AMENDED AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.2
AMENDED
AND RESTATED EXECUTIVE EMPLOYMENT AGREEMENT
This
Amended and Restated Executive Employment Agreement (this “Agreement”)
dated
as of the 5th day of October, 2007 is by and between United Fuel & Energy
Corporation, a Nevada corporation (“Employer”),
and
Xxxxxxx XxXxxxxx (“Employee”
and,
together with Employer, the “Parties”
and
each individually, a “Party”).
This
Agreement will become effective as of January 1, 2008 (the “Commencement
Date”).
RECITALS:
A. Employer
and Employee are each a party to that certain Executive Employment Agreement
dated September 2, 2005 (the “Original
Agreement”).
B. This
Agreement is intended to amend and restate the Original Agreement as of the
Commencement Date. Prior to the Commencement Date, this Agreement shall have
no
force or effect and the terms of the Original Agreement shall continue to
apply
to the employment relationship between the Employer and the Employee.
AGREEMENT:
NOW,
THEREFORE, in consideration of the premises and the mutual promises herein
made,
and in consideration of the representations, warranties, and covenants contained
herein, each Party agrees as follows:
1. Employment
Term.
This
Agreement will remain in effect from the Commencement Date and shall end
on the
date that is the third anniversary of the Commencement Date unless this
Agreement is earlier terminated in accordance with its express terms (the
“Initial
Term”);
provided, however, that upon the expiration of the Initial Term, and on each
anniversary of the Commencement Date thereafter, the term of this Agreement
shall automatically extend for an additional one-year term (each a “Renewal
Term,”
and
together with the Initial Term, the “Employment
Term”)
unless
(a) either Party gives the other Party four (4) months’ notice of its desire not
to extend this Agreement prior to the expiration of the Initial Term or Renewal
Term, as applicable, or (b) this Agreement is earlier terminated in accordance
with its express terms.
2. Responsibilities
and Authority.
Employer
hereby employs Employee to serve as its President and Chief Executive Officer.
In such capacity, Employee will have such duties and responsibilities as
determined by Employer’s Board of Directors (the “Board”)
consistent with the Employer’s Bylaws. If requested by Employer, Employee will
serve as an officer or director of Employer or any subsidiary of Employer
without additional compensation.
3. Acceptance
of Employment and Other Activities.
Employee
accepts employment, and Employer acknowledges Employee’s other activities as
follows:
3.1 Acceptance
of Employment.
Employee
accepts employment by Employer on the terms and conditions herein provided
and
agrees, subject to the terms of this Agreement, to devote all of Employee’s full
business time to Employer’s affairs. Employee shall not, during the term of this
Agreement: engage, directly or indirectly, in any other business activity
(whether or not pursued for pecuniary advantage) which might interfere with
Employee’s duties and responsibilities hereunder. The foregoing limitations
shall not be construed to prohibit Employee from (i) owning less than 5%
of the
equity interests of any person or company having a class of equity interests
actively traded on a national securities exchange or over-the-counter market;
(ii) making personal investments in such form or manner as will neither require
Employee’s services in the operation or affairs of the companies or enterprises
in which such investments are made nor violate the terms of Section 7 hereof;
or
(iii) owning non-operating oil and gas interests (including working interests)
in properties where the operator of such property may call upon Employer
or its
affiliates to provide goods and services; provided, however, in such instances
where the operator of such a property calls upon Employer or its affiliates
to
provide goods and services, Employee
will notify the members of the Employer’s audit committee of the board of
directors and will refrain from negotiating the price or terms of such goods
or
services to be provided by Employer and will delegate such responsibility,
if
any, to other senior management.
Employer acknowledges that Employee will from time-to-time serve on the boards
of philanthropic organizations or of public or private companies that do
not
compete against the Employer or its affiliates; provided that such service
does
not interfere with Employee’s duties and responsibilities hereunder.
Accordingly, the foregoing limitations shall not be construed to prohibit
Employee from serving on the boards of philanthropic organizations or of
public
or private companies that do not compete against the Employer or its affiliates,
provided that such service does not violate Section 7 hereof or otherwise
interfere with Employee’s duties and responsibilities hereunder, and provided
further that in instances where such philanthropic organization or public
or
private companies call upon the Employer or its affiliates to provide goods
or
services, Employee will notify the members of the Employer’s audit committee of
the board of directors and will refrain from negotiating the price or terms
of
such goods or services to be provided by Employer and will delegate such
responsibility, if any, to other senior management. The determination of
whether
a particular activity of the Employee violates this provision rests solely
with
the discretion of the Board.
