AGREEMENT
Exhibit
10.27
AGREEMENT
THIS
AGREEMENT (the “Agreement”) is made as of this 31st day of July, 2009, by and
between Alpha Natural Resources Services, LLC (the “Company”) and Xxxxxxx X.
Xxxxxxx (“Executive”).
WHEREAS,
the indirect parent company of the Company, Alpha Natural Resources, Inc.
("Alpha"), has entered into a Merger Agreement with Foundation Coal Holdings,
Inc., dated May 11, 2009 (the "Merger Agreement), pursuant to which Alpha is to
merge with and into Foundation (the "Merger"), with Foundation as the surviving
corporation (the "Surviving Corporation");
WHEREAS,
it is anticipated that the Merger will be finalized and effectuated in the
future ("Closing") at a date and time not yet set ("Closing Date");
WHEREAS,
the Merger Agreement contemplates that the Executive's position as Alpha's Chief
Executive Officer will terminate at the effective time of the
Merger;
WHEREAS,
the Company employs Executive pursuant to the terms and conditions set forth in
that certain Employment Agreement, dated as of January 1, 2003, between
Executive and Alpha Natural Resources, LLC, that was assigned to the Company as
of December 31, 2003, amended and restated March 31, 2004, further amended and
restated as of January 28, 2005, further amended and restated as of January 1,
2006 and further amended and restated as of November 17, 2008 (as amended from
time to time, the “Employment Agreement”) which provides for certain payments
and benefits in the event that the Executive's employment is terminated under
certain circumstances;
WHEREAS,
the Executive and the Company acknowledge and agree that the termination of
Executive's position as Chief Executive Officer would, except as provided in the
following paragraph, give rise to Executive's involuntary termination without
"Cause" (as defined in the Employment Agreement), with severance payments and
benefits to be provided to Executive in accordance with the terms of the
Executive's Employment Agreement, provided that the Executive executes and does
not revoke a release of claims;
WHEREAS,
pursuant to Section 1.4(c) of the Merger Agreement, the Surviving Corporation is
to use commercially reasonable efforts to elect Executive as Chairman of the
Board of Directors of the Surviving Corporation to assist the Surviving
Corporation in connection with certain transitional matters; and
WHEREAS,
the Company desires to terminate the Executive's position as Chief Executive
Officer of Alpha effective upon the consummation of the Closing (“Date of
Termination”) under the terms and conditions provided
herein.
NOW,
THEREFORE, IT IS HEREBY AGREED by and between the Executive and the Company as
follows:
1. (a) The
Executive, for and in consideration of the commitments of the Company as set
forth in this Agreement, and intending to be legally bound, does hereby REMISE,
RELEASE AND FOREVER DISCHARGE the Company, its present and future affiliates,
predecessors, subsidiaries and parents, and their present or former officers,
directors, shareholders, employees, attorneys and agents, and its and their
respective successors, assigns, heirs, executors, and administrators and the
current and former trustees or administrators of any pension or other benefit
plan applicable to the employees or former employees of the Company
(collectively, “Releasees”) from all causes of action, suits, debts, claims and
demands whatsoever in law or in equity, which the Executive ever had, now has,
or hereafter may have, whether known or unknown, or which the Executive's heirs,
executors, or administrators may have, by reason of any matter, cause or thing
whatsoever, from any time prior to the date of this Agreement, and particularly,
but without limitation of the foregoing general terms, any claims arising from
or relating in any way to the Executive's position with the Company as Alpha's
Chief Executive Officer, any right to severance payments or benefits under
Executive's Employment Agreement, the terms and conditions of that employment
relationship, and the termination of that employment relationship, including,
but not limited to, any claims arising under the Age Discrimination in
Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil
Rights Act of 1964, the Americans with Disabilities Act, the Employee Retirement
Income Security Act of 1974, The Family Medical Leave Act, and any other claims
under any federal, state or local common law, statutory, or regulatory
provision, now or hereafter recognized, and any claims for attorneys' fees and
costs; provided, however, that nothing contained herein shall be deemed to be a
release of the obligations of the Company under this Agreement. This
Agreement is effective without regard to the legal nature of the claims raised
and without regard to whether any such claims are based upon tort, equity,
implied or express contract or discrimination of any sort.
