AGREEMENT
Exhibit
10.40
THIS AGREEMENT (the
“Agreement”) is made as of this 5th day of February, 2009, by and between Alpha
Natural Resources Services, LLC (the “Company”) and Xxxxx X. Xxxxxx
(“Executive”).
WHEREAS, the Company advises
Executive to consult with Executive's own legal counsel before signing this
Agreement; and
WHEREAS, the Executive has
been employed by the Company and is Vice President, Treasurer and Chief
Financial Officer of Alpha Natural Resources, Inc. ("Alpha"), the parent company
of the Company ; and
WHEREAS, as an express
condition of the Executive's entitlement to severance payments and benefits
described in paragraph 9 of this Agreement, the Executive acknowledges and
agrees to execute a general release in the form and subject to the terms set
forth herein; and
WHEREAS, the Executive's
officer and director positions with Alpha and its subsidiaries will terminate
effective February 5, 2009 and Executive's employment and service with the
Company will end effective February 16, 2009 ("Date of Separation");
and
WHEREAS, the Executive and the
Company mutually desire to effectuate a full and final general release of all
claims and rights the Executive may have against the Company to the fullest
extent permitted by law, excepting only those rights and claims that cannot, as
a matter of law, be released with this Agreement.
NOW, THEREFORE, IT IS HEREBY
AGREED by and between the Executive and the Company as
follows:
1. (a) To
the fullest extent permitted by law, the Executive, for and in consideration of
the commitments of the Company and Alpha as set forth in paragraph 9 of this
Agreement, and intending to be legally bound, does hereby REMISE, RELEASE AND
FOREVER DISCHARGE the Company, its affiliates, predecessors, subsidiaries and
parents, and their present or former officers, directors, shareholders,
employees, 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 former
employment
relationship with the Company and/or its affiliates, 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 and Medical
Leave Act, the Virginians with Disabilities Act, the Virginia Human Rights Act,
the Virginia Wage Payment and Collection 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. 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. This Release is intended to be a general release, and excludes
only those claims that Executive cannot release as a matter of law under any
statute or common law. Executive is advised to seek independent legal
counsel if Executive seeks clarification on the scope of this
Release.
(b) To
the fullest extent permitted by law, and subject to the provisions of
paragraph 14 and paragraph 16 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. Executive does not
waive the right to challenge the validity of this Agreement.
2. In
consideration of the Company's agreements as set forth in paragraph 9 herein,
the Executive agrees to comply with the limitations set forth in paragraphs 3
and 4 of this Agreement. If the Executive
violates the limitations set forth in paragraphs 3 or 4 of this
Agreement,
the Executive's rights to the payments and benefits set forth in paragraph 9(b)
are forfeited.
3. Ownership and Protection of
Intellectual Property and Confidential Information.
(a) 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 Executive, individually or in conjunction with others,
during Executive's employment by the Company or any of its affiliates, both
before and after the date hereof (whether during business hours or otherwise and
whether on the Company's premises or otherwise) which relate to the business,
products or services of the Company or its affiliates (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 (collectively, "Work Product"), shall be the sole
and exclusive property of the Company or a Company affiliate, as the case may
be, and shall be treated as "work for hire." It is recognized that
Executive is an experienced executive in the business of the Company and its
affiliates and through several decades of prior work in the industry acquired
and retains knowledge, contacts, and information which are not bound by this
Section 3.
(b) Executive
shall promptly and fully disclose all Work Product to the Company and shall
cooperate and perform all actions reasonably requested by the Company (whether
during or after the term of employment) to establish, confirm and protect the
Company's and/or its affiliates' right, title and interest in such Work
Product. Without limiting the generality of the foregoing, Executive
agrees to assist the Company, at the Company's expense, to secure the Company's
and its affiliates' rights in the Work Product in any and all countries,
including the execution by Executive of all applications and all other
instruments and documents which the Company and/or its affiliates shall deem
necessary in order to apply for and obtain rights in such Work Product and in
order to assign and convey to the Company and/or its affiliates the sole and
exclusive right, title and interest in and to such Work Product. If
the Company is unable because of Executive's mental or physical incapacity or
for any other reason (including Executive's refusal to do so after request
therefor is made by the Company) to secure Executive'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 the Company
and/or its affiliates pursuant to Section 3(a) above, then Executive by this
Agreement irrevocably designates and appoints the Company and its duly
authorized officers and agents as Executive's agent and attorney-in-fact to act
for and in Executive'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 Executive. Executive
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 paragraph in circumstances where such patents or
copyright registrations are or have been or are required to be assigned to the
Company or any of its affiliates.
