EXHIBIT-10.11
EMPLOYMENT AGREEMENT
This AGREEMENT is entered into as of
11:59 p.m. New York time on the date set forth
on the signature page hereof, by and between Patriot Coal
Corporation , a Delaware corporation (the
“Company”), and Jiri Nemec (the
“Executive”).
RECITALS
To induce Executive to serve in the
executive team position set forth on the signature page hereof, the
Company desires to provide Executive with compensation and other
benefits on the terms and subject to the conditions set forth in
this Agreement.
Executive is willing to accept such
employment and perform services for the Company, on the terms and
subject to the conditions hereinafter set forth.
It is therefore hereby agreed by and
between the parties as follows:
1. Employment
.
1.1 Subject to the terms and
conditions of this Agreement, the Company agrees to employ
Executive during the term hereof in the executive team position set
forth on the signature page hereof. In such capacity, Executive
shall report to the Chief Executive Officer of the Company (the
“CEO”) and shall have the customary powers,
responsibilities and authorities of executives holding such
positions in publicly-held corporations of the size, type and
nature of the Company, as it exists from time to time, and as are
assigned by the CEO.
1.2 Subject to the terms and
conditions of this Agreement, Executive hereby accepts employment
in the executive team position set forth on the signature page
hereof commencing as of the date hereof (the “Commencement
Date”) and agrees, subject to any period of vacation or sick
leave, to devote his full business time and efforts to the
performance of services, duties and responsibilities in connection
therewith, subject at all times to review and control of the
CEO.
1.3 Nothing in this Agreement
shall preclude Executive from engaging in trade association
activities, charitable work and community affairs, from delivering
lectures, fulfilling speaking engagements or teaching at
educational institutions, from managing any investment made by him
or his immediate family with respect to which Executive or such
family member is not substantially involved with the management or
operation of the entity in which Executive has invested (provided
that no such investment in publicly traded equity securities or
other property may exceed five percent (5%) of the equity of any
entity, without the prior approval of the CEO or the Board of
Directors of the Company (the “Board”)) or from
serving, subject to the prior approval of the CEO or the Board, as
a member of the board of directors or as a trustee of any other
corporation, association or entity, to the extent that any of the
above activities do not materially interfere with the performance
of his duties hereunder. For purposes of the preceding
sentence, any
approval by the CEO or the Board required therein shall not be
unreasonably withheld.
2. Term of
Employment . Executive’s term of employment under this
Agreement (the “Term of Employment”) shall commence on
the Commencement Date and shall continue until terminated as
provided in this Agreement.
3. Compensation
.
3.1 Salary . During
the Term of Employment, the Company shall pay Executive a base
salary (“Base Salary”). Executive’s initial Base
Salary shall be the amount set forth on the signature page hereof.
The Base Salary shall be payable in accordance with the ordinary
payroll practices of the Company. During the Term of Employment,
the Board and the CEO shall review in good faith, at least
annually, Executive’s Base Salary in accordance with the
Company’s customary procedures and practices regarding the
salaries of senior executives and may, if determined by the Board
to be appropriate, increase Executive’s Base Salary following
such review. “Base Salary” for all purposes herein
shall be deemed to be a reference to any such increased
amount.
3.2 Annual Bonus . In
addition to his Base Salary, Executive shall, commencing with the
2007 calendar year and continuing for each calendar year thereafter
during the Term of Employment, be eligible to receive an annual
cash bonus (the “Bonus”) in accordance with a program
to be developed by the Board, based on achievement of performance
targets established by the Board in consultation with the CEO as
soon as practicable at or after the beginning of the calendar year
to which the performance targets relate. The target for the 2007
bonus amount shall be determined before or as soon as practicable
after the Commencement Date. Executive’s target and maximum
annual Bonus percentages are set forth on the signature page
hereof. A Bonus award for any calendar year shall be payable to
Executive at the time bonuses are paid to other executive officers
for such calendar year in accordance with the Company’s
policies and practices as set by the Board in consultation with the
CEO, but in no event later than March 15 of the calendar year
following the later of (a) the calendar year in which the
Bonus is earned or (b) the calendar year in which the Bonus is
no longer subject to a substantial risk of forfeiture within the
meaning of Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”) and the guidance promulgated and
in effect thereunder (“Section 409A”).
4. Employee
Benefits .
4.1 Equity and Stock
Options .
(a) Executive shall receive an
extended long-term incentive award (the “Extended Long Term
Incentive Award”) with a value (as determined by the
Compensation Committee of the Board in good faith) that is at least
equal to the percentage of Executive’s initial Base Salary as
set forth on the signature page hereof. Such award shall consist of
stock options and restricted stock units, which will be granted on
or about November 1, 2007. The stock options will be
granted
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with an
exercise price per share equal to the closing market price of a
share of Company common stock on the grant date. The restricted
stock units will be granted with a value per unit equal to the
closing market price of a share of Company common stock on the
grant date.
