EXHIBIT 10.15
EMPLOYMENT AGREEMENT
This Employment Agreement , as amended, (hereinafter referred to as
"Agreement") entered into as of July 1, 2004, by and between National Coal
Corporation, a corporation organized and existing under the laws of the State of
Tennessee with its principal place of business at 000 Xxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxx (hereinafter referred to as "Company"), National Coal Corp. Group
International, Inc., a corporation organized under the laws of the State of
Florida, and Xxx X. Xxx residing at 0000 Xxx Xxxxxx Xxxx, Xxxx X, Xxxxxxxxx,
Xxxxxxxxx 00000 (Employee).
WITNESSETH:
WHEREAS, the Company has purchased all or substantially all of National
Coal Corp., a corporation organized and existing under the laws of the State of
Florida (hereinafter referred to as "Acquired Company"); and
WHEREAS, Employee is presently the President and Chief Executive
Officer of the Company and has served in that capacity since the inception of
the corporation; and
WHEREAS, the Company desires to continue to employ Employee in such
capacity and Employee desires such employment; and
WHEREAS, Employee's leadership has contributed significantly to the
success of the Company since its inception; and
WHEREAS, the Acquired Company joins in the execution of this Agreement
in order to evidence its consent hereto and agreement herewith.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants hereinafter set forth, and of other good and valuable consideration,
the receipt of which is hereby acknowledged by each party to the other, the
parties hereto agree as follows:
SECTION 1: EMPLOYMENT AND TERM OF AGREEMENT
1.1 EMPLOYMENT. The Company hereby employs Employee and Employee
accepts employment as President and Chief Executive Officer of the Company.
1.2 DUTIES. a. During the term of his employment pursuant to this
Agreement, Employee shall serve the Company faithfully and to the best of his
ability and shall devote his business and professional time, energy, and
diligence to the performance of the duties of such office and he shall perform
such services and duties in connection with the business and affairs of the
Company (i) as are customarily incident to such office and (ii) subject to
Section 1.2(b) hereof, as may reasonably be assigned or delegated to him from
time to time by the Board of Directors of the Company. Employee shall also serve
as a director of the Company and each of its subsidiaries and affiliates.
b. Notwithstanding the foregoing, Employee shall be principally
responsible for, and shall have full power and authority to direct, the
management and operation of the business of the Company, including, but not
limited to (i) preparing and implementing an operating budget in coordination
with the Company's sales and marketing team; (ii) planning and budgeting for the
production of inventory such that orders for the Company's products can be met
on a reasonably timely basis; (iii) planning and budgeting for the organization
and development of the Company's production and office facilities; (iv) research
and development activities relating to new products of the Company and
improvements to the Company's existing products; (v) all technical, operational,
and other aspects of manufacturing the Company's products; (vi) all
distribution, marketing, and sales activities relating to the Company's
products; and (vii) compliance with all applicable requirements of any
applicable federal, state, or local government agency or entity and any
applicable law or regulation concerning the Company's products, facilities, and
business. To the extent permitted by law, and as long as no event described in
Section 3.1(b) or (c) has occurred and is continuing, the Board of Directors of
the Company shall take no action to restrict or interfere with the powers and
responsibilities assigned and delegated to Employee pursuant to this Agreement.
c. Notwithstanding the foregoing, it is understood that Employee
shall continue to provide services to Xxxxx Capital Corporation, Kyten Energy
Corporation, Strata Coal, LLC, Perdase Holdings, Inc., and other individuals or
entities with regard to investment banking, and that the performance of such
services shall not be used as a basis for termination under Section 3.1 and
shall not constitute a breach of Employee's representations or obligations under
Section 6.9.
1.3 TERM OF EMPLOYMENT. Unless earlier terminated pursuant to the
provisions hereof, the initial term of Employee's employment under this
Agreement shall be for the period of two (2) years commencing with the date of
this Agreement. Said term shall be automatically renewed thereafter for
successive two-year terms unless the Board of Directors of the Company or any
successor entity provides Employee with written notice that the Agreement will
not be renewed (Notice of Non-Renewal) no later than 120 days prior to the
expiration of the then-current term. Notwithstanding the foregoing, in the event
a Change in Control (as defined below) occurs during the then-current term, the
term of this Agreement shall not end prior to the first anniversary of such
Change in Control.
