Exhibit 10.7
AMENDED & RESTATED EMPLOYMENT AGREEMENT
This Amended & Restated Employment Agreement ("Agreement"), dated as of
this 31st day of March, 2004 (the "Effective Date"), is entered into by and
between Alpha Coal Sales Co., LLC and any of its subsidiaries and affiliates as
may employ Employee from time to time, (collectively, "Employer") and D. Xxxxx
Xxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employer employs Employee pursuant to the terms and
conditions set forth in that certain Employment Agreement dated as of January 1,
2003 (the "Original Agreement") between Employee and Alpha Natural Resources,
LLC, that was assigned to Employer with Employee's consent as of December 31,
2003; and
WHEREAS, Employer and Employee desire to amend and restate the
Original Agreement and to continue the employment of Employee by Employer
pursuant to the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations contained herein, Employer and Employee agree as
follows:
ARTICLE 1: EMPLOYMENT AND DUTIES:
1.1 Employer agrees to employ Employee, and Employee agrees to be employed
by Employer, beginning as of the Effective Date and continuing through March 11,
2005, (the "Term") subject to the terms and conditions of this Agreement. The
Term shall be automatically extended for successive one calendar year periods
unless either party provides written notice to the other at least 90 days prior
to the end of the then current Term of such party's election not to extend the
Term.
1.2 Beginning as of the Effective Date, Employee shall continue to be
employed as the Executive Vice President of Alpha Natural Resources, LLC and the
President of Alpha Coal Sales Co., LLC. Employee shall report to the Chief
Executive Officer of Alpha Natural Resources, LLC. Employee agrees to serve in
the assigned positions or in such other executive capacities as may be requested
from time to time by Employer. Employee agrees to perform diligently and to the
best of Employee's abilities, and in a trustworthy, businesslike and efficient
manner, the duties and services pertaining to such positions as reasonably
determined by Employer, as well as such additional or different duties and
services appropriate to such positions which Employee from time to time may be
reasonably directed to perform by Employer.
1.3 Employee shall at all times comply with and be subject to such
policies and procedures as Employer may establish from time to time, including,
without limitation, Employer's Company Code of Business Conduct (the "Code of
Business Conduct").
1.4 Except as expressly approved by the Board of Directors, Employee
shall, during the period of Employee's employment by Employer, devote Employee's
full business time, energy, and best efforts to the business and affairs of
Employer. Employee may not engage, directly or indirectly, in any other
business, investment, or activity that interferes with Employee's performance of
Employee's duties hereunder, is contrary to the interest of Employer or any of
its affiliated subsidiaries and divisions, (each an "Employer Entity", or
collectively, the "Employer Entities"), or requires any significant portion of
Employee's business time. The foregoing notwithstanding, the parties recognize
and agree that Employee may engage in passive personal investments and other
business activities which do not conflict with the business and affairs of the
Employer Entities or interfere with Employee's performance of his or her duties
hereunder. Employee may not serve on the board of directors of any entity other
than an Employer Entity, related industry trade association, public institution,
or government appointed public or quasi-public body in the geographic location
of the businesses during the Term without prior approval therefor by the Board
of Directors in accordance with Employer's policies and procedures regarding
such service. Employee shall be permitted to retain any compensation received
for approved service on any unaffiliated corporation's board of directors.
1.5 Employee acknowledges and agrees that Employee owes a fiduciary duty
of loyalty, fidelity, and allegiance to act at all times in the best interests
of the Employer and the other Employer Entities and to do no act which would,
directly or indirectly, injure any such entity's business, interests, or
reputation. It is agreed that any direct or indirect interest in, connection
with, or benefit from any outside activities, particularly commercial
activities, which interest might in any way adversely affect Employer, or any
Employer Entity, involves a possible conflict of interest. In keeping with
Employee's fiduciary duties to Employer, Employee agrees that Employee shall not
knowingly become involved in a conflict of interest with Employer or any
Employer Entity, or upon discovery thereof, allow such a conflict to continue.
Moreover, Employee shall not engage in any activity that might involve a
possible conflict of interest without first obtaining approval in accordance
with Employer's policies and procedures.
