EMPLOYMENT AGREEMENT
Exhibit 10.21
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made by and between Oxford Resources GP, LLC,
a Delaware limited liability company (“Company”), and Xxxxxx X. Xxxxx (“Executive”).
WITNESSETH:
WHEREAS, Company, which is the general partner of Oxford Resource Partners, LP (“Oxford LP”),
desires to employ Executive, and Executive desires to be employed by Company, on the terms and
conditions set forth herein;
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and obligations
contained herein, Company and Executive agree as follows, effective as of January 1, 2011 (the
“Effective Date”):
ARTICLE 1 EMPLOYMENT AND DUTIES
1.1 Employment; Effective Date. Effective as of the Effective Date and continuing for
the period of time set forth in Article 2 of this Agreement, Executive’s employment by Company
shall be subject to the terms and conditions of this Agreement.
1.2 Positions. Company shall employ Executive in the position of Senior Vice
President and Chief Legal Officer of Company reporting to the Chief Executive Officer of Company,
or in such other positions as the parties mutually may agree. As of the Effective Date,
Executive’s duties shall include leadership of the legal department of Company with responsibility
for the legal compliance and reporting functions and all other legal matters of Company.
1.3 Duties and Services. Executive agrees to serve in the position referred to in
paragraph 1.2 and to perform diligently and to the best of his abilities the duties and services
appertaining to such office, as well as such additional duties and services appropriate to such
office which the parties mutually may agree upon from time to time. Executive’s employment shall
also be subject to the policies maintained and established by Company that are of general
applicability to Company’s senior executive employees (as of the Effective Date consisting of the
Executive, the Chief Financial Officer and the Chief Executive Officer of Company) (the “Senior
Executives”), as such policies may be amended from time to time, provided that, in the event of any
inconsistency between such policies and any term of this Agreement, this Agreement shall control.
1.4 Other Interests. Executive agrees, during the period of his employment by
Company, to devote substantially all of his primary business time, energy and best efforts to the
business and affairs of Company and its affiliates and not to engage, directly or indirectly (other
than as a passive investor in publicly traded securities), in any other business or businesses,
whether or not similar to that of Company, except with the consent of the Board of Directors of
Company (the “Board”). The foregoing notwithstanding, the parties recognize and agree that
Executive may serve on the board of directors of and provide legal services not exceeding 50 hours
per calendar year to such non-profit, charitable and/or charitable-benefitting organizations, and
may serve on the board of directors of such other entities where such service does not exceed in
the
aggregate 30 hours per calendar year, as are approved by the Board, and additionally may
engage in other charitable and civic pursuits without the consent of the Board, as long as such
service and pursuits described above in this sentence do not conflict with the business and affairs
of Company or its affiliates or interfere with Executive’s performance of his duties hereunder,
which shall be in the sole good faith determination of the Board.
1.5 Duty of Loyalty. Executive acknowledges and agrees that Executive owes a
fiduciary duty of loyalty to act at all times in the best interests of Company. In keeping with
such duty, Executive shall make full disclosure to Company of all business opportunities pertaining
to Company’s business and shall not appropriate for Executive’s own benefit business opportunities
concerning Company’s business.
ARTICLE 2 TERM AND TERMINATION OF EMPLOYMENT
2.1 Term. Unless sooner terminated pursuant to other provisions hereof, Company
agrees to continue the employment of Executive for the period beginning on the Effective Date and
ending on the second anniversary of the Effective Date (the “Initial Expiration Date”); provided,
however, that, beginning on the Initial Expiration Date, and on each anniversary of the Initial
Expiration Date thereafter, if this Agreement has not been terminated pursuant to paragraph 2.2 or
2.3, then said term of employment shall automatically be extended for an additional one-year
period, unless on or before the date that is 90 days prior to the first day of any such extension
period either party shall give written notice (an “Expiration Notice”) to the other that no such
automatic extension shall occur.
2.2 Company’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1,
Company shall have the right to terminate Executive’s employment under this Agreement for any of
the following reasons:
(i) upon Executive’s death;
(ii) upon Executive’s disability, which shall mean Executive’s becoming incapacitated by
accident, sickness, or other circumstances which renders him mentally or physically incapable of
performing the duties and services required of him hereunder for 90 or more days (whether or not
consecutive) out of any consecutive 180-day period;
(iii) for “Cause,” which shall mean Executive has (A) engaged in gross negligence, gross
incompetence or willful misconduct in the performance of the duties required of him hereunder; (B)
refused without proper reason to perform the duties and responsibilities required of him hereunder;
(C) willfully engaged in conduct that is materially injurious to Company or its affiliates
(monetarily or otherwise); (D) committed an act of fraud, embezzlement or willful breach of
fiduciary duty to Company or an affiliate (including the unauthorized disclosure of information
that is, and is known or reasonably should have been known to the Executive to be, confidential or
proprietary material information of Company or an affiliate) or (E) been convicted of (or pleaded
no contest to) a crime involving fraud, dishonesty or moral turpitude or any felony; or
(iv) at any time for any other reason, or for no reason whatsoever, in the sole discretion of
the Board.
2.3 Executive’s Right to Terminate. Notwithstanding the provisions of paragraph 2.1,
Executive shall have the right to terminate his employment under this Agreement for any of the
following reasons:
(i) for “Good Reason,” which shall mean, in connection with or based upon (A) a material
diminution in Executive’s responsibilities, duties or authority; (B) a material diminution in
Executive’s base compensation or the amount of the target annual bonus that may be earned by
Executive, as described in paragraph 3.2(ii); or (C) a material breach by Company of any material
provision of this Agreement; or
(ii) at any time for any other reason, or for no reason whatsoever, in the sole discretion of
Executive.
