EMPLOYMENT AGREEMENT
EXHIBIT
10.16
This
Employment Agreement (this “Agreement”)
dated
March 30, 2008 (the “Commencement
Date”)
is by
and between United Fuel & Energy Corporation, a Nevada corporation
(“Employer”),
and
Xxxxxx Xxxxxxx (“Employee”
and,
together with Employer, the “Parties”
and
each individually, a “Party”).
AGREEMENT:
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 first 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 Executive Vice President and
Chief Operating Officer. In such capacity, Employee will have such duties and
responsibilities as determined by Employer’s Board
of
Directors and
Chief
Executive Officer consistent with the Employer’s Bylaws. If requested by
Employer, Employee will serve as an officer or director of any subsidiary of
Employer without additional compensation.
3. 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 Employment Term 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.
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 $225,000 per annum (“Base
Salary”).
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 in the
event that Employee meets certain performance criteria established in advance
in
writing by the Compensation Committee of Employer’s Board of Directors (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.
4.3 Stock
Option. On
the
Commencement Date, Employee shall receive a one-time grant of an option to
purchase up to 300,000 shares of common stock of Employer at an exercise price
equal to the greater of (i) $1.20 per share, or (ii) the closing price of the
Employer’s common stock on the Over The Counter Bulletin Board on the
Commencement Date. The stock options shall be granted pursuant to the terms
and
conditions of the Employer’s 2005 Stock Incentive Plan, shall be evidenced by a
separate standard form stock option agreement between the Employer and the
Employee, shall have a term of ten years from the date of grant, and shall
vest
and become exercisable in twelve equal quarterly installments beginning on
June
30, 2008.
4.4 Benefits.
Employee will be entitled to receive the benefits specified on Exhibit
A
(“Benefits”).
4.5 Expense
Reimbursement.
Employer will promptly reimburse Employee for all authorized expenses reasonably
incurred or paid by Employee in 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”).
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 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. In the event of
Employee’s death, the stock option described above in Section 4.3 shall fully
vest and become exercisable by Employee’s legal representative or authorized
assignee for a period of no more than six (6) months following Employee’s date
of death.
5.2 Termination
Upon Disability.
This
Agreement shall automatically terminate upon the Employee’s Disability (as
defined below). 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 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. In the event
of
Employee’s Disability, the stock option described above in Section 4.3 shall
fully vest and become exercisable by Employee for a period of no more than
six
(6) months following Employee’s date of Disability. “Disability”
means
that the (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
the disability insurance program under which the Employer has provided
disability insurance to the Employee, 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. Nothing in
this
Paragraph relieves the Employer of any of its obligations of reasonable
accommodation under the Americans with Disabilities Act and/or the Texas
Commission on Human Rights Act.
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5.3 Termination
by Employer With 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 will be paid to Employee following termination, subject to
Employer’s right to offset against such sum the amount of any damages which
Employer may suffer as a result of the actions of Employee constituting Cause.
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 perform substantially Employee’s duties and
responsibilities (other than a failure resulting from a Disability), provided
that the Employer has previously addressed these failures with Employee and
has
given Employee a reasonable opportunity to cure;
(b) Employee
engaging in willful, reckless, or grossly negligent misconduct that is
materially injurious to Employer, monetarily or otherwise;
(c) Employee’s
conviction of, plea of guilty or nolo contender to, or the issuance of an
indictment or an information by a grand jury or prosecutor, as applicable,
for,
a felony or a crime involving moral turpitude;
(d) Employee
commits an act of fraud, misappropriation, or personal dishonesty (that is
not
de minimus); and
(e) Employee
commits a breach of this Agreement and fails 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 has determined has
been breached.
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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. Employer will also continue to pay
Employee, as severance, the
Base
Salary for the remaining Employment Term
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. All Benefits will, unless otherwise expressly set forth on
Exhibit
A
or
provided by Employer policy applicable to its employees generally or otherwise
required by law, terminate on the date of termination. In the event that the
Employee is involuntarily terminated without Cause, the stock option described
above in Section 4.3 shall remain exercisable by Employee for a period of no
more than three (3) months following the date of termination to the extent
such
option was vested and exercisable as of the date of termination.