1.6 Nothing contained in this Agreement shall be construed to preclude the
transfer of Employee's employment to another Employer Entity ("Subsequent
Employer") as of, or at any time after, the Effective Date and no such transfer
shall be deemed to be a termination of employment for purposes of Article 3
hereof; provided, however, that, effective with such transfer, all of Employer's
obligations hereunder shall be assumed by and be binding upon, and all of
Employer's rights hereunder shall be assigned to, such Subsequent Employer and
the defined term "Employer" as used herein shall thereafter be deemed amended to
mean such Subsequent Employer. Except as otherwise provided above, all of the
terms and conditions of this Agreement, including without limitation, Employee's
rights, compensation, benefits and obligations, shall remain in all material
respects and taken as a whole, no less favorable to Employee following such
transfer of employment.
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LOGO LOGO
ERBACON PREPARATION PLANT, WV (XXXXXX RUN) RED STAR MINE, KY (ENTERPRISE)
LOGO LOGO
HEAVY EQUIPMENT AT LOVER'S GAP SURFACE MINE, VA (PARAMOUNT)
LOGO LOGO
TOM'S CREEK PREPARATION PLANT, VA (PARAMOUNT) WHITE TAIL PREPARATION PLANT, WV (KINGWOOD)
ARTICLE 2: COMPENSATION AND BENEFITS:
2.1 Employee's base salary during the Term shall be $360,000 (Three
Hundred Thousand dollars) per annum which shall be paid in accordance with the
Employer's standard payroll practice. Employee's base salary may be increased
from time to time. Such increased base salary shall become the minimum base
salary under this Agreement and may not be decreased thereafter without the
written consent of Employee unless otherwise permitted by this Agreement.
2.2 During the Term, Employee shall participate in a bonus plan pursuant
to which an annual bonus shall be paid to Employee in an amount to be determined
by the Employer's Compensation Committee ranging between 50% and 150% of
Employee's base salary. Payment of the bonus shall be based on parameters
established by the Employer's management, including, without limitation,
performance goals applicable to Employee, and such parameters shall be approved
by the Board of Directors of Employer.
2.3 During the Term, Employer shall pay or reimburse Employee for all
actual, reasonable and customary expenses incurred by Employee in the course of
his or her employment; provided that such expenses are incurred and accounted
for in accordance with Employer's applicable policies and procedures.
2.4 While employed by Employer, Employee shall be allowed to participate,
on the same basis generally as other employees of Employer, in all general
employee benefit plans and programs, including improvements or modifications of
the same, which on the Effective Date or thereafter are made available by
Employer to all or substantially all of Employer's similarly situated employees.
Such benefits, plans, and programs may include, without limitation, medical,
health, and dental care, life insurance, disability protection, qualified and
non-qualified retirement plans, and stock option and stock grant programs, if
any. Except as specifically provided in this Agreement, nothing in this
Agreement is to be construed or interpreted to increase or alter in any way the
rights, participation, coverage, or benefits under such benefit plans or
programs than provided to similarly situated employees pursuant to the terms and
conditions of such benefit plans and programs.
2.5 Notwithstanding anything to the contrary in this Agreement, it is
specifically understood and agreed that Employer shall not be obligated to
institute, maintain, or refrain from changing, amending, or discontinuing any
incentive, employee benefit or stock or stock option program or plan, so long as
such actions are similarly applicable to covered employees generally.
2.6 Employer shall withhold from any compensation, benefits, or amounts
payable under this Agreement all federal, state, city, or other taxes as may be
required pursuant to any law or governmental regulation or ruling.
ARTICLE 3: TERMINATION OF EMPLOYMENT AND EFFECTS OF SUCH TERMINATION:
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3.1 Employee's employment with Employer shall be terminated prior to the
end of the Term (i) upon the death of Employee, (ii) upon Employee's Retirement
(as defined below), (iii) upon Employee's Permanent Disability (as defined
below), (iv) at any time by Employer upon notice to Employee, or (v) by Employee
upon sixty (60) days' notice to Employer.
3.2 If Employee's employment is terminated by reason of any of the
following circumstances (i), (ii), or (iii), Employee shall be entitled to
receive the benefits set forth only in Section 3.3 below:
(i) Termination due to Employee's Retirement. "Retirement" shall mean
either (a) Employee's retirement at or after normal retirement age
(either voluntarily or pursuant to Employer's retirement policy) or
(b) the voluntary termination of Employee's employment by Employee
in accordance with Employer's early retirement policy.