4. Compensation
and Benefits.
As
compensation for Employee’s services hereunder, Employee will be entitled to the
following:
4.1 Base
Salary.
From and
after the Commencement Date, Employee will receive a base salary at the rate
of
$325,000 per annum (“Base
Salary”).
On
each of January 1, 2008, 2009 and 2010, Employee shall be eligible to receive
up
to a $25,000 raise at the discretion of the compensation committee of the
Board
(the “Compensation
Committee”).
The
Base Salary will be paid in substantially equal installments in accordance
with
Employer’s regular payroll practices, as in effect from time to time, and
subject to all appropriate withholdings.
4.2 Bonus.
Employee
shall be eligible to receive a cash bonus on an annual basis equal to up
to 100%
of Employee’s Base Salary in the event that Employee meets certain performance
criteria established in advance in writing by the Compensation Committee
for
such year (“Performance
Criteria”).
Additional bonuses may be paid to Employee at such times and in such amounts
as
may be determined in the sole discretion of the Compensation Committee. If
awarded, payment of all bonuses will be subject to all appropriate withholdings.
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4.4 Restricted
Stock Grants. In
addition to stock options previously granted to Employee under Employer’s stock
option plan, Employee shall be eligible to receive annual restricted stock
grants for up to 150,000 shares of common stock of Employer each (at the
discretion of the Compensation Committee). The restrictions on each grant
shall
lapse in four equal installments on the 6, 12, 18 and 24-month anniversaries
of
each such grant. Any such restricted stock grants made will occur following
the
completion of the audit of Employer’s financial statements for the year which is
the basis for the grant being issued.
4.5 Benefits.
Employee
will be entitled to receive the benefits specified on Exhibit
A
(“Benefits”).
4.6 Expense
Reimbursement.
Employer
will reimburse Employee for all expenses reasonably incurred or paid by Employee
in direct connection with the performance of Employee’s services under this
Agreement upon presentation of expense statements or vouchers and such other
supporting information as Employer may from time to time reasonably require
or
request (“Reimbursable
Expenses”),
subject to approval by the audit committee of the Board at the discretion
of the
audit committee of the Board.
5. Termination;
Payments upon Termination.
This
Agreement may be terminated upon the following terms:
5.1 Termination
Upon Death.
If
Employee should die during the Employment Term, this Agreement will terminate
on
the date of death. All Base Salary through such date and any amounts owed
for
Reimbursable Expenses that Employee incurs through such date, as well as
any
previously awarded but unpaid bonuses, will be paid to Employee’s designated
beneficiary as promptly as practicable following the date of death. All
restrictions on any restricted stock grants issued to Employee hereunder
shall
lapse. Employer shall provide, at its expense, health insurance coverage
to
Employee’s spouse and dependent children until the first anniversary of
Employee’s death. All other Benefits will, unless otherwise expressly set forth
on Exhibit
A,
otherwise provided by Employer policy applicable to its employees generally,
or
otherwise required by Law, terminate on the date of death.
5.2 Termination
Upon Disability.
This
Agreement shall automatically terminate upon the Employee’s Disability. The Base
Salary will continue to be paid to Employee through the date of Disability,
and
any amounts owed for Reimbursable Expenses that Employee incurs through such
date and any previously awarded but unpaid bonuses will be paid as promptly
as
practicable following such date. In such event of Employee’s Disability,
Employer will also continue to pay Employee the Base Salary in effect at
the
time of such Disability for a period of 6 months following the date of
Disability. All restrictions on any restricted stock grants issued to Employee
hereunder shall lapse. Employer shall provide, at its expense, life and health
insurance coverage to Employee for six months following the date of Disability.