SECTION 2: COMPENSATION, BENEFITS AND OTHER ENTITLEMENTS
2.1 BASE SALARY. a. As compensation for his services hereunder and
as consideration for his covenant not to compete provided for in Section 4
hereof, Employee shall be paid a base annual salary at the rate of THREE HUNDRED
THOUSAND AND 00/00 DOLLARS ($300,000.00) PER YEAR, which rate of compensation
shall be in effect from the Effective Date until the end of the initial term set
forth in Section 1.3 hereof. Thereafter, the base annual salary shall be at the
rate determined in good faith by the Company's Board of Directors at the Board's
regularly scheduled
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meeting next following the end of each fiscal year or upon any special meeting,
based upon the Company's review of Employee's performance during the preceding
fiscal year or lesser period, but shall not be reduced below the base annual
salary in effect at the end of the immediately preceding fiscal year. The base
annual salary shall be payable at such periodic intervals, not less than weekly,
as from time to time are applicable with respect to salaried executive personnel
of the Company, and shall be inclusive of all applicable income taxes, Social
Security, and other taxes and charges that are required by law to be withheld by
the Company or that are requested to be withheld by Employee.
b. If Employee's base annual salary is hereafter increased by the
Board of Directors, it shall not thereafter be reduced below a figure equal to
the amount of base annual salary in effect immediately prior to such increase,
together with an amount equal to the product of (x) the amount of base annual
salary in effect immediately prior to such increase, multiplied by (y) the
percentage increase in the consumer price index in Nashville, Tennessee to the
last day of the fiscal year preceding any such reduction.
2.2 BONUS. For each full fiscal year during which Employee is
employed as the Company's President and/or Chief Executive Officer pursuant to
this Agreement, commencing with the fiscal year ending on December 31, 2003,
Employee shall be paid an annual cash bonus in an amount to be determined in
good faith by the Board of Directors but not more than an amount equal to fifty
percent (50%) of the base amount of Employee's salary, which bonus shall be
payable in a lump sum on or before December 30 of each year.
2.3 INSURANCE. The Company shall provide to Employee the standard
package of family insurance benefits which are from time to time provided to
other executive employees, including medical and major medical insurance
coverage. The Company shall also provide to Employee long term care and
disability income insurance coverage (at Employee's option), in an amount equal
to not less than eighty percent (80%) of his base annual salary with benefits
commencing upon termination of all disability payments by the Company under
Section 3.3 hereof, and with disability for purposes of such coverage being
defined as the inability to perform the usual and customary activities as
President and Chief Executive Officer of the Company. The Company shall also
provide to Employee a policy of life insurance, at Employee's option, in the
amount of his base annual salary issued on a basis of being paid up at age 65,
which shall be transferred to Employee with its cash value intact upon the
termination of his employment hereunder for any reason. The disability
insurance, the long-term care insurance, and the life insurance policies shall
be issued on a basis that would permit Employee to continue coverage under such
policies upon termination of his employment with the Company at his own expense
or, in circumstances where the Company is obligated to pay for continued
coverage under paragraph 3.3 below, at the Company's expense.
2.4 OTHER BENEFITS. The Company shall provide Employee the
following additional benefits:
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a. A Company owned and maintained automobile suitable to
Employee's position and appropriate for the performance of his duties, such
automobile to be replaced at appropriate intervals.
b. Reimbursement of all reasonable expenses incurred for Company
business, provided the same are of a type which are allowable for deductions
under applicable federal tax law.
c. Reimbursement for accounting, tax, legal, and financial
services to be performed by accountants, lawyers, or other professionals of his
choice to assist Employee in financial, estate and tax planning, and tax
reporting, provided that the Company shall not be obligated to reimburse
Employee more than Ten Thousand and 00/00 Dollars ($10,000.00) per year for such
expenses.