5.5 Effect
of Termination.
Except
as expressly provided in this Section
5
and
except for the obligations set forth in Sections
6
and
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 training and education with
respect to 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 one year after Employer 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 the business
of distributing
gasoline, diesel, propane or lubricant products in
any
state of the United States where the Employer or its subsidiaries or affiliates
do business as of the Employment Termination Date, other than of,
by or
through SC
Fuels
or any other business owned or operated by Xxxxx X. Xxxxxxx or his family
members or heirs by will or intestate succession.
6.2 From
the
Commencement Date until
one year
after the Employment Termination Date, directly or indirectly (i) induce any
person that is a customer of Employer to enter into any contract with or
otherwise patronize any business directly or indirectly in competition with
the
Employer; (ii) request or advise any person who is a customer or vendor of
Employer to withdraw, curtail, or cancel any such customer’s or vendor’s
business with Employer.
6.3 From
the
Commencement Date until
six
months after the Employment Termination Date, directly or indirectly employ,
or
knowingly permit any affiliate of Employee to employ, any person whom Employer
employed within the prior six month period.
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6.4 From
the
Commencement Date until
one year
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 person who
was
an employee of Employer 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 to terminate such
employee’s employment relationship with such person.
6.5 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
any
of Employer’s Confidential Information. This Section
6.5
will
apply during and after the period when Employee is an employee of Employer
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. “Confidential
Information”
includes (a) any information concerning the businesses and affairs of the
Employer or its subsidiaries or affiliates transferred or transmitted in
writing, orally, visually, electronically or by any other means, whether prior
to, on or after the date hereof, (b) information provided to you by third
parties under circumstances where you have an obligation not to disclose that
information, and (c) any memoranda, reports, analyses, extracts or notes you
produce that are based on, reflect or contain any of the Confidential
Information. Confidential Information does not include any information that
is
or becomes generally available to the public other than as a result of a
disclosure by you in violation of this Agreement.
6.6 Any
and
all writings, inventions, improvements, processes, procedures advances,
discoveries, works of authorship, and/or techniques (“Developments”)
that
Employee may make, conceive, discover, or develop, whether or not patentable,
copyrightable, or protectable under mask works legislation or trademark laws,
either solely or jointly with any other person, at any time during Employee’s
employment with the Company, whether or not during working hours and whether
or
not at the request or upon the suggestion of Employer that relate to or are
useful in connection with any business now or hereafter carried on or
contemplated by Employer, including developments or expansions of its present
fields of operations, will be Employer’s sole and exclusive property. Employee
hereby assigns to Employer and/or Employer’s nominees all of Employee’s right,
title, and interest in any Developments, and hereby irrevocably designates
and
appoints Employer and each of Employer’s duly authorized officers and agents as
Employee’s agent and attorney-in-fact to act for and in Employee’s behalf and
stead to execute and file any document and to do all other lawfully permitted
acts to further the prosecution, issuance, and enforcement of Developments.
Employee will make full disclosure to Employer of all such Developments and
will
do everything necessary or desirable to vest the absolute title thereto in
Employer. Employee will write and prepare all specifications and procedures
regarding such Developments and otherwise aid and assist Employer, any Acquired
Entity, or any of their affiliates so that Employer, such Acquired Entity,
or
such affiliate, as the case may be, can prepare and present applications for
copyright, letters patent therefor and can secure such copyright, letters
patent, mask works, or trademark registrations, wherever possible, as well
as
reissues, renewals, and extensions thereof, and can obtain the record title
to
such copyright, letters patent, mask works, or trademark registrations so that
Employer and/or its nominees will be the sole and absolute owner(s) thereof
in
all countries in which it may desire to have copyright, patent, mask work,
or
trademark protection. Employee will not be entitled to any additional or special
compensation or reimbursement regarding any and all such Developments.