2.4 Notice of Termination. If Company desires to terminate Executive’s employment
hereunder at any time prior to expiration of the term of employment as provided in paragraph 2.1,
it shall do so by giving a 30-day written notice to Executive that it has elected to terminate
Executive’s employment hereunder and stating the effective date and reason for such termination,
provided that no such action shall alter or amend any other provisions hereof or rights arising
hereunder. If Executive desires to terminate his employment hereunder at any time prior to
expiration of the term of employment as provided in paragraph 2.1, he shall do so by giving a
30-day written notice to Company that he has elected to terminate his employment hereunder and
stating the effective date and reason (if any) for such termination, provided that no such action
shall alter or amend any other provisions hereof or rights arising hereunder. In the case of any
notice by Executive of his intent to terminate his employment hereunder for Good Reason, Executive
shall provide Company with notice of the existence of the condition(s) constituting the Good Reason
within 90 days after the Executive has actual knowledge of the initial existence of such
condition(s) and Company shall have 30 days following Executive’s provision of such notice to
remedy such condition(s). If Company remedies the condition(s) constituting the Good Reason within
such 30 day period, then Executive’s employment hereunder or as a post-term employment continuation
described in paragraph 4.1, as applicable, shall continue and his notice of termination shall
become void and of no further effect. If Company does not remedy the condition(s) constituting the
Good Reason within such 30 day period, Executive’s employment with Company shall terminate on the
date that is 31 days following the date of Executive’s notice of termination and Executive shall be
entitled to receive the payment described in paragraph 4.1 or 4.3, as applicable. The notice,
remedy rights and termination timing provisions applicable under this paragraph 2.4 in the case of
Executive’s election to terminate his employment for Good Reason are referred to collectively as
the “Good Reason Termination Procedure.”
2.5 Deemed Resignations. Any termination of Executive’s employment shall constitute
an automatic resignation of Executive as an officer of Company and each affiliate of Company, an
automatic resignation of Executive from the Board and from the board of directors or similar
governing body of any affiliate of Company, and an automatic resignation from the board of
directors or similar governing body of any corporation, limited liability company or other entity
in which Company or any affiliate holds an equity interest and with respect to which board or
similar governing body Executive serves as Company’s or such affiliate’s designee or other
representative.
ARTICLE 3 COMPENSATION AND BENEFITS
3.1 Base Salary. During the period of this Agreement, Executive shall receive a
minimum annual base salary of $270,000. Executive’s annual base salary shall be reviewed by the
Board (or a committee thereof) on an annual basis, and, in the sole discretion of the Board (or
such committee), such annual base salary may be increased, but not decreased, effective as of any
date determined by the Board. Executive’s annual base salary shall be paid in equal installments
in accordance with Company’s standard policy regarding payment of compensation to executives but no
less frequently than monthly.
3.2 Bonuses and Incentive Compensation. During the period of this Agreement,
Executive shall be provided the following bonuses and incentive compensation:
(i) Employment Inducement Bonus — As a one-time inducement to Executive to accept employment
with Company, Company shall pay to Executive an employment inducement bonus the (“Employment
Inducement Bonus”) in the amount, on the schedule and subject to the terms and conditions set forth
in this paragraph 3.2(i):
(a) on the Effective Date, Company shall pay to Executive an amount equal to $100,000
(the “Initial Payment”); and
(b) on the last day of each calendar quarter during Executive’s first two years of
employment under this Agreement, Company shall pay to Executive an amount equal to $33,750,
provided that, with respect to each such payment, Executive continues to be employed by
Company on the date such payment is due.
Each Employment Inducement Bonus installment payment specified in this paragraph 3.2(i) to which
Executive is entitled shall be paid (x) on the due date therefor specified above if the same is a
regular payroll date and (y) otherwise on or before the earlier of the first regular payroll date
immediately following such due date or such date as is 10 business days after such due date.
(ii) Annual Bonus — For the calendar year beginning on the Effective Date, and thereafter
during the period of this Agreement, Executive shall be eligible to receive an annual incentive
performance bonus in an amount equal to up to 50% of his annual base salary (or such greater
percentage, if any, as shall be approved by the Board). The amount of Executive’s annual incentive
performance bonus for any calendar year shall be approved from time to time by the Board, based
upon recommendations of the Compensation Committee of the Board (“Compensation Committee”), and
shall be pro-rated for any period of employment by Company during such calendar year of less than
twelve (12) months. The Compensation Committee’s recommendations may take into account such
criteria as it establishes in its discretion, including, without limitation, recommendations from
the Chief Executive Officer of Company. The criteria applicable to the annual bonus determination
for Executive for any particular calendar year shall be (i) substantially similar (except for
necessary differences based upon job responsibilities) for all Senior Executives and (ii)
communicated to Executive in detail within the first ninety (90) days of such calendar year.
Notwithstanding anything to the contrary herein, the amount of all Employment Inducement Bonus
installment payments due in a calendar year (except the Initial Payment) shall be subtracted from
the amount of annual incentive performance bonus for such calendar
year that may be approved by the Board
pursuant to this paragraph 3.2(ii) and any
such amount shall be payable only pursuant to paragraph 3.2(i), and not as annual performance bonus
under this paragraph 3.2(ii). For the avoidance of doubt, if, for example, the Board approves an
annual incentive performance bonus to be paid to Executive for calendar year 2011 in an amount
equal to 75% of his annual base salary for 2011, and assuming continuous employment by Executive
with Company throughout 2011, Executive’s annual performance bonus for 2011 shall be an amount
equal to $67,500, calculated as 75% multiplied by Executive’s annual base salary for 2011
($202,500, assuming an annual base salary of $270,000 throughout 2011) minus Executive’s Employment
Inducement Bonus installment payments due in 2011 (an aggregate of $135,000).