All other Benefits will, unless otherwise expressly set forth on Exhibit
A,
otherwise provided by Employer policy applicable to its employees generally,
or
otherwise required by Law, terminate on the date of termination. “Disability”
means
(i) Employee is unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be expected
to result in death or can be expected to last for a continuous period of
not
less than 12 months; (ii) Employee is, by reason of any medically determinable
physical or mental impairment that can be expected to result in death or
can be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than three months under
an
accident and health plan covering employee’s of Employer; (iii) Employee is
determined to be totally disabled by the Social Security Administration;
or (iv)
Employee is determined to be disabled in accordance with a disability insurance
program, provided that the definition of disability applied under such
disability insurance program complies with the requirements of Treasury
Regulation Section 1.409A-3(i)(4). If a disagreement arises between Employee
and
Employer as to whether Employee is suffering from Disability, such issue
will be
determined by a physician designated by Employer. If Employee disagrees with
the
conclusion of such physician, then such physician and Employee’s physician will
choose a mutually acceptable physician to make such determination.
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5.3 Termination
by Employer For Cause.
Employer
will be entitled to terminate Employee’s employment at any time for Cause. The
Base Salary will continue to be paid to Employee through the date of
termination, and any amounts owed for Reimbursable Expenses that Employee
incurs
through such date and any previously awarded but unpaid bonuses will be paid
as
promptly as practicable to Employee following termination. All restricted
stock
grants issued to Employee hereunder still subject to restrictions shall be
forfeited. All Benefits will, unless otherwise required by Law, terminate
on the
date of termination. “Cause”
will
constitute any one of the following:
(a) Employee’s
continued failure to substantially perform Employee’s duties and
responsibilities (other than a failure resulting from a
Disability);
(b) Employee’s
engaging in willful, reckless, or grossly negligent misconduct that is
materially injurious to Employer, monetarily or otherwise;
(c) Employee’s
commission of a felony or a crime involving moral turpitude;
(d) Employee’s
breach of this Agreement and failure to cure such breach within thirty (30)
days
from the date that Employer gives notice thereof to Employee identifying
the
provision of this Agreement that Employer determined has been breached;
or
(e) Employee’s
commission of fraud, misappropriation, or personal dishonesty.
5.4 Termination
by Employer Without Cause.
Employer
may at any time terminate Employee’s employment without Cause. In such event,
the Base Salary will continue to be paid through such the date of termination,
and any amounts owed for Reimbursable Expenses that Employee incurs through
such
date and any previously awarded but unpaid bonus will be paid to Employee
promptly following termination. In addition, Employer will also continue
to pay
Employee, as severance, the Base Salary in effect at the time of such
termination for the remainder of the Employment Term in monthly installments;
provided, however, that if Employee is determined on the date of termination
to
be a “specified employee” for purposes of Section 409A of the Internal Revenue
Code, then such monthly payments of Base Salary for the remainder of the
Employment Term will not commence until the earlier of: (i) the first day
of the
seventh month after the month the Employee was terminated; or (ii) the
Employee’s death; and such monthly payments will then continue for an additional
six months following the end of the Employment Term. All restrictions on
any
restricted stock grants issued to Employee hereunder shall lapse. Employer
shall
provide, at its expense, life and health insurance coverage to Employee for
the
remainder of the Employment Term; provided, however, that if Employee is
determined on the date of termination to be a “specified employee” for purposes
of Section 409A of the Internal Revenue Code, then such continuation of life
and
health insurance coverage will be limited to the period during which the
Employee would be entitled, but for the terms of this Agreement, to continuation
of coverage under the federal law knows as COBRA. All other Benefits will,
unless otherwise expressly set forth on Exhibit
A,
otherwise provided by Employer policy applicable to its employees generally
or
otherwise required by Law, terminate on the date of termination.
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5.5 Termination
by Employee For Good Reason.
Employee
will be entitled to terminate Employee’s employment at any time for Good Reason.
In such event, the Base Salary will continue to be paid through the date
of
termination, and any amounts owed for Reimbursable Expenses that Employee
incurs
through such date and any previously awarded but unpaid bonus will be paid
to
Employee promptly following termination. In addition, Employer will also
continue to pay Employee, as severance, the Base Salary in effect at the
time of
such termination for the remainder of the Employment Term in monthly
installments; provided, however, that if Employee is determined on the date
of
termination to be a “specified employee” for purposes of Section 409A of the
Internal Revenue Code, then such monthly payments of Base Salary for the
remainder of the Employment Term will not commence until the earlier of:
(i) the
first day of the seventh month after the month the Employee was terminated;
or
(ii) the Employee’s death; and such monthly payments will then continue for an
additional six months following the end of the Employment Term. All restrictions
on any restricted stock grants issued to Employee hereunder shall lapse.