(ii) Termination by Employer for Employer Cause. Employer termination of
Employee's employment for "Employer Cause" shall mean termination by
Employer for any of the following: (a) Employee's gross negligence
or willful misconduct in the performance of the duties and services
required of Employee pursuant to this Agreement, (b) Employee's
final conviction of or plea of guilty or nolo contendere to a felony
or Employee engaging in fraudulent or criminal activity relating to
the scope of Employee's employment (whether or not prosecuted), (c)
a material violation of Employer's Code of Business Conduct, (d)
Employee's material breach of any material provision of this
Agreement, provided that Employee has received written notice from
the Employer and been afforded a reasonable opportunity (not to
exceed 30 days) to cure such breach, (e) any continuing or repeated
failure to perform the duties as requested in writing by the
Employee's supervisor(s) or the Board of Directors of Employer after
Employee has been afforded a reasonable opportunity (not to exceed
30 days) to cure such breach, (f) the commission of a felony or
crime involving moral turpitude or (g) conduct which brings Employer
into public disgrace or disrepute in any material respect.
Determination as to whether or not Employer Cause exists for
termination of Employee's employment will be made by the Board of
Directors.
(iii) Termination by Employee by resignation, other than for Employee
Cause. Employee's resignation, other than for Employee Cause, shall
mean termination of Employee's employment by Employee's resignation
of employment with Employer and any Employer Entity (including,
without limitation, Employee's election not to renew the Term
pursuant to Section 1.1) but not including any termination by
Employee for Employee Cause as described in Section 3.4(i).
3.3 If Employee's employment is terminated by reason of Section 3.2 (i),
(ii), or (iii), Employee shall be entitled to each of the following:
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(i) Employee shall be entitled to a pro rata base salary through the
date of such termination and shall be entitled to any individual
bonuses or individual incentive compensation not yet paid, but
payable under Employer's plans for years prior to the year of
Employee's termination of employment, but shall not be entitled to
any bonus or incentive compensation for the year in which he or she
terminates employment unless specifically granted by the Board of
Directors, or any other payments or benefits by or on behalf of
Employer except for those which may be payable pursuant to the terms
of Employer's employee benefit plans (as defined in Section 3.7),
stock, option, or other equity interests or the applicable
agreements underlying such plans.
(ii) Except for (i) above, it is specifically understood that all future
compensation to which Employee is entitled and all future benefits
for which Employee is eligible, shall cease and terminate as of the
date of termination.
3.4 If Employee's employment is terminated by reason of (i), (ii), (iii),
or (iv) below, Employee shall be entitled to receive the benefits set forth in
Section 3.5 or Section 3.6, as applicable.
(i) Termination by Employee for Employee Cause. "Employee Cause" shall
mean a termination of employment by Employee because of (a) the
assignment to the Employee of any significant duties materially
inconsistent with Employee's status as an officer of Employer or a
substantial diminution in the nature of Employee's responsibilities
or Employee's status, (b) a material breach by Employer of any
material provision of this Agreement, (c) any illegal activity or
breach of governmental laws, rules or regulations by the Employer or
the Employer's Board of Directors in conjunction with the Employer's
Entities or (d) resignation by Employee during the period beginning
three-months and ending nine-months following the liquidation or
sale of more than seventy-five percent of the First Reserve
ownership in Employer or its successor or affiliates under common
control. In order for Employee to terminate for Employee Cause, (A)
Employer must be notified by Employee in writing within ninety (90)
days of the event constituting Employee Cause, (B) the event must
remain uncorrected by Employer for thirty (30) days following such
notice (the "Notice Period") and (C) such termination must occur
within sixty (60) days after the expiration of the Notice Period. An
across-the-board salary reduction, but not below the minimum in
Article 2.1, similarly affecting Employee and all other executives
of Employer shall not constitute a material breach of this Agreement
by Employer.
(ii) Employer Termination Without Cause. Termination by Employer for any
reason other than for Employer Cause including, without limitation,
termination due to Employer's election not to renew the Term
pursuant to Section 1.1.
(iii) Death. Termination due to the death of Employee.
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(iv) Termination due to Employee's Permanent Disability. "Permanent
Disability" shall mean Employee's physical or mental incapacity to
perform his or her usual duties with such condition likely to remain
continuously and permanently as determined by Employer.