(iii) LTIP Awards — On the Effective Date, Executive shall receive an award of a number of
phantom units under the LTIP, on the terms provided in the LTIP phantom unit grant agreement, which
equals a stated fair market value of $400,000 upon the Effective Date, based on the last day’s
closing trading price immediately prior to the Effective Date. Such initial phantom unit award
shall vest 25% upon the Effective Date and 25% upon each anniversary of the Effective Date.
Executive shall be eligible to receive any additional awards under the LTIP, as determined by the
Board. For purposes hereof, “LTIP” means Company’s Amended and Restated Long-Term Incentive Plan,
effective on June 18, 2010, and if hereafter further amended by Company then as hereafter so
further amended.
(iv) Profits Participation Interest — From and after the Effective Date, pursuant to the
terms of the Second Amended and Restated Limited Liability Company Agreement of Company (the
“Company LLC Agreement”), Executive will have a profits participation interest in Company in the
form of Class B Units. The number of Class B Units of Company to be granted to Executive pursuant
to this paragraph shall be such number of Class B Units of Company as are equal to 0.5% (one-half
of one percent) of Company’s equity outstanding as of the Effective Date. All terms and conditions
of such Class B Units, including, without limitation, vesting, forfeiture, transfer, buy/sell,
distribution, voting and registration rights, if any, will be substantially the same as those set
forth in the provisions of the Company LLC Agreement that pertain to the Class B Units granted to
Company’s Chief Financial Officer on the effective date of the initial public offering of the
common units of the Partnership, as the Company LLC Agreement may be amended in accordance with its
terms from time to time, and shall be governed by the provisions of the Company LLC Agreement.
(v) Change in Control Acceleration — In the event of a Change in Control (as defined in the
LTIP in its form as in effect on the date of execution hereof), and notwithstanding any applicable
vesting schedule, all awards granted to Executive under the LTIP shall immediately vest.
3.3 Other Perquisites. During his employment hereunder, Executive shall be afforded
the following benefits as incidences of his employment (all of such benefits hereinafter
collectively referred to as the “Other Benefits”):
(i) Business and Entertainment Expenses — Subject to Company’s standard policies and
procedures with respect to expense reimbursement as applied to its executive employees generally,
Company shall reimburse Executive for, or pay on behalf of Executive, reasonable and appropriate
expenses incurred by Executive for business related purposes,
including dues and fees to industry and professional organizations, professional licensing,
continuing legal education, and costs of entertainment and business development.
(ii) Vacation — For the calendar year during which the Effective Date falls, and thereafter
for each calendar year during the period of this Agreement, Executive shall be entitled to four
weeks of paid vacation (pro-rated for any period of employment by Company during such calendar year
of less than twelve (12) months), which shall be considered earned in accordance with Company’s
vacation policy as in effect from time to time for Senior Executives, and to all holidays provided
to Senior Executives of Company generally.
(iii) Other Company Benefits — Except as provided in paragraph 3.2, Executive and, to the
extent applicable, Executive’s spouse, dependents and beneficiaries, shall be allowed to
participate in all benefits, plans and programs, including improvements or modifications of the
same, which are now, or may hereafter be, available to other executive employees of Company. Such
benefits, plans and programs shall include, without limitation, any profit sharing plan, thrift
plan, health insurance or health care plan, life insurance, disability insurance, pension plan,
supplemental retirement plan, vacation and sick leave plan, and the like which may be maintained by
Company. Company shall not, however, by reason of this paragraph 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 executive employees generally.
(iv) Malpractice Insurance — Company shall purchase an Employed Lawyer’s malpractice
insurance policy for Executive covering his actions and omissions on behalf of Company and its
affiliates, with a minimum Limits of Liability of three million dollars ($3,000,000) per claim and
zero Loss and Expense Deductible with the option to purchase an extended reporting endorsement
(“tail coverage”), which Company shall timely purchase for unlimited calendar months should this
policy terminate for any reason, provided that such coverage is available on commercially
reasonable terms. Such policy shall include the same endorsements as on the current such policy
maintained by Company including the SEC and Xxxxxxxx-Xxxxx Coverage Endorsement and the Outside
Professional Services Endorsement.
(v) Automobile Allowance — For each month during the period of this Agreement, Executive
shall be entitled to an automobile allowance in the amount of $600.
