Exhibit 10.1

 

March 1, 2011

 

Mr. Keith Calder

c/o Western Coal Corp.

1000 — 885 Dunsmuir Street

Vancouver, BC

Canada V6C 1N5

 

Dear Keith,

 

We are pleased that you have accepted the position of Chief Executive Officer of Walter Energy, Inc. (“Walter” or the “Company”) effective as of the date of the consummation of the transactions contemplated by the Arrangement Agreement, dated December 2, 2010 between Walter and Western Coal Corp. (“Western”).  The attached schedules outline the remuneration and benefits and terms and conditions of your employment.

 

As the Chief Executive Officer of Walter, you will be responsible for all aspects of the corporation and will report to the Board of Directors, acting in accordance with the Company’s articles, bylaws and resolutions enacted by or policies established by the Board of Directors.  You will be required to provide regular reports to the Board of Directors on financial performance, strategic direction, management development, business plans, and such other matters as are customarily reviewed by or as may be required by the Board of Directors.

 

In addition to serving as the Chief Executive Officer of Walter, you will also serve as a member of the Board of Directors, without additional compensation.

 

It is agreed and understood that this letter agreement (including the schedules and exhibits attached hereto) (collectively, the “Agreement”) and the other agreements referred to in this Agreement shall constitute our entire agreement with respect to the subject matter hereof and shall supersede all prior agreements, discussions, understandings and proposals (written or oral) relating to your employment with the Company and its affiliates, including, for the avoidance of doubt, Western.  This Agreement may only be amended or modified by a written agreement executed by you and Walter (or any of its respective successors) and will be interpreted under and in accordance with the laws of the State of Delaware without regard to conflicts of laws.

 

This Agreement may be executed by fax or pdf and in any number of counterparts, all of which, when taken together, will constitute one and the same instrument.

 











 

Keith, we are delighted that you are joining Walter and we look forward to working with you.  If the terms contained within this Agreement are acceptable, please sign one of the enclosed copies and return it to me in the envelope provided.

 

Best regards,

 

 

	
/s/ Micahel T. Tokarz
    	
 
    	
March 1, 2011
    
	
Michael T. Tokarz
    	
 
    	
Date
    
	
Chairman of the Board of Directors
    	
 
    	
 
    
	
Walter Energy, Inc.
    	
 
    	
 
    


 

ACCEPTANCE

 

I have read the Agreement, have been advised to consult with counsel of my choice concerning the same, and I fully understand the same.  I approve and accept the terms set forth in the Agreement as governing my employment relationship with Walter.

 

 

	
/s/ Keith Calder
    	
 
    	
March 2, 2011
    
	
Keith Calder
    	
 
    	
Date
    


 

 

Enclosures:

 

Schedule A                                  Remuneration & Benefits

Schedule B                                    Terms and Conditions

 


	
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SCHEDULE A

 

REMUNERATION & BENEFITS

 

	
Name:
    	
 
    	
Keith Calder
    
	
 
    	
 
    	
 
    
	
Role Title:
    	
 
    	
Chief Executive Officer
    
	
 
    	
 
    	
 
    
	
Role Band:
    	
 
    	
n/a
    
	
 
    	
 
    	
 
    
	
Department:
    	
 
    	
Corporate
    
	
 
    	
 
    	
 
    
	
Employer:
    	
 
    	
Walter
    
	
 
    	
 
    	
 
    
	
Date of Appointment:
    	
 
    	
Date of consummation of the transaction   contemplated by the Arrangement Agreement, dated December 2, 2010   between Walter and Western.
    
	
 
    	
 
    	
 
    
	
Continuous Employment Date:
    	
 
    	
December 1, 2009
    


 

This schedule should be read in conjunction with the remainder of the Agreement.  The policies covering these benefits and their terms and conditions may be varied from time to time.

 

	
Base Salary and Remuneration:
    	
 
    	
The remuneration for this position is a base   salary of USD$900,000 per annum which will be subject to review and   adjustment by the Compensation and Human Resources Committee of the Board of   Directors (the “Compensation Committee”) and paid in accordance with   Walter’s payroll practices, as they may change from time to time. Your annual   base salary, as in effect from time to time, is hereinafter referred to as   the “Base Salary.”

 

The remuneration structure is designed to   provide competitive levels of total remuneration for strong individual and   corporate performance and achieve a close alignment between personal and   business performance and remuneration.
    