(b) To
the fullest extent permitted by law, and subject to the provisions of
paragraph 9 and paragraph 11 below, the Executive represents and affirms
that the Executive has not filed or caused to be filed on the Executive's behalf
any charge, complaint or claim for relief against the Company or any Releasee
and, to the best of the Executive's knowledge and belief, no outstanding
charges, complaints or claims for relief have been filed or asserted against the
Company or any Releasee on the Executive's behalf; and the Executive has not
reported any improper, unethical or illegal conduct or activities to any
supervisor, manager, department head, human resources representative, agent or
other representative of the Company or any Releasee, to any member of the
Company's or any Releasee's legal or compliance departments, or to the ethics
hotline, and has no knowledge of any such improper, unethical or illegal conduct
or activities. In the event that there is outstanding any such
charge, complaint or claim for relief, Executive agrees to seek its immediate
withdrawal and dismissal with prejudice. In the event that for any
reason said charge, complaint or claim for relief cannot be withdrawn, Executive
shall not voluntarily testify, provide documents or otherwise participate in any
investigation or litigation arising therefrom or associated therewith and shall
execute such other papers or documents as the Company's counsel determines may
be necessary to have said charge, complaint or claim for relief dismissed with
prejudice. Nothing herein shall prevent Executive from testifying in
any cause of action when required to do so by process of
law. Executive shall promptly inform the Company if called upon to
testify.
(c) Executive
does not waive any right to file a charge with the Equal Employment Opportunity
Commission (“EEOC”) or participate in an investigation or proceeding conducted
by the EEOC, but explicitly waives any right to file a personal lawsuit or
receive monetary damages that the EEOC might recover if said charge results in
an EEOC lawsuit against the Company or Releasees.
(d) The
Company, Alpha and their successors and assigns ("Company Releasors"), for and
in consideration of the commitments of Executive as set forth in this Agreement,
and intending to be legally bound, do hereby REMISE, RELEASE AND FOREVER
DISCHARGE Executive, his heirs, executors, administrators and assigns from all
causes of action, suits, debts, claims and demands whatsoever in law or in
equity, which the Company Releasors ever had, now have, or hereafter may have,
whether known or unknown by reason of any matter, cause or thing whatsoever,
from any time prior to the date of this Agreement, and particularly, but without
limitation of the foregoing general terms, any claims arising from or relating
in any way to the Executive's position with the Company as Alpha's Chief
Executive Officer, the terms and conditions of that employment relationship, and
the termination of that employment relationship, and any other claims under any
federal, state or local common law, statutory, or regulatory provision, now or
hereafter recognized, and any claims for attorneys' fees and costs; provided,
however, that this release shall not include any claims or causes of action
arising out of , based upon or attributable to (i) Executive's commission of any
improper act from which he derived an improper personal benefit which act and
benefit are not actually known to the Company as of the date it executes this
Agreement and/or (ii) Executive's commission of any act of intentional
misconduct, including any fraudulent act. This Agreement is effective
without regard to the legal nature of the claims raised and without regard to
whether any such claims are based upon tort, equity, implied or express contract
or discrimination of any sort.
2. In
consideration of the Company's agreements as set forth in paragraph 4 herein,
the Executive agrees to comply with the limitations described in Article 4 and
Article 5 of the Employment Agreement which are expressly incorporated
herein.
3. The
Executive further agrees that the Executive will not disparage or subvert the
Company or any Releasee, or make any statement reflecting negatively on the
Company or Releasees, including, but not limited to, on any matters relating to
the operation or management of the Company or any Releasee, the Executive's
position as Chief Executive Officer of Alpha and the termination of the
Executive's position as Chief Executive Officer of Alpha, irrespective of the
truthfulness or falsity of such statement.
