EMPLOYMENT AGREEMENT
This Employment Agreement ("Agreement") is made as of the 1st day of May
2004 (the "Effective Date"), between UNITED FUEL & ENERGY CORPORATION, a
corporation having its principal place of business in Midland, Texas, and its
wholly-owned subsidiaries (collectively, the "Company"), and XXXXX X. PAGE
("Employee").
WHEREAS, the Company is currently engaged in the distribution of fuel
products through the following methods: (a) gasoline and diesel sales through
unattended re-fueling stations for commercial vehicles and fleets (known as
card-lock sites); (b) wholesale distribution of gasoline and diesel products to
commercial customers, which car dealers, gas stations, state and municipal
government, trucking companies, and oil field service companies; (c) wholesale
distribution of lubricant products (including gear oil, gas engine oil,
heavy-duty motor oil, hydraulic oil, transmission oil, hi-temp [specialty]
greases, and synthetics) to commercial customers, which include power generation
facilities, gas engine compressors, fleets, and oil field equipment; (d)
stand-by bobtail trucking services to oil field companies; and (e) sale and
distribution, through bulk plants, of regular propane (used in heating) and
refrigerant propane (used in commercial facilities for chilling) to residential
and commercial customers; all in the State of Texas and the eastern portion of
the State of New Mexico (the "Business"); and
WHEREAS, the Company desires to obtain the services of Employee and
Employee desires to be employed by the Company upon the terms and conditions
hereinafter set forth; and
WHEREAS, as an ancillary and integral part of this Agreement, the Company
desires to obtain Employee's covenant not to compete and other covenants, and
Employee desires to make a covenant not to compete and such other covenants as
hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants herein contained, and
other good and valuable consideration, the receipt and adequacy of which are
hereby forever acknowledged, the parties, with the intent of being legally bound
hereby, agree as follows:
1. Position and Responsibilities.
1.1 Position. The Company agrees to employ Employee, and Employee agrees
to accept employment as a Vice President, Chief Financial Officer
and Secretary of the Company, all in accordance with the terms and
conditions of this Agreement. Employee shall perform such duties and
responsibilities as are normally related to such position in
accordance with the standards of the industry and any additional
duties normally associated with this position now or hereafter
assigned to Employee by the Company. Employee shall use his best
efforts to promote the interests of the Company. This Agreement
shall supersede any and all employment agreements, letters of
intent, term sheets, arrangements and/or any other understanding,
whether written or oral, between Employee and the Company, regarding
any and all matters relating to employment, compensation, benefits,
or similar matters.
- 2 -
1.2 Other Activities. Employee shall devote his full business time,
attention, and skill to perform any assigned duties, services, and
responsibilities while employed by the Company, for the furtherance
of the Company's business, in a diligent, loyal, and conscientious
manner. Employee shall diligently provide full time services to the
Company by performing all services, acts, or things necessary or
advisable to manage and conduct the business of the Company, subject
to the Bylaws of the Company and the policies set forth by the Board
of Directors of the Company ("the Board) not inconsistent with the
provisions of this Agreement. Employee shall not, during the term of
this Agreement: (a) accept any other employment, or (b) engage,
directly or indirectly, in any other business activity (whether or
not pursued for pecuniary advantage) that might interfere with
Employee's duties and responsibilities hereunder or create a
conflict of interest with the Company. The foregoing limitations
shall not be construed to prohibit Employee from: (i) investing in
and advising management of a non-competing business (provided such
activities do not materially interfere or conflict with the
performance of Employee's duties under this Agreement), or (ii)
investing in the stock of any competing corporation listed on a
national securities exchange or traded in the over-the-counter
market if Employee does not manage or advise the corporation's
business and Employee and his associates (as that term is defined in
Regulation 15(A) promulgated under the Securities Exchange Act of
1934, as in effect on the date of this Agreement), collectively, do
not own more than 2% of the corporation's stock.