 


	
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Annual Bonus (EIP):
    	
 
    	
You will participate in Walter’s Executive   Incentive Plan, as it may be amended from time to time (the “EIP”) and   will be eligible to earn an annual target bonus of 110% of your Base Salary   (the “Target Bonus”), with an upside potential of 2 times your Target   Bonus for top performance. The actual amount of your bonus, if any, will   fluctuate based upon actual performance under the performance metrics   associated with the EIP. Participation in the bonus pool is dependent upon   the achievement of Walter’s annual performance goals, as well as the   accomplishment of individual objectives mutually agreed upon in writing each   year. In order to receive a bonus under the EIP, you must be employed at the   time the bonus is paid. Notwithstanding anything in this Agreement to the   contrary, your bonus, if any, under the EIP, earned in respect of the 2011   fiscal year, will be pro-rated based upon the percentage of such fiscal year   that will have elapsed from your commencement date through the last day of such   fiscal year and based solely on the Base Salary actually earned in such   fiscal year from your commencement date through the last day of such fiscal   year.

 

Please note that participation in Walter’s   Employee Stock Purchase Plan is a condition to participation in the bonus   pool under the EIP.
    
	
 
    	
 
    	
 
    
	
Long Term Incentive:
    	
 
    	
Subject to your continued employment with   Walter, you will be eligible to participate in Walter’s Amended and Restated   2002 Long-Term Incentive Award Plan, as it may be amended and restated from   time to time (and any successor long term incentive award plan)   (collectively, the “LTIP”), and will be eligible to receive annual   equity grants from Walter valued at 285% of Base Salary, based on the   Black-Scholes value at the date of grant, fifty percent (50%) of which will   be in the form of non-qualified stock options and fifty percent (50%) of   which will be in the form of restricted stock units. Such equity grants will   be awarded under and subject to the terms and conditions of the LTIP and the terms   and conditions applicable to other awards granted by Walter under the LTIP to   employees of Walter.

 

Your annual equity grant in respect of the   2011 fiscal year will be made on your commencement date, consistent with
    


 


	
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the terms set forth above, except that it   will be based on the Black-Scholes value on the date of the Agreement and   will be subject to adjustment as mutually agreed upon by you and Walter.
    
	
 
    	
 
    	
 
    
	
Expenses:
    	
 
    	
Reimbursement for all reasonable and   customary out-of-pocket business expenses incurred by you in the performance   of your duties hereunder, in accordance with the policies, practices and   procedures of Walter relating to reimbursement of business expenses incurred   by Walter employees in effect at any time during the 12 month period   preceding the date you incur the expenses; provided, however, that any such   expense reimbursement will be made no later than the last day of the calendar   year following the calendar year in which you incur the expense, will not   affect the expenses eligible for reimbursement in any other calendar year,   and cannot be liquidated or exchanged for any other benefit.
    
	
 
    	
 
    	
 
    
	
Health Care:
    	
 
    	
Participation in Walter’s life and health   insurance benefit programs beginning the first day of the month following   your commencement date and in accordance with their terms, as they may change   from time to time. Additional benefit plan information will be available for   your review upon request. After you are enrolled in the U.S. benefit plans,   you and all eligible family members will be covered.
    
	
 
    	
 
    	
 
    
	
Retirement Plan:
    	
 
    	
Participation in Walter’s retirement plan   according to its terms as they may change from time to time. Information on   the retirement plan will be available for your review upon request. Your   eligibility to participate will be consistent with the requirements of the   Employee Retirement Income Security Act of 1974, as amended.
    
	
 
    	
 
    	
 
    
	
Leave:
    	
 
    	
Eligibility for 20 business days of vacation   and 10 company paid holidays to be used each year in accordance with Walter’s   policy, as it may change from time to time.
    
	
 
    	
 
    	
 
    
	
Change in Control:
    	
 
    	
An Executive Change-in-Control Severance   Agreement in a form substantially similar to the form attached hereto as   Exhibit A (the “CIC Agreement”).
    


 


	
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Severance:
    	
 
    	
Subject to (a) your compliance with the   restrictive covenants set forth in Sections 5 through 7 of Schedule B and   (b) your execution, delivery and non-revocation of a waiver and release   of claims in a form substantially similar to the form attached hereto as   Exhibit B (the “Release”) on or prior to the 21st day following the date on   which your employment with Walter terminates due to (x) the termination   of your employment by Walter, other than for “Cause” (as defined below) or   (y) the termination of your employment by you for “Good Reason” (as   defined below), but in each case, excluding any separation from service by   reason of your death or Disability (as defined below) (such date, the “Severance   Date”), you will be entitled to receive the following severance payments   and benefits: 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
· For the period commencing on the day immediately following the   Severance Date and ending on the first anniversary of the Severance Date,   monthly pay continuation with each monthly payment equal to one-twelfth   (1/12) times the sum of your Base Salary and Target Bonus, in each case, as   in effect on the Severance Date. Monthly payments will occur in accordance   with the payroll dates in effect on the Severance Date, and such payment   dates will not be affected by any subsequent change in payroll practices.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
· For the period commencing on the first anniversary of the Severance   Date and ending on the second anniversary of the Severance Date, monthly pay   continuation with each monthly payment equal to one-twelfth (1/12) times your   Base Salary as in effect on the Severance Date. Monthly payments will occur   in accordance with the payroll dates in effect on the Severance Date, and   such payment dates will not be affected by any subsequent change in payroll   practices.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
· A pro-rata bonus under the EIP (or successor annual bonus plan)   based on the portion of the year actually worked up to the Severance Date and   computed based on actual annual performance. Such pro-rata bonus shall be   paid during the year following the year that includes the
    