4. The
Company agrees to pay or provide to or for the Executive the following payments
and benefits:
(a) Regardless
of whether the Executive signs and does not revoke this Agreement, the Executive
will receive the following.
|
|
i.
|
All
base salary earned, accrued or owing to the Executive through the Date of
Termination, payable with your final paycheck as Chief Executive Officer
of Alpha in accordance with the Company's established payroll
practices.
|
|
|
ii.
|
Reimbursement
for all reasonable and customary expenses incurred by the Executive in
performing services for the Company prior to the Date of Termination, in
accordance with the Company's business expense reimbursement
policies.
|
|
|
iii.
|
All
vested amounts under the Alpha Natural Resources, Inc. and Subsidiaries
Deferred Compensation Plan, as amended (the "Deferred Compensation Plan"),
shall be paid in accordance with, and at such time as provided under, such
plan's terms; provided, however, if the Executive continues in employment
with the Surviving Corporation through December 31, 2009 as Chairman of
the Board of Directors of the Surviving Corporation, the Executive will
continue to participate in the Deferred Compensation Plan and accrue
additional benefits in accordance with such plan's
terms.
|
|
|
iv.
|
A
payment equal to the amount of accrued, but unused, vacation time as of
the Date of Termination, payable with your final paycheck as Chief
Executive Officer of Alpha in accordance with the Company's established
payroll practices and the Company's vacation
policy.
|
(b) Additionally,
in consideration for the Executive's promises, as set forth herein, the Company
agrees to pay or provide to or for the Executive the following payments and
benefits provided Executive executes this Agreement without
revocation:
|
|
i.
|
A
lump sum cash payment in an amount of $2,815,000, less required
withholdings.
|
|
|
ii.
|
The
Executive shall continue to participate in Alpha's Annual Incentive Bonus
Plan for calendar year 2009 and shall be entitled to receive a pro rata
share of such bonus, based on the 2009 target bonus amount established for
the Executive, for the portion of the 2009 calendar year that Executive
remains employed with the Company, which amount will be paid, in all cases, within the
“applicable 2½ month period” specified in Treas. Reg.
Sec.1.409A-1(b)(4).
|
|
|
iii.
|
The
Executive's rights under Alpha's 2005 Long-Term Incentive Plan will be as
follows and, upon the closing of the Merger, the shares of Alpha common
stock subject to such awards will be shares of common stock of the
Surviving Corporation.
|
(A)
Restricted Stock: The unvested portion of the following restricted stock awards
will accelerate and vest as of the Date of Termination, subject to applicable
withholding requirements in accordance with the terms of Alpha's 2005 Long-Term
Incentive Plan:
|
|
1.
|
Restricted
Stock Award for 75,000 shares granted on January 16,
2007;
|
|
|
2.
|
Restricted
Stock Award for 3,051 shares granted on February 26,
2007;
|
|
|
3.
|
Restricted
Stock Award for 34,290 shares granted on January 15, 2008;
and
|
|
|
4.
|
Restricted
Stock Award for 43,320 shares granted on January 7,
2009.
|
(B)
Retention Plan Restricted Stock: Executive will accelerate and vest
in 15,042 shares of restricted stock granted to him on February 25, 2009 (which
represents a pro rata portion of the total award (108,304 shares) based on the
ratio of the number of complete months Executive was employed as Alpha's Chief
Executive Officer during the vesting period to the total number of months in the
vesting period), subject to applicable withholding requirements in accordance
with the terms of the Alpha's 2005 Long-Term Incentive Plan, with the remaining
unvested portion of such award to remain subject to the original terms and
conditions of the restricted stock granted on February 25, 2009; provided,
however, if the Executive continues in employment with the Surviving Corporation
through December 31, 2009 as Chairman of the Board of Directors of the Surviving
Corporation, the Executive will accelerate and vest in 15,042 additional shares
of restricted stock granted to him on February 25, 2009 (which represents a pro
rata portion of the total award (108,304 shares) based on the ratio of the
number of complete months Executive was employed as Chairman of the Board of
Directors of the Surviving Corporation during the vesting period to the total
number of months in the vesting period), subject to applicable withholding
requirements in accordance with the terms of Alpha's 2005 Long-Term Incentive
Plan and the Alpha Board of Directors' approval of this Agreement shall
constitute its approval that the forfeiture of the unvested balance of the award
to the Surviving Corporation is intended to be exempt under Section 16(b) of the
Securities Exchange Act of 1934, as amended, pursuant to Rule 16b-3(e) of such
act.