1.3 No Conflict. Employee represents and warrants that Employee's
execution of this Agreement, Employee's employment with the Company,
and the performance of Employee's proposed duties under this
Agreement shall not violate any obligations Employee may have to any
other employer, person, or entity, including any obligations with
respect to proprietary or confidential information of any other
person or entity. Further, Employee shall indemnify the Company for
any claim, including, but not limited to, reasonable attorneys' fees
and expenses of investigation, by any such third party that such
third party may now have or may hereafter come to have against the
Company, based upon or arising out of any non-competition agreement,
invention, or secrecy agreement between Employee and such third
party which was in existence as of the date of this Agreement.
- 3 -
2. Compensation and Benefits.
2.1 Base Salary. As compensation for the services to be rendered by
Employee, the Company shall pay Employee a Base Salary equivalent to
one hundred fifty thousand dollars ($150,000.00), paid in equal
installments in accordance with the Company's regular payroll
practices ("Base Salary"). Such Base Salary shall be subject to such
withholding and deductions as required by law and as may be mutually
agreed to by Employee and the Company. Employee's Base Salary shall
increase to one hundred seventy-five thousand dollars ($175,000.00)
beginning May 1, 2005, provided Employee remains continuously
employed by the Company to that date. Employee's Base Salary will be
reviewed from time to time in accordance with the established
procedures of the Company for adjusting salaries for
similarly-situated employees and increased in the sole discretion of
the Company. Employee's Base Salary may not be decreased during the
Term of this Agreement unless the Company implements a Company-wide
salary reduction.
2.2 Bonus. As additional compensation for employment under this
Agreement, Employee will receive a bonus of twenty-five thousand
dollars ($25,000.00) on April 29, 2005 if Employee has been
continuously employed by the Company to that date. Any other bonuses
or incentive pay will be determined and paid by the Company from
time to time, or not at all, in its sole discretion.
2.3 Stock Options. In addition to the other compensation provided for in
this Agreement, the parties agree that Employee will become entitled
in the future to an option to purchase the number of shares of
common stock of the Company in an amount not less that three percent
(3%), but not to exceed 300,000 shares, of the common stock of the
Company issued and outstanding at the time specified below, at a
price per share equal to the fair market value of a share of common
stock of the Company at the time of the issuance of such stock
option. Such stock option is to be issued upon the effective date of
the anticipated reverse merger of the Company.
2.4 Fringe Benefits. In addition to the Base Salary payable to Employee
under this Agreement, and so long as Employee meets the applicable
eligibility requirements, Employee shall be eligible to participate
in the benefits made generally available by the Company to
similarly-situated employees, in accordance with the benefit plans
established by the Company from time to time, and as may be amended
from time to time, in the Company's sole discretion. The Company
reserves the right to terminate any benefit plan for any reason or
no reason. Employee shall be entitled to three (3) weeks paid
vacation each year, consistent with Company policy for senior
executive officers.
- 4 -
2.5 Business Expenses. Throughout the Term of this Agreement, the
Company shall reimburse Employee for all reasonable and necessary
business expenses which may be incurred by Employee in the course of
performing his duties. Authorized expenses shall be reimbursed by
the Company in accordance with policies and practices adopted, from
time to time, by the Company concerning expense reimbursement for
employees and shall be reimbursed upon timely presentation to the
Company of an itemized expense statement with respect thereto,
including substantiation of expenses incurred and such other
documentation as may be required by the Company's reimbursement
policies from time to time and in accordance with Internal Revenue
Service guidelines.
3. Term. This Agreement shall be effective as of the Effective Date, and
shall continue in effect for a three (3) year period ending April 30,
2007, unless earlier terminated in accordance with Section 4 (the "Initial
Term"); provided however, that this Agreement shall be automatically
extended beyond the Initial Term for a period of one (1) year, and
successive one-year periods thereafter (the "Renewal Term"), unless either
party notifies the other party of the termination of this Agreement in
writing by placing such notice in the United States mail, certified,
return receipt requested, postage prepaid to the address shown below, at
least thirty (30) days prior to the end of the Initial Term or any Renewal
Term. The term of this Agreement, whether during the Initial Term or any
Renewal Term, shall be referred to as the "Term."
