MANAGEMENT SERVICES AGREEMENT
THIS MANAGEMENT SERVICES AGREEMENT (this “ Agreement ”) is made and entered into as of November 19, 2009 (the “ Effective Date ”), between Cloud Peak Energy Resources LLC, a Delaware limited liability company (“ CPE LLC ”), and Cloud Peak Energy Inc., a Delaware corporation (“ CPE ”). CPE and CPE LLC are sometimes referred to herein separately as a “ Party ” and together as the “ Parties .”
WHEREAS, as contemplated by the terms of the Amended and Restated Limited Liability Company Agreement of CPE LLC dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “ LLC Agreement ”), the members of CPE LLC have approved this Management Services Agreement;
WHEREAS, to facilitate the operation of the business of CPE LLC, CPE LLC and CPE desire for CPE to provide management services to CPE LLC supplemental to CPE’s role as manager (“ Manager ”) under the LLC Agreement and memorialize the clarification of certain responsibilities of CPE in managing CPE LLC on the terms and subject to the conditions specified in this Agreement; and
WHEREAS, to facilitate CPE’s provision of management services, CPE LLC and CPE desire for CPE LLC to pay CPE certain employee costs for Service Employees (as defined herein) and to provide certain administrative services, facilities and other resources to CPE on the terms and subject to the conditions specified in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CPE LLC and CPE agree as follows:
1. Definitions .
The following terms shall have the indicated meaning:
“ Affiliate ” means with respect to a Person (as defined below), any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. As used in this definition, the word “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
“ Aggregate Employee Costs ” means, with respect to any month, the aggregate amount of Attributable Employee Costs.
“ Agreement ” is defined in the introductory paragraph.
“ Attributable Employee Costs ” means, with respect to each Service Employee (as defined below), the monthly Employee Costs attributed to such Service Employee (as defined below).
“ Board ” is defined in Section 2.1 .
“ CPE ” is defined in the introductory paragraph.
“ CPE Benefit Plans ” means, with respect to CPE, any “employee pension benefit plan” (as defined in Section 3(2) of ERISA), “employee welfare benefit plan” (as defined in Section 3(1) of ERISA) and any other plan or arrangement of any kind, whether qualified or non-qualified, relating to stock options, incentive compensation, bonus, profit sharing, retirement, pension, deferred compensation, severance benefits, leave of absence, vacation, life, health, accident, disability, sick pay, workmen’s compensation or other insurance, severance, separation, fringe or any other benefits.
“ CPE LLC ” is defined in the introductory paragraph.
“ Effective Date ” is defined in the introductory paragraph.
“ Employee Costs ” means the direct out-of-pocket costs or reasonable allocated costs of CPE (i) for gross wages, salaries, bonuses, incentive compensation, equity compensation and payroll taxes of the Service Employees, plus (ii) for workers’ compensation insurance incurred by CPE with respect to the Service Employees, plus (iii) for employee benefit plans attributable to any Service Employees, including but not limited to pension, savings, medical, dental, vision, disability and life insurance, plus (iv) for other benefits directly attributable to the Service Employees, including but not limited to perquisites, personal or fringe benefits or other similar incentive programs, executive programs, severance pay, employee assistance programs, cafeteria plan benefits, dependent care and health care flexible spending accounts, sick leave, legal assistance and educational assistance, plus (v) related to the employee benefit plans or programs, including but not limited to incremental costs of charges or premiums, employee participation, actuarial reports, accounting, or legal fees.
“ Governmental Authority ” means any United States federal, state or local or any foreign government, supranational, governmental, regulatory or administrative authority, instrumentality, agency or commission, political subdivision, self-regulatory organization or any court, tribunal or judicial or arbitral body or other governmental authority.
“ Health and Welfare Plans ” is defined in Section 4.3(c) .
“ Law ” means any law (statutory, common or otherwise), constitution, ordinance, code, rule, regulation, executive order or other similar authority enacted, adopted, promulgated or applied by any Governmental Authority, each as amended from time to time.
“ LLC Agreement ” is defined in the Recitals.
“ Loss ” is defined in Section 5.1 .
“ Management Services ” means all services performed by CPE (by Service Employees or otherwise), whether the provision of such services by CPE is required or contemplated by the LLC Agreement or is supplemental to the services to be provided by CPE to CPE LLC under the LLC Agreement, relating to the management and operation of the business of CPE LLC, including but not limited to executive oversight, exploration, production, sales, marketing, finance and accounting support and reporting, legal support and other services and activities as are customarily performed by persons holding the positions set forth on Exhibit A hereto and all other services provided by CPE, its officers, directors and employees to or for the benefit of CPE LLC in, or relating to, CPE’s role as Manager of CPE LLC.
“New York Courts” has the meaning set forth in Section 7.1 .
“ Person ” means an individual, corporation, joint venture, partnership, limited partnership, limited liability company, trust, estate, business trust, association, Governmental Authority or any other entity.