(c) Executive
acknowledges that the businesses of the Company and its affiliates 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, and Executive’s Work Product,
all comprise confidential business information and trade secrets which are
valuable, special, and unique assets which the Company and/or its affiliates use
in their business to obtain a competitive advantage over their competitors
(collectively “Confidential Business Information”). Executive further
acknowledges that protection of such Confidential Business Information against
unauthorized disclosure and use is of critical importance to the Company and its
affiliates in maintaining their competitive position. Executive
acknowledges that by reason of Executive's duties to, and association with, the
Company and its affiliates, Executive has had and will have access to, and has
and will become informed of, Confidential Business Information which is a
competitive asset of the Company and its affiliates.
(d) Executive
hereby agrees that Executive will not, at any time during or after his
employment by the Company, make any unauthorized disclosure of any Confidential
Business Information of the Company or its affiliates, or make any use thereof,
except in the carrying out of his employment responsibilities
hereunder. Executive 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 other legal proceeding in which Executive's
legal rights and obligations as an Executive or under this Agreement are at
issue; provided, however, that Executive shall, to the extent practicable and
lawful in any such events, give prior notice to the Company of his intent to
disclose any such Confidential business Information in such context so as to
allow the Company or its affiliates an opportunity (which Executive 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 Company and its affiliates would not be considered confidential
to the Company and its affiliates.
(e) All
written materials, records, and other documents made by, or coming into the
possession of, Executive during the period of Executive's employment by the
Company which contain or disclose Confidential Business Information, shall be
and remain the property of the Company, or its affiliates, as the case may
be. Upon termination of Executive's employment, for any reason,
Executive promptly shall deliver the same, and all copies thereof, to the
Company.
4. Covenant Not To
Compete.
(a) During
the time from execution of this Agreement until one year following the Date of
Separation (the "Non-Compete Period"), Executive will not, in association with
or as an officer, principal, manager, member, advisor, agent, partner, material
stockholder, 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 the
Company or any of its affiliates engaged in or was planning to engage in during
the term of Executive's employment with the Company or any affiliate of the
Company, including but not limited to, the mining, processing, transportation,
distribution, trading and sale of synfuel, coal and coal byproducts (the
"Business"). Such restriction shall cover Executive's activities
anywhere in the contiguous United States.
(b) During
the Non-Compete Period, Executive will not solicit or induce any person who is
or was employed by the Company or any of its affiliates at any time during such
term or period (i) to interfere with the activities or businesses of the Company
or any of its affiliates or (ii) to discontinue his employment with the Company
or any of its affiliates.
(c) During
the Non-Compete Period, Executive will not, directly or indirectly, influence or
attempt to influence any customers, distributors or suppliers of the Company or
any of its affiliates to divert their business to any competitor of the Company
or any of its affiliates or in any way interfere with the relationship between
any such customer, distributor or supplier and the Company and/or any of its
affiliates (including, without limitation, making any negative statements or
communications about the Company and its affiliates). During the
Non-Compete Period, Executive will not, directly or indirectly, acquire or
attempt to acquire any business in the contiguous United States to which the
Company or any of its affiliates, prior to the Date of Separation, has made an
acquisition proposal relating to the possible acquisition of such business by
the Company or any of its affiliates, 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 the Company or any of its affiliates.
(d) Executive
understands that the provisions of paragraphs 4(a), 4(b) and 4(c) 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 the Company and its affiliates 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 the Company and any of its affiliates; (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 in
this Agreement is sufficient to compensate Executive for the restrictions
contained in paragraphs 4(a), 4(b) and 4(c) hereof. In consideration
of the foregoing and in light of Executive's education, skills and abilities,
Executive agrees that he will not assert that, and it should not be considered
that, any provisions of paragraphs 4(a), 4(b) and 4(c) otherwise are void,
voidable or unenforceable or should be voided or held
unenforceable.
(e) If,
at the time of enforcement of paragraphs 3 or 4 of this Agreement, a court shall
hold that the duration, scope, or area restrictions stated herein are
unreasonable under circumstances then existing, the parties 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. Executive
acknowledges that, as the Vice President, Treasurer and Chief Financial Officer
of Alpha, he is a member of the Company's and its affiliates' management group
with access to the Company's and its affiliates' confidential business
information and his services are unique to the Company and its
affiliates. Executive therefore agrees that the remedy at law for any
breach by him of any of the covenants and agreements set forth in paragraphs 3
and 4 will be inadequate and that in the event of any such breach, the Company
and its affiliates may, in addition to the other remedies which may be available
to them at law, apply to any court of competent jurisdiction to obtain specific
performance and/or injunctive relief prohibiting Executive (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
Executive of this paragraph 4, the Non-Compete Period set forth in this
paragraph shall be tolled until such breach or violation has been
cured.
(f) Each
of the covenants of paragraphs 3 and 4 are given by Executive as part of the
consideration for the benefits to be received by Executive under this Agreement
and as an inducement to the Company to grant such benefits and accept the
obligations hereunder.
