premises of, divulge, disclose, communicate, reveal, transfer or
provide access to, or share with the Company any confidential, proprietary or
non-public information or intellectual property relating to a former employer or
other third party without the prior written permission of such third party.
Executive shall comply with all relevant policies and guidelines of the Company
regarding the protection of confidential information and intellectual property
and potential conflicts of interest. Executive acknowledges that the Company may
amend any such policies and guidelines from time to time, and that Executive
remains at all times bound by their most current version that has been
communicated to Executive.
(vi) The provisions of Section 9 shall survive the
termination of Executive's employment for any reason.
10. Specific Performance. Executive acknowledges and agrees
that the Company's remedies at law for a breach or threatened breach of any of
the provisions of Section 8 or Section 9 would be inadequate and the Company
would suffer irreparable damages as a result of such breach or threatened
breach. In recognition of this fact, Executive agrees that, in the event of such
a breach or threatened breach, in addition to any remedies at law, the Company,
without posting any bond, shall be entitled to cease making any payments or
providing any benefit otherwise required by this Agreement and obtain equitable
relief in the form of specific performance, temporary restraining order,
temporary or permanent injunction or any other equitable remedy which may then
be available.
11. Gross-Up.
a. In the event it shall be determined that any payment,
benefit or distribution (or combination thereof) by the Company, any of its
affiliates, or one or more trusts established by the Company for the benefit of
its employees, to or for the benefit of Executive (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement, any other
plan, arrangement or agreement with the Company or any of its affiliates, or
otherwise) other than any benefit or payment Executive is entitled to receive in
connection with any equity interest (including, without limitation, any option
to purchase such equity interest) held by
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Executive in the Foundation Coal Holdings, LLC or any of its subsidiaries and/or
successors (or any securities received in connection with such equity interest)
(a "Payment") is subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code")or any interest or
penalties are incurred by Executive with respect to such excise tax (such excise
tax, together with any such interest and penalties, hereinafter collectively
referred to as the "Excise Tax"), Executive shall be entitled to receive an
additional payment (a "Gross-Up Payment") in an amount such that after payment
by Executive of the Excise Tax imposed on the Payments and any income,
employment and other taxes (and any interest and penalties imposed with respect
thereto) and the Excise Tax imposed upon the Gross-Up Payment, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
b. All determinations required to be made under this
Section 11, including whether and when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be utilized in arriving
at such determination, shall be made by Deloitte & Touche, LLP or such other
nationally recognized certified public accounting firm as may be designated by
the Company (the "Accounting Firm") which shall provide detailed supporting
calculations both to the Company and Executive within 15 business days of the
receipt of notice from Executive that there has been a Payment, or such earlier
time as is requested by the Company; provided, that for purposes of determining
the amount of any Gross-Up Payment, Executive shall be deemed to pay federal
income tax at the highest marginal rates applicable to individuals in the
calendar year in which any such Gross-Up Payment is to be made and deemed to pay
state and local income taxes at the highest effective rates applicable to
individuals in the state or locality of Executive's residence or place of
employment in the calendar year in which any such Gross-Up Payment is to be
made, net of the maximum reduction in federal income taxes that can be obtained
from deduction of such state and local taxes, taking into account limitations
applicable to individuals subject to federal income tax at the highest marginal
rates. All fees and expenses of the Accounting Firm shall be borne solely by the
Company. Any Gross-Up Payment, as determined pursuant to this Section 11, shall
be paid by the Company to Executive (or to the appropriate taxing authority on
Executive's behalf) when the associated Excise Tax is due. If the Accounting
Firm determines that no Excise Tax is payable by Executive, it shall so indicate
to Executive in writing. Any determination by the Accounting Firm shall be
binding upon the Company and Executive. As a result of the uncertainty in the
application of Section 4999 of the Code, it is possible that the amount of the
Gross-Up Payment determined by the Accounting Firm to be due to (or on behalf
of) Executive was lower than the amount actually due ("Underpayment"). In the
event that the Company exhausts its remedies pursuant to Section 11(c) and
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall be promptly paid by the Company to or for the
benefit of Executive.
c. Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of any Gross-Up Payment. Such notification shall be given
as soon as practicable but no later than ten business days after Executive is
informed in writing of such claim and shall apprise the Company of the nature of
such claim and the date on which such claim is requested to be paid.
