EXHIBIT 10.1
SEPARATION AGREEMENT
THIS SEPARATION AGREEMENT ("AGREEMENT") is made and entered into as of
July 15, 2008 (the "EFFECTIVE Date"), by and between Xxxxxxx Xxxx ("EXECUTIVE"),
National Coal Corp., a Florida Corporation ("PARENT"), and all of its
subsidiaries, being National Coal Corporation, NC Railroad, Inc., NC
Transportation, Inc., NCC Corp., Appalachian National Coal, Inc. and National
Coal of Alabama, Inc. (collectively, the "COMPANY").
RECITALS
A. Executive has delivered to the CEO of the Company his
intention to resign his employment with Parent and the Company, as General
Counsel, for personal reasons.
B. Executive, Parent and the Company wish to accommodate
Executive's resignation, attend to the ongoing work requirements of the Company,
and to settle fully and finally all differences or potential differences between
the parties, including all differences or potential differences which arise out
of or relate to Executive's employment or resignation of employment with Parent
and the Company.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, Executive, Parent and the Company understand and agree as
follows:
1. EXECUTIVE'S RESIGNATION OF ALL EMPLOYMENT POSITIONS WITH
PARENT AND THE COMPANY.
Except as hereinafter provided, and with effect on the
Effective Date, Executive resigns his positions as General Counsel, and all
other employment positions with Parent and the Company.
2. SEVERANCE BY THE COMPANY.
(a) The Company agrees that provided that so long as the
Company has received an original copy of this Agreement executed by Executive
and Executive has not revoked the release contained in Section 7 of this
Agreement, each of the Executive's Stock Option Agreement, dated on or around
March 29, 2004, between the Parent and the Executive, and the Executive's Stock
Option Agreement, dated on or around May 3, 2004, between the Parent and the
Executive (collectively, the "OPTION AGREEMENTS"), is hereby amended to allow
the Executive to exercise the remaining vested options underlying the Option
Agreements from and after the Effective Date until December 31, 2009,
notwithstanding the Executive's resignation.
(b) Executive acknowledges that upon execution of this
Agreement, the terms described in this Section 2, and the payment to Executive
of his base salary up to and including the Effective Date, shall constitute full
and complete satisfaction of any and all amounts due and owing to Executive as a
result of his employment with the Company and/or his resignation from that
employment and that in the absence of this Agreement, Executive would not be
entitled to some or all of such payments.
3. TRANSITION SERVICES.
In consideration for the benefits provided in Section 2 above,
and for no additional cash compensation, Executive agrees to provide consulting
services to the Company until December 31, 2008, as a consultant and independent
contractor and not as an employee, pursuant to which Executive will work, if and
to the extent requested by the Company: (i) up to twenty hours per week until
September 30, 2008, and (ii) five hours per week from October 1, 2008 until
December 31, 2008. Executive's services shall include services similar to those
that were provided by Executive as General Counsel prior to his resignation.
4. NON-ADMISSION OF DISCRIMINATION OR WRONGDOING.
(a) This Agreement is entered into, in part, to avoid and
compromise any disputes or claims of the parties, and thus, the parties hereto
expressly recognize that the making of this Agreement shall not in any way be
construed as an admission that the Company and/or Parent or any individual has
any liability to or acted wrongfully in any way with respect to any other party
to this Agreement. The Company and Parent specifically denies that it has any
liability to or that it has done any wrongful, harassing and/or discriminatory
acts against Executive or any other person on the part of itself, or its
subsidiaries, affiliates, predecessors, successors, officers, employees or
agents.
(b) Executive understands and agrees that he has not
suffered any discrimination in terms, conditions or privileges of his employment
based on age, race, gender, religious creed, color, national origin, ancestry,
physical disability, mental disability, medication condition, marital status,
sexual orientation and/or sexual or racial harassment. Executive understands and
agrees that he has no claim for employment discrimination under any legal or
factual theory.
5. CONFIDENTIALITY.
Executive expressly acknowledges and agrees that
notwithstanding anything in this Agreement to the contrary, his obligation to
not disclose Confidential Information regarding the Company shall survive the
execution and delivery of this Agreement and termination of Executive's
employment. All other provisions of the Employment shall terminate and be of no
further force or effect as of the dates set out above.
