Consulting Agreement - A.T. Massey Coal Co. Inc. and James L. Gardner
February 23, 2000
James L. Gardner, Esquire
[Address]
Dear Jim:
This will confirm the Agreement between James L. Gardner (the "Consultant")
and A. T. Massey Coal Company, Inc. (the "Company").
1. Scope of Services. The Consultant agrees to render advisory and
consultation services to the Company as and when the Company may from time to
time request. The Company authorizes Donald L. Blankenship, or his designee, or
Roger L. Nicholson, to approve these assignments to the Consultant hereunder.
Consultant shall generally be expected to work approximately one week per
month out of the Company's offices in Richmond, Virginia, or such other location
as the Company may request. In addition, Consultant agrees to make reasonable
effort to respond to requests by the Company for additional services.
In performing services under this Agreement, the Consultant shall operate
as and have the status of an independent contractor and shall not act as or be
an agent or employee of the Company.
As an independent contractor, the Consultant will be solely responsible for
determining the means, methods, time and place of performing the services
subject to the Company's overall schedule requirements and maintaining contacts
and communications necessary for the services, and the Company will receive only
the results of the Consultant's performance of the foregoing services.
The Company will furnish office space, secretarial and other office
services as are required to carry out the assignments made hereunder.
Consultant shall have the right to continue to use without charge the Compaq
computer and related equipment and transmission line installed at Consultant's
residence, but such equipment shall remain the property of the Company. The
Company agrees to sell to Consultant the 2000 Lincoln LS used by the Consultant
as his vehicle while employed by the Company for a purchase price of $24,000.
Consultant agrees that his use of such vehicle as
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appropriate for travel to the Company's field offices in Charleston, West
Virginia and similar locations shall be without charge to the Company except for
gas.
2. Compensation. The Company shall compensate the Consultant for the
actual days worked by the Consultant for services specifically approved by the
Company as follows:
(i) A minimum of $5,250 per calendar month, plus $175.00 per hour for
each hour worked in excess of 30 hours during any calendar month.
(ii) Reimbursement of actual, reasonable out-of-pocket expenses in
accordance with the Company's reimbursement policies, including expenses for
travel, accommodations and meals associated with working at the Company's
offices or other requested locations apart from Consultant's Tennessee
residence.
(iii) As additional consideration for Consultant entering into this
Agreement, Company agrees to provide family medical and dental insurance
coverage to Consultant for a period of 36 calendar months (whether or not this
Agreement is terminated during such period) on the same terms and conditions as
such medical and dental coverage is extended to the Company's employees in
return for the payment by Consultant of the monthly fee calculated by the
Company for extended coverage under COBRA.
3. Invoicing. Following the end of each month, the Consultant will
furnish the Company with an invoice covering the time devoted to the Company's
service during such month. Consultant will provide such invoice within 10 days
following the month being billed. The minimum monthly retainer will be paid by
the 10th of such month, and the Company shall pay any additional sums due under
such invoice within thirty (30) days of receipt.
4. Non-Competition. During the terms of this Agreement, the Consultant
agrees that he will not in any manner directly or indirectly provide services,
advice or other assistance to any firm or business which is similar to or
competitive with the
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business of the Company or any of its affiliates without prior written approval.
The Consultant agrees that any information which he obtains while
performing services in his consulting capacity concerning the business or
operations of the Company, its affiliates or third parties with whom it conducts
business (including, but not as a limitation, financial and technical
information) shall be used only to perform such services and shall not be
disclosed to anyone outside the Company, except with the prior written
authorization of the Company. The obligations of this paragraph shall survive
any termination of this Agreement and do not apply to any information which has
been publicly released or is in the public knowledge or literature.
5. Term. The term of this Agreement shall begin March 1, 2000, and shall
continue through December 31, 2000. Prior to November 30, 2000, the Company and
the Consultant will meet to discuss continuation or termination of this
Agreement on December 31, 2000.
6. No Government Agency. The Consultant agrees that during the entire
course of this Agreement, Consultant will not act as an agent, official or
employee of any foreign government, or foreign political party, or a candidate
for political office, and that the Consultant fees and expenses that will be
paid to the Consultant under this Agreement will not be paid directly or
indirectly to any such agent, official, employee, party or candidate.
7. Compliance with Law. The Consultant agrees to fully comply with the
United States Foreign Corrupt Practices Act (Public Law 95-213, 95th Congress,
December 19, 1977) and all other applicable State and United States Laws. The
Consultant acknowledges that Fluor Corporation and its subsidiaries require
their employees to fully comply with the laws of the United States.
8. Entire Agreement. This Agreement consists of this letter. This
Agreement, as defined in this paragraph, sets forth the full and complete
understanding of the parties as of the date above stated, and supersedes any and
all agreements and representations made or dated prior hereto. This Agreement
can only be amended by a writing
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signed by the duly authorized representatives of the parties.
9. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of Virginia.
Kindly indicate your agreement with the foregoing by executing the
duplicate originals of this letter in the space below and returning a fully
signed duplicate original to us.
A. T. MASSEY COAL COMPANY, INC.
/s/ Don l. Blankenship
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By: Donald L. Blankenship
Accepted and Agreed:
/s/ James L. Gardner
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By: James L. Gardner Date
SS# or Tax ID# - -
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