ARTICLE 4 EFFECT OF TERMINATION ON COMPENSATION
4.1 Termination by Expiration. If Executive’s employment hereunder shall be
terminated by expiration of the term as provided in paragraph 2.1 hereof (including any extensions
of the term of this Agreement thereunder) because either party has provided an Expiration Notice,
Executive’s employment with Company shall nonetheless continue until such employment is actually
terminated by either Company or Executive upon such expiration or at any time thereafter, with such
actual termination and the effective date thereof to be stated in a written notice to the other
party which is provided in accordance with Section 8.1, and, in the case of a termination following
such expiration by Executive for Good Reason (as described below), such notice shall be provided in
accordance with paragraph 2.4 and the Good Reason Termination Procedure shall apply to any such
termination. In the event an
Expiration
Notice is provided by either party, all compensation and all benefits to Executive hereunder shall continue to be provided until the
expiration of such term, and thereafter Executive shall receive such compensation and benefits as
are determined by Company (it being understood that determinations by Company in this regard could
provide Executive with Good Reason for purposes of the immediately following sentence) until his
employment with Company is actually so terminated. Upon such actual termination of Executive’s
employment with Company, all compensation and benefits shall terminate contemporaneously with
termination of his employment with Company, except as otherwise provided in the following sentence
or under any other agreement or plan of Company that provides post-termination benefits. Upon any
such actual termination of Executive’s employment with Company which is upon or within 12 months
following the expiration of the term as described in paragraph 2.1 where the Expiration Notice was
given by Company, and subject to paragraph 4.4 below, if Executive’s employment with Company has
been terminated (a) by Company and such termination is for any reason other than a reason
encompassed by paragraph 2.2(i), 2.2(ii), or 2.2(iii) or (b) by Executive for Good Reason (assuming
for purposes of these clauses (a) and (b) only that this Agreement were still in effect continually
until and also at the time of any such termination), then Company shall provide Executive with a
lump sum cash termination payment in an amount equal to 50% of Executive’s annual base salary at
the highest rate in effect at any time upon or following expiration of the term as provided in
paragraph 2.1 hereof or such greater amount, if any, as is provided under any severance program
generally available to Company’s senior management (other than any individual employment
agreement). Subject to paragraph 4.4, any lump sum cash termination payment due to Executive
pursuant to the preceding sentence shall be paid to Executive on the sixtieth (60th) day after the
date of Executive’s actual termination of employment with Company. For purposes of clarity,
Executive’s termination of employment hereunder by expiration of the term as provided in paragraph
2.1 hereof is the only circumstance where Executive’s employment with Company may continue
following a termination of employment hereunder, so that a termination of Executive’s employment
hereunder under any other provisions of this Agreement automatically also results in an actual
termination of Executive’s employment with Company.
4.2 Termination by Company. If Executive’s employment hereunder shall be terminated
by Company prior to expiration of the term provided in paragraph 2.1, then, upon such termination,
except as hereinafter provided, all compensation and benefits to Executive hereunder shall
terminate contemporaneously with the termination of such employment (except as otherwise provided
under any other agreement or plan of Company that provides post-termination benefits); provided,
however, that, subject to paragraph 4.4 below, if such termination shall not be due to expiration
of the term as described in paragraph 4.1 or any event or circumstance described in paragraph
2.2(i), 2.2(ii), or 2.2(iii), then Company shall provide Executive with a lump sum cash payment
equal to one times Executive’s annual base salary at the rate in effect under paragraph 3.1 on the
date of such termination (such amount the “Severance Payment Amount” and such payment a “Severance
Payment”) and any previously due but unpaid payments of the Employment Inducement Bonus plus all
Other Benefits that are accrued but unused, incurred but unreimbursed or otherwise owing, as
applicable, to Executive as of such date. Subject to paragraph 4.4 below, any Severance Payment
due to Executive pursuant to the preceding sentence shall be paid to Executive on the sixtieth
(60th) day after the date of Executive’s termination of employment with Company.
4.3 Termination by Executive. If Executive’s employment hereunder shall be terminated
by Executive prior to expiration of the term provided in paragraph 2.1, then, upon such
termination, except as hereinafter provided, all compensation and benefits to Executive hereunder
shall terminate contemporaneously with the termination of such employment (except as otherwise
provided under any other agreement or plan of Company that provides post-termination benefits);
provided, however, that, subject to paragraph 4.4 below, if such termination occurs for Good Reason
then Company shall provide Executive with a Severance Payment equal to the Severance Payment Amount
and any previously due but unpaid payments of the Employment Inducement Bonus plus all Other
Benefits that are accrued but unused, incurred but unreimbursed or otherwise owing, as applicable,
to Executive as of such date. Subject to paragraph 4.4 below, any Severance Payment due to
Executive pursuant to this paragraph shall be paid to Executive on the sixtieth (60th) day after
the date of Executive’s termination of employment with Company.
4.4 Release and Full Settlement. Anything to the contrary herein notwithstanding, as
a condition to the receipt of the termination payment under paragraph 4.1 or the Severance Payment
under paragraph 4.2 or 4.3, as applicable, Executive shall first execute a release, in the form
established by the Board, releasing the Board, Company, and Company’s parent corporation,
subsidiaries, affiliates, and their respective shareholders, partners, officers, directors,
employees, attorneys and agents from any and all claims and from any and all causes of action of
any kind or character including, but not limited to, all claims or causes of action arising out of
Executive’s employment with Company or its affiliates or the termination of such employment, but
excluding all claims to vested benefits and payments Executive may have under any compensation or
benefit plan, program or arrangement, including this Agreement. Executive shall provide such
release no later than 50 days after the date of his termination of employment with Company and, as
a condition to Company’s obligation to pay and provide the termination payment in accordance with
paragraph 4.1 or the Severance Payment in accordance with paragraph 4.2 or 4.3, Executive shall not
revoke such release. The performance of Company’s obligations hereunder and the receipt of any
termination payment provided under paragraph 4.1 or Severance Payment provided under paragraph 4.2
or 4.3 shall constitute full settlement of all such claims and causes of action.
4.5 No Duty to Mitigate Losses. Executive shall have no duty to find new employment
following the termination of his employment under circumstances which require Company to pay any
amount to Executive pursuant to this Article 4. Any salary or remuneration received by Executive
from a third party for the providing of personal services (whether by employment or by functioning
as an independent contractor) following the termination of his employment under circumstances
pursuant to which this Article 4 apply shall not reduce Company’s obligation to make a payment to
Executive (or the amount of such payment) pursuant to the terms of this Article 4.