(g) Provisions
of paragraph 4 shall not be binding on Executive if 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 under
this Agreement; 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.
5. Notwithstanding
the provisions of paragraph 4, Executive may serve as the director of a
corporation during the Non-Compete Period that competes with the Business, so
long as the Executive complies with the following restrictions:
(a) The
Executive informs the Company’s General Counsel in writing that he has accepted
the position as a director within five (5) business days after he accepts the
position;
(b)As set forth in
Section 3(d), the Executive does not, at any time or in any manner, directly or
indirectly, use or disclose any Confidential Business Information; and
(c)The
Executive does not, at any time or in any manner, directly or indirectly,
discuss, consider, vote on, consult regarding, evaluate, or in any way provide
any assistance to:
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i.any
merger with any entity that owns or controls any coal-related assets or
coal reserves;
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ii.any
acquisition of any stock from, or any divestiture of any stock to, any
entity or person that owns or controls any coal-related assets or coal
reserves;
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iii.any
acquisition of any assets from, or any divestiture of any assets to, any
entity or person that owns or controls any coal-related assets or coal
reserves; or
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iv.any
evaluation or consideration of, or attempt to engage in, any of the
foregoing transactions.
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6. The
Executive agrees and recognizes that effective February 4, 2009, he resigns his
titles as an officer of Alpha (Vice President, Treasurer and Chief Financial
Officer) as well all other officer and board positions with Alpha, the Company
and their respective subsidiaries and affiliates which Executive may have held.
The Executive agrees and recognizes that effective February 16, 2009, his
employment relationship with the Company and its subsidiaries and affiliates has
been permanently and irrevocably severed, and that the Company, its subsidiaries
and affiliates, and their successors have no obligation to employ Executive in
the future.
7. 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, its parents, subsidiaries or affiliated corporations or entities, or
any of their officers, directors, employees, agents or representatives,
including, but not limited to, any matters relating to the operation or
management of the Company or any Releasee, the Executive's employment and the
termination of the Executive's employment, irrespective of the truthfulness or
falsity of such statement.
8. The
Company agrees that it will not disparage, or make any statement reflecting
negatively on or with respect to the Executive, the Executive's employment with
the Company, or the termination of the Executive's employment, irrespective of
the truthfulness or falsity of such statement.
9. The
Executive will receive the following benefits related to the separation of his
employment with the Company.
(a) Regardless
of whether the Executive signs and does not revoke this Agreement, the Executive
will receive the following.
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i.
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All
base salary earned, accrued or owing to the Executive through the Date of
Separation, in accordance with the Company's established payroll
practices.
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ii.
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Reimbursement
for all reasonable and customary expenses incurred by the Executive in
performing services for the Company prior to the Date of Separation in
accordance with the Company's business expense reimbursement policies. In
addition to the terms of the policies, such reimbursement shall be made
only in accordance with the following conditions: the
reimbursement shall be made on or before the last day of the Executive's
taxable year following the taxable year in which the expense was incurred;
the amount of reimbursement in one taxable year will not affect the amount
of reimbursement available in another taxable year; and the right to
reimbursement shall not be subject to liquidation or exchange for another
benefit.
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iii.
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All
vested amounts under the Alpha Natural Resources, Inc. and Subsidiaries
Deferred Compensation Plan, as amended, which shall be paid in accordance
with such plan's terms.
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iv.
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A
payment equal to the amount of accrued, but unused, vacation time, payable
with your final paycheck in accordance with the Company's established
payroll practices.
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v.
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Executive
will be entitled to his 2008 annual incentive cash bonus under the Annual
Incentive Bonus Plan (the "Annual Plan"), subject to the achievement of
the performance goals thereunder as determined by the Compensation
Committee of Alpha's Board of Directors, and which shall be paid, if at
all, as specified under the terms of the Annual Plan and no
later than March 15, 2009.
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vi.
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Under
the terms of the 2006 performance share award, Executive will be entitled
to payment, if any, to the extent an amount becomes earned and will be
paid, if at all, no later than March 15, 2009 under the terms of the award
under the related performance share award agreement and the 2005 Long-Term
Incentive Plan.
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(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 severance
payments and benefits, to which the Executive would not otherwise be entitled
absent execution of this Agreement without revocation:
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i.
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A
lump sum cash payment in an amount of three hundred seventy-eight thousand
three hundred thirty-two dollars ($378,332), less required
withholdings.
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ii.
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The
Executive's rights under Alpha's 2005 Long-Term Incentive Plan will be as
follows.
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(A) Stock
Option Award: The option to purchase 40,000 shares of Alpha's common stock
granted on February 15, 2005 will be amended to provide that the portion of the
option vested as of the Date of Separation may be exercised by the Executive at
any time within the lesser of (i) the one year period commencing on the first
day after the Date of Separation or (ii) the remaining term of the
option. The Executive will have no other vested option rights as of
the Date of Separation, and all unvested options (or portions thereof) will be
forfeited upon the Date of Separation.