3.5 If Employee's employment is terminated by Employee under Section 3.4
(i) or by Employer under Section 3.4 (ii), Employee shall be entitled to each of
the following:
(i) Subject to the provisions of Section 3.7, Employer shall pay to
Employee a severance benefit consisting of continued periodic
payments of Employee's base salary as in effect at the date of
Employee's termination of employment in accordance with Employer's
customary payroll practices during the period commencing on the
effectiveness of such termination and ending on the earlier of (A)
the first anniversary of the date of such termination, or (B) the
date Employee violates any of the covenants set forth in Article 4
or Article 5 hereof. If Employee's employment is terminated for
reasons under Section 3.4 (i) or (ii) above, the Employer shall be
entitled to enforce the covenant not to compete and the other
conditions set forth in Article 5 of this Agreement during
Employee's employment and until the end of the Term in effect on the
date immediately prior to the termination.
(ii) Employee shall be entitled to any individual bonuses or individual
incentive compensation not yet paid but payable under Employer's
plans for years prior to the year of Employee's termination of
employment. Such amounts shall be paid to Employee in a single lump
sum cash payment no later than sixty (60) days following Employee's
termination of employment.
(iii) Employee shall be entitled to a pro-rata share of any individual
bonuses or individual incentive compensation under Employer's plans
for the year of Employee's termination of employment based on the
portion of such year of termination that Employee was employed by
Employer. All amounts for individual bonuses or incentive
compensation due to Employee under this Section 3.5 (iii) shall be
paid at the time that such amounts are paid to similarly situated
employees.
(iv) To the extent permitted by applicable law and Employer's insurance
and benefits' policies, Employer shall maintain Employee's paid
coverage for health insurance (through the payment of Employee's
COBRA premiums) and other dental and life insurance benefits for a
period of 18 months from the date of Employee's termination on
substantially the same basis as would have otherwise been provided
had Employee not been terminated and Employer will have no
obligation to pay any benefits to or premiums on behalf of Employee
after such 18 month period ends. To the extent that such benefits
are available under Employer's insurance and Employee had such
coverage immediately prior to termination, such continuation of
benefits for Employee shall also cover Employee's dependents.
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3.6 If Employee's employment is terminated by reason of Section 3.4(iii)
or (iv), Employee's estate, in the case of death, or Employee or his legal
guardian, in the case of Permanent Disability, shall be entitled to payment of
all amounts determined under Section 3.5(i) through (iii), except that the one
(1) year of base salary to be paid under Article 3.5(i) shall be paid in a lump
sum within sixty (60) days after termination of Employee's employment. All
payments due under Section 3.5(ii) shall be paid in a single lump sum payment no
later than sixty (60) days after Employee's termination of employment. All
payments due under Section 3.5(iii), as modified herein, shall be paid no later
than sixty (60) days after the bonus or incentive compensation is capable of
being determined.
3.7 The severance benefit paid to Employee pursuant to Section 3.3 or
Section 3.5 above shall be in consideration of Employee's continuing obligations
hereunder after such termination, including, without limitation, Employee's
obligations under Article 4 and Article 5. Further, as a condition to the
receipt of such severance benefit, Employer may require Employee to first
execute a release, in a form established by Employer and reasonably acceptable
to Employee, releasing Employer and all other Employer Entities, and their
officers, directors, employees, 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 and causes of action arising out of Employee's employment with
Employer and any other Employer Entities or the termination of such employment.
The performance of Employer's obligations under Section 3.3 or Section 3.5 and
the receipt of the severance benefit provided thereunder by Employee shall
constitute full settlement of all such claims and causes of action. Employee
shall not be under any duty or obligation to seek or accept other employment
following a termination of employment pursuant to which a severance benefit
payment under Section 3.3 or Section 3.5 is owing and the amounts due Employee
pursuant to Section 3.3 or Section 3.5 shall not be reduced or suspended if
Employee accepts subsequent employment or earns any amounts as a self-employed
individual, provided, however that in the event Employee breaches any of
Employee's obligations under Articles 4 or 5 of this Agreement, then, in
addition to Employer's right to specific performance pursuant to Section 5.5 or
any other rights that Employer or each Employer Entity may have under this
Agreement or otherwise, Employer and each Employer Entity shall have the right
to suspend payment of any amounts to which Employee would otherwise be entitled
pursuant to this Article 3 until such time as Employee is no longer in breach of
Employee's obligations under Articles 4 and 5. Employee's rights under Section
3.3 or Section 3.5 are Employee's sole and exclusive rights against the
Employer, or any affiliate of Employer, and the Employer's sole and exclusive
liability to Employee under this Agreement, whether such claim is based in
contract, tort or otherwise, for the termination of his or her employment
relationship with Employer. Employee agrees that all disputes relating to
Employee's employment or termination of employment shall be resolved through
Employer's Dispute Resolution Plan as provided in Section 6.6 hereof; provided,
however, that decisions as to whether there is "Employer Cause" for termination
of the employment relationship with Employee and whether and as of what date
Employee has become permanently disabled shall be limited to whether such
decision was reached in good faith. Nothing contained in this Article 3 shall be
construed to be a waiver by Employee of any benefits accrued for or due Employee
under any employee benefit plan (as such term is defined in the Employees'
Retirement Income Security Act of 1974, as amended) maintained by Employer
except that Employee shall not be entitled to any
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severance benefits pursuant to any severance plan or program of the Employer
except as outlined in this Agreement.