4.6 Liquidated Damages. In light of the difficulties in estimating the damages for an
early termination of Executive’s employment under this Agreement, Company and Executive hereby
agree that the payments, if any, to be received by Executive pursuant to this Article 4 shall be
received by Executive as liquidated damages.
4.7 Section 409A Matters. Notwithstanding any provision in this Agreement to the
contrary, if Executive is a specified employee (within the meaning of Section 409A(a)(2)(B)(i) of
the Internal Revenue Code of 1986, as amended (the “Code”), and applicable administrative
guidance thereunder and determined in accordance with any method selected by Company that is
permitted under the regulations issued under Section 409A of the Code), and the payment of any
amount or benefit under this Agreement to or on behalf of Executive would be subject to additional
taxes and interest under Section 409A of the Code because the timing of such payment is not delayed
as provided in Section 409A(a)(2)(B)(i) of the Code and the regulations thereunder, then any such
payment or benefit that Executive would otherwise be entitled to during the first six months
following the date of Executive’s separation from service (within the meaning of Section
409A(a)(2)(A)(i) of the Code and applicable administrative guidance thereunder) shall be
accumulated and paid or provided, as applicable, on the date that is six months after Executive’s
separation from service (or if such date does not fall on a business day of Company, the next
following business day of Company), or such earlier date upon which such amount can be paid or
provided under Section 409A of the Code without being subject to such additional taxes and
interest; provided, however, that Executive shall be entitled to receive the maximum amount
permissible under Section 409A of the Code and the applicable administrative guidance thereunder
during the six-month period following his separation from service that will not result in the
imposition of any additional tax or penalties on such amount. For all purposes of this Agreement,
Executive shall be considered to have terminated employment with Company when Executive incurs a
“separation from service” with Company within the meaning of Section 409A(a)(2)(A)(i) of the Code
and the applicable administrative guidance issued thereunder. To the extent that Section 409A of
the Code is applicable to this Agreement, the provisions of this Agreement shall be interpreted as
necessary to comply with such section and the applicable administrative guidance issued thereunder.
4.8 Separate Agreements, Plans and Other Documents Describing Benefits. This
Agreement governs the rights and obligations of Executive and Company with respect to Executive’s
base salary and certain perquisites of employment. Except as expressly provided herein,
Executive’s rights and obligations both during the term of his employment and thereafter with
respect to his ownership rights in Company and Oxford LP, and other benefits under the plans and
programs maintained by Company shall be governed by the separate agreements, plans and the other
documents and instruments governing such matters. Notwithstanding anything to the contrary herein,
in connection with any termination of employment of Executive, in the case of any Other Benefit to
which Executive may be entitled that is governed by the terms of any written plan, policy or
agreement of Company, Executive’s entitlement to such benefit and the timing of any payment thereof
shall be determined under the applicable provisions of such plan, policy or agreement.
ARTICLE 5 PROTECTION OF CONFIDENTIAL INFORMATION
5.1 Disclosure to and Property of Company. All information, designs, ideas, concepts,
improvements, product developments, discoveries and inventions, whether patentable or not, that are
conceived, made, developed or acquired by Executive, individually or in conjunction with others,
during the period of Executive’s employment by Company (whether during business hours or otherwise
and whether on Company’s premises or otherwise) that relate to Company’s (or any of its
affiliates’) business, trade secrets, products or services (including, without limitation, all such
information relating to corporate opportunities, product specification, compositions, manufacturing
and distribution methods and processes, research, financial and sales data, pricing terms,
evaluations, opinions,
interpretations,
acquisitions prospects, the identity of customers or their requirements, the identity of key contacts within the customer’s organizations or within
the organization of acquisition prospects, marketing and merchandising techniques, business plans,
computer software or programs, computer software and database technologies, prospective names and
marks) (collectively, “Confidential Information”) shall be disclosed to Company and are and shall
be the sole and exclusive property of Company (or its affiliates). Moreover, all documents,
videotapes, written presentations, brochures, drawings, memoranda, notes, records, files,
correspondence, manuals, models, specifications, computer programs, E-mail, voice mail, electronic
databases, maps, drawings, architectural renditions, models and all other writings or materials of
any type embodying any of such information, ideas, concepts, improvements, discoveries, inventions
and other similar forms of expression (collectively, “Work Product”) are and shall be the sole and
exclusive property of Company (or its affiliates). Upon Executive’s termination of employment with
Company, for any reason, Executive promptly shall deliver such Confidential Information and Work
Product, and all copies thereof, to Company.
5.2 Disclosure to Executive. Company has and will disclose to Executive, or place
Executive in a position to have access to or develop, Confidential Information and Work Product of
Company (or its affiliates); and/or has and will entrust Executive with business opportunities of
Company (or its affiliates); and/or has and will place Executive in a position to develop business
good will on behalf of Company (or its affiliates). Executive agrees to preserve and protect the
confidentiality of all Confidential Information or Work Product of Company (or its affiliates).