 


	
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Severance Date in accordance with the terms   of the EIP (or successor annual bonus plan).
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
· Except as provided below, continuation of group medical, dental,   vision, group basic term life insurance, accidental death and dismemberment   insurance, voluntary term life insurance, voluntary accidental death and   dismemberment insurance, dependent life insurance and employee assistance   program benefits, provided, to the extent applicable, regular contributions   are made, at the level in effect on the Severance Date, in each case, for a   period (such period, the “Continuation Coverage Period”) beginning immediately   upon the Severance Date and continuing until the earliest to occur of   (A) the second anniversary of the Severance Date, (B) the last date   you are eligible to participate in the benefit under applicable law, or   (C) the date you are eligible to receive comparable benefits from a   subsequent employer, as determined solely by Walter in good faith; provided,   however, that if you fail to execute and deliver the Release or revoke the   Release, in either case, the Continuation Coverage Period shall cease immediately   upon such date. Such benefits shall be provided to you at the same coverage   and cost to you as in effect on the Severance Date. To the extent permitted by law, you shall be eligible to   qualify for COBRA health care continuation coverage under Section 4980B   of the Internal Revenue Code of 1986, as amended (the “Code”), or any   replacement or successor provision of United States tax law, beginning   following the expiration of the period described above. Notwithstanding the foregoing, your participation in the Employee   Stock Purchase Plan and long-term disability insurance plan, and your ability   to make deferrals under the 401(k) plan, will cease effective on the   Severance Date. For purposes of this subsection, you shall send written   notice of the terms and conditions of any subsequent employment and the   corresponding benefits earned from such employment and shall provide, or   cause to be provided, to Walter, in writing, correct, complete and timely   information concerning the same to the extent requested by Walter;
    


 


	
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provided, however, that Walter shall have   the right to cease making such payments and you shall be obligated to repay   any such amounts to Walter already paid if you fail to execute and deliver   the Release within the time period provided for above or, after timely   delivery, revoke it within the time period specified in such Release.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Notwithstanding anything in this Agreement   to the contrary and for the avoidance of doubt, you shall not be entitled to   severance payments or benefits under this Agreement in the event you   experience a separation from service within twenty-four (24) months following   a Change in Control of the Company (as defined in the CIC Agreement).   Severance payments and benefits payable upon a separation from service in   connection with such a termination of employment, if any, shall be determined   and paid under the CIC Agreement.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
For   purposes of this Agreement, the term “Cause” shall mean: (i) your willful   and continued refusal to perform the duties of your position (other than any   such failure resulting from your incapacity due to physical or mental illness);   (ii) your conviction or guilty plea of a felony involving fraud or   dishonesty; (iii) theft or embezzlement by you of property from Walter   or any subsidiary or affiliate; or (iv) fraudulent preparation by you of   financial information of Walter or any subsidiary or affiliate. 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
For purposes of this Agreement, the term   “Good Reason” shall mean the occurrence of any of the following conditions   (in each case arising without your consent): (A) a material breach of   this Agreement by Walter or (B) a material diminution in your authority,   duties or responsibilities. Notwithstanding the foregoing, your voluntary   separation from service shall be for “Good Reason” only if (x) you   provide written notice of the facts or circumstances constituting a “Good   Reason” condition to Walter within 30 days after the initial existence of the   Good Reason condition, (y) the Company does not remedy the Good Reason   condition within 30 days after it receives such notice and (z) the   voluntary separation from service occurs within 90 days after the initial   existence of the Good
    


 


	
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Reason condition. For purposes of this Agreement,   the parties agree that “Good Reason” will not exist solely because the amount   of your bonus fluctuates due to performance considerations under the EIP or   other Walter incentive plan applicable to you and in effect from time to   time. 
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
For purposes of this Agreement, the term   “Disability” shall mean any medical condition whatsoever which leads to your   absence from your job function for a continuous period of six months without   you being able to resume such functions on a full time basis at the expiration   of such period, it being understood that unsuccessful attempts to return to   work for periods under thirty days shall not be deemed to have interrupted   said continuity.
    