Employer shall provide, at its expense, life and health insurance coverage
to
Employee for the remainder of the Employment Term; provided, however, that
if
Employee is determined on the date of termination to be a “specified employee”
for purposes of Section 409A of the Internal Revenue Code, then such
continuation of life and health insurance coverage will be limited to the
period
during which the Employee would be entitled, but for the terms of this
Agreement, to continuation of coverage under the federal law knows as COBRA.
All
other Benefits will, unless otherwise expressly set forth on Exhibit
A,
otherwise provided by Employer policy applicable to its employees generally
or
otherwise required by applicable law, terminate on the date of termination.
For
purposes of this Agreement, “Good
Reason”
shall
exist upon the occurrence of any of the following events or matters, in each
case without Employer first being in receipt of Employee’s written consent
thereto, and the period of time within which Employee shall be required to
exercise a Good Reason termination of service shall be 90 days, measured
from
the date upon which he is notified by Employer of such occurrence, or, with
respect to the matter identified in clause (b) below, from the date upon
which
Employee notifies Employer in writing of his belief that a material breach
has
occurred:
(a) a
material adverse change in, or a substantial elimination of the duties and
responsibilities of Employee;
5
(b) a
material breach by Employer of its obligations hereunder;
(c) the
relocation of the Employer’s principal executive offices or Employee’s own
office location to a location outside of Midland, Texas; or
(d) a
reduction in Employee’s Base Salary.
5.6 Termination
by Employee Without Good Reason.
Employee
may at any time terminate Employee’s employment without Good Reason. In such
event, the Base Salary will continue to be paid to Employee through the date
of
termination, and any amounts owed for Reimbursable Expenses that Employee
incurs
through such date and any previously awarded but unpaid bonuses will be paid
to
Employee following termination. All restricted stock grants issued to Employee
hereunder still subject to restrictions shall be forfeited. All Benefits
will,
unless otherwise expressly set forth on Exhibit
A,
otherwise provided by Employer policy applicable to its employees generally
or
otherwise required by applicable law, terminate on the date of
termination.
5.7 Effect
of Termination.
Except
as expressly provided in this Section
5
and
except for the obligations set forth in Section
6
and
Section
7,
all
further obligations of the Parties under this Agreement will terminate upon
termination of Employee’s employment with Employer.
6. Restrictive
Covenants.
Employee
hereby acknowledges that, as a result of Employee’s employment by Employer
hereunder, Employee will receive special insight into the operations of
Employer’s and/or Employer’s Affiliates’ businesses and other related matters,
and will obtain access to such Persons’ Confidential Information and business
and professional contacts. In consideration of such special and unique
opportunities afforded by Employer and its Affiliates to Employee as a result
of
Employee’s employment, the Employee hereby agrees that Employee will not:
6.1 From
the
Commencement Date until two (2) years after Employer or any of its Affiliates
no
longer employs Employee (the date on which such Person no longer employs
Employee is hereinafter referred to as the “Employment
Termination Date”),
directly or indirectly, alone or as a partner, joint venturer, officer,
director, member, employee, consultant, agent, independent contractor, or
Equity
Interest holder of, or lender to, any Person or business, engage in any business
that is in competition with any business in which Employer or any of its
Affiliates is engaged as of the Employment Termination Date (a “Competitive
Business”),
and
that is within a 000-xxxx xxxxxx xx Xxxxxxx, Xxxxx or a 100-mile radius of
any
other location at which Employer or any of its Affiliates engages in such
business at the time Employee commences to engage in such competitive
activity.