5.3 No Unauthorized Use or Disclosure. Executive agrees that he will not, at any time
during or after Executive’s employment by Company, make any unauthorized disclosure of, and will
prevent the removal from Company premises of, Confidential Information or Work Product of Company
(or its affiliates), or make any use thereof, except in the carrying out of Executive’s
responsibilities during the course of Executive’s employment with Company. Executive shall use
commercially reasonable efforts to cause all persons or entities to whom any Confidential
Information shall be disclosed by him hereunder to observe the terms and conditions set forth
herein as though each such person or entity was bound hereby. Executive shall have no obligation
hereunder to keep confidential any Confidential Information if and to the extent disclosure thereof
is specifically required by law; provided, however, that in the event disclosure is required by
applicable law, Executive shall provide Company with prompt notice of such requirement prior to
making any such disclosure, so that Company may seek an appropriate protective order or otherwise
contest such disclosure. At the request of Company at any time, Executive agrees to deliver to
Company all Confidential Information that he may possess or control. Executive agrees that all
Confidential Information of Company (whether now or hereafter existing) conceived, discovered or
made by him during the period of Executive’s employment by Company exclusively belongs to Company
(and not to Executive), and Executive will promptly disclose such Confidential Information to
Company and perform all actions reasonably requested by Company to establish and confirm such
exclusive ownership. Affiliates of Company shall be third party beneficiaries of Executive’s
obligations under this Article 5. As a result of Executive’s employment by Company, Executive may
also from time to time have access to, or knowledge of, Confidential Information or Work Product of
third parties, such as customers, suppliers, partners, joint venturers, and the like, of Company
and its affiliates. Executive also agrees to preserve and protect the confidentiality of such
third party Confidential Information and Work Product to the same extent, and on the same basis, as
Company’s Confidential Information and Work Product.
5.4 Ownership by Company. If, during Executive’s employment by Company, Executive
creates any work of authorship fixed in any tangible medium of expression that is the subject
matter of copyright (such as videotapes, written presentations, or acquisitions, computer programs,
E-mail, voice mail, electronic databases, drawings, maps, architectural renditions, models,
manuals, brochures, or the like) relating to Company’s business, products, or services, whether
such work is created solely by Executive or jointly with others (whether during business hours or
otherwise and whether on Company’s premises or otherwise), including any Work Product, Company
shall be deemed the author of such work if the work is prepared by Executive in the scope of
Executive’s employment; or, if the work is not prepared by Executive within the scope of
Executive’s employment but is specially ordered by Company as a contribution to a collective work,
as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work,
as a compilation, or as an instructional text, then the work shall be considered to be work made
for hire and Company shall be the author of the work. If such work is neither prepared by
Executive within the scope of Executive’s employment nor a work specially ordered that is deemed to
be a work made for hire, then Executive hereby agrees to assign, and by these presents does assign,
to Company all of Executive’s worldwide right, title, and interest in and to such work and all
rights of copyright therein.
5.5 Assistance by Executive. During the period of Executive’s employment by Company
and thereafter, Executive shall assist Company and its nominee, at any time, in the protection of
Company’s (or its affiliates’) worldwide right, title and interest in and to Work Product and the
execution of all formal assignment documents requested by Company or its nominee and the execution
of all lawful oaths and applications for patents and registration of copyright in the United States
and foreign countries.
5.6 Remedies. Executive acknowledges that money damages would not be sufficient
remedy for any breach of this Article 5 by Executive, and Company or its affiliates shall be
entitled to enforce the provisions of this Article 5 by terminating payments then owing to
Executive under this Agreement or otherwise and to specific performance and injunctive relief as
remedies for such breach or any threatened breach. Notwithstanding the preceding sentence, during
any period in which Executive is alleged to be in breach of this Article 5 but during which he
continues to be an employee of Company, Company shall not be entitled to terminate payments of base
salary owing to Executive under paragraph 3.1; provided, however, that, in the event that Executive
is found to be in breach of this Article 5 and his employment with Company is terminated, Company
may recoup such base salary payments relating to the period from and after such breach in addition
to any other damages relating to such breach. Such remedies shall not be deemed the exclusive
remedies for a breach of this Article 5 but shall be in addition to all remedies available at law
or in equity, including the recovery of damages from Executive and his agents.
ARTICLE 6 NON-COMPETITION OBLIGATIONS
6.1 Non-Competition Obligations. As part of the consideration for the compensation
and benefits to be paid to Executive hereunder; to protect the trade secrets and confidential
information of Company and its affiliates that have been or will in the future be disclosed or
entrusted to Executive, the business good will of Company and its affiliates that has been and will
in the future be developed in Executive, or the business opportunities that have been and will in
the future be disclosed or entrusted to Executive by Company and its affiliates; and as an
additional
incentive for Company to enter into this Agreement, Company and Executive agree to the
provisions of this Article 6. Executive agrees that during the period of Executive’s
non-competition obligations hereunder, Executive shall not, directly or indirectly for Executive or
for others:
(i) engage in any Business that is (a) competitive with the Business conducted by Company and
(b) within the state of Ohio or any other state Company is conducting any Business, determined as
of the date of termination of the employment relationship for any period from and after the date of
termination of the employment relationship (a “Competitive Business”);
(ii) render any advice or services to, or otherwise assist, any other person, association, or
entity who is engaged, directly or indirectly, with any Competitive Business (it being understood
and agreed that Executive may, at any time after termination of Executive’s employment with
Company, be a partner in, employed by or otherwise affiliated with any law firm that renders any
such advice, services or assistance, provided that Executive does not personally render any such
advice, services or assistance);
(iii) induce any employee of Company or its affiliates to terminate his or her employment with
Company or its affiliates, or hire or assist in the hiring of any such employee by any person,
association, or entity not affiliated with Company; or
(iv) request or cause any customer of Company or its affiliates to terminate any business
relationship with Company or its affiliates.