(C)
Performance Share Awards: The following performance share awards shall be deemed
vested and will be paid in shares, if at all, to the extent an amount becomes
earned and payable under, and subject to, the terms of such award and Alpha's
2005 Long-Term Incentive Plan after the end of the performance period (as set
forth below):
|
|
1.
|
Performance
Share Award for 75,000 shares (at a target award opportunity) granted on
January 16, 2007 with a performance period of January 1, 2007 through
December 31, 2009;
|
|
|
2.
|
Performance
Share Award for 3,051 shares (at a target award opportunity) granted on
February 26, 2007 with a performance period of January 1, 2007
through December 31, 2009;
|
|
|
3.
|
Performance
Share Award for 34,290 shares (at a target award opportunity) granted on
January 15, 2008 with a performance period of January 1, 2008
through December 31, 2010; and
|
|
|
4.
|
Performance
Share Award for 64,980 shares (at a target award opportunity) granted
January 7, 2009 with a performance period of January 1, 2009 through
December 31, 2011.
|
(c) Except
as otherwise specifically provided in this Agreement, all cash payments and/or
reimbursements to be made pursuant to paragraphs 4(a) and 4(b) of this Agreement
shall be made by the Company to the Executive no later than 60 days after the
Date of Termination.
(d) Executive
hereby acknowledges that Alpha, the Company and their respective subsidiaries do
not maintain or sponsor pension plans such that Executive is not entitled to any
payments under such plans.
(e) Following
the Executive's termination of employment with the Surviving Corporation and to the extent
permitted by law and the Company's benefit plans, the Company shall
maintain, or cause the Surviving Corporation to maintain, the Executive's paid
coverage for health and dental insurance (through the payment of the Executive's
COBRA premiums provided the Executive has timely elected COBRA continuation
coverage) and life insurance benefits (through the reimbursement of Employee's
premiums upon conversion to individual policy and subject to and in accordance
with the limitations of paragraph 4(g)) until the first to occur of: (i) the
Executive obtaining the age of 65, (ii) the date the Executive is provided by
another employer benefits substantially comparable benefits, or (iii) with
respect to the health and dental benefits, the expiration of the COBRA
Continuation Period (as defined below). During the applicable period
of coverage, the Executive shall be entitled to benefits on substantially the
same basis as would have otherwise been provided had the Executive not been
terminated and the Company will have no obligation to pay any benefits to, or
premiums on behalf of, the Executive after such period ends. To the
extent that such benefits are available under the Company's plans and the
Executive had such coverage immediately prior to termination of employment, such
continuation of benefits for the Executive shall also cover the Executive's
dependents for so long as the Executive is receiving benefits under this
paragraph. The COBRA continuation period for medical and dental
insurance under this paragraph shall be deemed to run concurrent with the
continuation period federally mandated by COBRA (generally 18 months), or any
other legally mandated and applicable federal, state, or local coverage period
for benefits provided to terminated employees under the health care
plan. For purposes of this Agreement, (1) "COBRA" means the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and (2)
"COBRA Continuation Period" shall mean the continuation period for medical and
dental insurance to be provided under the terms of this Agreement which shall
commence on the first day of the calendar month following the month in which the
date of termination falls and generally shall continue for an 18 month
period.
(f) Following
the end of the COBRA continuation period, in the event the Executive elects to
enroll in the Company's Retiree Medical Benefit Plan in accordance with its
terms, health insurance benefits shall be provided solely in accordance with the
terms of such plan without further obligation by the Company. If,
however, the Executive is not able to enroll in the Retiree Medical Benefit Plan
because the plan has been terminated, or has been modified to preclude the
Executive's participation, then Company will reimburse the Executive for the
actual and reasonable after-tax cost to the Executive of any individual health
insurance policy obtained by the Executive, subject to and in accordance with
the limitations of paragraph 4(g).