13
Executive shall not pay such claim prior to the expiration of the thirty day
period following the date on which Executive gives such notice to the Company
(or such shorter period ending on the date that any payment of taxes with
respect to such claim is due). If the Company notifies Executive in writing
prior to the expiration of such period that it desires to contest such claim,
Executive shall (i) give the Company any information reasonably requested by the
Company relating to such claim, (ii) take such action in connection with
contesting such claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Company, (iii)
cooperate with the Company in good faith in order to effectively contest such
claim and (iv) permit the Company to participate in any proceedings relating to
such claim; provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold Executive harmless, on
an after-tax basis, for any Excise Tax or income tax (including interest and
penalties with respect thereto) imposed as a result of such representation and
payment of costs and expenses. Without limitation on the foregoing provisions of
this Section 11(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forego any
and all administrative appeals, proceedings, hearings and conferences with the
taxing authority in respect of such claim and may, at its sole option, either
direct Executive to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Executive agrees to prosecute such contest
to a determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided, further, that if the Company directs Executive to pay such
claim and xxx for a refund, the Company shall advance the amount of such payment
to Executive, on an interest-free basis, and shall (to the extent permitted by
law) indemnify and hold Executive harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; provided, further, that if Executive is required to
extend the statute of limitations to enable the Company to contest such claim,
such extension shall be limited solely to such contested amount. The Company's
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
d. If, after the receipt by Executive of an amount paid or
advanced by the Company pursuant to this Section 11, Executive becomes entitled
to receive any refund with respect to a Gross-Up Payment, Executive shall
(subject to the Company's complying with the requirements of Section 11(c))
promptly pay to the Company the amount of such refund received (together with
any interest paid or credited thereon after taxes applicable thereto). If, after
the receipt by Executive of an amount advanced by the Company pursuant to
Section 11(c), a determination is made that Executive shall not be entitled to
any refund with respect to such claim and the Company does not notify Executive
in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of the Gross-Up Payment required
to be paid.
14
12. Miscellaneous.
a. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed entirely within such jurisdiction. Except as
provided in Section 10 of this Agreement, any controversy or claim arising out
of or relating to this Agreement or Executive's employment with the Company or
the termination thereof shall be resolved by binding confidential arbitration,
to be held in New York, New York, in accordance with the Employee Dispute
Resolution Rules of the American Arbitration Association. Judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof. The costs and expenses incurred in connection with such
arbitration shall be borne by the party that does not prevail in such
arbitration. Each party shall be responsible for such party's legal fees and
expenses incurred in connection with such arbitration.
b. Entire Agreement/Amendments. This Agreement contains the
entire understanding of the parties with respect to the employment of Executive
by the Company. There are no restrictions, agreements, promises, warranties,
covenants or undertakings between the parties with respect to the subject matter
herein other than those expressly set forth herein. This Agreement may not be
altered, modified, or amended except by written instrument signed by the parties
hereto.
c. No Mitigation; No Offset. In the event of any
termination of Executive's employment under Section 7 of this Agreement,
Executive shall be under no obligation to seek other employment and there shall
be no offset against amounts due Executive under this Agreement, or otherwise,
on account of any remuneration or other benefit attributable to any subsequent
employment that Executive may obtain.
d. Indemnification; D&O Insurance. Executive shall be
indemnified to the same extent as other senior executives, officers and
directors with respect to Executive's service as an employee and director of the
Company and the LLC. During the Employment Term, the Company shall keep in place
a directors and officers' liability insurance policy (or policies) providing
comprehensive coverage to Executive to the extent that the Company provides such
coverage for any other senior executive, officer or director of the Company and
following the Employment Term, Executive shall be entitled to such coverage to
the extent that the Company provides such coverage for any other current and
former senior executive, officer or director of the Company.
e. No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall not be considered
a waiver of such party's rights or deprive such party of the right thereafter to
insist upon strict adherence to that term or any other term of this Agreement.
f. Severability. In the event that any one or more of the
provisions of this Agreement shall be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not be affected thereby.