(b) With respect to each calendar
year during the Term of Employment commencing with the 2008
calendar year, Executive shall receive equity-based compensation
awards under the Company’s equity incentive plans (the
“Annual Long Term Incentive Awards” and, together with
the Extended Long Term Incentive Award, the “Long Term
Incentive Awards”) with a value at least equal to the
percentage of Executive’s Base Salary (as in effect on the
date of such award) as set forth on the signature page hereof. The
Annual Long Term Incentive Award with respect to the 2008 calendar
year shall be made in the form of restricted stock on or about
November 1, 2007, with a value per share that equals the
closing market price of a share of Company common stock on the
grant date. The Annual Long Term Incentive Award with respect to
each calendar year after 2008 shall be made effective on the first
business day of such calendar year.
(c) As of the date of termination of
Executive’s employment due to Executive’s Disability
(as hereinafter defined) or death, or upon the occurrence of a
change in control (as defined in the applicable equity-based plan
or award) all outstanding Long Term Incentive Awards and any other
equity-based awards granted to Executive by the Company shall
become immediately and fully vested; provided, however, that any
performance units granted to Executive shall not become fully
vested upon a change in control unless otherwise provided in the
applicable plan or award agreement. In the case of termination of
Executive’s employment due to Executive’s Disability
(as defined in Section 6.4 hereof) or death, any options held
by Executive as of such date shall remain exercisable until at
least the earlier of (i) the date that is one (1) year
after the date of termination of Executive’s employment or
(ii) the date on which the option would have expired solely by
reason of the passage of time if Executive’s employment had
not been terminated, provided that no option shall remain
outstanding longer than the maximum time permitted by
Section 409A.
(d) The Long Term Incentive Awards
shall be governed by separate grant agreements (together with any
other agreement approved by the Board and designated by the Board
as an “Ancillary Document” for purposes of this
Agreement, the “Ancillary Documents”). To the extent
permitted by any applicable law and the rules of any exchange on
which the Company’s stock is listed, in the event of any
conflict between an Ancillary Document and the terms of this
Agreement, the terms of this Agreement shall govern.
(e) All Long Term Incentive Awards
and any other equity-based awards granted to Executive by the
Company shall be approved by a committee of the Board comprised of
individuals who are both disinterested directors (within the
meaning of Section 16 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”)) and independent
directors (within the meaning of
3
applicable
stock exchange rules) and shall be exempt from Section 16(b) of the
Exchange Act by reason of Rule 16b-3 under the Exchange
Act.
4.2 Employee Benefit
Programs, Plans and Practices; Perquisites . During the Term of
Employment, the Company shall provide Executive with employee
benefits and perquisites at a level (a) commensurate with his
position in the Company and (b) at least as favorable to
Executive as the Company provides to its other senior executives,
including retirement benefits, health and welfare benefits (both
active and retiree), the Continuation Benefits (as defined in
Section 6.2(a)(2) hereof), and other employee benefits and
perquisites which the Company may make available to its senior
executives from time to time. To the extent permitted by applicable
law, applicable tax-qualification requirements, and any relevant
benefit plan document, Executive’s service with Peabody
Energy Corporation and its affiliates shall be taken into account
for purposes of determining eligibility, vesting, level of benefits
and benefit accruals under the Company’s benefit plans
(except to the extent that such service credit would result in a
duplication of benefits).
4.3 Vacation .
Executive shall be entitled to the number of business days paid
vacation in each calendar year as determined in accordance with the
Company’s applicable vacation policies, which shall be taken
at such times as are reasonably consistent with Executive’s
responsibilities hereunder.
5. Expenses .
Subject to prevailing Company policy or such guidelines as may be
established by the Board, the Company will reimburse Executive for
all reasonable expenses incurred by Executive in carrying out his
duties on behalf of the Company, provided that such
reimbursement is not taxable income to Executive.
6. Termination of
Employment .
6.1 Termination of
Employment for Any Reason . In the event of a termination of
Executive’s employment for any reason, the Company shall pay
to Executive (a) within five (5) business days following
the date of termination of Executive’s employment, a lump sum
equal to (i) Executive’s Base Salary earned on or prior
to the date of such termination but not yet paid to Executive in
accordance with the Company’s customary procedures and
practices regarding the salaries of senior executives,
(ii) any business expenses incurred by Executive and not yet
reimbursed by the Company under Section 5 above, as of the
date of such termination, (iii) any vacation time accrued but
unused as of the date of such termination, and (iv) any Bonus
earned but not yet paid for any calendar year prior to the date of
such termination and (b) any benefits accrued and vested under
any of the Company’s employee benefit programs, plans and
practices on or prior to the date of termination of
Executive’s employment (remuneration described in
(a) and (b) above are collectively referred to as the
“Accrued Obligations” herein) in accordance with the
terms of such programs, plans and practices.