4. Termination. This Agreement and Employee's employment may be terminated in
any one of the followings ways:
a. Death. The death of Employee shall immediately and automatically
terminate this Agreement.
b. Disability. If Employee is under a Disability (as defined below),
the Company may terminate his employment under this Agreement during
the continuance of the Disability by providing at least thirty (30)
days prior written notice. The Board, in the exercise of its
reasonable judgment acting in good faith, shall determine whether
Employee is under a Disability. The determination may not be
arbitrary or unreasonable, and the Board shall take into
consideration the opinion of Employee's personal physician, if
reasonably available, as well as applicable provisions of the
Americans with Disabilities Act and the opinion of any qualified
physician selected by the Company to evaluate Employee, but the
determination by the Board shall be final and binding on the parties
to this Agreement, provided such determination is made consistent
with the provisions of this Agreement. "Disability," as used in this
Agreement, means the Employee is unable, by reason of illness or
physical or mental incapacity or disability (from any cause
whatsoever) to perform the essential functions of his position under
this Agreement, whether with or without reasonable accommodation by
the Company, in substantially the manner and to the extent required
under this Agreement before the commencement of the Disability, for
a total period of ninety (90) days in any one hundred eighty (180)
day period.
- 5 -
c. Cause. The Company may terminate this Agreement and Employee's
employment immediately upon written notice to Employee for cause.
"Cause" as used in this Agreement shall mean the occurrence of any
of the following events:
(1) a material breach by Employee of any of the terms and
conditions of this Agreement, or Employee's intentional
non-performance (other than by reason of Disability) of any of
Employee's duties or responsibilities under this Agreement or
of any reasonable, lawful instructions from the Board, which
has not been cured by Employee after reasonable notice and
opportunity to cure;
(2) Employee's dishonesty, fraud, disloyalty, or misconduct with
respect to the business or affairs of the Company which the
Board determines in the exercise of its reasonable judgment
has been or is likely to be injurious to the interest,
property, operations, business, or reputation of the Company;
(3) Employee's conviction of a crime other than a minor traffic
violation or similar minor offense;
(4) the good faith determination by the Board in the exercise of
its reasonable judgment that Employee has committed an act
that: (i) materially and negatively affects the Company's
business or reputation (including its relationships with its
customers, suppliers, or employees); (ii) constitutes moral
turpitude; or (iii) indicates alcohol or drug abuse by
Employee that adversely affects his performance under this
Agreement; or
(5) Employee's gross negligence in the performance of any of his
duties or responsibilities under this Agreement.
d. Without Cause. The Company may terminate this Agreement and
Employee's employment hereunder without Cause and for any or no
reason by providing thirty (30) days written notice to Employee
placed in the United States mail, certified, return receipt
requested, postage prepaid to the address shown below. Any such
termination is effective upon the date of service of the notice in
accordance with this Agreement.
- 6 -
e. Resignation or Retirement. Employee may terminate this Agreement and
his employment hereunder upon at least (30) days written notice to
the Company placed in the United States mail, certified, return
receipt requested, postage prepaid to the address shown below.
f. Change in Control. This Agreement and Employee's employment
hereunder may be terminated in connection with a Change in Control,
as defined in Section 9.
5. Effect of Termination. If Employee's employment under this Agreement is
terminated, the following shall occur:
a. Employee's Base Salary shall cease to accrue;
b. Employee shall cease to accrue vacation days and any other paid time
off (including sick days and personal days). Employee shall be paid
for accrued unused vacation time in accordance with the Company's
policies and practices. Employee shall not be paid for unused sick
days or other paid time off;
c. Employee shall submit any claims for reimbursement of business
expenses incurred within the time period required under the
Company's policies generally, or the Company will not be obligated
to reimburse such expenses;
d. Employee shall return all Company property in accordance with
Section 7;
e. The obligations and restrictions imposed on Employee under Section 8
shall continue in full force and effect;
f. Any vested benefits of Employee under any plan or agreement shall
not be affected; and
g. The Company shall continue to have all other rights available under
this Agreement.