For purposes of this Article 6, “Business” shall mean any coal or coal-related business, landfill
business, aggregates business, or other type of business as to which the revenues of such business
comprise seven and one-half percent or more of the lesser of the revenues of Oxford LP or the
earnings of Oxford LP before interest, taxes, depreciation and amortization. The non-competition
obligations under this Agreement shall apply during the period that Executive is employed by
Company (but, during such employment, with the Business scope and geographic scope of such
obligations measured as of the relevant date during Executive’s employment with Company). The
non-competition obligations under this Agreement shall also continue for 12 months after the date
of the termination of Executive’s employment with Company for any reason except any termination of
this Agreement pursuant to paragraph 2.1 (Termination by Expiration). For the avoidance of doubt,
the non-competition obligations under this Agreement shall not continue after the date of the
termination of Executive’s employment with Company if such termination occurs for any reason at any
time at or after the expiration of this Agreement as provided in paragraph 2.1 by reason of either
Company or Executive having given an Expiration Notice pursuant to paragraph 2.1. Executive
understands that the foregoing restrictions may limit Executive’s ability to engage in certain
businesses during the period provided for above, but acknowledges that Executive will receive
sufficiently high remuneration and other benefits under this Agreement to justify such
restrictions.
6.2 Enforcement and Remedies. Executive acknowledges that money damages would not be
sufficient remedy for any breach of this Article 6 by Executive, and Company shall be entitled to
enforce the provisions of this Article 6 by terminating any payments then owing to Executive under
this Agreement and/or to specific performance and injunctive relief as remedies
for such breach or any threatened breach. Such remedies shall not be deemed the exclusive
remedies for a breach of this Article 6, but shall be in addition to all remedies available at law
or in equity to Company, including, without limitation, the recovery of damages from Executive and
Executive’s agents involved in such breach and remedies available to Company pursuant to other
agreements with Executive.
6.3 Reformation. It is expressly understood and agreed that Company and Executive
consider the restrictions contained in this Article 6 to be reasonable and necessary to protect the
proprietary information of Company and its affiliates. Nevertheless, if any of the aforesaid
restrictions are found by a court having jurisdiction to be unreasonable, or overly broad as to
geographic area or time, or otherwise unenforceable, the parties intend for the restrictions
therein set forth to be modified by such courts so as to be reasonable and enforceable and, as so
modified by the court, to be fully enforced.
ARTICLE 7 NONDISPARAGEMENT
Executive shall refrain, both during the employment relationship and after the employment
relationship terminates, from publishing any oral or written statements about Company, its
affiliates, or any of such entities’ officers, employees, agents or representatives that (i) are
slanderous, libelous, or defamatory; (ii) disclose private or confidential information about
Company, its affiliates, or any of such entities’ business affairs, officers, employees, agents, or
representatives; (iii) constitute an intrusion into the seclusion or private lives of the officers,
employees, agents, or representatives of Company or its affiliates; (iv) give rise to unreasonable
publicity about the private lives of the officers, employees, agents, or representatives of Company
or its affiliates; (v) place Company, its affiliates, or any of such entities’ officers, employees,
agents, or representatives in a false light before the public; or (vi) constitute a
misappropriation of the name or likeness of Company, its affiliates, or any of such entities’
officers, employees, agents, or representatives. A violation or threatened violation of this
prohibition may be enjoined by the courts. The rights afforded Company and its affiliates under
this provision are in addition to any and all rights and remedies otherwise afforded by law.
Company agrees that, both during Executive’s employment relationship and after the employment
relationship terminates, Company, its affiliates, and such entities’ officers, employees, agents or
representatives shall refrain from publishing any oral or written statements about Executive that
(i) are slanderous, libelous, or defamatory; (ii) disclose private or confidential information
about Executive; (iii) constitute an intrusion into the seclusion or private life of Executive;
(iv) give rise to unreasonable publicity about the private life of Executive; (v) place Executive
in a false light before the public; or (vi) constitute a misappropriation of the name or likeness
of Executive. A violation or threatened violation of this prohibition may be enjoined by the
courts. The rights afforded Executive under this provision are in addition to any and all rights
and remedies otherwise afforded by law.
The nondisparagement obligations of this Article 7 shall not apply to communications with law
enforcement or required testimony under law or court process.
ARTICLE 8 MISCELLANEOUS
8.1 Notices. For purposes of this Agreement, notices and all other communications
provided for herein shall be in writing and shall be deemed to have been duly given when personally
delivered or when mailed by United States registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
If to Company to:
|
Oxford Resources GP, LLC | |
| 00 Xxxxx Xxxx Xxxxxx | ||
| Xxxxx 0000 | ||
| Xxxxxxxx, Xxxx 00000 | ||
| Attention: Chairman of the Board | ||
with a copy to:
|
AIM Infrastructure MLP Fund, L.P. | |
| 000 Xxxxx Xxxx | ||
| Xxxxx 000 | ||
| Xxxxxx Xxxx, Xxxxxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx | ||
If to Executive to:
|
Xxxxxx X. Xxxxx | |
| 0000 Xxxxxx Xxxx Xxxxxx | ||
| Xxxxxxxx, Xxxx 00000 |
or to such other address as either party may furnish to the other in writing in accordance
herewith, except that notices or changes of address shall be effective only upon receipt.
8.2 Applicable Law. This Agreement is entered into under, and shall be governed for
all purposes by, the laws of the State of Ohio.
8.3 No Waiver. No failure by either party hereto at any time to give notice of any
breach by the other party of, or to require compliance with, any condition or provision of this
Agreement shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or
at any prior or subsequent time.
8.4 Severability. If a court of competent jurisdiction determines that any provision
of this Agreement is invalid or unenforceable, then the invalidity or unenforceability of that
provision shall not affect the validity or enforceability of any other provision of this Agreement,
and all other provisions shall remain in full force and effect.