6.2 Termination Not for
Cause or for Good Reason . (a) The Company or Executive
may terminate Executive’s Term of Employment at any time for
any reason by providing written notice to the other party at least
thirty (30) days (or such other number of days specified in
this Agreement) in advance of the date of termination of
Executive’s
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employment. If
Executive terminates his employment for Good Reason, such notice
shall describe the conduct Executive believes to constitute Good
Reason and the Company shall have the opportunity to cure the Good
Reason within thirty (30) days of receiving such notice. If
the Company cures the conduct that is the basis for the potential
termination for Good Reason within such thirty (30) day
period, Executive’s notice of termination shall be deemed
withdrawn.
If
Executive’s employment is terminated (i) by the Company
other than for Cause (as defined in Section 6.3(b) hereof),
Disability (as defined in Section 6.4 hereof) or death or
(ii) by Executive for Good Reason (as defined in
Section 6.2(b) hereof), and such termination constitutes a
Separation from Service (as hereinafter defined), the Company, as
severance, shall pay to Executive an amount (the “Severance
Payment”) equal to the total of:
(A) one (1) times
Executive’s Base Salary; plus
(B) an additional amount equal one
(1) times the greater of (x) Executive’s target
Bonus for the calendar year of termination of Executive’s
employment or (y) the annual average of the actual Bonus awards
paid to Executive by the Company for the three (3) calendar
years preceding the date of termination of Executive’s
employment (or, if Executive has not yet been employed by the
Company pursuant to this Agreement for three (3) full calendar
years as of the date his employment is terminated, for the two
(2) year or one (1) year period, as applicable, for which
he has been so employed and received a Bonus); plus
(C) an additional amount equal to six
percent (6%) of Executive’s Base Salary.
The Company
shall pay to Executive (I) one-half (1/2) of such Severance
Payment in a lump sum payment on the six (6) month anniversary
of Executive’s Separation from Service and (II) the remaining
one-half (1/2) of the Severance Payment in six (6) equal
monthly payments beginning on the seven (7) month anniversary
of Executive’s Separation from Service.
“Separation from Service” means a “separation
from service,” as such term is defined under
Section 409A.
In addition, if
Executive’s employment is terminated (i) by the Company
other than for Cause (as defined in Section 6.3(b) hereof),
Disability (as defined in Section 6.4 hereof), or death or
(ii) by Executive for Good Reason (as defined in
Section 6.2(b) hereof) and if such termination constitutes a
Separation from Service,
(1) The
Company shall pay to Executive a prorated bonus (the
“Prorated Bonus”) for the calendar year of termination
of Executive’s employment, calculated as the Bonus Executive
would have received in such year based on actual performance
multiplied by a fraction, the numerator of which is the number of
business days during the calendar year of termination that
Executive was
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employed and
the denominator of which is the total number of business days
during the calendar year of termination. The Prorated Bonus shall
be payable when annual bonuses are paid to other senior executives
of the Company, but in no event later than March 15 of the
calendar year following the later of (a) the calendar year in
which the Bonus is earned or (b) the calendar year in which
the Bonus is no longer subject to a substantial risk of forfeiture
within the meaning of Section 409A.
(2) The
Company shall also continue to provide Executive, as though he
remained actively employed, for a period of one (1) year
following the date of termination of Executive’s employment
(the “Benefit Continuation Period”), life insurance,
group health coverage (including medical, dental, and vision
benefits), accidental death & dismemberment coverage, and the
health care flexible spending account (to the extent required to
comply with COBRA continuation coverage requirements (collectively,
the “Continuation Benefits”) in accordance with the
applicable plan terms; provided , however , that any
such coverage shall terminate to the extent that Executive is
offered or obtains comparable benefits from any other employer
during the Benefit Continuation Period; provided ,
further , that the amount of Continuation Benefits provided
during one calendar year shall not affect the amount of
Continuation Benefits provided during a subsequent calendar year
(except with respect to health plan maximums), the Continuation
Benefits may not be exchanged or substituted for other forms of
compensation to Executive, and any reimbursement or payment under
the Continuation Benefit arrangements will be paid in accordance
with applicable plan terms and no later than the last day of
Executive’s taxable year following the taxable year in which
he incurred the expense giving rise to such reimbursement or
payment. Notwithstanding the foregoing, if Executive breaches any
provision of Section 13 hereof, the remaining balances of the
Severance Payment, the Prorated Bonus, and any Continuation
Benefits shall be forfeited.
(b) For purposes of this Agreement,
the term “Good Reason” means: (i) a reduction by
the Company in Executive’s Base Salary (in which event the
Severance Payment shall be calculated based on Executive’s
Base Salary in effect prior to any such reduction); (ii) a
material reduction in the aggregate program of employee benefits
and perquisites to which Executive is entitled (other than a
reduction that generally affects all executives); (iii) a material
decline in Executive’s Bonus or Long Term Incentive Award
opportunities (other than a decline that generally affects all
executives); (iv) relocation of Executive’s primary
office by more than 50 miles from the location of Executive’s
primary offi
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