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VP Sales & Marketing Employment Agreement

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Sectors: Metals and Mining
Governing Law: New York, View New York State Laws
Effective Date: September 27, 2006
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Exhibit 10.1

AMENDED AND RESTATED

EMPLOYMENT AGREEMENT Allen S. Pack, Jr.

AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this " Agreement" ) dated September 27, 2006 by and between Foundation Coal Corporation, a Delaware corporation (the " Company" ) and (" Executive" ). WHEREAS, the Company and Executive previously entered into an Employment Agreement, dated as of June 1, 2005 (the " Prior Employment Agreement" ); and

WHEREAS, Executive and the Company desire to amend and restate the Prior Employment Agreement in its entirety as set forth in this Agreement.

NOW, THEREFORE, in consideration of the premises and mutual covenants herein and for other good and valuable consideration, the parties agree as follows:

1. Term . Subject to the provisions of Section 7 of this Agreement, Executive shall continue to be employed by the Company for a period commencing on the date hereof and ending on December 31, 2008 (the " Employment Term" ) on the terms and subject to the conditions set forth in this Agreement; provided , however , that commencing on December 31, 2008 and on each anniversary thereafter (each an " Extension Date" ), the Employment Term shall be automatically extended for an additional one-year period, unless the Company or Executive provides the other party hereto 60 days' prior written notice before the next Extension Date that the Employment Term shall not be so extended. 2. Position . During the Employment Term, Executive shall serve as the Company' s Senior Vice President, Sales and Marketing. In such position, Executive shall report directly to the Chief Executive Officer (" CEO" ) of the Company and shall have such duties and authority as shall be determined from time to time by the CEO. During the Employment Term, Executive will devote Executive' s full business time and best efforts to the performance of Executive' s duties hereunder and will not engage in any other business, profession or occupation for compensation or otherwise which would conflict or interfere with the rendition of such services either directly or indirectly, without the prior written consent of the CEO; provided that nothing herein shall preclude Executive from (i) subject to the prior approval of the CEO (which shall not unreasonably be withheld), accepting appointment to or continuing to serve on any board of directors or trustees of any business or corporation, (ii) engaging in charitable activities and community affairs or (iii) managing his personal investments and affairs; provided that in each case, and in the aggregate, such activities do not conflict or interfere with the performance of Executive' s duties hereunder or conflict with the provisions contained in Section 9.

3. Base Salary . During the Employment Term, the Company shall pay Executive a base salary at the annual rate of $270,000, payable in regular installments in accordance with the Company' s usual payment practices. Executive shall be entitled to increases (but not decreases) in Executive' s base salary, if any, as may be determined from time to time in the sole discretion of the Board of Directors (" Board" ) and the Board shall be obligated to annually review Executive' s base salary for increases but not decreases. Executive' s annual base salary, as in effect from time to time, is hereinafter referred to as the " Base Salary ."

4. Annual Bonus . With respect to each full calendar year of the Company during the Employment Term, Executive shall be eligible to earn an annual bonus award (an " Annual Bonus" ) based upon the achievement of certain individual and Company performance targets established by the Board, in consultation with CEO (such targets to be established no later than 90 days following the beginning of the year in which they relate) as set forth below.


Company

Performance Percent of
Base
Salary Individual
Performance Percent of
Base
Salary

125% of Target 83.33 % Maximum 41.67 %

100% of Target 33.33 % Target 16.67 %

85% of Target 16.67 % Below Target 8.33 %

Below 85% of Target 0.00 %

Straight line interpolation between each percentage. 5. Employee Benefits . During the Employment Term, Executive shall be entitled to participate in the Company' s employee benefit plans (other than annual bonus plans) as in effect from time to time (collectively " Employee Benefits" ), on terms no less favorable than those generally made available to other senior executives of the Company. Executive will be provided paid vacation pursuant to the Vacation Summary Plan Description.

6. Business Expenses . During the Employment Term, reasonable travel and other expenses incurred by Executive in the performance of Executive' s duties hereunder shall be reimbursed by the Company in accordance with Company policies.

