disclose or make available to anyone for use outside the Company
at any time, either during employment by
the Company or subsequent to the termination or resignation
of employment by the Company,
for any reason,
any of the Confidential Information, whether or not developed
by Employee, except as required in the
performance of Employee's duties to the Company.
For the avoidance of doubt, this provision shall
not prohibit
Employee from reporting possible violations of federal
law or regulation to any governmental agency or
entity or
from making other disclosures that are protected under
the whistleblower provisions of federal law or
regulation. The Company's approval shall not be required, nor
shall notice to the Company be required, in
connection with such reports or disclosures.
b)
Upon the termination of Employee's employment by the Company
or resignation by the Employee, for
any reason, Employee shall promptly deliver to the Company
all originals and copies of correspondence,
drawings, blueprints, financial and business records, marketing
and publicity materials, manuals, letters, notes,
notebooks, laptops, reports, flow-charts, programs, proposals
and any documents concerning the Company's
customers or concerning products or processes used by
the Company and, without limiting the foregoing, shall
promptly deliver to the Company any and all other documents
or materials containing or constituting
Confidential Information.
c)
Subject to the provisions of Section 7(f) following, Employee
agrees that during employment by the
Company, Employee
shall not, directly or indirectly,
solicit the trade of, or trade with, any customer
or
prospective customer of the Company for any business
purpose other than for the benefit of the Company.
Upon termination of Employee's employment by the Company,
including without limitation termination by the
Company in a termination for Cause or otherwise, or upon the
resignation of the Employee, except in the case
of Good Reason, Employee further agrees that for a period
of one (1) year after the cessation of employment
hereunder, Employee shall
not, directly or indirectly,
solicit the trade of, or trade with, any customers, or
prospective customers, of the Company,
or solicit or induce, or attempt to solicit or induce, any
employee of the
Company to leave the Company for any reason whatsoever
or hire any employee of the Company,
provided
that nothing in this agreement shall restrict Employee from making
a general solicitation that is not specifically
directed at any employee(s) of the Company,
including through use of a recruiting website or employment
search firm (so long as such firm us instructed not to solicit
any employee(s) of the Company).
d)
Subject to the provisions of Section 7(f) following, during
the period of Employee's employment
hereunder and upon termination of Employee's employment
by the Company,
including without limitation
termination by the Company in a termination for Cause
or otherwise, or upon the resignation of the Employee
except in the case of Good Reason, Employee agrees
that for a period of one (1) year after the cessation of
employment hereunder, Employee
shall not, in any Competitive Territory,
engage, directly or indirectly,
whether
as principal or as agent, officer,
director, employee, consultant,
shareholder or otherwise, alone or in
association with any other person, corporation or other
entity, in any Competing
Business. For purposes of this
Agreement, (i) the term "Competing Business" shall mean
the production or sales of metallurgical bituminous
coal, and (ii) the term "Competitive Territory"
shall mean West Virginia and Virginia.
e)
Prior to accepting employment during the one year non-compete
period referred to in Section 6(d),
Employee shall notify the Company of such employment
opportunity in reasonable detail in order for the
Company to determine if the position Employee is seeki
ng violates this Agreement.
f)
Notwithstanding the provisions of Sections 7(c) or 7(d)
to the contrary, the Company,
it is sole and
absolute discretion, may,
by written notice delivered to Employee promptly after
the termination of Employee's
employment by the Company or the resignation
of Employee, elect to waive and not enforce the non-solicitation
and non-compete provisions of Sections 7(c) and 7(d).
g)
Unless the Company has provided notice that it has waived
and will not enforce both the non-
solicitation and non-compete provisions of Sections 7(c)
and 7(d) as provided in Section 7(f), during the six (6)
month period beginning on the first business day following
the last day of Employee's employment with the
Company, the Company
shall pay the Employee, in six (6) equal monthly
payments during such period
commencing 30 days after the last day of Employee's
employment with the Company,
an amount equal to
three (3) months' worth of the annual salary of Employee as of
the business day immediately preceding the last
day of Employee's employment with the Company.
Payments under this section shall be in addition to any
severance or other payments due to Employee under
the terms of this Agreement. During such six-month
period (unless the waiver contemplated by Section 7(f) has been
made), and in consideration of the payments
contemplated by this Section 7(g), Employee agrees to consult
with the Company as requested by the
Company provided such consultation shall not require
more than twenty (20) hours of consultation per week
and shall be reasonably related to the duties of Employee while
employed. Employee shall provide such