15
g. Assignment. This Agreement, and all of Executive's
rights and duties hereunder, shall not be assignable or delegable by Executive.
Any purported assignment or delegation by Executive in violation of the
foregoing shall be null and void ab initio and of no force and effect. This
Agreement shall be assigned by the Company to a person or entity which is an
affiliate or a successor in interest to substantially all of the business
operations of the Company. Upon such assignment, the rights and obligations of
the Company hereunder shall become the rights and obligations of such affiliate
or successor person or entity.
h. Successors; Binding Agreement. This Agreement shall
inure to the benefit of and be binding upon personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees.
i. Notice. For the purpose of this Agreement, notices and
all other communications provided for in the Agreement shall be in writing and
shall be deemed to have been duly given when delivered by hand or overnight
courier or three days after it has been mailed by United States registered mail,
return receipt requested, postage prepaid, addressed to the respective addresses
set forth below in this Agreement, or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
If to the Company:
Foundation Coal Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
If to Executive:
To the most recent address of Executive set forth in the
personnel records of the Company.
j. Representations.
(i) Executive hereby represents to the Company that the
execution and delivery of this Agreement by Executive and the Company and the
performance by Executive of Executive's duties hereunder shall not constitute a
breach of, or otherwise contravene, the terms of any employment agreement or
other agreement or policy to which Executive is a party or otherwise bound.
(ii) The Company represents and warrants that (A) it is fully
authorized by action of its Board (and of any other person or body whose action
is required) to enter into this Agreement and to perform its obligations under
it; (B) to the best of its knowledge and belief, the execution, delivery and
performance of this Agreement by the Company does not violate any law,
regulation, order, judgment or decree or any agreement, plan or corporate
governance document of the Company or its affiliates or shareholders; and (C) to
the best of its knowledge
16
and belief, upon the execution and delivery of this Agreement by the parties,
this Agreement shall be the valid and binding obligation of the Company,
enforceable in accordance with its terms, except to the extent enforceability
may be limited by applicable bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally.
k. Prior Agreements. This Agreement supercedes all prior
agreements and understandings (including verbal agreements) between Executive
and the Company and/or its affiliates regarding the terms and conditions of
Executive's employment with the Company and/or its affiliates including, without
limitation, the Prior Agreements.
l. Cooperation. Executive shall provide Executive's reasonable
cooperation in connection with any action or proceeding (or any appeal from any
action or proceeding) which relates to events occurring during Executive's
employment hereunder and does not unreasonably interfere with the Executive's
subsequent employment. This provision shall survive any termination of this
Agreement. The Company agrees to reimburse, in accordance with Company policies,
Executive promptly for Executive's reasonable and documented out-of-pocket
expenses incurred in connection with the cooperation obligation set forth in
this Section 12(m). Notwithstanding the foregoing the preceding cooperation
obligation shall not apply to any actions proceeding or controversy between
Executive and the Company or as to which it could reasonably be determined that
Executive's right to subsequently enforce Executive's rights under this
Agreement could be prejudiced.
m. Withholding Taxes. The Company may withhold from any
amounts payable under this Agreement such Federal, state and local taxes as may
be required to be withheld pursuant to any applicable law or regulation.
n. Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
FOUNDATION COAL CORPORATION XXXXX X. XXXXX
/s/ Xxxxx Xxxxxxx /s/ Xxxxx X. Xxxxx
------------------------------------------ -----------------------------------
By: Xxxxx Xxxxxxx
Title: Chief Executive Officer
EXHIBIT A
FC 1 CORP.
MANAGEMENT EQUITY TERM SHEET
OPTIONS
Amount: Nonqualified options ("Options") to acquire 9% of the
outstanding shares of common stock ("Shares") of FC 1
Corp. (the "Company") will be granted to the members of
the senior management team listed on Schedule 1 (the
"Senior Managers"). 2.5% of the outstanding shares of
common stock will be granted as "Time Options" (i.e.,
options vesting as described under "Time Vesting" below)
and 6.5% of the outstanding shares of common stock will
be granted as "Performance Options" (i.e., options
vesting as described under "Performance Vesting" below).