7. Termination . The Employment Term and Executive' s employment hereunder may be terminated by either party at any time and for any reason; provided that Executive will be required to give the Company at least 60 days' advance written notice of any resignation of Executive' s employment. Notwithstanding any other provision of this Agreement, the provisions of this Section 7 shall exclusively govern Executive' s rights upon termination of employment with the Company and its affiliates.

a. By the Company For Cause or By Executive Resignation Without Good Reason .

(i) The Employment Term and Executive' s employment hereunder may be terminated by the Company for Cause (as defined below) and shall terminate automatically upon Executive' s resignation without Good Reason (as defined in Section 7(c)). (ii) For purposes of this Agreement, " Cause" shall mean (A) Executive' s continued and willful, intentional or grossly negligent failure to substantially perform Executive' s duties hereunder (other than as a result of total or partial incapacity due to physical or mental illness), (B) Executive' s conviction of, or plea of nolo contendere to a crime constituting (x) a felony under the laws of the United States or any state thereof or (y) a misdemeanor involving moral turpitude, deceit, dishonesty or fraud that relates to the Company property, (C) the willful, intentional or grossly negligent conduct of Executive which is demonstrably and materially injurious to the Company, monetarily or otherwise (D) Executive' s material breach of the provisions of Sections 8 or 9 of this Agreement. For purposes of this definition of Cause, no act, or failure to act, on Executive' s part shall be deemed willful, intentional or grossly negligent if Executive acted in good faith and in a manner that Executive reasonably believed to be in, or not opposed to, the best interests of the Company.

(iii) If Executive' s employment is terminated by the Company for Cause, or if Executive resigns without Good Reason, Executive shall be entitled to receive:

(A) the Base Salary through the date of termination;

(B) any Annual Bonus earned but unpaid as of the date of termination for any previously completed fiscal year;

(C) reimbursement for any unreimbursed business expenses properly incurred by Executive in accordance with Company policy prior to the date of Executive' s termination; and

(D) such Employee Benefits, if any, as to which Executive may be entitled under the employee benefit plans of the Company (the amounts described in clauses (A) through (D) hereof being referred to as the " Accrued Rights" ).

Following such termination of Executive' s employment by the Company for Cause or resignation by Executive without Good Reason, except as set forth in this Section 7(a)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement.

b. Disability or Death . (i) The Employment Term and Executive' s employment hereunder shall terminate upon Executive' s death. If Executive becomes physically or mentally incapacitated so as to be unable to perform the essential functions of Executive' s duties (such incapacity is hereinafter referred to as " Disability" ), then (A) the CEO may allow

another officer of the Company to perform Executive' s duties and responsibilities during the period of such Disability, and (B) if such Disability continues for 120 consecutive days or 180 days during any consecutive 360 day period, the CEO may terminate Executive' s employment under this Agreement. If any question shall arise as to whether, during any period Executive is disabled so as to be unable to perform the essential functions of Executive' s then existing position or positions with or without reasonable accommodation, Executive may, and at the request of the Company shall, submit to the Company a certification in reasonable detail by a physician selected by the Company, to whom Executive or Executive' s guardian has no reasonable objection, as to whether Executive is so disabled and how long such disability is expected to continue, and such certification shall for the purposes of this Agreement be conclusive of the issue. Executive shall cooperate with any reasonable request of the physician in connection with such certification. If such question shall arise and Executive shall fail to submit such certification, the Company' s determination of such issue shall be binding on Executive. Nothing in this Section 7(b) shall be construed to waive Executive' s rights, if any, under existing law including, without limitation, the Family and Medical Leave Act of 1933, 29 U.S.C. ss.2601 et seq. and the Americans With Disabilities Act, 424 S.C. ss.12101 et seq.

(ii) Upon termination of Executive' s employment hereunder for either Disability or death, Executive or Executive' s estate (as the case may be) shall be entitled to receive: (A) the Accrued Rights; and

(B) fifty percent (50%) of the Base Salary (the " Target Annual Bonus" ) multiplied by a fraction, the numerator of which is the number of days of the calendar year of termination that shall have elapsed through the date of Executive' s termination of employment and the denominator of which is 365.