3.8 Termination of the employment relationship does not terminate those
obligations imposed by this Agreement, which are continuing obligations,
including, without limitation, Employee's obligations under Article 4 and
Article 5.
3.9 The payment of any monies to Employee under this Agreement after the
date of termination of employment does not constitute an offer or a continuation
of employment of the Employee. In no event, shall Employee represent or hold
himself out to be an employee of Employer after the date of termination of
employment. Except where Employer is lawfully required to withhold any federal,
state, or local taxes, Employee shall be responsible for any and all federal,
state, or local taxes that arise out of any payments to Employee hereunder.
3.10 During any period during which any monies are being paid to Employee
under this Agreement after the date of termination, Employee shall provide to
Employer reasonable levels of assistance to Employer in answering questions
concerning the business of Employer, transition of responsibility, or
litigation, provided that all out of pocket expenses of Employee reasonably
incurred in connection with such assistance is fully and promptly reimbursed and
that any such assistance after the Non-Compete Period (as defined below) shall
not interfere or conflict with the obligations which Employee may owe to any
other employer.
ARTICLE 4: OWNERSHIP AND PROTECTION OF INTELLECTUAL PROPERTY AND CONFIDENTIAL
INFORMATION:
4.1 All information, ideas, concepts, improvements, innovations,
developments, methods, processes, designs, analyses, drawings, reports,
discoveries, and inventions, whether patentable or not or reduced to practice,
which are conceived, made, developed or acquired by Employee, individually or in
conjunction with others, during Employee's employment by Employer or any of the
Employer Entities, both before and after the date hereof (whether during
business hours or otherwise and whether on Employer's premises or otherwise)
which relate to the business, products or services of Employer or the Employer
Entities (including, without limitation, all such information relating to
corporate opportunities, research, financial and sales data, pricing and trading
terms, evaluations, opinions, interpretations, acquisition 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, or marketing and merchandising techniques, prospective names, marks,
and any copyrightable work, trade xxxx, trade secret or other intellectual
property rights (whether or not composing confidential information)), and all
writings or materials of any type embodying any of such items ("Work Product"),
shall be the sole and exclusive property of Employer or a Employer Entity, as
the case may be, and shall be treated as "work for hire." It is recognized that
Employee is an experienced executive in the business of the Employer Entities
and through several decades of prior work in the industry acquired and retains
knowledge, contacts, and information which is not bound by this Article 4.
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4.2 Employee shall promptly and fully disclose all Work Product to
Employer and shall cooperate and perform all actions reasonably requested by
Employer (whether during or after the Term of employment) to establish, confirm
and protect Employer's right, title and interest in such Work Product. Without
limiting the generality of the foregoing, Employee agrees to assist Employer, at
Employer's expense, to secure Employer's rights in the Work Product in any and
all countries, including the execution by Employee of all applications and all
other instruments and documents which Employer shall deem necessary in order to
apply for and obtain rights in such Work Product and in order to assign and
convey to Employer the sole and exclusive right, title and interest in and to
such Work Product. If Employer is unable because of Employee's mental or
physical incapacity or for any other reason (including Employee's refusal to do
so after request therefor is made by Employer) to secure Employee's signature to
apply for or to pursue any application for any United States or foreign patents
or copyright registrations covering Work Product belonging to or assigned to
Employer pursuant to Section 4.1 above, then Employee by this Agreement
irrevocably designates and appoints Employer and its duly authorized officers
and agents as Employee's agent and attorney-in-fact to act for and in Employee's
behalf and stead to execute and file any such applications and to do all other
lawfully permitted acts to further the prosecution and issuance of patents or
copyright registrations thereon with the same legal force and effect as if
executed by Employee. Employee agrees not to apply for or pursue any application
for any United States or foreign patents or copyright registrations covering any
Work Product other than pursuant to this Section in circumstances where such
patents or copyright registrations are or have been or are required to be
assigned to Employer.