Exercise Price: The Time Options shall have a per share exercise price
equal to the imputed price per share of Company common
stock paid by the Investor Members (as defined in the
Amended and Restated Limited Liability Company Operating
Agreement of Foundation Coal Holdings, LLC (the "LLC
Agreement")) for their Class A Units (as defined in the
LLC Agreement) (the "Deal Price") and the Performance
Options shall have a per share exercise price equal to
1.75 times the Deal Price. The aggregate exercise price
of the Time Options is approximately $5,384,615, and the
aggregate exercise price of the Performance Options is
approximately $24,500,000. A Senior Manager may pay the
exercise price by any combination of (i) payment in cash
or its equivalent, (ii) following an IPO, through a
cashless "broker transaction" and (iii) to the extent it
does not result in adverse accounting treatment to the
Company, (A) tendering to the Company Shares or Class A
Units (as defined in the LLC Agreement) based on their
Fair Market Value or (B) having Shares that would
otherwise have been delivered to the Senior Manager upon
exercise of such Option withheld by the Company, based on
their Fair Market Value. The Company shall use its
commercially reasonable efforts to file an S-8, to the
extent available, with respect to the Shares subject to
Options, as soon as practicable following an initial
registered public offering of the Shares ("IPO"). A
Senior Manager shall have the right to satisfy the
minimum required withholding tax obligation due upon the
exercise of an Option by having Shares, with an aggregate
Fair Market Value (as defined below), as the date of such
exercise, equal to such withholding tax obligation,
withheld by the Company from any Shares that would
otherwise have been delivered to the Senior Manager upon
exercise of such Option.
Allocation: The Time Options and Performance Options shall be
allocated and granted to employees in the respective
amounts set forth on Schedule 1.
Time Vesting: Subject to the Senior Managers continued employment, the
Time Options will vest and become exercisable with
respect to 20% of the shares subject to the
2
Time Options on each December 31 beginning on December
31, 2004 and ending on December 31, 2008.
Performance Subject to the Senior Managers continued employment, the
Vesting: Performance Options will vest and become exercisable on
the 8th anniversary of the date of grant, subject to
partial accelerated vesting each calendar year through
December 31, 2008, with respect to five percent (5%) of
the Shares subject to the Performance Options upon
achievement of each of the annual performance targets set
forth below (i.e., achievement of each performance target
for a particular year results in the five percent (5%)
vesting):
- EBITDA
- Production
- Cost per ton
- Free cash flow
Such targets are more fully set forth on Schedule II.
If a performance target is not achieved in any year (a
"Missed Year"), but the aggregate of such performance
target is achieved with respect to the Missed Year and
the following year (an "Excess Year"), 100% of the
Performance Options with respect to such performance
target that did not vest in the Missed Year shall vest.
Termination of The Options will have a term of 10 years and the vested
Employment: portion of the Options will expire (i) 90 days (120 days
prior to an IPO) following termination of employment for
any reason other than due to termination by the Company
for Cause (as defined below), death, or disability, (ii)
immediately upon termination by the Company for Cause and
(iii) 1 year following termination of employment due to
death or disability. Notwithstanding the foregoing, (i)
if a Senior Manager's termination of employment for any
reason other than by the Company for Cause occurs after
the close of a calendar year but prior to the date on
which the Senior Manager is advised by the Company
whether the performance targets in respect of such
calendar were attained (the "Target Determination Date"),
the portion of the Performance Option which is available
to vest on account of such calendar year's performance
will expire (A) on the Target Determination Date, in
respect of the portion of such Performance Option as to
which the performance targets were not attained (unless
the application of clause (ii) below would result in a
later termination date), and (B) 90 days (120 days prior
to an IPO) following the Target Determination Date in
respect of the portion of such Performance Option as to
which the performance targets were attained, and (ii) if
a Senior Manager's termination of employment by the
Company without Cause or by the Senior Manager for Good
Reason occurs during a calendar year, then the portion of
the Performance Option which is available to vest on
account of such calendar
3
year's performance in accordance with the third following
paragraph will expire (A) on the Target Determination
Date, in respect of the portion of such Performance
Option as to which the performance targets were not
attained and (B) 90 days (120 days prior to an IPO)
following the Target Determination Date in respect of the
portion of such Performance Option which becomes vested
in accordance with the third following paragraph.