Following Executive' s termination of employment due to death or Disability, except as set forth in this Section 7(b)(ii), Executive shall have no further rights to any compensation or any other benefits under this Agreement. c. By the Company Without Cause or Resignation by Executive for Good Reason . (i) The Employment Term and Executive' s employment hereunder may be terminated by the Company without Cause or by Executive' s resignation for Good Reason.

(ii) For purposes of this Agreement, " Good Reason" shall mean (A) the failure of the Company to pay or cause to be paid Executive' s Base Salary or Annual Bonus, when due hereunder or (B) any substantial diminution in Executive' s authority or responsibilities from those described in Section 2 hereof, (C) the requirement by the Company that Executive' s principal office be located outside the greater Baltimore, Maryland metropolitan area or (D) any failure of the Company to obtain the assumption

in writing of its obligation to perform this Agreement by any successor to all or substantially all of the business or assets of the Company upon a merger, consolidation, sale or similar transaction (other than an assumption that occurs by operation of law); provided that any of the events described in clauses (A) through (D) of this Section 7(c)(ii) shall constitute Good Reason only if the Company fails to cure such event within 30 days after receipt from Executive of written notice of the event which constitutes Good Reason.

(iii) If Executive' s employment is terminated by the Company without Cause (other than by reason of death or Disability and other than any termination by the Company following the Company' s receipt of a Notice of Termination from Executive setting forth Executive' s intention to resign without Good Reason, as described in Section 7(a)(i)) or if Executive resigns for Good Reason, Executive shall be entitled to receive: (A) the Accrued Rights;

(B) the Target Annual Bonus multiplied by a fraction, the numerator of which is the number of days of the calendar year of termination that shall have elapsed through the date of Executive' s termination of employment and the denominator of which is 365; and

(C) subject to Executive' s continued compliance with the provisions of Sections 8 and 9, the product of (i) the sum of (x) the Base Salary and (y) the Target Annual Bonus multiplied by (ii) a fraction, the numerator of which is the greater of (x) the number of full months remaining in the Employment Term and (y) twelve and the denominator of which is twelve, payable in equal bi-monthly installments over the Restricted Period (as defined in Section 8) in accordance with the Company' s usual payroll practices; provided that the aggregate amount described in this clause (C) shall be reduced, but not below zero, by the present value of any other cash severance or cash termination benefits payable to Executive under any other plans, programs or arrangements of the Company or its affiliates, including, without limitation, any severance plan of the Company in which Executive is entitled to participate. Following Executive' s termination of employment by the Company without Cause (other than by reason of Executive' s death or Disability) or by Executive' s resignation for Good Reason, except as set forth in this Section 7(c)(iii), Executive shall have no further rights to any compensation or any other benefits under this Agreement. d. Expiration of Employment Term .

(i) Election Not to Extend the Employment Term . In the event either party elects not to extend the Employment Term pursuant to Section 1, unless Executive' s employment is earlier terminated pursuant to paragraphs (a), (b) or (c) of this Section 7, Executive' s termination of employment hereunder (whether or not Executive continues as

an employee of the Company thereafter) shall be deemed to occur on the close of business on the day immediately preceding the next scheduled Extension Date and Executive shall be entitled to receive the Accrued Rights.

Following such termination of Executive' s employment hereunder as a result of either party' s election not to extend the Employment Term, except as set forth in this Section 7(d)(i), Executive shall have no further rights to any compensation or any other benefits under this Agreement. (ii) Continued Employment Beyond the Expiration of the Employment Term . Unless the parties otherwise agree in writing, continuation of Executive' s employment with the Company beyond the expiration of the Employment Term shall be deemed an employment at-will and shall not be deemed to extend any of the provisions of this Agreement and Executive' s employment may thereafter be terminated at will by either Executive or the Company; provided that the provisions of Sections 8, 9 and 10 of this Agreement shall survive any termination of this Agreement or Executive' s termination of employment hereunder.

e. Notice of Termination . Any purported termination of employment by the Company or by Executive (other than due to Executive' s death) shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 12(i) hereof. For
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