d. Paid vacation of four (4) weeks per year, or such greater
amount as may be permitted from time to time by the Company's vacation policy,
to be taken at such time as selected by Employee. If Employee does not use at
least two (2) weeks' vacation in any fiscal year of the Company, Employee shall
be entitled, at his option by notice to the Company no later than (10) days
after the end of such fiscal year, to add any and all unused vacation days to
the paid vacation permitted under this Agreement for the following fiscal year.
e. Employee shall be entitled to short-term medical leave
benefits for up to three months for time out of work due to a psychological or
physical illness, injury, or condition. Such benefits shall include full pay to
Employee for any leave which is due to medical or psychological conditions as
supported by appropriate written verification from Employee's treating medical
or psychological/psychiatric professional.
f. In addition to the benefits bestowed upon Employee in this
Agreement, Employee shall be entitled to participate in and enjoy benefits as
are generally extended to employees serving in an executive capacity, including
any capacity similar to that of Employee, in accordance with the Company's
customary practices and policies.
g. In addition to the other benefits provided to the employee in
this Agreement, the company agrees that the company paid "key man life
insurance" shall upon the employees death be distributable fifty percent (50%)
to the company and fifty percent (50%) to the employee's heirs as he may direct
in his will.
SECTION 3: TERMINATION OF EMPLOYMENT
3.1 TERMINATION BY COMPANY. The Company shall have the right to
terminate Employee's employment at any time upon the occurrence of any one of
the following events:
a. Employee's death or the inability of Employee to adequately
perform his duties as President and/or Chief Executive Officer, as determined in
good faith by the Company's Board
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of Directors, for more than 90 consecutive days as a result of the mental or
physical illness or condition of Employee; or
b. Conduct of Employee in connection with his employment
hereunder involving any of the following, other than by reason of mental or
physical illness or condition and as determined by a majority vote of the Board
of Directors after notice to Employee (as described below) and advice of
independent legal counsel:
i. Habitual and continued unavailability to act or respond on
behalf of the Company;
ii. Willful misconduct or fraud;
iii. Conviction, by a court of competent jurisdiction, of a felony
(whether or not committed during the term hereof or in the course of employment
hereunder);
iv. Willful, continued, and material failure to observe or perform
the duties of his employment hereunder;
v. Willfully acting in a manner materially adverse to the best
interests of the Company; and
vi. Habitual neglect of the faithful performance of the duties of
his employment hereunder.
c. With regard to Section 3.1(b), Company shall first provide
Employee with 45 days written notice of such alleged misconduct, including a
specific description of such breach, failure, or neglect of duty or obligation
sufficient to allow Employee an opportunity to correct such noted problems.
Employee shall not be terminated under paragraph 3.1(b) unless, after the notice
period expires, Employee continues to fail to satisfactorily perform his duties.
Prior to any vote regarding misconduct, Employee will be given the opportunity
to appear before the Board, with his legal counsel, to present any relevant
information he believes the Board should consider in making such a decision.
d. In the event of a Change in Control, which shall, for purposes
of this Agreement, be defined as set forth in the attached Exhibit A, which is
incorporated herein by reference; provided, however, that in the case of
termination pursuant to this Section 3.1(d), the Board of Directors of the
Company shall make a determination either to terminate Employee's employment
hereunder or continue such employment within six (6) months after the effective
date of the Change in Control and shall give Employee ninety (90) days' notice
of any such determination to terminate Employee's employment hereunder, and the
failure to make such determination within such six-month period will be deemed
an election by the Company to continue Employee's employment hereunder.