4.3 Employee acknowledges that the businesses of Employer and the Employer
Entities are highly competitive and that their strategies, methods, books,
records, and documents, their technical information concerning their products,
equipment, services, and processes, procurement procedures and pricing
techniques, the names of and other information (such as credit and financial
data) concerning their former, present or prospective customers and business
affiliates, all comprise confidential business information and trade secrets
which are valuable, special, and unique assets which Employer or the Employer
Entities use in their business to obtain a competitive advantage over their
competitors. Employee further acknowledges that protection of such confidential
business information and trade secrets against unauthorized disclosure and use
is of critical importance to Employer and the Employer Entities in maintaining
their competitive position. Employee acknowledges that by reason of Employee's
duties to and association with Employer and the Employer Entities, Employee has
had and will have access to and has and will become informed of confidential
business information which is a competitive asset of Employer and the Employer
Entities. Employee hereby agrees that Employee will not, at any time during or
after his or her employment by Employer, make any unauthorized disclosure of any
confidential business information or trade secrets of Employer or the Employer
Entities, or make any use thereof, except in the carrying out of his or her
employment responsibilities hereunder. Employee shall take all necessary and
appropriate steps to safeguard confidential business information and protect it
against disclosure, misappropriation, misuse, loss and theft. Confidential
business information shall not include information in the public domain (but
only if the same becomes part of the public domain through a means other than a
disclosure prohibited hereunder). The above notwithstanding, a disclosure shall
not be unauthorized if (i) it is required by law or by a court of competent
jurisdiction or (ii) it is in connection with any judicial, arbitration, dispute
resolution or
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other legal proceeding in which Employee's legal rights and obligations as an
employee or under this Agreement are at issue; provided, however, that Employee
shall, to the extent practicable and lawful in any such events, give prior
notice to Employer of his or her intent to disclose any such confidential
business information in such context so as to allow Employer or a Employer
Entity an opportunity (which Employee will not oppose) to obtain such protective
orders or similar relief with respect thereto as may be deemed appropriate. Any
information not specifically related to the Employer Entities and acquired prior
to the date of this Agreement would not be considered confidential to the
Employer.
4.4 All written materials, records, and other documents made by, or coming
into the possession of, Employee during the period of Employee's employment by
Employer which contain or disclose confidential business information or trade
secrets of Employer or the Employer Entities, or which relate to Employee's Work
Product described in Section 4.1 above, shall be and remain the property of
Employer, or the Employer Entities, as the case may be. Upon termination of
Employee's employment by Employer, for any reason, Employee promptly shall
deliver the same, and all copies thereof, to Employer.
ARTICLE 5: COVENANT NOT TO COMPETE:
5.1 In consideration of the compensation to be paid to Executive under
this Agreement, Employee acknowledges that in the course of Employee's
employment with certain Employer Entities, he has prior to the date of the
Agreement, and will during the Term of employment, become familiar with Employer
and the Employer Entities trade secrets, business plans and business strategies
and with other confidential business information concerning Employer and the
Employer Entities and that Employee's services have been and shall be of
special, unique and extraordinary value to Employer and the Employer Entities.
Employee also acknowledges that in the course of his employment he will have
access to Employer's relationships and goodwill with its customers,
distributors, suppliers and employees. In light of Employee's value to and
knowledge of Employer and the Business (as defined below) and Employee's
compensation pursuant to this Agreement, Employee agrees that, during the Term
and for a period of one (1) year thereafter (the "Non-Compete Period"), he will
not, in association with or as an officer, principal, member, advisor, agent,
partner, director, material stockholder, employee or consultant of any
corporation (or sub-unit, in the case of a diversified business) or other
enterprise, entity or association, work on the acquisition or development of, or
engage in any line of business, property or project which is, directly or
indirectly, competitive with any business that Employer or any Employer Entity
engages in or is planning to engage in during the Term of employment, including
but not limited to the mining, processing, transportation, distribution, trading
and sale of synfuel, coal and coal byproducts or land and mineral leasing (the
"Business"). Such restriction shall cover Employee's activities anywhere in
North America.