6. Compensation After Termination. If Employee's employment under this
Agreement is terminated by:
a. Employee's death or Disability, Employee or Employee's estate shall
not be paid any Base Salary or severance pay after the date of death
or the date of determination of Employee's Disability. To the extent
consistent with Company policy for all senior executive officers,
Employee or Employee's estate may receive other benefits upon his
death or Disability.
- 7 -
b. The Company for Cause, the Company shall have no further obligations
under this Agreement or otherwise with respect to Employee's
employment from and after the termination date. Employee shall not
be entitled to any severance pay or other compensation.
c. The Company without Cause, Employee shall be paid the greater of the
Base Salary then in effect for the remaining Term of this Agreement
or, after the end of the second year, 12 months salary at the Base
Salary rate.
d. The Employee through resignation or retirement, the Employee will be
paid his Base Salary and the benefits referred to in Section 2.4 on
a pro rata basis through the last day worked. Employee shall be
expected to continue to perform his duties under this Agreement
between the date of written notice to the Company and the effective
date of resignation or retirement; provided, however, that the
Company reserves the right, in its sole discretion, to relieve
Employee of his duties and continue Employee's Base Salary and
benefits through the effective date of resignation or retirement.
e. Expiration of the Term of the Agreement, Employee shall not be
entitled to any severance pay or other compensation and all
obligations of the parties shall end, except that the obligations
and restrictions imposed on Employee under Section 8 shall continue
in full force and effect.
7. Return of Company Property. Upon the termination of Employee's employment
with the Company, for any reason, and at any time upon the Company's
request, Employee shall deliver to the Company all Company property,
including: (a) all documents, contracts, writings, disks, diskettes,
computer files or programs, computer-generated materials, information,
documentation, or data stored in any medium, recordings and drawings
pertaining to trade secrets, proprietary or confidential information, or
other inventions and works of the Company; (b) all records, designs,
plans, sketches, specifications, patents, business plans, financial
statements, accountings, flow charts, manuals, notebooks, memoranda, lists
(including price lists and customer lists), and other property delivered
to or compiled by Employee, by or on behalf of the Company or any of its
representatives, vendors, or customers which pertain to the business of
the Company, all of which shall be and remain the property of the Company,
and shall be subject, at all times, to its discretion and control; (c) all
equipment, devices, products, and tangible personal property entrusted to
Employee by the Company, including but not limited to computers, printers
and other computer equipment or accessories, cellular telephones, pagers,
keys, access cards, identification cards, and credit cards; and (d) all
correspondence, reports, records, notes, charts, advertisement materials,
and other similar data pertaining to the business, activities, or future
plans of the Company, in the possession or control of Employee, shall be
delivered promptly to the Company without request by it. Employee shall
certify to the Company, in writing, within five (5) days of any request by
the Company, that, to the best of his knowledge and belief, all such
materials have been returned to the Company.
- 8 -
8. Covenant Not to Compete.
8.1 Acknowledgements. Employee acknowledges that he will be employed by
the Company in a confidential relationship wherein Employee, in the
course of his employment with the Company, will become familiar with
and aware of information as to the Company and its customers, the
Company's specific manner of doing business, including the
processes, techniques, and trade secrets utilized by the Company,
and the Company's future plans with respect thereto, all of which
have been and will continue to be established and maintained at
great expense to the Company, which information is a trade secret
and constitutes valuable good will of the Company. Employee further
acknowledges that Employee's services to the Company will be unique
in nature and of extraordinary value to the Company, and that the
Company would be irreparably damaged if Employee were to provide
similar services, or reveal trade secrets or confidential
information, to any person or entity competing with the Company or
engaged in a similar business. Employee further acknowledges that
the Company would be irreparably damaged if Employee were to disrupt
the Company's existing relationships with its employees,
contractors, consultants, agents, or customers. Employee further
acknowledges that the agreements and covenants contained in this
Section 8 are essential to protect the Company and the goodwill of
the Business.