6. NO LAWSUITS OR CLAIMS.
Each party to this Agreement promises never to file a lawsuit,
administrative complaint, or charge of any kind with any court, governmental or
administrative agency or arbitrator against any other party to this Agreement or
their officers, directors, agents or employees, asserting any claims that are
released in this Agreement. Each party represents and agrees that, prior to
signing this Agreement, that said party has not filed or pursued any complaints,
charges or lawsuits of any kind with any court, governmental or administrative
agency or arbitrator against any other party to this Agreement or their
officers, directors, agents or employees, asserting any claims that are released
in this Agreement.
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7. COMPLETE RELEASE.
(a) In consideration of the covenants and promises
contained herein and the consideration received by each, each party to this
Agreement hereby knowingly and voluntarily releases, absolves and discharges
each other party, and, as applicable, their partners, attorneys, agents,
officers, administrators, directors, employees, affiliates, representatives,
and/or assigns and successors, past and present (collectively the "RELEASEES")
from all rights, claims, demands, obligations, damages, losses, causes of action
and suits of all kinds and descriptions, legal and equitable, known and unknown,
that party may have or ever had against the Releasees from the beginning of time
to the date of execution of this Agreement, including, but not limited to, any
such rights, claims, demands, obligations, damages, losses, causes of action and
suits arising out of, during or relating to Executive's employment and/or his
resignation therefrom. The matters that are the subject of the releases referred
to in this paragraph shall be referred to collectively as the "RELEASED
MATTERS." This includes, but is not limited to, claims for employment
discrimination, wrongful termination, constructive termination, violation of
public policy, breach of any express or implied contract, breach of any implied
covenant, fraud, intentional or negligent misrepresentation, emotional distress,
or any other claims relating to Executive's relationship with the Company and/or
Parent.
(b) Each party acknowledges and agrees that this
Agreement represents a compromise of known and unknown, asserted and unasserted,
and actual and potential claims, and that neither this Agreement nor any
compliance herewith or consideration given pursuant hereto, shall be construed
as an admission by any party of any liability whatsoever, including, but not
limited to, any liability for any violation by the Company and/or Parent of any
right of Executive or of any person arising under any law, statute, duty,
contract, covenant, or order, or any liability for any act of age discrimination
or other impermissible form of harassment or discrimination by the Company
and/or Parent against Executive or any other person, as prohibited by any state
or federal statute or common law, including, but not limited to: (i) Title VII
of the Civil Rights Act of 1964, 42 U.S.C. ss. 2000e; (ii) the Americans With
Disabilities Act, 42 U.S.C. xx.xx. 12101 ET SEQ.; (iii) the Age Discrimination
in Employment Act, 29 U.S.C. xx.xx. 623 ET SEQ.; (iv) the Family and Medical
Leave Act; 29 U.S.C. xx.xx. 2611 ET SEQ.; (v) the Consolidated Omnibus Budget
Reconciliation Act of 1985; 42 U.S.C. xx.xx. 201 ET SEQ.; (vi) Executive Order
11141 (age discrimination); (vii) Section 503 of the Rehabilitation Act of 1973;
29 U.S.C. ss. 701 ET. SEQ.; and (viii) the Employee Retirement Income Security
Act of 1974, 29 U.S.C. xx.xx. 1001 ET SEQ. and that all such liability is
expressly disputed, released, and denied.
(c) Executive further understands and acknowledges that:
(1) this Agreement constitutes a voluntary
waiver of any and all rights and claims he has against the Releasees as of the
date of the execution of this Agreement, including rights or claims arising
under the Federal Age Discrimination in Employment Act of 1967 ("ADEA"), 29
U.S.C. xx.xx. 621 ET SEQ., as amended by the Older Workers' Benefit Protection
Act of 1990, except for any allegation that a breach of this Act occurred
following the Ending Date;
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(2) he has waived rights or claims pursuant to
this Agreement in exchange for consideration, the value of which exceeds the
payment or remuneration to which he was already entitled;
(3) he is hereby advised that he may consult
with an attorney of his choosing concerning this Agreement prior to executing
it;
(4) he has been afforded a period of at least
twenty-one (21) days to consider the terms of this Agreement, and in the event
he should decide to execute this Agreement in fewer than twenty-one days, he has
done so with the express understanding that he has been given and declined the
opportunity to consider this Agreement for a full twenty-one days; and
(5) he may revoke this Section 7(c) of the
Agreement at any time during the seven (7) days following the date of execution
of this Agreement, and this Section 7(c) of the Agreement shall not become
effective or enforceable until such revocation period has expired. Executive
further understands and acknowledges that he may revoke only Section 7(c) of
this Agreement as it relates to any claim pursuant to the Federal Age
Discrimination in Employment Act, and that such revocation, if any, will not
affect the effectiveness or enforceability of any other of the Released Matters
as they are described in Section 7(c).