8.5 Counterparts. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original, but all of which together will constitute one and the same
agreement.
8.6 Withholding of Taxes and Other Employee Deductions. Company may withhold from any
benefits and payments made pursuant to this Agreement or otherwise all federal, state, city and
other taxes as may be required pursuant to any law or governmental regulation or
ruling and all other normal employee deductions made with respect to Company’s employees
generally.
8.7 Headings. The paragraph headings have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
8.8 Gender and Plurals. Wherever the context so requires, the masculine gender
includes the feminine or neuter, and the singular number includes the plural and conversely.
8.9 Affiliate. As used in this Agreement, the term “affiliate” shall mean any entity
which owns or controls, is owned or controlled by, or is under common ownership or control with,
Company.
8.10 Assignment and Assumption. This Agreement shall be binding upon and inure to the
benefit of Company and any successor of Company, by merger or otherwise. This Agreement shall also
be binding and inure to the benefit of Executive and his heirs. Except as provided in the
preceding provisions of this paragraph 8.10, this Agreement, and the rights and obligations of the
parties hereunder, are personal and neither this Agreement, nor any right, benefit, or obligation
of either party hereto, shall be subject to voluntary or involuntary assignment, alienation or
transfer, whether by operation of law or otherwise, without the prior written consent of the other
party.
8.11 Term. This Agreement has a term co-extensive with the term of employment
provided in Article 2. Termination shall not affect any right or obligation of any party which is
accrued or vested prior to such termination. The provisions of paragraphs 2.4, 2.5, 4.1, 4.4, 4.5,
4.6, 4.7 and 4.8 and Articles 5, 6, 7 and 8 shall survive any termination of this Agreement.
8.12 Entire Agreement. Except as provided in the Excepted Plans/Agreements (as
defined below), as of the Effective Date, this Agreement will constitute the entire agreement of
the parties with regard to the subject matter hereof, and will contain all the covenants, promises,
representations, warranties and agreements between the parties with respect to employment of
Executive by Company. Without limiting the scope of the preceding sentence, all understandings and
agreements preceding the date of execution of this Agreement and relating to the subject matter
hereof (other than the Excepted Plans/Agreements), including without limitation the Existing
Agreement, are as of the Effective Date superceded by this Agreement and null and void and of no
further force and effect. Any modification of this Agreement will be effective only if it is in
writing and signed by the party to be charged. For purposes hereof, the “Excepted
Plans/Agreements” are (i) the written benefit plans and programs referenced in paragraph 3.3(iii)
(and any agreements between Company and Executive that have been executed under such plans and
programs) and paragraph 4.8, (ii) any signed written agreement contemporaneously or hereafter
executed by Company and Executive and (iii) any exceptions provided for in the terms of this
Agreement.
8.13 Legal Expenses; Indemnification. Company shall reimburse Executive for his
reasonable attorneys fees in connection with the review and negotiation of this Agreement. In
addition, if Executive incurs legal costs and expenses (including reasonable attorneys’ fees) in
any contest relating to rights under this Agreement and prevails in such contest, Company shall
reimburse Executive (and his heirs, executors, and administrators) for his reasonable legal costs
and expenses (including reasonable attorneys’ fees) incurred with respect to such contest.
Executive shall be indemnified and held harmless by Company during the term of this Agreement and
following any termination of this Agreement for any reason whatsoever in the same manner as would
any other executive employee of Company with respect to acts or omissions occurring prior to (a)
the termination of this Agreement or (b) the termination of employment of Executive.
8.14 Liability Insurance. Company shall maintain a directors’ and officers’ insurance
liability policy throughout the term of this Agreement and shall provide Executive with coverage
under such policy on terms and for amounts not less favorable to Executive than provided to other
Senior Executives.
8.15 Arbitration.
(i) Company and Executive agree to submit to final and binding arbitration any and all
disputes or disagreements concerning the interpretation or application of this Agreement, the
termination of this Agreement, or any other aspect of the Executive’s employment relationship with
Company. Any such dispute or disagreement will be resolved by arbitration in accordance with the
National Rules for the Resolution of Employment Disputes of the American Arbitration Association
before a single arbitrator. Arbitration will take place in Columbus, Ohio, unless the parties
mutually agree to a different location. Company and Executive agree that the decision of the
arbitrator will be final and binding on both parties. Any court having jurisdiction may enter a
judgment upon the award rendered by the arbitrator. The costs of the proceedings shall be borne
equally by the parties unless the arbitrator orders otherwise.
(ii) Notwithstanding the provisions of paragraph 8.15(i), (A) Company may, if it so chooses,
bring an action in any court of competent jurisdiction for temporary or preliminary injunctive
relief to enforce Executive’s obligations under Articles 5, 6 or 7 hereof, pending a decision by
the arbitrator in accordance with paragraph 8.15(i), and (B) Executive may, if he so chooses, bring
an action in any court of competent jurisdiction for temporary or preliminary injunctive relief to
enforce Company’s obligations under Article 7 hereof, pending a decision by the arbitrator in
accordance with paragraph 8.15(i).
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the 1st day of August,
2010, to be effective as of the Effective Date.
| Oxford Resources GP, LLC |
||||
| By: | s/ Xxxxxxx X. Xxxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxxx | |||
| Title: | President and Chief Executive Officer | |||
“COMPANY”
| s/ Xxxxxx X. Xxxxx | ||||
| Name: | Xxxxxx X. Xxxxx | |||
“EXECUTIVE”