8.2 Restriction on Competition. During the Restricted Period (as defined
below) and within the Territory (as defined below), Employee agrees
that he may not, directly or indirectly, for himself or on behalf of
or in conjunction with any other person(s), company, partnership,
limited liability company, corporation, entity, or business of
whatever nature,
a. Engage, as an officer, director, shareholder, owner, partner,
joint venturer, principal, individual proprietor, or in any
other capacity, whether as an agent, employee, independent
contractor, consultant, or advisor, or as a sales
representative, in the Business (as defined above) or any
other business whose products or services compete in whole or
in part with the Company or with any material portion of the
Company during the Restricted Period and within the Territory;
b. Call upon any person who is, at that time, an employee of the
Company, for the purpose or with the intent of enticing such
employee away from or out of the employ of the Company;
c. Call upon any person or entity which is, at that time, or
which has been, within the two (2) years prior to that time, a
customer or prospective customer of the Company with whom
Employee has had material contact (as defined below), for the
purpose of soliciting or selling products and services similar
in nature to those which are or were provided by the Company
to such customer; or persuade or attempt to persuade any
agent, vendor, supplier, client, customer, prospective
customer, independent contractor, or other person who has a
business or professional relationship with the Company to
cease to do business with the Company, reduce the amount of
business that it historically has done with the Company, or
otherwise adversely or materially alter its business or
professional relationship with the Company. For purposes of
this subsection, "material contact" exists between Employee
and an actual or prospective customer of the Company if
Employee: (i) personally dealt with such customer; (ii)
coordinated or supervised dealings with such customer; or
- 9 -
(iii) obtained Confidential Information (as defined below)
about such customer in the ordinary course of business through
Employee's association with the Company; provided, however,
that "material contact" shall not exist if Employee had a
relationship with such customer that predates Employee's
employment with the Company and such customer became a
customer of the Company without Employee utilizing any of the
resources or goodwill of the Company. "Confidential
Information," as used in this Agreement, means any information
relating to the Company's business or affairs of the Business,
including information relating to financial statements,
customer identities, customer specifications, potential
customers, employees, suppliers, servicing methods, equipment,
drawings, patterns, devices, programs, strategies and
information, analyses, profit margins or other proprietary
information used by the Company in connection with the
Business, but Confidential Information excludes any
information which is in the public domain or becomes known in
the industry through no wrongful act on Employee's part.
Employee acknowledges that the Confidential Information is
vital, sensitive, confidential, and proprietary to the
Company;
d. Call upon any prospective acquisition or merger candidate, on
the Employee's own behalf or on behalf of any competitor,
which candidate was, to the Employee's actual knowledge after
due inquiry, either called upon by the Company or for which
the Company made an acquisition or merger analysis, for the
purpose of acquiring such entity, provided that the Employee
shall not be charged with violating this section unless and
until the Employee shall have knowledge or notice that such
prospective acquisition or merger candidate was called upon,
or that an acquisition or merger analysis was made by the
Company for the purpose of acquiring or merging with such
entity; or
e. Disclose any Confidential Information regarding customers,
whether existing or prospective, of the Company to any person,
firm, partnership, corporation, or business for any reason or
purpose whatever.
"Restricted Period," as used in this Agreement, means the period beginning on
the Effective Date and ending one (1) year after the termination or expiration
date of this Agreement. "Territory," as used in this Agreement, means the area
within a one hundred (100) mile radius of Midland, Texas.
- 10 -
Notwithstanding the above, nothing in this Agreement shall prohibit Employee
from investing in the stock of any competing corporation listed on a national
securities exchange or traded in the over-the-counter market if Employee is not
involved in the corporation's business and Employee and his associates (as that
term is defined in Regulation 15(A) promulgated under the Securities Exchange
Act of 1934, as in effect on the date of this Agreement), collectively, do not
own more than two percent (2%) of the corporation's stock.