6.2 From
the
Commencement Date until two (2) years after the Employment Termination Date,
directly or indirectly (a) induce any Person that is a customer of Employer,
any
Acquired Entity, or any of their Affiliates to enter into any Contract with
or
otherwise patronize any business directly or indirectly in competition with
the
Competitive Business conducted by Employer or any of its Affiliates; (b)
canvass, solicit, or accept from any Person who is a customer of Employer
or any
of its Affiliates any such Competitive Business; or (c) request or advise
any
Person who is a customer, vendor, or lessor of Employer or any of its
Affiliates, to withdraw, curtail, or cancel any such customer’s, vendor’s, or
lessor’s business with Employer or any of its Affiliates; provided, however,
that a general solicitation or advertisement originating outside of, and
not
specifically targeted to or reasonably expected to target, the territory
as to
which Employee is restricted from engaging in such competitive business as
provided above under this Agreement at such time, will not be deemed in and
of
itself to violate the prohibitions of (a) or (b) of this Section
6.2.
6
6.3 From
the
Commencement Date until two (2) years after the Employment Termination Date,
directly or indirectly (i) solicit for employment or other similar relationship
with Employee, any of Employee’s Affiliates or any other Person, any employee of
Employer or any of its Affiliates, or any person who was an employee of Employer
or any of its Affiliates, within the six-month period immediately preceding
such
solicitation of employment, other than such person (a) whose employment was
terminated by the applicable Person, or (b) who independently responded to
a
general solicitation for employment by Employee or Employee’s Affiliate; or (ii)
induce, or attempt to induce, any employee of Employer or any of its Affiliates,
to terminate such employee’s employment relationship with such
Person.
6.4 Employee
will not use for Employee’s personal benefit, disclose, communicate, divulge to,
or use for the direct or indirect benefit of any Person other than Employer
or
any of its Affiliates any of such Persons’ Confidential Information. This
Section
6.4
will
apply during and after the period when Employee is an employee of Employer
or
any of its Affiliates and will be in addition to (and not a limitation of)
any
legally applicable protections of Employer’s interest in Confidential
Information, trade secrets and the like.
6.5 Notwithstanding
the foregoing, the beneficial ownership of less than 5% of the equity interests
of any person having a class of equity interests actively traded on a national
securities exchange or over-the-counter market will not be deemed, in and
of
itself, to breach the prohibitions of this Section
6.
Employee agrees and acknowledges that the restrictions in this Section
6
are
reasonable in scope and duration and are necessary to protect Employer and
its
Affiliates after the Commencement Date. If any provision of this Section
6,
as
applied to either Party or to any circumstance, is adjudged by a court of
competent jurisdiction or arbitrator not to be enforceable in accordance
with
its terms, the same will in no way affect any other circumstance or the
enforceability of the remainder of this Agreement. If any such provision,
or any
part thereof, is held not to be enforceable in accordance with its terms
because
of the duration of such provision, the area covered thereby, or the scope
of the
activities covered, the Parties agree that the court of competent jurisdiction
or arbitrator making such determination will have the power to reduce the
duration, area, and/or scope of activities of such provision, and/or to delete
specific words or phrases, and in its reduced form such provision will then
be
enforceable in accordance with its terms and will be enforced. The Parties
agree
and acknowledge that the Breach of any provision of this Section
6
will
cause irreparable Damage to Employer and its Affiliates and upon Breach of
any
provision of this Section
6,
Employer and its Affiliates will be entitled to injunctive relief, specific
performance, or other equitable relief without bond or other security; provided,
however, that the foregoing remedies will in no way limit any other remedies
that Employer or its Affiliates may have. Further, Employee agrees to the
jurisdiction of any state or federal court sitting in Midland, Texas for
the
enforcement of this Section
6.
Employer may, without notifying Employee, notify any subsequent employer
of
Employee of Employee’s rights and obligations under this Section
6.
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7. Conflicts
of Interest.
7.1 Employee
represents to Employer as follows: (a) there are no restrictions, agreements,
or
understandings, oral or written, to which Employee is a party or by which
Employee is bound that prevent or make unlawful Employee’s execution or
performance of this Agreement, and (b) Employee does not have any business
or
other relationship that create a conflict between the interests of Employee
and
Employer.
7.2 Employee
recognizes and agrees that Employee owes Employer and its Affiliates a fiduciary
duty of loyalty, fidelity, and allegiance to act at all times in the best
interests of Employer and its Affiliates and to do no act which might injure
the
business, interests, or reputation of Employer or any of its Affiliates.