Depending upon the circumstance of termination, the
Senior Manager may be entitled to the Option Exercise Put
Right as described below.
Other than as stated above, any unvested Options will be
forfeited upon a termination of the Senior Manager's
employment for any reason; provided, that, in the event
that a Senior Manager's employment is terminated by the
Company without Cause (as defined below) or by the Senior
Manager for Good Reason (as defined below), (x) the CEO
shall be deemed vested in 100% of his outstanding Time
Options upon such termination of employment and (y) the
other Senior Managers shall be deemed vested in any Time
Options that would have otherwise vested in the calendar
year in which such termination of employment occurs. In
the event of a termination of a Senior Manager's
employment due to death or disability, the Senior Manager
shall be deemed vested in any Time Options that would
otherwise have vested in the calendar year in which such
termination of employment occurs and the following
calendar year.
In the event of the termination of a Senior Manager's
employment by the Company without Cause or by a Senior
Manager for Good Reason, the Senior Managers shall become
vested in any Performance Options as to which the
performance targets are achieved for the year of
termination, or for a Missed Year due to performance for
the year of termination.
Option In the event of a termination of a Senior Manager's
Exercise Put employment for any reason, other than (i) by the Company
Right for Cause or (ii) due to the Senior Manager's resignation
without Good Reason, upon exercise of an Option following
such termination of employment and prior to the date the
shares subject to the Option are registered and freely
tradable following an IPO of the Company's equity
securities (the "Put Exercise"), the Senior Manager will
have the right (the "Option Exercise Put Right") to
require the Company to purchase a number of Class A Units
or shares of common stock of the Company, in each case,
which, to the extent necessary to avoid adverse
accounting consequences, have been held by the Senior
Manager for at least six months with an aggregate Fair
Market Value, as of the date of such purchase, equal to
the remaining tax liability (above the minimum required
withholding tax liability) incurred by the Senior Manager
upon the exercise of such Option (the "Remaining Tax
Liability"). The Option Exercise Put Right may be
exercised by the Senior Manager at any time within 210
days following the Senior Manager's exercise of the
Option (under the circumstances described above)
(provided, that the Option Exercise Put Right may not be
exercised prior to 181 days following the Senior
Manager's exercise of the Option to the extent that the
Senior Manager
4
intends to require the Company to purchase the Shares
received in connection with the Put Exercise) by
providing the Company with written notice of exercise
thereof and written representation detailing the
calculation of the Remaining Tax Liability, which
calculation shall be reasonably acceptable to the
Company. For the avoidance of doubt, Shares will not be
deemed to be "freely tradable" for purposes of this
paragraph if they are subject to an underwriter's lockup
agreement.
The Company shall pay the purchase price due upon the
exercise of the Option Exercise Put Right within 3
business days following the Senior Manger's tendering of
the related shares or Units by delivery of funds
deposited into an account designated by the Senior
Manager, a bank cashier's check, a certified check or a
company check of the Company for the purchase price.
Notwithstanding anything to the contrary elsewhere
herein, the Company shall not be obligated to pay for the
Units or shares purchased in connection with the exercise
of an Option Exercise Put Right (i) to the extent that
the purchase of such Units or shares would result (x) in
a violation of any law, policy, writ or judgment
promulgated or entered by any governmental authority
applicable to the Company or any of its affiliates or any
of its or their assets or (y) after giving effect thereto
(including any dividends or other distributions or loans
from an affiliate of the Company to the Company in
connection therewith), in a financing default, or (ii) if
immediately prior to such purchase of Units or shares,
there exists a financing default which prohibits such
purchase (including any dividends or other distributions
or loans from an affiliate of the Company to the Company
in connection therewith).
Change of Upon a Change of Control (as defined below) (i) all
Control unvested Time Options will vest and (ii) the unvested
Provisions: Performance Options will vest with respect to the
performance year in which the Change of Control occurred
and the remaining performance years following the Change
of Control if, and only if, the value realized by the
Investor Members with respect to their investment in the
Company whether prior to or in the transaction, and
including amounts received through distributions
(excluding tax and regular quarterly dividends) or
disposition of their interests in Units of stock of the
Company represents a 2.0x or greater return to the
Investor Members on their invested capital. If a Senior
Manager is terminated by the Company without Cause prior
to a Change of Control and a Change of Control is
consummated by the Company within 180 days following the
termination of such Senior Manager, the vesting of the
Options with respect to such Senior Manager will be
recalculated taking into account the Change of Control as
if such Change of Control had occurred prior to the
termination of the Senior Manager.
