Exhibit 10.13
CONSULTING AGREEMENT
This Consulting Agreement is effective as of September 1, 1992 between ARCH
MINERAL CORPORATION, a Delaware Corporation, XxxxXxxxx Xxx, Xxxxx 000, Xx.
Xxxxx, Xxxxxxxx 00000 (Arch) and XXXXXX X. SAMPLES, 0 Xxxxxxx Xxxx, Xxxxx,
Xxxxxxxx 00000 (CONSULTANT).
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Arch is in the business of mining and selling coal.
CONSULTANT is an experienced person in the mining industry and has retired
from Arch.
Arch desires to utilize CONSULTANT's services, and CONSULTANT desires to
provide such services.
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IN CONSIDERATION of the mutual promises and conditions contained herein,
the parties hereto agree as follows:
SECTION 1. SCOPE OF SERVICES
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1.1 CONSULTANT agrees to provide services as designated by Arch and Arch
agrees to accept and pay for those services as set forth in this Agreement.
"Services" shall mean CONSULTANT's advising, counseling, recommending and
assisting Arch in any aspect of coal mining or in exploring for, developing,
preparing, storing, loading, unloading, transporting, selling, using or
otherwise handling or dealing in coal or in any matter relating thereto in which
CONSULTANT has knowledge, experience or expertise. "Services" shall be provided
in any state in which Arch may now or hereafter elect to acquire coal reserves
or conduct coal mining operations or have business of any manner.
1.2 CONSULTANT shall also serve as Chairman of the Board of Directors of
Arch and shall serve ln that capacity in a non-executive capacity with such
authority as designated by the Chief Executive Officer (CEO) of Arch.
CONSULTANT shall make Services available to Arch for a minimum of one
hundred (100) days per Contract Year, when and as requested by Arch. CONSULTANT
shall not be required to provide Services (but may consent to provide same
hereunder) to the extent that same are requested by Arch on the basis of a
request made less than 48 hours before the time of the need for same. CONSULTANT
shall not be required to render Services during vacation periods. As an
independent Contractor, CONSULTANT shall have no established work schedule nor
will it be necessary for CONSULTANT to obtain permission from Arch to be absent
from Arch's office location.
Arch agrees to provide CONSULTANT adequate facilities and support services
for the performance of CONSULTANT's obligations.
1.3 Nothing herein shall be construed to require Arch to request or
utilize the Services. However, regardless of whether Arch uses CONSULTANT's
Services, Arch shall pay CONSULTANT the minimum retainer fee set forth below so
long as this Agreement is in effect.
SECTION 2. TERM
---------------
This Agreement shall be in effect for one year commencing September 1, 1992
and ending August 31, 1993, unless otherwise amended or extended.
CONSULTANT or Arch may terminate this Agreement at any time if CONSULTANT
becomes unable to provide the services because of physical or mental disability
or death. A Contract Year is defined as twelve (12) consecutive calendar months
beginning on September 1.
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SECTION 3. COMPENSATION
-----------------------
As full payment for all Services under this Agreement, Arch shall pay to
CONSULTANT the following:
(a) an annual retainer fee of One Hundred Twenty-five Thousand Dollars
($125,000) to be paid on September 15 of any Contract Year. It is understood
that the retainer fee shall be paid in equal monthly installments beginning on
September 15, 1992. Arch shall be obligated to pay this fee regardless of
whether Services are requested by Arch. If the Agreement is terminated because
of the death of the CONSULTANT, or if the CONSULTANT becomes physically or
mentally disabled as determined by a physician appointed by Arch and Arch
terminates the Agreement after September 1, but before September 15, Arch shall
pay the CONSULTANT (or his estate if deceased) the annual Retainer due for that
Contract Year, but shall not be obligated for any further payments.
(b) if CONSULTANT renders Services in excess of one hundred (100) days per
year then Arch shall pay CONSULTANT One Thousand Two Hundred Fifty Dollars
($1,250) per day for each day of Services performed for the remainder of any
Contract Year.
(c) an amount equal to all of the CONSULTANT's reasonable out-of-
pocket expenses paid in providing the Services. It is understood that those
expenses to be reimbursed by Arch shall be those which are authorized by Arch's
agent and which are permitted under the terms of Arch's Corporate Policy
regarding such expenses.
Arch shall remit payments to CONSULTANT for all amounts due under this
Agreement upon the basis of invoices sent by CONSULTANT to Arch within the first
ten (10) days of each calendar month following the calendar month for which same
are due. Such invoice shall set forth the number of days of Services provided by
CONSULTANT for the month and for the Contract Year
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to date through the end of the month. CONSULTANT shall support invoices for out-
of-pocket expenses with receipts and other documentation reasonably required by
Arch. Payments by Arch shall be made within twenty (20) days after Arch receives
CONSULTANT's expense report and any attached invoices related thereto.