Employee’s duty of loyalty will extend throughout the Employment Term and will
continue following termination of this Agreement to the extent recognized
by
Law. Employee will not knowingly become involved in a conflict between his
personal interests and those of Employer or any of its Affiliates, and, upon
discovery thereof, will not willfully allow such conflict of interest to
continue. Employee agrees to disclose in writing to Employer any facts that
could reasonably be expected to involve a material conflict of interest upon
Employee’s conscious awareness that such a material conflict could exist.
Employee recognizes that it is impossible to provide an exhaustive list of
actions or activities that constitute or might constitute a conflict of
interest, but recognizes that these actions or activities may include the
following:
(a) ownership
of more than a 1%
interest in any supplier, contractor, customer, or other person that does
business with Employer or any of its affiliates;
(b) acting
in
any capacity, including as a director, officer, employee, partner, consultant,
or agent, for any supplier, contractor, customer, or other person that does
business with Employer or any of its affiliates;
(c) acceptance,
directly or indirectly, of payments, services, or loans (other
than entertainment, gifts, or other sales incentives that may be furnished
in
the ordinary course of business)
from a
supplier, contractor, customer, or other person that does business with Employer
or any of its affiliates;
(d) misuse
or
disclosure of information of any kind obtained through Employee’s relationship
with Employer; and
(e) appropriation
by Employee or diversion to any other person, directly or indirectly, of
any
business opportunity in which it is known or could reasonably be anticipated
that Employer or its affiliates would be interested.
In
further recognition of the fiduciary duties Employee owes to Employer and
its
Affiliates, Employee agrees that all documentation that Employee provides
to
Employer will be accurate in all material respects, when taken as a whole
and in
light of the circumstances in which it was made.
8
8. Indemnification;
Insurance.
8.1 Insurance
Provided by Employer.
Employer
shall maintain a directors and officers liability insurance policy covering
all
directors and officers of Employer, including Employee, which insurance policy
shall provide adequate insurance coverage (including defense costs) for each
of
such persons, as shall be approved by the Board; in no event, however, shall
such coverage amount be less than $15,000,000 in the aggregate.
8.2 Indemnification
of Employee.
To the
extent not covered by directors and officers liability insurance coverage
as
required in Section
8.1
hereof,
in the event Employee is made a party to any threatened, pending, or
contemplated action, suit, or proceeding, whether civil, criminal,
administrative, or investigative (other than an action by Employer against
Employee), by reason of the fact that Employee is or was performing services
under this Agreement, or is alleged to have been performing services under
this
Agreement, then Employer shall indemnify, defend and hold harmless Employee
against all expenses (including attorneys' fees), judgments, fines, and amounts
paid in settlement, as actually and reasonably incurred by Employee in
connection therewith. In the event that both Employee and Employer are made
a
party to the same third party action, complaint, suit, or proceeding, the
Employer will engage competent legal representation, and Employee will use
the
same representation, provided that if counsel selected by the Employer shall
have a conflict of interest that prevents such counsel from representing
Employee, then the Employer may engage separate counsel on Employee's behalf,
and subject to the provisions of this Section
8,
the
Employer will pay all attorneys' fees of such separate counsel.
9. Miscellaneous.
9.1 Entire
Agreement.
This
Agreement and the certificates, documents, instruments and writings that
are
delivered pursuant hereto constitutes the entire agreement and understanding
of
the Parties in respect of its subject matters and supersedes all prior
understandings, agreements, or representations by or among the Parties, written
or oral, to the extent they relate in any way to the subject matter hereof
or
the Transactions. Except as expressly contemplated hereby and except for
Employer’s Affiliates, each of which will be deemed a third party beneficiary of
all obligations of Employee under this Agreement, there are no third party
beneficiaries having rights under or with respect to this
Agreement.
9.2 Successors.
All of
the terms, agreements, covenants, representations, warranties, and conditions
of
this Agreement are binding upon, and inure to the benefit of and are enforceable
by, the Parties and their respective successors.
9.3 Assignment.
No
Party
may assign either this Agreement or any of its rights, interests, or obligations
hereunder without the prior written approval of Employer and Employee; provided,
however, that Employer may (a) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and (b) designate one or more
of its
Affiliates to perform its obligations hereunder (in any or all of which cases
Employer nonetheless will remain responsible for the performance of all of
its
obligations hereunder).
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9.4 Notices.