8.3 Remedies. Due to the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenants, and
because of the immediate and irreparable damage that could be caused
to the Company for which it would have no other adequate remedy, the
foregoing covenants may be enforced by the Company, in the event of
a breach by the Employee, by injunctive relief and/or restraining
orders. If a court having jurisdiction determines for any reason
that the Company is not entitled to injunctive relief, the Company
shall be entitled to recover from Employee all losses and damages
suffered by the Company as a result of the breach (including treble,
punitive, incidental, and consequential damages) and all profit,
remuneration, or other consideration that Employee gains from
breaching this covenant; and reimbursement from Employee of all
costs incurred by the Company in enforcing the covenant or otherwise
defending or prosecuting any mediation, arbitration, or litigation
arising out of the covenant, including attorneys' fees and court
costs. The Company may exercise any of the foregoing remedies
concurrently, independently, or successively.
8.4 Reasonable Restraint. Employee acknowledges and agrees that the
foregoing covenants in this Section 8 are reasonable and necessary
to protect the Company's legitimate business interests and do not
impose any limitations greater than those necessary to protect those
interests.
8.5 Severability. The covenants in this Section 8 are severable and
separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. Moreover, in the
event any court of competent jurisdiction shall determine that the
scope, time, or territorial restriction of any specific covenant as
set forth is unreasonable, then it is the intention of the parties
that such restriction be enforced to the fullest extent which the
court deems reasonable, and the Agreement shall thereby be reformed.
8.6 Independent Provisions. All of the covenants in this Section 8 shall
be construed as an agreement independent of any other provision in
this Agreement, and the existence of any claim or cause of action of
the Employee against the Company, whether predicated on this
Agreement or otherwise, shall not constitute a defense to the
enforcement by the Company of any of such covenants. It is
specifically agreed that the period of one (1) year following
termination of employment stated at the beginning of this Section 8,
during which the agreements and covenants of the Employee made in
this Section 8 shall be effective, shall be computed by excluding
from such computation any time during which the Employee is in
violation of any provision of this Section 8.
- 11 -
9. Change in Control. In the event of a Change in Control (as defined below)
that results in the termination of Employee's employment or that causes
Employee to take a material reduction in Base Salary, the following shall
occur: (a) Employee shall be entitled to receive (12) months Base Salary
if the event occurs after completion of employee's second year or, if
within the first two years of employment the balance of the term remaining
of this agreement, payable thirty (30) days after the occurrence of the
Change in Control; and (b) all options granted to Employee to purchase
shares of common stock of the Company shall immediately become fully
vested and exercisable. A "Change in Control" shall occur for purposes of
this Agreement if: (a) members of the Board as of the date of this
Agreement cease for any reason at any time to constitute at least a
majority of the Board, except to the extent that the incumbent Board
consents to such change; (b) the shareholders of the Company as of the
Effective Date no longer own more than fifty percent (50%) of the issued
and outstanding common stock of the Company; (c) the Company sells all or
substantially all of the assets of the Company; or (d) Employee is
required by the Company to relocate and work from a location more than
fifty (50) miles from Midland, Texas. This provision shall be binding upon
any successor in interest to the Company, which shall assume all
obligations of the Company set forth in this Section.
10. Additional Provisions.
10.1 Amendments; Waivers; Remedies. This Agreement may not be amended or
waived except by a writing signed by Employee and by a duly
authorized representative of the Company. Employee agrees that he
may not, at any time during the Term of this Agreement, rely on any
oral representations of any sort or character regarding his
employment status, salary, bonuses, or benefits. Failure to exercise
any right under this Agreement shall not constitute a waiver of such
right. Any waiver of any breach of this Agreement shall not operate
as a waiver of any subsequent breaches. All rights or remedies
specified for a party herein shall be cumulative and in addition to
all other rights and remedies of the party hereunder or under
applicable law.
10.2 Assignment. The performance of Employee is personal hereunder, and
Employee agrees that Employee shall have no right to assign and
shall not assign or purport to assign any rights or obligations
under this Agreement. This Agreement may be assigned or transferred
by the Company to: (i) any subsidiary or affiliate of the Company to
which the Business is assigned at any time, or (ii) the purchaser of
all or substantially all of the Company's assets. Nothing in this
Agreement shall prevent the consolidation, merger, or sale of the
Company or a sale of any or all or substantially all of its assets.