SECTION 4. TAXES AND INSURANCE
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4.1 Arch shall not withhold any taxes for CONSULTANT. CONSULTANT shall be
responsible for the payment of any taxes which might be owed as the result of
the services provided under this Agreement.
4.2 Except for those benefits derived from CONSULTANT's Employee Benefit
Plan as a retiree of Arch, CONSULTANT shall be responsible for his own
insurance, workers compensation and other benefits.
4.3 Nothing herein shall be construed to limit or diminish any of
CONSULTANT's rights, privileges or duties under any employee benefit plan of
Arch pursuant to which CONSULTANT may be entitled.
SECTION 5. INDEMNIFICATION
--------------------------
CONSULTANT agrees to indemnify and defend Arch from all liability and
claims of liability to third parties resulting from, or in connection with, the
providing of Services by CONSULTANT under the terms of this Agreement.
SECTION 6. INDEPENDENT CONTRACTOR
---------------------------------
It is the intention of the parties that CONSULTANT shall perform all
Services in the capacity of an independent contractor and nothing contained
herein is to be construed to be inconsistent therewith. CONSULTANT shall not be
considered an employee of Arch but shall always act in the
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capacity of an independent contractor, and as such, Arch shall not exercise
control as to the manner or method by which CONSULTANT shall perform Services
under this Agreement. The Services shall be performed in such place or places as
Arch may, from time to time, designate.
SECTION 7. AGENT OF ARCH FOR PURPOSE OF THIS AGREEMENT
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The CEO of Arch or any person designated by him shall be the agent of Arch
for the purpose of this Agreement (Arch's Agent). Arch shall have the right to
designate another person instead of the CEO as Arch's Agent upon written notice
to CONSULTANT. Arch's Agent shall administer this Agreement on behalf of Arch
including, but not limited to, requests for Services, approval of invoices, and
oversight of the covenant not to compete in this Agreement. CONSULTANT
acknowledges that he has no actual authority to bind Arch without the prior
written authorization of the CEO or his designee as set forth herein, and that
notwithstanding the fact that he may continue to serve as Chairman of Arch's
Board of Directors that he is not an executive officer of Arch. In all cases, in
dealing with third parties, CONSULTANT shall disclose the fact that he has no
actual or apparent authority to bind Arch especially where it may otherwise
appear to such third parties.
SECTION 8. COVENANT NOT TO COMPETE
----------------------------------
During the term of this Agreement, CONSULTANT shall not knowingly, directly
or indirectly participate in activity, including the sale of coal, which is in
competition with Arch or any of its subsidiaries or affiliates, or otherwise
attempt to obtain business Arch has or is attempting to negotiate. CONSULTANT
also agrees not to render Services to any competitor of Arch or to provide
information to any other company engaged in litigation in which Arch is involved
or in which Arch takes an interest in the outcome thereof. Before undertaking
any work or other activities which might violate the provisions of this section,
CONSULTANT shall fully disclose to Arch's Agent the
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circumstances of such work or other activity.
SECTION 9. CONFIDENTIALITY
--------------------------
CONSULTANT shall hold confidential any activities performed for Arch under
this Agreement.
SECTION 10. NON-ASSIGNABILITY
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The performance of the Services under this Agreement is personal to
CONSULTANT and shall not be assigned.
SECTION 11. NOTICES
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Any notice or communication provided for in this Agreement shall be in
writing and given by either delivering the notice in person or by registered or
certified mail, postage prepaid, or by fax to the address listed below:
If to Arch:
Arch Mineral Corporation
CityPlace Xxx
Xxxxx 000
Xx. Xxxxx, Xxxxxxxx 00000
Attention: CEO
PHONE: (000) 000-0000
FAX: (000) 000-0000
If to CONSULTANT:
Xxxxxx X. Samples
0 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
PHONE: (000) 000-0000
Each party may designate in writing a new mailing address for notices. Notice by
mail is deemed given as of the time of the postmark on the envelope.
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SECTION 12. GOVERNING LAW
-------------------------
This Agreement is deemed to be made under the laws of the State of
Missouri, and for all purposes, including interpretation, performance and
enforcement, shall be construed in accordance with the laws of that state,
without giving effect to the principles of conflict of laws.
SECTION 13. SECTION HEADINGS
----------------------------
Section headings have been inserted in this Agreement for convenience
of reference only and do not in any way affect the meaning of any provision
hereof.
SECTION 14. SURVIVAL OF OBLIGATIONS
-----------------------------------
All remedial, indemnification, and other obligations provided in this
Agreement shall survive the termination, cancellation, or expiration of this
Agreement.
SECTION 15. ENTIRE AGREEMENT
----------------------------
This Agreement represents the entire agreement between the parties,
and there are no other covenants, promises, agreements, conditions or
understanding either oral or written between them. Neither party may modify this
Agreement except by written agreement.