All
notices, requests, demands, claims and other communications hereunder will
be in
writing. Any notice, request, demand, claim or other communication hereunder
will be deemed duly given if (and then three business days after) it is sent
by
registered or certified mail, return receipt requested, postage prepaid,
and
addressed to the intended recipient as set forth below:
If
to
Employer:
Attn:
Xxxxx Page, Corporate Secretary
000
X.
Xxxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx,
Xxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
with
a
copy (which shall not constitute notice):
Akin
Gump
Xxxxxxx Xxxxx & Xxxx LLP
Attn:
Will Xxxxxxxx
000
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
If
to
Employee:
Xxxxxxx
XxXxxxxx
__________________________
Tel:
______________________
Fax:
______________________
Either
Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the address set forth above using
any
other means (including personal delivery, expedited courier, messenger service,
telecopy, telex, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication will be deemed to have been
duly
given unless and until it actually is received by the intended recipient.
Either
Party may change the address to which notices, requests, demands, claims,
and
other communications hereunder are to be delivered by giving the other Parties
notice in the manner herein set forth.
9.5 Specific
Performance.
Each
Party acknowledges and agrees that the other Parties would be damaged
irreparably if any provision of this Agreement is not performed in accordance
with its specific terms or is otherwise Breached. Accordingly, each Party
agrees
that the other Party will be entitled to an injunction or injunctions to
prevent
Breaches of the provisions of this Agreement and to enforce specifically
this
Agreement and its terms and provisions in any Action instituted in any state
or
federal court sitting in Midland, Texas, in addition to any other remedy
to
which they may be entitled at Law or in equity.
10
9.6 Submission
to Jurisdiction; No Jury Trial.
(a) Submission
to Jurisdiction.
Each
Party submits to the jurisdiction of any state or federal court sitting in
Midland, Texas in any Action arising out of or relating to this Agreement
and
agrees that all claims in respect of the Action may be heard and determined
in
any such court. Each Party also agrees not to bring any Action arising out
of or
relating to this Agreement in any other court. Each Party agrees that a final
judgment in any Action so brought will be conclusive and may be enforced
by
Action on the judgment or in any other manner provided at Law or in equity.
Each
Party waives any defense of inconvenient forum to the maintenance of any
Action
so brought and waives any bond, surety, or other security that might be required
of any other Party with respect thereto.
(b) Waiver
of Jury Trial.
THE
PARTIES EACH HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO JURY TRIAL
OF ANY
DISPUTE BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OTHER AGREEMENTS
RELATING HERETO OR ANY DEALINGS BETWEEN THEM RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY. The scope of this waiver is intended to be all encompassing
of any and all Actions that may be filed in any court and that relate to
the
subject matter of the transactions contemplated hereby, including Contract
claims, tort claims, breach of duty claims, and all other common Law and
statutory claims. The Parties each acknowledge that this waiver is a material
inducement to enter into a business relationship and that they will continue
to
rely on the waiver in their related future dealings. Each Party further
represents and warrants that it has reviewed this waiver with its legal counsel,
and that each knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED ORALLY
OR IN WRITING, AND THE WAIVER WILL APPLY TO ANY AMENDMENTS, RENEWALS,
SUPPLEMENTS, OR MODIFICATIONS TO THIS AGREEMENT OR TO ANY OTHER DOCUMENTS
OR
AGREEMENTS RELATING HERETO. In the event of an Action, this Agreement may
be
filed as a written consent to trial by a court.
9.7 Time.
Time is
of the essence in the performance of this Agreement.
9.8 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which will
be
deemed an original but all of which together will constitute one and the
same
instrument.
9.9 Headings.
The
article and section headings contained in this Agreement are inserted for
convenience only and will not affect in any way the meaning or interpretation
of
this Agreement.
9.10 Governing
Law.
This
Agreement and the performance of the Parties’ obligations hereunder will be
governed by and construed in accordance with the laws of the State of Texas,
without giving effect to any choice of Law principles.
11
9.11 Amendments
and Waivers.
No
amendment, modification, replacement, termination, or cancellation of any
provision of this Agreement will be valid, unless the same will be in writing
and signed by the Parties. No waiver by any Party of any default,
misrepresentation, or Breach of warranty or covenant hereunder, whether
intentional or not, may be deemed to extend to any prior or subsequent default,
misrepresentation, or Breach of warranty or covenant hereunder or affect
in any
way any rights arising because of any prior or subsequent such
occurrence.