(B)
Restricted Stock: The unvested portion of all outstanding restricted stock
awards will be forfeited as of the Date of Separation.
(C)
Performance Share Award: Under the terms of the 2007 performance share award,
the Compensation Committee of Alpha's Board of Directors will deem
Executive "retired" pursuant to Section 6(b) of the related performance share
award agreement such that Executive may receive a pro rata portion of such
award, to the extent an amount becomes earned and payable under the terms of the
award and the 2005 Long-Term Incentive Plan after the end of the performance
period (which period is January 1, 2007 through December 31, 2009). Any such
payment(s) will be paid, if at all, in accordance with the applicable award's
terms.
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iii.
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The
Executive will return the Company's laptop computer and Blackberry device
in accordance with this Agreement. Upon receipt, the Company
will review and remove data from the laptop computer and Blackberry device
as it sees fit, and will then give, on or before December 31, 2009, the
laptop computer and Blackberry device to Executive as additional
consideration provided in exchange for this Agreement. To the extent
required by law, the Company will report as taxable wages and/or impute
income to the Executive the value of any taxable benefits and/or payments
to the Executive.
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(c) Except
as otherwise provided in this Agreement, all cash payments to be made pursuant
to paragraphs 9(a) and 9(b) of this Agreement shall be made by the Company to
the Executive no later than 60 days after the Date of
Separation.
(d) Executive
hereby acknowledges that the Company and its parent and subsidiary companies do
not maintain or sponsor pension plans such that Executive is not entitled to any
payments under such plans.
(e) 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
paragraph,
or those required by law, other than under the terms of any benefit plans which
provide benefits or payments to former employees according to their
terms.
10. 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.
11. The
Executive acknowledges and agrees that this Agreement supersedes the September
24, 2003 Offer Letter (the "Offer Letter") which Executive countersigned with
the Company, and the Executive has no rights, and the Company has no
obligations, arising under the Offer Letter. 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 supercede, 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
separation of service and employment with the Company.
12. 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.
13. The
Executive represents that the Executive does not, without the Company's prior
written consent, presently have in the Executive's possession any records and
business documents, whether on computer or hard copy, and other materials
(including but not limited to computer disks and tapes, computer programs and
software, office keys, correspondence, files, customer lists, technical
information, customer information, pricing information, business strategies and
plans, sales records and all copies thereof) (collectively, the “Corporate
Records”) provided by the Company and/or its predecessors, subsidiaries or
affiliates or obtained as a result of the Executive's prior employment with the
Company and/or its predecessors, subsidiaries or affiliates, or created by the
Executive while employed by or rendering services to the Company and/or its
predecessors, subsidiaries or affiliates. The Executive acknowledges
that all such Corporate Records are the property of the Company. In
addition, the Executive shall promptly return in good condition any and all
Company owned equipment or property, including, but not limited to, automobiles,
personal data assistants, facsimile machines, copy machines, pagers, credit
cards, cellular telephone equipment, business cards, laptops, computers, and any
other items requested by the Company. As of the Date of Separation,
the Company will make arrangements to remove, terminate or transfer any and all
business communication lines including network access, cellular phone, fax line
and other business numbers. For the six-month period after the Date
of Separation, the Company will permit the Executive to have limited and
monitored internet-based access to the Executive's Company-sponsored email
account (to send and receive email messages, not to access historic data and
messages).
14. 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.
15. 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.
16. The
Executive agrees and recognizes that should the Executive breach any of the
obligations or covenants set forth in 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. 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 under paragraph 9 of this Agreement, this
Release 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.
17. 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.
18. 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). For purposes of Section 409A, each severance benefit
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 following the Executive's Date of Separation and 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); and (ii) each payment that is not otherwise
excepted under the short-term deferral 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. 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 separation form service, such payment
shall be delayed for a period of six months after the Date of Separation (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
Separation.
19. Notwithstanding
the foregoing or any provision of this Agreement to the contrary, the Company
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.
20. 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.
21. 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.
22. 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 and the
termination of that employment relationship; 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, and the Company will have no
obligation to pay or provide any of the payments and benefits set forth in
paragraph 9 of this Agreement.
Intending
to be legally bound hereby, the Executive and the Company executed the foregoing
Agreement this 5th day of February, 2009.
/s/Xxxxx X.
Xxxxxx Witness: /s/ Xxxxxx X.
Xxxxxx
XXXXX X.
XXXXXX
ALPHA
NATURAL RESOURCES SERVICES, LLC
By: /s/ Xxxxxxx X.
Xxxxxxx Witness: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxxx X.
Xxxxxxx
Title: President and
Manager