Management The shares issued in connection with the exercise of an
Shareholders Option will be subject to the terms and conditions of a
Agreement: management shareholders' agreement (described below).
5
MANAGEMENT SHAREHOLDERS AGREEMENT:
Any shares issued upon the conversion of Class A Units purchased and the shares
issued upon exercise of an Option (together, the "Shares") will be subject to
the following terms and conditions.
Representation: Senior Managers will make customary representations
regarding investment intent, financial sophistication and
enforceability.
Transfer Shares will be subject to a restriction on transfer prior
Restrictions: to the earlier to occur of (i) one or more primary or
secondary public offerings that results in gross proceeds
to the Company or the holders participating therein in
excess of $50 million (a "Qualified IPO"), (ii) the
occurrence of a Change of Control and (iii) a period of
five years (the earliest of (i), (ii) or (iii), the
"Lapse Date").
The transfer restriction shall not apply to sales to the
Company and sales to the Investor Members or their
affiliates.
The transfer restriction shall not apply to sales in
accordance with the drag along and tag along rights (see
below) or transfers to family member or family trusts.
Right of First If the Lapse Date occurs prior to Change of Control or an
Refusal: IPO, the Company will have a right of first refusal on
any proposed sale of Shares until a Change of Control or
an IPO.
Drag Along The Investor Members will have the right to drag along
Shares in the event of any private sale to a third party
in the same proportion as the Investor Member's Shares
are sold. The drag along rights shall be on substantially
the same terms as the drag along rights relating to the A
Units under the LLC Agreement and the Management Members
Agreement.
Tag Along: The Senior Managers shall have the right to tag along in
the event of a private sale by the Investor Members to a
third party in the same proportion as the Investor
Member's Shares are sold. The tag along rights shall be
on substantially the same terms as the tag along rights
relating to the A Units under the LLC Agreement and the
Management Members Agreement.
Call Rights: Shares shall be subject to call rights by the Company
upon the termination of the Senior Manager's employment
for any reason prior to a Qualified IPO. The call right
will be exercisable by the Company for a period of 210
days following the later of (x) such Senior Manager's
termination of employment or (y) in the case of Shares
issued upon the exercise of Options, the date of exercise
of such Options, and, if the Company does not exercise
such rights within the applicable 210 day period, the
Investor Members will have the right to call such Shares
for a period of 30 days thereafter.
6
The purchase price for Shares will be the lower of cost
and Fair Market Value on date of exercise of the call
upon a termination of a Senior Manager's employment by
the Company for Cause.
The purchase price for Shares will be Fair Market Value
on date of exercise of the call upon a termination under
any other circumstances.
The purchase price may be paid in cash or by note payable
in installments of up to five years, bearing interest at
the prime lending rate in effect as of the date of
purchase on substantially the same terms as the call
rights applicable to the Class A Units under the
Management Members Agreement.
Fair Market The Fair Market Value for the Company and Investor Member
Value call rights and Option Exercise Put Rights described
herein will be determined by the Board in good faith
(without any discounts with respect to a termination by
the Company without Cause, by the Senior Manager with
Good Reason, death or disability, but with a 25% discount
to reflect minority interest and illiquidity in the event
of a termination by the Company with Cause or by the
Senior Manager without Good Reason). If the Senior
Manager disagrees with the Boards determination, he or
she may require the Company to retain an independent
appraiser to determine the fair market value (evaluated
based on the discounts in the preceding sentence). The
Company will bear the cost of the appraisal unless the
appraised value is within 10% of the Board's
determination, in which case, the Senior Manager will
bear the cost of the appraisal. If a Senior Manager is
terminated by the Company without Cause prior to a Change
of Control or a Qualified IPO and a Change of Control or
a Qualified IPO is consummated by the Company within 180
days following the termination of such Senior Manager,
fair market value with respect to such Senior Manager
will be recalculated taking into account the Change of
Control or a Qualified IPO as if such Change of Control
or a Qualified IPO had occurred prior to the termination
of the Senior Manager. The methodology used in
determining the Fair Market Value of the Shares in
connection with the Option Exercise Put Right shall be
the same methodology used by the Company in determining
the Senior Manager's reportable compensation upon
exercise of an Option.