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3.2 TERMINATION BY EMPLOYEE.
a. If substantial differences of opinion between Employee and the
Board and/or the ownership of the Company should develop, or other circumstances
should arise such that Employee, in good faith, no longer feels that he can
function effectively as President and/or Chief Executive Officer of the Company,
then Employee may elect to resign from his employment hereunder by giving 30
days' written notice to the Company.
b. Employee may elect to resign from employment with the Company,
upon 30 days written notice, if, in Employee's reasonable judgment, one or more
of the following events has occurred:
i. A material change in Employee's duties, responsibilities,
authority, or status with the Company, without Employee's consent;
ii. A significant increase in the amount of travel required for
Employee to perform his job, without Employee's consent; or
iii. Any other matter or circumstance requested by the Board of
Directors of the Company if either (a) made with the intent of hindering
Employee in the performance of his duties hereunder or creating an incentive for
Employee to exercise his rights under Section 3.2 hereof or (b) the effect of
such request could reasonably be expected to hinder Employee in the performance
of his duties hereunder or create an incentive for Employee to exercise his
rights under Section 3.2 hereof.
c. Employee may resign with 30 days' written notice if the
Company issues a notice of non-renewal of this Agreement.
3.3 PAYMENT OF SEVERANCE BENEFITS UPON TERMINATION.
(a) In the event of termination of Employee's employment pursuant
to Section 3.1 or 3.2 above (other than pursuant to Section 3.1 (b) above),
Employee will be entitled to the following severance benefits (collectively
"Severance") upon execution of a Release of Claims in a form substantially
similar to that attached hereto as Exhibit B, which is incorporated herein by
reference, within 21 days of his separation:
i. Continuation of Employee's base annual salary for the
Severance Period (as defined below) at the rate in effect at the time of such
termination and payable at the time and in the manner such payments would have
been made to Employee if such termination had not occurred;
ii. A prorated annual cash bonus payment calculated by multiplying
the target amount (50% of base salary) by a fraction, the numerator of which is
the number of calendar months (full or partial) during which Employee was
employed by the Company in the fiscal year of his separation from employment and
the denominator of which is 12, said prorated bonus to be payable as soon as
practicable following Employee's separation from employment;
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iii. Continued insurance coverage, as described in Section 2.3 and
to include medical and major medical coverage for Employee and his eligible
dependents, at the Company's expense for the Severance Period; provided,
however, that Employee will be responsible for any co-payments, deductibles, or
other out-of-pocket expenses associated with use of any health coverage;
iv. Continued use, during the Severance Period, of a company-owned
and maintained automobile suitable to Employee's prior position as President
and/or Chief Executive Officer; and
v. Reimbursement for accounting, tax, legal and financial
services, as described in Section 2.4(c), up to $10,000.00 in each fiscal year
during the Severance Period.
For purposes of this Agreement, the Severance Period shall be
twenty-four (24) months if Employee's separation from employment does not occur
within twelve (12) months of a Change in Control, but, in the event that
Employee's separation from employment does occur within twelve (12) months of a
Change in Control, the Severance Period shall be thirty-six (36) months. The
full amount of the total salary continuation payments provided for above shall
be payable in full within thirty (30) days after the effective date of
Employee's severance-qualifying termination to an escrow agent mutually
satisfactory to the Company and Employee under irrevocable written instructions
to make payments of the Severance to Employee (or in the event of Employee's
death, to his estate), at the time and in the manner that such payments would
have been made to Employee if such termination had not taken place.
(b) In the event of termination pursuant to Section 3.1 (b), all
salary and benefits (other than vested benefits under any pension, profit
sharing or other compensation or benefit plan) shall cease at the time of
termination.
(c) In the event of a Change in Control, the Company, at its sole
expense, shall cause its independent auditors promptly to review all payments,
distributions, and benefits that have been made to or provided to, and are to be
made to or provided to, Employee under this Agreement, and any other agreement
and plan benefiting Employee, to determine the applicability of Section 4999 of
the United States Internal Revenue Code of 1986, as amended (the "Code"). If the
Company's independent auditors determine that any such payments, distributions,
or benefits are subject to excise taxes as provided under Section 4999 of the
Code (the "Excise Tax"), then such payment, distributions, or benefits (the
"Original Payments") shall be increased by an amount (the "Gross-Up Amount")
such that, after the Company withholds all taxes due, including any excise and
employment taxes imposed on the Gross-Up Amount, Employee will retain a net
amount equal to the Original Payments less income and employment taxes on that
amount. Employee agrees to cooperate with the Company's independent auditors by
providing necessary information to perform this analysis/calculation, and the
Company agrees that Employee shall be entitled to copies of the calculations.