8. UNKNOWN CLAIMS.
Each party acknowledges that there is a risk that subsequent
to the execution of this Agreement, that party will incur or suffer damage, loss
or injury to persons or property that is in some way caused by or connected with
Executive's employment or his resignation therefrom, but that is unknown or
unanticipated at the time of the execution of this Agreement. Except as provided
by Section 13 below, each party does hereby specifically assume such risk and
agrees that this Agreement and the releases contained herein shall and do apply
to all unknown or unanticipated results of any and all matters caused by or
connected with Executive's employment or his resignation therefrom, as well as
those currently known or anticipated, and excepting therefrom only such rights
or claims that may arise out of this Agreement.
9. OWNERSHIP OF CLAIMS.
Each party represents and warrants that no portion of any of
the Released Matters and no portion of any recovery or settlement to which that
party might be entitled has been assigned or transferred to any other person,
firm, entity or corporation not a party to this Agreement, in any manner,
including by way of subrogation or operation of law or otherwise. If any claim,
action, demand or suit should be made or instituted against the Releasees or any
of them because of any such purported assignment, subrogation or transfer, the
assigning, subrogating or transferring party agrees to indemnify and hold
harmless the Releasee(s) against such claim, action, suit or demand, including
necessary expenses of investigation, attorneys' fees and costs.
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10. ASSUMPTION OF RISK; INVESTIGATION OF FACTS.
(a) Each party hereby expressly assumes the risk of any
mistake of fact or that the true facts might be other than or different from the
facts now known or believed to exist, and it is each party's express intention
to forever settle, adjust and compromise any and all disputes between and among
the party and the Releasees, finally and forever, and without regard to who may
or may not have been correct in their respective understandings of the facts or
the law relating thereto.
(b) In making and executing this Agreement, each party
represents and warrants that the party has made such investigation of the facts
and the law pertaining to the matters described in this Agreement as that party
deems necessary, and said party has not relied upon any statement or
representation, oral or written, made by any other party to this Agreement with
regard to any of the facts involved in any dispute or possible dispute between
the parties hereto, or with regard to any of the party's rights or asserted
rights, or with regard to the advisability of making and executing this
Agreement.
11. NO REPRESENTATIONS.
Each party represents and agrees that no promises, statements
or inducements have been made to that party, which caused that party to sign
this Agreement other than those expressly stated in this Agreement.
12. NON-DISPARAGEMENT.
Each party agrees that said party will refrain from taking
actions or making statements, written or oral, which disparage or defame the
goodwill or reputation of any other party to the Agreement, and/or, if
applicable, its directors, officers, executives and employees or which could
adversely affect the morale any party, of employees of the Company and/or Parent
and that each party shall not demean or disparage the any other party in any
communications or other dealings with any existing or potential employees,
customers, vendors and/or stockholders.
13. INDEMNIFICATION.
Notwithstanding any provision in this Agreement to the
contrary, Company agrees that it will (a) indemnify and hold Executive harmless
for any claims, demands, damages, liabilities, losses, costs and expenses
(including attorneys' and paralegal fees and court costs) incurred or suffered
by Executive in connection with Executive's service as an executive officer of
Company or its affiliates to the fullest extent (including advancement of
expenses) permitted by Florida or Tennessee corporate law (as applicable) for
the indemnification of officers and directors of a Florida or Tennessee
corporation and (b) will include Executive as a covered employee under Company's
directors' and officers' liability insurance policy and employment practices
liability insurance policy, provided such policies permit such extended
coverage, until the applicable statutes of limitations have expired.