(g) Subject
to the provisions of paragraph 4(e), the Executive shall be entitled to
reimbursement of life insurance premiums, and to the extent reimbursements are
required for health and dental benefits as set forth in 4(f) above, in
accordance with and subject to the following limitations and provisions: (i)
reimbursement will be available only to the extent such expense is actually
incurred for any particular calendar year and reasonably substantiated; (ii)
reimbursement shall be made no later than the end of the calendar year following
the year in which such expense is incurred by the Executive; and (iii) no
reimbursement will be provided for any expense incurred following the 24th month
anniversary of the date of termination or for any expense which relates to
insurance coverage after such date. Notwithstanding the foregoing, no
reimbursement provided for any expense incurred in one taxable year will affect
the amount available in another taxable year, and the right to this
reimbursement is not subject to liquidation or exchange for another
benefit. Reimbursements of life insurance premiums shall be delayed
for a period of six-months after the date of the Executive's termination of
employment to the extent required by paragraph 14.
(h) Except
as set forth in this Agreement, it is expressly agreed and understood that
Releasees do not have, and will not have, any obligations to provide the
Executive at any time in the future with any payments, benefits or
considerations other than those recited in this Agreement, those required by
law, or pursuant to the terms of any compensatory arrangements agreed to between
the Executive and the Board of Directors of the Surviving
Corporation.
5. In
consideration for the Executive's promises, as set forth herein, the Company
agrees to pay or provide to or for the Executive the payments and benefits
described herein. Except as set forth in this Agreement, it is
expressly agreed and understood that Releasees do not have, and will not have,
any obligations to provide the Executive at any time in the future with any
payments, benefits or considerations other than those recited in this Agreement,
those required by law, pursuant to the terms of any benefit plans which provide
benefits or payments to former or present employees according to their terms or
pursuant to the terms of any compensatory arrangements agreed to between the
Executive and the Board of Directors of the Surviving Corporation.
6. The
Executive understands and agrees that the payments, benefits and agreements
provided in this Agreement are being provided to him in consideration for the
Executive's acceptance and execution of, and in reliance upon the Executive's
representations in, this Agreement. The Executive acknowledges that
if the Executive had not executed this Agreement containing a release of all
claims against the Releasees, the Executive would not have been entitled to all
of the payments and benefits set forth herein.
7. The
Executive acknowledges and agrees that, except as expressly stated herein and
for Article 6 and Sections 7.3 through 7.8 of the Employment Agreement, this
Agreement supersedes and replaces the Employment Agreement and any other
agreement Executive has with the Company or any Releasee. To the
extent Executive has entered into any other enforceable written agreement with
the Company or any Releasee that contains provisions that are outside the scope
of this Agreement and are not in direct conflict with the provisions in this
Agreement, the terms in this Agreement shall not supersede, but shall be in
addition to, any other such agreement. Except as set forth
expressly herein, no promises or representations have been made to Executive in
connection with the termination of the Executive's Employment Agreement with the
Company, or the terms of this Agreement.
8. Subject
to the provisions of paragraph 9 of this Agreement, the Executive agrees not to
disclose the terms of this Agreement to anyone, except the Executive's spouse,
attorney and, as necessary, tax/financial advisor. It is expressly
understood that any violation of the confidentiality obligation imposed
hereunder constitutes a material breach of this Agreement.
9. Nothing
in this Agreement shall prohibit or restrict the Executive
from: (i) making any disclosure of information required by law;
(ii) providing information to, or testifying or otherwise assisting in any
investigation or proceeding brought by, any federal regulatory or law
enforcement agency or legislative body, any self-regulatory organization, or the
Company's designated legal, compliance or human resources officers; or
(iii) filing, testifying, participating in or otherwise assisting in a
proceeding relating to an alleged violation of any federal, state or municipal
law relating to fraud, or any rule or regulation of the Securities and Exchange
Commission or any self-regulatory organization.
10. The
parties agree and acknowledge that the agreement by the Company described
herein, and the settlement and termination of any asserted or unasserted claims
against the Releasees, are not and shall not be construed to be an admission of
any violation of any federal, state or local statute or regulation, or of any
duty owed by any of the Releasees to the Executive.