The intent of the parties is that the Company shall be solely responsible for,
and shall pay, any Excise Tax on the Original Payments and Gross-Up Amount and
any income and employment taxes (including, without limitation, penalties and
interest)
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imposed on the Gross-Up Amount. If no determination by the Company's independent
auditors is made prior to the time Employee is required to file a tax return
reflecting any portion of the Original Payments, Employee will be entitled to
receive a Gross-Up Amount calculated on the basis of the Original Payments
Employee reported in such tax return within 30 days of the filing of such tax
return. If any tax authority finally determines that a greater Excise Tax should
be imposed upon the Original Payments than is determined by the Company's
independent auditors or reflected on Employee's tax returns, Employee shall be
entitled to receive the full Gross-Up Amount calculated on the basis of such
additional amount of Excise Tax determined to be payable by such tax authority
(including related penalties and interest) from the Company within 30 days of
such determination as long as Employee has taken all reasonable actions to
minimize any such amounts. If any tax authority finally determines the Excise
Tax to be less than the amount taken into account hereunder in calculating the
Gross-Up Amount, Employee shall repay to the Company, within 30 days of his
receipt of a refund resulting from that determination, the portion of the
Gross-Up Amount attributable to such reduction (plus the refunded portion of the
Gross-Up Amount attributable to the Excise Tax and federal, state, and local
income and employment taxes imposed on the portion of the Gross-Up Amount being
repaid, less any additional income tax resulting from such refund).
SECTION 4: NONCOMPETITION
The parties recognize that in the course of Employee's employment with
the Company, Employee has had and will continue to have access to a substantial
amount of confidential and proprietary information and trade secrets relating to
the business of the Company, and that it would be detrimental to the business of
the Company, and have a substantial detrimental effect on the value to the
Company of Employee's employment if Employee were to compete with the Company
upon termination of his employment. Employee therefore agrees, in consideration
of the Company entering this Agreement and establishing the base annual
compensation and other compensation and benefits at the level herein provided
for, that during the period of the term of his employment with the Company,
whether pursuant to this Agreement or otherwise, and, if and only if Employee's
employment is terminated pursuant to Section 3.1(b) above, for a period of one
(1) year thereafter, he shall not, without the prior written consent of the
Company, directly as principal, partner, director, or stockholder or through any
corporation, partnership, or other entity (including, without limitation, a sole
proprietorship), engage or participate in, or assist in any manner or in any
capacity, or have any interest in or make any loan to, or otherwise be related
with, any person, firm, corporation, association, or other entity located
anywhere within fifty (50) miles of any of the Company's business locations and
engaged in any business competing in any material way with the business of the
Company or any subsidiary of the Company as such business exists as of the date
of termination of employment; provided, however, that the foregoing shall not
prevent Employee from owning up to five percent (5%) of the outstanding
securities of, or being employed by, a publicly held corporation that may
compete with the Company. For purposes hereof, a business shall not be deemed to
be competing with the Company in a material way unless it manufactures, sells,
distributes, or otherwise deals in one or more products manufactured, sold,
distributed or otherwise dealt in by the Company and which
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product or products account for at least five percent (5%) of the Company's
gross sales volume at the time in question.
The parties believe, in light of the facts known as of the date hereof,
and after considering the nature and extent of the Company's business, the
amount of compensation and other benefits provided herein, and the damage that
could be done to the Company's business by Employee's competing with the
Company, that the foregoing covenant not to compete is reasonable in time,
scope, and geographical limitation. However, if any court should construe the
time, scope, or geographical limitation of the covenant not to compete to be too
broad or extensive, it is the intention of the parties that the contract be
automatically reformed, and as so reformed, enforced, to the maximum limits
which may be found to be reasonable by such court.
SECTION 5 CONFIDENTIAL INFORMATION.