Voting Until the occurrence of the Lapse Date, the Senior
Agreement: Managers will be obligated to vote any Shares with
respect to all matters in the same proportion as the
Shares held by the Investor Members are voted on such
matters.
Registration Senior Managers will be given customary piggyback
Rights: registration rights (other than in the primary IPO)
substantially consistent with the Registration Rights
Agreement, subject to brokerage restrictions and lock-out
periods imposed by the underwriters; provided, that, with
respect to incidental registrations, the Senior Managers
will have priority after the Investor Members.
Preemptive Same as A Units until a Qualified IPO.
Rights:
7
Definitions: "Cause" has the meaning set forth in the employment
agreement between the applicable Senior Manager and the
Company or its affiliate to which this Exhibit A is
attached.
"Change of Control" has the meaning set forth in the LLC
Agreement.
"Good Reason" has the meaning set forth in the employment
agreement between the applicable Senior Manager and the
Company or its affiliate to which this Exhibit A is
attached.
SCHEDULE I
(ALLOCATION OF OPTION GRANTS)
SENIOR MANAGER PERCENT OF OUTSTANDING
----------------------------------------------------------
Xxxxx X. Xxxxx .75%
Approximately 27.78% of the shares subject to each grant shall be Time
Options and approximately 72.22% of the shares subject to each
grant shall be Performance Options.
SCHEDULE II
(PERFORMANCE TARGETS)
"Actual Cost Per Ton" means, in respect of a fiscal year, the
cost per ton of coal to the Company determined on a basis consistent with the
forecasts utilized for the performance targets.
"Actual EBITDA" has the meaning set forth in the Credit
Agreement dated as of July 30, 2004 by and among Foundation PA Coal Company, as
borrower, FC 2 Corp. and Foundation Coal Corporation, as guarantors, and the
lenders named therein as in effect on the date hereof.
"Actual Free Cash Flow" means, in respect of a fiscal year,
EBITDA less the sum of capital expenditures as set forth in its audited
financial statements.
"Actual Production" means, in respect of a fiscal year, the
sum of (i) tons produced in East and (ii) tons produced in West divided by 5.
"Target Free Cash Flow" means, $59.4 million in respect of
2004, $113.1 million in respect of 2005, $183.7 million in respect of 2006,
$83.5 million in respect of 2007 and $144.1 million in respect of 2008; provided
that the Board may make such equitable adjustments to Target Free Cash Flow as
it reasonably deems to be appropriate in order to achieve the intention of this
agreement after giving effect to significant events including, without
limitation, acquisitions, dispositions, mergers or similar transactions.
"Target Cost Per Ton" means, in respect of any fiscal year is
to be based on the cost per ton forecasts consistent with the forecast utilized
for the other performance targets.
"Target EBITDA" means, $153.7 million in respect of 2004,
$238.1 million in respect of 2005, $267.6 million in respect of 2006, $261.9
million in respect of 2007 and $212.2 million in respect of 2008; provided, that
the Board may make any adjustment to EBITDA as it deems to be appropriate
(including adjustments made as a result of acquisitions, dispositions, mergers,
recapitalizations, reorganizations, consolidations, spin-offs, distributions,
other extraordinary transactions, other changes in the structure of the Company
or any of its Affiliates, or significant capital expenditures so that Target
EBITDA equitable reflects the basis for determining Actual EBITDA for the period
in question).
"Target Production" means, 28.6 million tons in respect of
2004, 29.5 million tons in respect of 2005, 29.8 million tons in respect of
2006, 28.9 million tons in respect of 2007 and 29.1 million tons in respect of
2008; provided that the Board may make such equitable adjustments to Target
Production as it reasonably deems to be appropriate in order to achieve the
intention of this agreement after giving effect to significant events including,
without limitation, acquisitions, dispositions, mergers or similar transactions.