9.12 Severability.
The
provisions of this Agreement will be deemed severable and the invalidity
or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions hereof; provided that if any provision of this
Agreement, as applied to any Party or to any circumstance, is adjudged by
a
court of competent jurisdiction or arbitrator not to be enforceable in
accordance with its terms, the Parties agree that the court of competent
jurisdiction or arbitrator making such determination will have the power
to
modify the provision in a manner consistent with its objectives such that
it is
enforceable, and/or to delete specific words or phrases, and in its reduced
form, such provision will then be enforceable and will be enforced.
9.13 Expenses.
Except
as otherwise expressly provided in this Agreement, each Party will bear its
own
costs and expenses incurred in connection with the preparation, execution
and
performance of this Agreement and the Transactions including all fees and
expenses of agents, representatives, financial advisors, legal counsel and
accountants.
9.14 Construction.
The
Parties have participated jointly in the negotiation and drafting of this
Agreement. If an ambiguity or question of intent or interpretation arises,
this
Agreement will be construed as if drafted jointly by the Parties and no
presumption or burden of proof will arise favoring or disfavoring any Party
because of the authorship of any provision of this Agreement. Any reference
to
any federal, state, local, or foreign Law will be deemed also to refer to
Law as
amended and all rules and regulations promulgated thereunder, unless the
context
requires otherwise. The words “include,” “includes,” and “including” will be
deemed to be followed by “without limitation.” Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words
in
the singular form will be construed to include the plural and vice versa,
unless
the context otherwise requires. The words “this Agreement,” “herein,” “hereof,”
“hereby,” “hereunder,” and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited.
The
Parties intend that each representation, warranty, and covenant contained
herein
will have independent significance. If any Party has breached any
representation, warranty, or covenant contained herein in any respect, the
fact
that there exists another representation, warranty or covenant relating to
the
same subject matter (regardless of the relative levels of specificity) which
the
Party has not breached will not detract from or mitigate the fact that the
Party
is in breach of the first representation, warranty, or covenant.
9.15 Incorporation
of Exhibits.
The
Exhibits identified in this Agreement are incorporated herein by reference
and
made a part hereof.
9.16 Remedies.
Except
as expressly provided herein, the rights, obligations and remedies created
by
this Agreement are cumulative and in addition to any other rights, obligations,
or remedies otherwise available at Law or in equity. Except as expressly
provided herein, nothing herein will be considered an election of
remedies.
12
9.17 Electronic
Signatures.
(a) Notwithstanding
the Electronic Signatures in Global and National Commerce Act (15 U.S.C.
Sec.
7001 et.
seq.),
the
Uniform Electronic Transactions Act, or any other Law relating to or enabling
the creation, execution, delivery, or recordation of any Contract or signature
by electronic means, and notwithstanding any course of conduct engaged in
by the
Parties, no Party will be deemed to have executed this Agreement or other
document contemplated thereby (including any amendment or other change thereto)
unless and until such Party shall have executed this Agreement or other document
on paper by a handwritten original signature or any other symbol executed
or
adopted by a Party with current intention to authenticate this Agreement
or such
other document contemplated.
(b) Delivery
of a copy of this Agreement or such other document bearing an original signature
by facsimile transmission (whether directly from one facsimile device to
another
by means of a dial-up connection or whether mediated by the worldwide web),
by
electronic mail in “portable document format” (“.pdf”) form, or by any other
electronic means intended to preserve the original graphic and pictorial
appearance of a document, will have the same effect as physical delivery
of the
paper document bearing the original signature. “Originally signed” or “original
signature” means or refers to a signature that has not been mechanically or
electronically reproduced.
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement
as
of
the date
first above written.
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EMPLOYER:
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UNITED
FUEL & ENERGY CORPORATION
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Chairman
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EMPLOYEE:
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/s/
Xxxxxxx XxXxxxxx
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XXXXXXX
XxXXXXXX
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EXHIBIT
A
Description
of Benefits
Four
weeks’ paid vacation per annum.
Car
allowance of $1,000 per month.
14