5.1 COMPANY INFORMATION. Employee agrees at all times during the
term hereof and thereafter, to hold in strictest confidence, and not to use or
disclose, except for the benefit of the Company or as authorized by the Company,
the Confidential Information of Company. Employee understands that "Confidential
Information" means any Company proprietary information, trade secrets and other
information not generally known to the public, such as technical and non-
technical data, know-how, research, product plans, marketing plans, products,
business forecasts, services, customer lists and customers (including, but not
limited to, customers of Company on whom Employee may call or with whom Employee
becomes more acquainted during the term of this Agreement or has become
acquainted with during any prior period in which he performed services for the
Company), information regarding employees of the Company, software,
developments, inventions, processes, formulas, technology, designs, drawings,
engineering, hardware configuration information, marketing, financial or other
business information disclosed to Employee by the Company, either directly or
indirectly in writing, electronically, orally or by drawings or observation of
parts or equipment prior to or after the commencement of this Agreement.
In light of the highly competitive nature of the industry in which
Company conducts its business, Employee agrees that all Confidential Information
heretofore or in the future obtained by the Employee as a result of the
Employee's association with Company, shall be considered confidential. In
recognition of this fact, Employee agrees that he will not, except in the
performance of his duties under this Agreement or except as otherwise provided
herein, during and after the execution of this Agreement (for so long as such
information otherwise remains confidential), disclose any of such Confidential
Information to any person or entity for any reason or purpose whatsoever, and he
will not make use of any Confidential Information for his own purposes or for
the benefit of any person or entity (except Company) under any circumstances not
authorized by the Company. The provisions contained in this paragraph shall also
apply to information obtained by Employee with respect to any subsidiary of or
company otherwise affiliated with Company.
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In the event that Employee is requested or required (by oral questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand, any informal or formal investigation by any government or
governmental agency or authority or otherwise) to disclose any of the
Confidential Information, Employee will notify Company promptly in writing so
that Company may seek a protective order or other appropriate remedy or, in
Company's sole discretion, waive compliance with the terms of this Agreement.
Employee agrees not to oppose any action by Company to obtain a protective order
or other appropriate remedy. In the event that no such protective order or other
remedy is obtained, or that Company waives compliance with the terms of this
Agreement, Employee will furnish only that portion of the Confidential
Information which Employee is advised in writing by his own independent counsel
that he is legally required to furnish and will exercise his reasonable best
efforts, at Company's expense, to obtain reliable assurance that confidential
treatment will be accorded to the Confidential Information. To the extent that
Employee retains counsel to assist him in any situation covered by this
paragraph, he shall be entitled to reimbursement for reasonable fees incurred in
obtaining advice and representation.
5.2 THIRD PARTY INFORMATION. Employee recognizes that Company has
received and in the future will receive from third parties their confidential or
proprietary information subject to a duty on Company's part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Employee agrees to hold all such confidential or proprietary
information in the strictest confidence and not to disclose it to any person,
firm or corporation or to use it except as necessary in carrying out Employee
work for Company consistent with Company' agreement with such third party.
Employee agrees to comply with Company's policies and procedures, as applicable
from time to time with respect to such information.
SECTION 6: MISCELLANEOUS PROVISIONS
6.1 OUTPLACEMENT SERVICE. In the event of termination of
Employee's employment by the Company, the Company shall, upon the request of
Employee (a) pay for outplacement service for Employee for a period of twelve
(12) months, such payment to be made to an agency selected by Employee, based
upon the customary fees charged by nationally rated firms engaged in providing
such services for executives of similar level, qualifications, and experience,
and (b) provide to Employee, for a reasonable time following termination of
employment, not to exceed twelve (12) months, office space and secretarial
support to assist Employee in searching for and obtaining a new position, such
office space to be provided in a location reasonably determined by the Company.
6.2 INDEMNITY. The Company shall indemnify Employee and hold him
harmless for all acts or decisions made by him in good faith while performing
services for the Company to the full extent permitted by applicable law.