11. The
Executive agrees and recognizes that should the Executive breach any of the
obligations or covenants set forth in this Agreement or otherwise revoke this
Agreement, the Company will have no further obligation to provide the Executive
with the consideration set forth herein, and will have the right to seek
repayment of all consideration paid up to the time of any such breach or
revocation. Further, the Executive acknowledges in the event of a
breach of this Agreement, Releasees may seek any and all appropriate relief for
any such breach, including equitable relief and/or money damages, attorneys'
fees and costs. Notwithstanding the foregoing, in the event the Company fails to
perform any material obligation under this Agreement, including, without
limitation, the failure of the Company to make timely payments of monies due to
Executive hereunder, this Agreement shall be null and void and Executive shall
have the right to pursue any and all appropriate relief for any such failure,
including monetary damages, attorneys' fees and costs; provided, that (i)
Executive has notified the Company in writing within 30 days of the date of the
failure of the Company to perform such material obligation and (ii) such failure
remains uncorrected and/or uncontested by the Company for 15 days following the
date of such notice.
12. The
Executive further agrees that the Company shall be entitled to preliminary and
permanent injunctive relief, without the necessity of proving actual damages, as
well as to an equitable accounting of all earnings, profits and other benefits
arising from any violations of this Agreement, which rights shall be cumulative
and in addition to any other rights or remedies to which the Company may be
entitled.
13. To
the maximum extent permitted by the Company's operating agreement and law, the
Company shall indemnify Executive in his current and former capacities as an
officer, director or manager of Alpha and its subsidiaries and hold him harmless
from any cost, attorneys' fees, expense or liability arising out of Executive's
performing of services for Alpha and its subsidiaries. The Company further
agrees that the Executive shall be indemnified and held harmless by the Company
to the fullest extent permitted or authorized by applicable law against any and
all taxes, interest or penalties imposed on the Executive with respect to any
violation of Section 409A occurring in connection with any payment made by the
Company to the Executive, including payments made pursuant to the Agreement or
any employee benefit plan or other compensatory arrangement of the Company in
which the Executive is a participant, and such indemnification shall continue as
to the Executive even if he has ceased to be a director, employee or agent of
the Company and shall inure to the benefit of the Executive’s heirs, executors
and administrators. If a payment is required to be made by the
Company to the Executive with respect to a violation of Section 409A, the
Company shall make such payment no later than the end of the Executive's taxable
year following the Executive's taxable year in which the Executive remits the
related taxes.
14. This
Agreement and the obligations of the parties hereunder shall be construed,
interpreted and enforced in accordance with the laws of the Commonwealth of
Virginia.
15. The
provisions of this Agreement will be administered, interpreted and construed in
a manner intended to comply with Section 409A of the Internal Revenue Code
("Section 409A"), the regulations issued thereunder or any exception thereto (or
disregarded to the extent such provision cannot be so administered, interpreted,
or construed).
(a) For
purposes of Section 409A, each payment shall be treated as a separate
payment. Each payment under this Agreement is intended to be excepted
from Section 409A to the maximum extent provided under Section 409A as follows:
(i) each payment that is scheduled to be made within the applicable 2½ month
period specified in Treas. Reg. Sec. 1.409A-1(b)(4) is intended to be excepted
under the short-term deferral exception as specified in Treas. Reg. Sec.
1.409A-1(b)(4); (ii) post-termination medical benefits are intended to be
excepted under the medical benefits exception as specified in Treas. Reg. Sec.
1.409A-1(b)(9)(v)(B), and (iii) each payment that is not otherwise excepted
under the short-term deferral exception or medical benefits exception is
intended to be excepted under the involuntary pay exception as specified in
Treas. Reg. Sec. 1.409A-1(b)(9)(iii). The Executive shall have no
right to designate the date of any payment under this Agreement.