- 12 -
10.3 Binding Effect. Subject to the foregoing restriction on assignment
by Employee, this Agreement shall inure to the benefit of and be
binding upon each of the parties; the affiliates, officers,
directors, agents, successors, and assigns of the Company; and the
heirs, devisees, spouses, legal representatives, and successors of
Employee.
10.4 Notices. For purposes of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly received five (5) days after
being placed in the United States mail, certified, return receipt
requested, postage prepaid, addressed as follows:
If to Employee:
Xxxxx X. Page
0000 Xxxxxxx Xxx.
Xxxxxxx, XX 00000
If to the Company:
United Fuel & Energy Corp.
000 X. Xxxxxxxxxx
Xxxxx Xxxxx
Xxxxxxx, XX 00000
or to such other address as either party may have furnished to the other
in writing in accordance herewith, except that notices of change of
address sent to an address other than as listed above sent through the
United States mail shall be effective only upon receipt, or if sent by any
other means, upon delivery.
10.5 Severability. If any provision of this Agreement shall be held to be
invalid, unenforceable, or void, such provision shall be enforced to
the fullest extent permitted by law, and the remainder of this
Agreement shall remain in full force and effect and shall be
enforced to the fullest extent permitted by law. In the event that
the time period or scope of any provision is declared by a court of
competent jurisdiction to exceed the maximum time period or scope
that such court deems enforceable, then such court shall reduce the
time period or scope to the maximum time period or scope permitted
by law.
10.6 Taxes. All amounts paid under this Agreement (including, without
limitation, Base Salary) shall be reduced by all applicable state
and federal tax withholdings and any other withholdings required by
any applicable jurisdiction.
10.7 Governing Law. The validity, interpretation, enforceability and
performance of this Agreement shall be governed by and construed in
accordance with the laws of the State of Texas, without regard to
conflict of laws principles.
- 13 -
10.8 Interpretation. This Agreement shall be construed as a whole,
according to its fair meaning, and not in favor of or against any
party. Sections and section headings contained in this Agreement are
for reference purposes only, and shall not affect, in any manner,
the meaning or interpretation of this Agreement. Whenever the
context requires, references to the singular shall include the
plural and the plural the singular.
10.9 Authority. Each party represents and warrants that such party has
the right, power, and authority to enter into and execute this
Agreement and to perform and discharge all of the obligations
hereunder, and that this Agreement constitutes the valid and legally
binding agreement and obligation of such party and is enforceable in
accordance with its terms.
10.10 Additional Assurances. The provisions of this Agreement shall be
self-operative and shall not require further agreement by the
parties except as may be herein specifically provided to the
contrary; provided, however, that at the request of the Company,
Employee shall execute such additional instruments and take such
additional acts as the Company may deem necessary to effectuate this
Agreement.
10.11 Entire Agreement. This Agreement is the final, complete, and
exclusive agreement of the parties with respect to the subject
matter hereof and supersedes and merges all prior or contemporaneous
representations, discussions, proposals, negotiations, conditions,
communications, and agreements, whether written or oral, between the
parties relating to the subject matter hereof and all past courses
of dealing or industry custom. No oral statements or prior written
material not specifically incorporated herein shall be of any force
and effect, and no changes in or additions to this Agreement shall
be recognized unless incorporated herein by amendment, as provided
herein (such amendment to become effective on the date stipulated
therein).
10.12 Employee Acknowledgment. Employee acknowledges that, before signing
this Agreement, he was advised of his right to consult with an
attorney of his choice to review this Agreement and that Employee
had sufficient opportunity to have an attorney review the provisions
of this Agreement and negotiate its terms. Employee further
acknowledges that he had a full and adequate opportunity to review
this Agreement before signing it; that he carefully read and fully
understood all the provisions of this Agreement before signing it,
including the rights and obligations of the parties; and that he has
entered into this Agreement knowingly and voluntarily.
- 14 -
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
EMPLOYEE:
/s/ Xxxxx X. Page
-----------------------------------
Xxxxx X. Page
UNITED FUEL & ENERGY CORPORATION
By: /s/ Xxxxx Xxxxxx
-----------------------------------
Title: President/COO