5.2 During the applicable Non-Compete Period, Employee will not solicit or
induce any person who is or was employed by any of the Employer Entities at any
time during such term or period (A) to interfere with the activities or
businesses of Employer or any Employer Entity or (B) to discontinue his or her
employment with any of the Employer Entities.
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5.3 During the applicable Non-Compete Period, Employee will not, directly
or indirectly, influence or attempt to influence any customers, distributors or
suppliers of any of the Employer Entities to divert their business to any
competitor of Employer or any Employer Entity or in any way interfere with the
relationship between any such customer, distributor or supplier and Employer and
any Employer Entity (including, without limitation, making any negative
statements or communications about Employer and the Employer Entities). During
the applicable Non-Compete Period, Employee will not, directly or indirectly,
acquire or attempt to acquire any business in North America to which Employer or
any Employer Entity, prior to the termination of the Term of employment, has
made an acquisition proposal relating to the possible acquisition of such
business by Employer or any Employer Entity, or has planned, discussed or
contemplated making such an acquisition proposal (such business, an "Acquisition
Target"), or take any action to induce or attempt to induce any Acquisition
Target to consummate any acquisition, investment or other similar transaction
with any person other than Employer or any Employer Entity.
5.4 Employee understands that the provisions of Sections 5.1, 5.2 and 5.3
hereof may limit his ability to earn a livelihood in a business in which he is
involved, but as a member of the management group of Employer he nevertheless
agrees and hereby acknowledges that (i) such provisions do not impose a greater
restraint than is necessary to protect the goodwill or other business interests
of Employer and any of the Employer Entities; (ii) such provisions contain
reasonable limitations as to time, scope of activity, and geographical area to
be restrained; and (iii) the consideration provided hereunder, including without
limitation, any amounts or benefits provided under Article 3 hereof, is
sufficient to compensate Employee for the restrictions contained in Section 5.1,
5.2 and 5.3 hereof. In consideration of the foregoing and in light of Employee's
education, skills and abilities, Employee agrees that he will not assert that,
and it should not be considered that, any provisions of Section 5.1, 5.2 or 5.3
otherwise are void, voidable or unenforceable or should be voided or held
unenforceable.
5.5 If, at the time of enforcement of Articles 4 or 5 of this Agreement, a
court shall hold that the duration, scope, or area restrictions stated herein
are unreasonable under circumstances then existing, the parties hereto agree
that the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area and that
the court shall be allowed and directed to revise the restrictions contained
herein to cover the maximum period, scope and area permitted by law. Employee
acknowledges that he is a member of Employer's management group with access to
Employer's confidential business information and his services are unique to
Employer and the Employer Entities. Employee therefore agrees that the remedy at
law for any breach by him of any of the covenants and agreements set forth in
Articles 4 and 5 will be inadequate and that in the event of any such breach,
Employer may, in addition to the other remedies which may be available to it at
law, apply to any court of competent jurisdiction to obtain specific performance
and/or injunctive relief prohibiting Employee (together with all those persons
associated with him) from the breach of such covenants and agreements and to
enforce, or prevent any violations of, the provisions of this Agreement. In
addition, in the event of a breach or violation by Employee of this Article 5,
the applicable Non-Compete Period set forth in this Article shall be tolled
until such breach or violation has been cured.
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5.6 Each of the covenants of this Article 5 are given by Employee as part
of the consideration for this Agreement and as an inducement to Employer to
enter into this Agreement and accept the obligations hereunder and is a material
inducement to Employer or one of its affiliates to acquire the operations of
Employee's former employer.
ARTICLE 6: MISCELLANEOUS:
6.1 For purposes of this Agreement, the terms "affiliate" or "affiliated"
means an entity or entities in which Employer has a 20% or more direct or
indirect equity interest or entity or entities that have a 20% or more direct or
indirect equity interest in Employer.
6.2 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 received by or tendered to Employee, Employer, as applicable, by
pre-paid courier or by United States registered or certified mail, return
receipt requested, postage prepaid, addressed as follows:
If to Employer:
Alpha Natural Resources, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: President and Manager
(or to Employer's current headquarters address to the attention of the
President).