(b) With
respect to payments subject to Section 409A of the Internal Revenue Code (and
not excepted therefrom), if any, it is intended that each payment is paid on a
permissible distribution event and at a specified time consistent with Section
409A of the Internal Revenue Code. Notwithstanding any provision of
this Agreement to the contrary, to the extent that a payment hereunder is
subject to Section 409A of the Internal Revenue Code (and not excepted
therefrom) and payable on account or a termination of employment, such payment
shall be delayed for a period of six months after the date of termination of
employment (or, if earlier, the death of the Executive). Any payment
that would otherwise have been due or owing during such six-month period will be
paid immediately following the end of the six-month period in the month
following the month containing the six (6) month anniversary of the date of
termination of employment.
(c) For
purposes of the Agreement, the Executive shall be considered to have experienced
a termination of employment only if the Executive has separated from service
with the Surviving Corporation and all of its controlled group members within
the meaning of Section 409A of the Internal Revenue Code. For
purposes hereof, the determination of controlled group members shall be made
pursuant to the provisions of Section 414(b) and 414(c) of the Internal Revenue
Code; provided that the language "at least 50 percent" shall be used instead of
"at least 80 percent" in each place it appears in Section 1563(a)(1),(2) and (3)
of the Internal Revenue Code and Treas. Reg. Sec. 1.414(c)-2. Whether
the Executive has separated from service will be determined based on all of the
facts and circumstances and in accordance with the guidance issued under Section
409A of the Internal Revenue Code.
(d) Notwithstanding
the foregoing or any provision of this Agreement to the contrary, the Company
or, as applicable, the Surviving Corporation, may at any time (after
consultation with the Executive) modify or amend the provisions of this
Agreement or take
any other action, to the extent necessary or advisable to conform the provisions
of this Agreement or the benefits provided thereunder with Section 409A of the
Internal Revenue Code, the regulations issued thereunder or an exception
thereto.
16. The
parties agree that this Agreement shall be deemed to have been made and entered
into in Abingdon, Virginia. Jurisdiction and venue in any proceeding
by the Company or Executive to enforce their rights hereunder is specifically
limited to any court geographically located in Virginia.
17. The
Executive certifies and acknowledges as follows:
(a) That
the Executive has read the terms of this Agreement, and that the Executive
understands its terms and effects, including the fact that the Executive has
agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action
arising out of the Executive's employment relationship with the Company as Chief
Executive Officer and the termination from that position; and
(b) That
the Executive has signed this Agreement voluntarily and knowingly in exchange
for the consideration described herein, which the Executive acknowledges is
adequate and satisfactory to him and which the Executive acknowledges is in
addition to any other benefits to which the Executive is otherwise entitled;
and
(c) That
the Executive has been and is hereby advised in writing to consult with an
attorney prior to signing this Agreement; and
(d) That
the Executive does not waive rights or claims that may arise after the date this
Agreement is executed; and
(e) That
the Company has provided Executive with a period of twenty-one (21) days within
which to consider this Agreement, and that the Executive has signed on the date
indicated below after concluding that this Agreement is satisfactory to
Executive; and
(f) The
Executive acknowledges that this Agreement may be revoked by him within seven
(7) days after execution, and it shall not become effective until the expiration
of such seven (7) day revocation period. In the event of a timely
revocation by the Executive, this Agreement will be deemed null and void and the
Company will have no obligations hereunder.
(g) The
parties agree that this Agreement was provided to Executive in excess of
twenty-one (21) days in advance of the Closing Date to afford Executive the full
21 day consideration period to review this Agreement prior to the
Closing. This Agreement shall be null and void in its entirety if the
Merger is not effectuated at a Closing. A successful Closing is a
condition precedent to this Agreement.
(h) It
is a condition precedent that this Agreement be executed in conjunction with the
Closing and on the Closing Date to be effective.
[SIGNATURE
PAGE FOLLOWS]
Intending
to be legally bound hereby, the Executive and the Company executed the foregoing
Agreement this 31st day of July, 2009.
/s/ Xxxxxxx
X.
Xxxxxxx Witness: /s/ Xxxxx
X.
Xxxxxxxx
XXXXXXX
X. XXXXXXX
ALPHA
NATURAL RESOURCES SERVICES, LLC
By: /s/ Xxxxxx
X.
Xxxxxx Witness: /s/ Xxxxx
X.
Xxxxxxxx
Name: Xxxxxx X.
Xxxxxx
Title: Executive Vice
President