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14. SUCCESSORS.
This Agreement shall be binding upon the parties and upon
their heirs, administrators, representatives, executors, successors and assigns,
and shall inure to the benefit of the parties, their administrators,
representatives, executors, successors and assigns.
15. ARBITRATION.
(a) Any claim or controversy arising out of or relating
to this Agreement or any breach thereof between Executive and the Company shall
be submitted to mediation in Knoxville, Tennessee, before an experienced
employment mediator licensed to practice law in Tennessee and selected in
accordance with Rule 31 of the Rules of the Supreme Court of the State of
Tennessee, as the exclusive remedy for such claim or controversy. Either party
desiring to arbitrate shall give written notice to the other party within a
reasonable period of time after the party becomes aware of the need for
mediation. The decision of the mediator shall be final and binding. Judgment on
any award rendered by such mediator may be entered in any court having
jurisdiction over the subject matter of the controversy. The prevailing party
shall receive an award of costs and expenses related to the mediation, including
attorneys' fees. The fees and costs of the mediator and the cost of any record
or transcript of the mediation shall be borne by the losing party.
(b) Should Executive or the Company and/or Parent
institute any legal action or administrative proceeding with respect to any
claim waived by this Agreement or pursue any dispute or matter covered by this
Agreement by any method other than said mediation, the responding party shall be
entitled to recover from the other party all damages, costs, expenses and
attorneys' fees incurred as a result of such action.
(c) Should Executive attempt to challenge the
enforceability of this Agreement, as a further limitation on any right to make
such a challenge, Executive shall initially submit to the Company the total
proceeds provided to him in connection with this Agreement plus interest at the
standard statutory rate, and invite the Company to retain such monies and agree
with Executive to cancel this Agreement. In the event the Company accepts this
offer, the Company shall retain such monies and this Agreement shall be
canceled. In the event the Company does not accept such offer, the Company shall
so notify Executive and shall place such monies into an interest-bearing escrow
account pending resolution of the dispute between Executive and the Company
and/or Parent as to whether this Agreement shall be set aside and/or otherwise
rendered unenforceable.
16. CONSULTATION WITH COUNSEL; REASONABLE TIME TO CONSIDER
AGREEMENT; VOLUNTARY PARTICIPATION IN THIS AGREEMENT.
Each party represents and agrees that said party has been
advised of the opportunity to review this Agreement with an attorney, that said
party has had the opportunity to thoroughly discuss all aspects of the party's
rights and this Agreement with an attorney to the extent said party elected to
do so, that said party has carefully read and fully understands all of the
provisions of this Agreement, has been given a reasonable period of time to
consider signing this Agreement, and is voluntarily entering into this
Agreement.
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17. SEVERABILITY AND GOVERNING LAW.
(a) Should any of the provisions in this Agreement be
declared or be determined to be illegal or invalid, all remaining parts, terms
or provisions shall be valid, and the illegal or invalid part, term or provision
shall be deemed not to be a part of this Agreement.
(b) This Agreement is made and entered into in the State
of Tennessee and shall in all respects be interpreted, enforced and governed
under the laws of Tennessee, without regard to the conflicts of laws principles
thereof.
18. ENTIRE AGREEMENT.
This Agreement and the related Consulting Agreement of even
date constitute the entire agreement between and among the parties pertaining to
the subject matter hereof and the final, complete and exclusive expression of
the terms and conditions of their agreement. Any and all prior agreements,
representations, negotiations and understandings made by the parties, oral and
written, express or implied, are hereby superseded and merged herein.
19. EXECUTION IN COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
all of which taken together shall constitute one agreement.
20. ATTORNEYS' FEES.
In any action or other proceeding to enforce rights hereunder,
the prevailing party shall receive an award of costs and expenses related to
such proceeding, including attorneys' fees.
21. COOPERATIVENESS.
All parties have cooperated in the drafting and preparation of
this Agreement, and it shall not be construed more favorably for or against any
party.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Separation Agreement as of the date first above written.
EXECUTIVE:
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
NATIONAL COAL CORP., AND SUBSIDIARIES
By: /s/ Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
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