If to Employee: To his last known personal residence
6.3 This Agreement shall be governed by and construed and enforced, in all
respects in accordance with; the law of the State of Delaware, without regard to
principles of conflicts of law, unless preempted by federal law, in which case
federal law shall govern; provided, however, that Employer's Dispute Resolution
Plan, or if no such plan is in place, then the rules of the American Arbitration
Association shall govern in all respects with regard to the resolution of
disputes hereunder.
6.4 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.
6.5 It is a desire and intent of the parties that the terms, provisions,
covenants, and remedies contained in this Agreement shall be enforceable to the
fullest extent permitted by law. If any such term, provision, covenant, or
remedy of this Agreement or the application thereof to any person, association,
or entity or circumstances shall, to any extent, be construed to be invalid or
unenforceable in whole or in part, then such term, provision, covenant, or
remedy shall be construed in a manner so as to permit its enforceability under
the applicable law to the fullest extent permitted by law. In any case, the
remaining provisions of this Agreement or the application
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thereof to any person, association, or entity or circumstances other than those
to which they have been held invalid or unenforceable, shall remain in full
force and effect.
6.6 It is the mutual intention of the parties to have any dispute
concerning this Agreement resolved out of court. Accordingly, the parties agree
that any such dispute shall, as the sole and exclusive remedy, be submitted for
resolution through Employer's Dispute Resolution Plan or, if no such plan is in
place, then pursuant to binding arbitration to be held in Wilmington, Delaware,
in accordance with the employment arbitration rules (except as modified below)
of the American Arbitration Association and with the Expedited Procedures
thereof (collectively, the "Rules"); provided, however, that the Employer, on
its own behalf and on behalf of any of the Employer Entities, shall be entitled
to seek a restraining order or injunction in any court of competent jurisdiction
to prevent any breach or the continuation of any breach of the provisions of
Article 4 and 5 and Employee hereby consents that such restraining order or
injunction may be granted without the necessity of the Employer posting any
bond. Each of the parties hereto agrees that such arbitration shall be conducted
by a single arbitrator selected in accordance with the Rules; provided that such
arbitrator shall be experienced in deciding cases concerning the matter which is
the subject of the dispute. Each of the parties agrees that in any such
arbitration that pre-arbitration discovery shall be limited to the greatest
extent provided by the Rules, that the award shall be made in writing no more
than 30 days following the end of the proceeding, that the arbitration shall not
be conducted as a class action, that the arbitration award shall not include
factual findings or conclusions of law. Any award rendered by the arbitrator
shall be final and binding and judgment may be entered on it in any court of
competent jurisdiction. Each of the parties hereto agrees to treat as
confidential the results of any arbitration (including, without limitation, any
findings of fact and/or law made by the arbitrator) and not to disclose such
results to any unauthorized person.
6.7 This Agreement shall be binding upon and inure to the benefit of
Employer, its successors in interest, or any other person, association, or
entity which may hereafter acquire or succeed to all or substantially all of the
business assets of Employer by any means, whether indirectly or directly, and
whether by purchase, merger, consolidation, or otherwise. Employee's rights and
obligations under this Agreement are personal and such rights, benefits, and
obligations of Employee shall not be voluntarily or involuntarily assigned,
alienated, or transferred, whether by operation of law or otherwise, without the
prior written consent of Employer, other than in the case of death or permanent
disability of Employee.
6.8 This Agreement replaces and merges any previous agreements and
discussions pertaining to the subject matter covered herein. This Agreement
constitutes the entire agreement of the parties with regard to the terms of
Employee's employment, termination of employment and severance benefits, and
contains all of the covenants, promises, representations, warranties, and
agreements between the parties with respect to such matters. Each party to this
Agreement acknowledges that no representation, inducement, promise, or
agreement, oral or written, has been made by either party with respect to the
foregoing matters which is not embodied herein, and that no agreement,
statement, or promise relating to the employment of Employee by Employer that is
not contained in this Agreement shall be valid or binding. Any modification of
this Agreement will be effective only if it is in writing and signed by each
party whose rights hereunder are affected thereby.
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6.9 First Reserve Corporation shall be an intended third party beneficiary
of this Agreement, except as to Article 6.2, and no change in this Agreement may
be made prior to the Effective Date without the written consent of First Reserve
Corporation.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Employer and Employee have duly executed this
Agreement in multiple originals to be effective on the Effective Date.
EMPLOYER
ALPHA COAL SALES CO., LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: President
EMPLOYEE
/s/ D. Xxxxx Xxxx
D. Xxxxx Xxxx
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