“ Reimbursable Costs ” shall mean all of the reasonable out-of-pocket costs and expenses incurred or suffered by CPE in connection with the providing of the Management Services, including the following:
(a) all supplies and equipment purchased on behalf of CPE LLC in order to provide the Management Services;
(b) meals, travel, hotel accommodations, and entertainment expenses incurred in connection with the performance of the Management Services;
(c) legal, accounting, health and safety, environmental, mining, and other third party advisors and consultants incurred in connection with the performance of the Management Services;
(d) directors’ fees, directors’ and officers’ insurance policies, employee practices liability insurance policies and any indemnification of directors, officers, employees or agents of CPE;
(e) operating, administrative and other similar costs incurred in connection with the performance of the Management Services;
(f) any judgments, settlements, penalties, fines or other costs and expenses (including any indemnification related expenses) in respect of any claims against, or any litigation or proceedings involving, CPE, other than indemnification related expenses (a) owed to any member of the Rio Tinto Group (as such term is defined in the Master Separation Agreement dated , 2009 which CPE and CPE LLC are parties thereto) and (b) payable by CPE pursuant to the Underwriting Agreement (as defined in the Master Separation Agreement) and the Purchase Agreement (as defined in the Master Separation Agreement);
(g) fees and expenses related to any securities offering, investment or acquisition transaction (whether or not successful) authorized by the Board to the extent
the proceeds of such securities offering, or any investment or asset acquired in any such investment or acquisition transaction are contributed to or, if not successful, were intended to be contributed to, CPE LLC; and
(h) bank accounts maintained by CPE on behalf of CPE LLC.
In addition, Reimbursable Costs shall include all items of corporate overhead, including, but not limited to, mortgage or rent payments for real property, or other fees, costs or expenses of any kind whatsoever incurred by CPE and associated with, related to or otherwise necessary for CPE’s maintenance of its corporate existence and business, its status as a reporting company under the federal securities laws and being listed on a national securities exchange. Solely as illustration and not by means of limitation, examples of such Reimbursable Costs would be SEC filing fees, blue sky fees and expenses, transfer agent, paying agent and registrar fees and expenses, franchise taxes, registered agent fees and expenses and fees and expenses of its public accountants, legal advisors or other consultants or advisors. Reimbursable Costs shall also include any fees, costs, commissions and expenses payable by CPE under the Registration Rights Agreement dated as of the date hereof by and among CPE, RTEA and KMS, as such agreement may be amended, restated, supplemented or modified from time to time.
“ Representatives ” means, with respect to any Person, any of such Person’s directors, officers, members, partners, managers and employees.
“ Service Employees ” means those employees of CPE who devote all or a portion of their working time to the performance of the Management Services and whose (i) job title(s) and (ii) initial estimated Attributable Employee Cost are set forth on Exhibit A hereto, as may be amended from time to time. Service Employees include and will include any former Service Employee to whom CPE has ongoing obligations.
“ Services Fee ” is defined in Section 3.1 .
“ Supporting Documentation ” is defined in Section 2.5(a) .
2. Performance of Management Services .
2.1. Management Services . From and after the Effective Date, CPE agrees to provide the Management Services on the terms and conditions set forth in this Agreement and in compliance with the policies and programs established from time to time by the Board of Directors of CPE (the “ Board ”).
2.2. Exhibit A .
(a) Exhibit A shall set forth the name, job title and initial estimated Attributable Employee Cost for each Service Employee employed by CPE. For the avoidance of doubt, Exhibit A shall not include any employees that are employed by CPE LLC or any subsidiary of CPE LLC.
(b) Notwithstanding anything in this Agreement to the contrary, Exhibit A shall be deemed automatically amended if CPE adds, removes or replaces a Service
Employee, or if a Service Employee’s employment with CPE otherwise terminates. In such an instance, CPE shall deliver to CPE LLC a revised Exhibit A that reflects such change to the list of Service Employees.
(c) For those Service Employees identified on Exhibit A as of the Effective Date, the initial estimated Attributable Employee Cost shall be calculated for fiscal year 2009, and for any subsequent Service Employee, initial estimated Attributable Employee Cost shall be calculated for the fiscal year in which such individual assumes the role of Service Employee. The estimated and actual Attributable Employee Costs will vary because of factors including payment of bonuses or other incentive compensation, including equity compensation (which bonuses, incentive and equity compensation will not be included in the estimated Attributable Employee Costs on Exhibit A ), varying utilization of fringe benefits from estimated amounts and differences between estimated and actual benefit costs.
(d) Within thirty days of each new fiscal year, CPE shall provide CPE LLC a notice containing an updated estimated Attributable Employee Cost for each Service Employee.
2.3. Subcontractors . CPE may subcontract with third parties, including Affiliates of CPE, to assist in the performance of the Management Services; provided , however , that CPE shall not be relieved of any obligation under this Agreement or the LLC Agreement as a result of any subcontract entered into pursuant to this Section 2.3 ; and further provided, that CPE, at all times, will manage, supervise and monitor such parties.
2.4. Compliance with Laws . CPE shall perform the Management Services in compliance with all applicable Laws in all materia