The parties have signed this Agreement as of the date entered on page
one.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxxx X. XxXxxx By /s/ Xxxxxx X. Samples
Title VP-HR Xxxxxx X. Samples
0 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
7
October 6, 0000
Xxxxxx X. Xxxxxxx
0 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Re: Letter Amendment No. 1 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement,
the parties agree that Section 5 entitled "Indemnification" as set forth on page
four of the Agreement is deleted in its entirety.
All other terms and conditions of the Agreement remain in effect.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxxx X. XxXxxx /s/ Xxxxxx X. Samples
Xxxxxxx X. XxXxxx, Vice Xxxxxx X. Samples
President-Human Resources
Xxxxxx X. Samples
0 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Re: Letter Amendment No. 2 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement,
the parties agree to amend the Agreement as follows:
1. The term of the Agreement is extended for one (1) year beginning September
1, 1993 and ending August 31, 1994.
2. All references to the minimum number of 100 days per Contract Year for
services are reduced from 100 days to 80 days per Contract Year.
3. The annual retainer fee of $125,000 per Contract Year set forth in Section
3(a) is reduced to $100,000 per Contract Year.
4. All references to $1,250 per day for those services in excess of the
minimum number of days per year is reduced to $1,000 per day for each day
of services performed in excess of 80 days per Contract Year.
5. This Letter Amendment No. 2 is effective September 1, 1993.
6. All other terms and conditions of the Agreement remain in effect.
ARCH MINERAL CORPORATION CONSULTANT
/s/ Xxxxxxx X. XxXxxx /s/ Xxxxxx X. Samples
Xxxxxxx X. XxXxxx Xxxxxx X. Samples
Vice President-Human Resources
July 27, 0000
Xxxxxx X. Xxxxxxx
0 Xxxxxxx Xxxx
Xxxxx, Xxxxxxxx 00000
Re: Letter Amendment No. 3 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement,
the parties agree to amend the Agreement as follows:
1. The term of the Agreement is extended for one (1) year beginning September
1, 1994 and ending August 31, 1995.
2. All references to the minimum number of 80 days per Contract Year for
services are reduced to 60 days per Contract Year.
3. The annual retainer fee shall be $75,000 per Contract Year.
4. Section 3(b) of the Agreement is further amended to provide that Arch shall
continue to pay Consultant $1,000 per day for each day of services
performed in excess of 60 days per Contract Year.
5. This Letter Amendment No. 3 is effective September 1, 1994.
6. All other terms and conditions of the Agreement remain in effect.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxxx X. XxXxxx /s/ Xxxxxx X. Samples
Xxxxxxx X. XxXxxx Xxxxxx X. Samples
Vice President-Human Resources
August 7, 1995
Xxxxxx X. Samples
The Landings on Skid Way Island
00 Xxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Letter Amendment No. 4 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement,
the parties agree to amend the Agreement as follows:
1. The term of the Agreement is extended for one (1) year beginning September
1, 1995 and ending August 31, 1996.
2. All references to the minimum number of days per Contract Year for services
are reduced to 40 days per Contract Year.
3. The annual retainer fee shall be $50,000 per Contract Year.
4. Section 3(b) of the Agreement is further amended to provide that Arch shall
continue to pay Consultant $1,000 per day for each day of services
performed in excess of 40 days per Contract Year.
5. This Letter Amendment is effective September 1, 1995.
6. All other terms and conditions of the Agreement remain in effect.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxxx X. XxXxxx /s/ Xxxxxx X. Samples
Xxxxxxx X. XxXxxx Xxxxxx X. Samples
Vice President-Human Resources
September 5, 1996
Xxxxxx X. Samples
The Landings on Skid Way Island
00 Xxxx Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Letter Amendment No. 5 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement
and other good and valuable consideration, the parties hereby agree to the
following:
1. Subject to the termination provisions in the Agreement, the term of the
Agreement is extended until 11:59 p.m. on March 30, 1997.
2. This Letter Amendment is effective as of August 31, 1996.
3. All other terms and conditions of the Agreement, as amended, remain in full
force and effect.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Samples
Xxxxxx X. Xxxxx Xxxxxx X. Samples
March 30, 0000
Xxxxxx X. Xxxxxxx
#0 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Re: Letter Amendment No. 6 to the September 1, 1992 Consulting Agreement
----------------------
between Arch Mineral Corporation ("Arch") and Xxxxxx X. Samples
("Consultant") ("Agreement")
In consideration of the mutual terms and conditions contained in the Agreement
and other good and valuable consideration, the parties hereby agree to the
following:
1. Subject to the termination provisions in the Agreement, the term of the
Agreement is extended until 11:59 p.m. on June 30, 1997.
2. The retainer fee for the period March 31, 1997 through June 30, 1997 shall
be $7,000.
3. This Letter Amendment is effective as of March 31, 1997.
4. All other terms and conditions of the Agreement, as amended, remain in full
force and effect.
ARCH MINERAL CORPORATION CONSULTANT
By /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Samples
Xxxxxx X. Xxxxx Xxxxxx X. Samples