6.3 NON-DISPARAGEMENT. Except as compelled to do so by law, the
Company and its past and present affiliated companies and their officers,
directors, and employees shall refrain from
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making any remark or taking any action which disparages, defames, or places
Employee in a negative light, and Employee shall refrain from making any remark
or taking any action which disparages, defames, or places the Company or any of
its parent, subsidiary, or affiliated companies or their past or present
officers, directors, or employees in a negative light.
6.4 EMPLOYEE BENEFITS. This Agreement shall not be construed to be
in lieu or to the exclusion of any other rights, benefits, and privileges to
which Employee may be entitled as an employee of the Company under any
retirement, pension, profit-sharing, insurance, hospital, or other plans or
benefits that may now be in effect or that may hereafter be adopted.
6.5 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Tennessee, and
jurisdiction shall lie in the courts of competent jurisdiction in Xxxx County.
6.6 ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding of the Company and Employee with respect to its subject matter,
supersedes any prior agreement or arrangement relative to Employee's employment
by the Company, and no modification, supplement, or amendment of any provision
hereof shall be valid unless made in writing and signed by the parties.
6.7 SUCCESSORS AND ASSIGNS; PERMITTED ASSIGNMENT. This Agreement
shall inure to the benefit of and be binding upon the Company and Employee and
their respective successors, executors. administrators, heirs and/or permitted
assigns; provided, however, that neither Employee nor the Company may make any
assignment of this Agreement or any interest therein, by operation of law or
otherwise, without the prior written consent of the other parties hereto, except
that, without such consent, the Company may assign this Agreement to any
successor to all or substantially all of its assets and business by means of
dissolution, merger, consolidation, transfer of assets, or otherwise, provided
that such successor assumes in writing all of the obligations of the Company
under this Agreement, subject, however, to Employee's right of termination as
provided in Section 3.2 hereof.
6.8 CAPTIONS. The captions set forth in this Agreement are for
convenience only and shall not be considered as part of this Agreement or as in
any way limiting or amplifying the terms and conditions hereof.
6.9 NO CONFLICTING OBLIGATIONS. Employee represents and warrants
to the Company that he is not under, or bound to be under in the future, any
obligation to any person, firm, or corporation that is or would be inconsistent
or in conflict with this Agreement or would prevent, limit, or impair in any way
the performance by him of his obligations hereunder.
6.10 WAIVERS. The failure of any party to require the performance
or satisfaction of any term or obligation of this Agreement, or the waiver by
any party of any breach of this Agreement, shall not prevent subsequent
enforcement of such term or obligation or be deemed a waiver of any subsequent
breach.
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6.11 NOTICES. Any notice given hereunder shall be in writing and
delivered or mailed by registered or certified mail, return receipt requested:
(a) if to the Company: 000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
(b) if to the Employee: 0000 Xxx Xxxxxx Xxxx,
Xxxx X Xxxxxxxxx, XX 00000
6.12 SEVERABILITY. In the event that any court having jurisdiction
shall determine that any restrictive covenant or other provision contained in
this Agreement shall be unreasonable or unenforceable in any respect, then such
covenant or other provision shall be deemed limited to the extent that such
other court deems it reasonable or enforceable, and as so limited shall remain
in full force and effect. In the event that such court shall deem any such
covenant or other provision wholly unenforceable, the remaining covenants and
other provisions of this Agreement shall nevertheless remain in full force and
effect.
6.13 COUNTERPARTS. More than one counterpart of this Agreement may
be executed by the parties hereto, and each fully executed counterpart shall be
deemed an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed under seal and delivered as of the date first above written.
NATIONAL COAL CORPORATION
By: /s/ XXX X. XXX
----------------------------------
Xxx X. Xxx, President
EMPLOYEE:
/s/ XXX X. XXX
----------------------------------
Xxx X. Xxx
AGREED TO AND ACKNOWLEDGED:
National Coal Corp.