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6.7 Notwithstanding
the foregoing, the beneficial ownership of less than 1% 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. If
any
provision of this Section
6,
as
applied to either Party or to any circumstance, is adjudged by a governmental
body, arbitrator, or mediator 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 governmental body, arbitrator,
or
mediator 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 upon breach of any provision of this
Section
6,
Employer 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 may
have. Employer may, without notifying Employee, notify any subsequent employer
of Employee of Employee’s rights and obligations under this Section
6.
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 creates 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. In
keeping with Employee’s fiduciary duty to Employer and its affiliates, Employee
agrees that, during the Employment Term, 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. Notwithstanding the foregoing, Employer
acknowledges that Employee may have ownership interests in, may take certain
actions on behalf of, or accept payments, services or loans from, SC Fuels
or
other businesses owned or operated by Xxxxx X. Xxxxxxx or his family members
or
heirs by will or intestate succession and Employer shall not require Employee
to
discontinue such relationships; provided,
however,
that
all such ownership interests, actions, payments, services or loans are disclosed
in writing to the Employer in accordance with the Employer’s Code of Business
Conduct and Ethics. 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:
6
(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. Miscellaneous.
8.1 Entire
Agreement.
This
Agreement constitutes the entire agreement and understanding of the Parties
in
respect of its subject matter 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. 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.
8.2 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.
8.3 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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8.4 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 XxXxxxxx
000
X. Xxxxxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxx 00000
Tel:
(000) 000-0000
Fax:
(000)
000-0000
If
to Employee:
Attn:
_________________________________
[Insert
address]
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.
8.5 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. Nothing
in this Section
8.6(a)
will
affect the right of any Party 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.
8
8.6 Time.
Time is
of the essence in the performance of this Agreement.
8.7 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.
8.8 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.
8.9 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.
8.10 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.
8.11 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
governmental body, arbitrator, or mediator not to be enforceable in accordance
with its terms, the Parties agree that the governmental body, arbitrator, or
mediator 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
8.12 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, including all fees and expenses of agents,
representatives, financial advisors, legal counsel and accountants.
8.13 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.
8.14 Incorporation
of Exhibits.
The
Exhibits identified in this Agreement are incorporated herein by reference
and
made a part hereof.
8.15 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.
8.16 Electronic
Signatures.
Delivery of a copy of this Agreement 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.
10
IN
WITNESS WHEREOF, the parties have executed and delivered this Agreement on
the
date first above written.
|
UNITED
FUEL & ENERGY CORPORATION
|
||
|
By:
|
/s/
Xxxxxxx XxXxxxxx
|
|
|
|
Xxxxxxx XxXxxxxx |
|
|
|
President
and Chief Executive Officer
|
|
| EMPLOYEE | ||
|
/s/
Xxxxxx Xxxxxxx
|
||
|
Xxxxxx Xxxxxxx, individually |
||
11
EXHIBIT
A
Description
of Benefits
| 1. |
Car
allowance of $1,000 per month.
|
| 2. |
One
time moving allowance equal to the greater of (i) $10,000 or (ii)
the
amount of all expenses up to a maximum amount of $20,000 reasonably
incurred or paid by Employee in connection with Employee’s relocation of
his personal residence to Midland, Texas subject to presentation
of
expense statements or vouchers and such other supporting information
as
Employer may reasonably require or
request.
|
| 3. |
Employee
and, to the extent applicable, Employee’s spouse, dependents and
beneficiaries, shall be allowed to participate in all benefit plans
and
programs of Employer which are now, or may hereafter be, available
to
similarly situated employees of Employer. Employer shall not, however,
be
obligated to institute, maintain or refrain from changing, amending
or
discontinuing any such benefit plan or program, so long as such changes
are similarly applicable to similarly situated employees of Employer
generally.
|
12