By: /s/ XXX X. XXX
---------------------------
Xxx X. Xxx, President
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EXHIBIT A
DEFINITION OF CHANGE IN CONTROL
The occurrence of any of the following events shall constitute a Change
in Control for purposes of this Agreement: (a) any "person" (as such term is
used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than National Coal Company, any trustee or
other fiduciary holding securities under any employee benefit plan of National
Coal Company, or any company owned, directly or indirectly, by the stockholders
of National Coal Company in substantially the same proportions as their
ownership of National Coal Company is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of National Coal Company representing 30% or more of the combined
voting power of National Coal Company's then-outstanding securities; (b) during
any period of two consecutive years (not including any period prior to the
effective date of this Agreement), individuals who, at the beginning of such
period, constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with National Coal
Company to effect a transaction described in clause (a), (c), or (d) of this
Exhibit A) whose election by the Board or nomination for election by National
Coal Company's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of the
two-year period or whose election or nomination for election was previously so
approved, cease for any reason to constitute at least a majority of the Board;
(c) the consummation of a merger or consolidation of National Coal Company with
any other corporation, other than a merger or consolidation which would result
in the voting securities of National Coal Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) more than 50% of the
combined voting power of the voting securities of National Coal Company or such
surviving entity outstanding immediately after such merger or consolidation;
provided, however, that a merger or consolidation effected to implement a
recapitalization of National Coal Corporation (or similar transaction) in which
no person acquires no more than 30% of the combined voting power of National
Coal Company's then-outstanding securities shall not constitute a Change in
Control of National Coal Company; or (d) the stockholders of National Coal
Company approve a plan of complete liquidation of National Coal Company or an
agreement for the sale or disposition by National Coal Company of all or
substantially all of National Coal Company's assets.
EXHIBIT B
I acknowledge that I have had twenty-one days to decide whether to
execute this Release of Claims ("Release") and that I have been advised to
consult an attorney before executing this Release. I acknowledge that I have
seven days from the date I execute this Release to revoke my signature. I
understand that if I choose to revoke this Release I must deliver my written
revocation to National Coal Company before the end of the seven-day period.
I, for myself, my heirs, successors, and assigns, do hereby settle,
waive, and release National Coal Company (the "Company") and any of its past and
present officers, owners, stockholders, partners, directors, agents, employees,
successors, predecessors, assigns, representatives, attorneys, divisions,
subsidiaries, or affiliates from any and all claims, charges, complaints,
rights, demands, actions, and causes of actions of any kind or character, in
contract, tort, or otherwise, based on actions or omissions occurring in the
past and/or present, and regardless of whether known or unknown to me at this
time, including those not specifically mentioned in this Release. Among the
rights, claims, and causes of action which I give up under this Release are
those arising in connection with my employment and the termination of that
employment, including, without limitation, rights or claims under federal,
state, and local fair employment practice or discrimination laws (including the
various Civil Rights Acts, the Age Discrimination in Employment Act, the Equal
Pay Act, and the Tennessee Commission on Human Rights Act), laws pertaining to
breach of employment contract, wrongful termination or other wrongful treatment,
and any other laws or rights relating to my employment with the Company and the
termination of that employment. I acknowledge that I am aware of my rights under
the Age Discrimination in Employment Act, and that I am knowingly and
voluntarily waiving and releasing any claim of age discrimination which I may
have under that statute as part of this Release. This agreement does not waive
or release any rights, claims, or causes of action that may arise from acts or
omissions occurring after the date I execute this Release, nor does this
agreement waive or release any rights, claims or causes of action relating to
(a) indemnification from the Company and its affiliates with respect to my
activities on behalf of the Company and its affiliates prior to my termination
of employment, (b) compensation or benefits to which I am entitled under any
compensation or benefits plan of the Company or its affiliates, (c) amounts to
which I am entitled pursuant to the agreement to which a form of this Release of
Claims was attached as Exhibit B, (d) my right to file a charge with, or
participate in any investigation conducted by, any federal, state, or local
agency charged with enforcing laws prohibiting employment discrimination, (e) my
right to challenge the voluntary and knowing nature of this release in court or
before any federal, state, or local agency charged with enforcing employment
laws, or (f) any right, claim, or cause of action arising after the effective
date of this Release.