	
 
    	
 
    	
 
    
	
Location:
    	
 
    	
The location of the Walter Corporate Office   is presently under review and the final location in the U.S. will be   recommended shortly by you for approval by the Board of Directors.
    


 


	
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SCHEDULE B

 

TERMS AND CONDITIONS

 

1.                                       It is agreed and understood that your employment with Walter is to be at will, and either you or Walter may terminate the employment relationship at any time for any reason, with or without cause, and with or without notice to the other; nothing in this Agreement or elsewhere constitutes or shall be construed as a commitment to employ you or pay you severance, other than as stated in Schedule A or in the CIC Agreement, for any period of time.

 

2.                                       Outside Interest.  While employed by Walter, you agree to devote your full business time and best efforts to the performance of your 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; provided that nothing in this Agreement shall preclude you from retaining your current directorship positions, if any, or accepting appointment to no more than two other boards of directors and outside roles, in each case, as pre-approved by the Chairman of the Board of Directors; provided in each case, and in the aggregate, that such activities do not conflict or interfere with the performance of your duties hereunder or conflict with Section 5 or Section 7 below.

 

3.                                       You agree that all inventions, improvements, trade secrets, reports, manuals, computer programs, systems, tapes and other ideas and materials developed or invented by you during the period of your employment with Walter, either solely or in collaboration with others, which relate to the actual or anticipated business or research of Walter or any of its subsidiaries or affiliates, which result from or are suggested by any work you may do for Walter or any of its subsidiaries or affiliates, or which result from use of Walter’s or any of its subsidiaries’ or affiliates’ premises or Walter’s, its subsidiaries’, its affiliates’, or its customers’ property (collectively, the “Developments”) shall be the sole and exclusive property of Walter.  You hereby assign to Walter your entire right and interest in any such Developments, and will hereafter execute any documents in connection therewith that Walter may reasonably request.  This section does not apply to any inventions that you made prior to your employment by Walter or Western, or to any inventions that you develop entirely on your own time without using any of Walter’s or Western’s equipment, supplies or facilities, or Walter’s or Western’s or their respective subsidiaries’, affiliates’, or customers’ confidential information which do not relate to Walter’s, Western’s, their respective subsidiaries’ or its affiliates’ business, anticipated research and development, or the work you have performed for Walter, Western and their respective subsidiaries and affiliates.

 


	
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4.                                       As an inducement of Walter to make this offer to you, you represent and warrant that there exists no impediment or restraint, contractual or otherwise on your power, right or ability to accept this offer and to perform the duties and obligations specified in this Agreement.

 

5.                                       Non-Compete/Non-Solicit.  It is understood and agreed that you will have substantial relationships with specific businesses and personnel, prospective and existing, vendors, contractors, customers, and employees of Walter and its subsidiaries that result in the creation of customer goodwill.  Therefore, while you are employed by Walter and following the termination of your employment for any reason and continuing for a period of 12 months from the date of your termination, so long as Walter or any affiliate, successor or assigns thereof is in the coal mining business or like business within the Restricted Area (defined as mining industries in the geographical areas in which Walter or any of its subsidiaries competes at the time of your termination), unless the Board of Directors approves an exception, you shall not, directly or indirectly, for yourself or on behalf of, or in conjunction with, any other person, persons, company, partnership, corporation, business entity or otherwise:

 

(a)          Call upon, solicit, write, direct, divert, influence, or accept business (either directly or indirectly) with respect to any account or customer or prospective customer of the Company or any corporation controlling, controlled by, under common control with, or otherwise related to Walter, including but not limited to Walter or any other affiliated companies; or

 

(b)         Hire away any independent contractors or personnel of Walter and/or entice any such persons to leave the employ of Walter or its affiliated entities without the prior written consent of Walter.

 

6.                                      Non-Disparagement.  Following the termination of your employment for any reason and continuing for so long as Walter or any affiliate, successor or assigns thereof carries on the name or like business within the Restricted Area, you shall not, directly or indirectly, for yourself or on behalf of, or in conjunction with, any other person, persons, company, partnership, corporation, business entity or otherwise:

 

(a)          Make any statements or announcements or permit anyone to make any public statements or announcements concerning the termination of your employment with Walter, or

 

(b)         Make any statements that are inflammatory, detrimental, slanderous, or negative in any way to the interests of Walter or its affiliated entities.

 


	
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7.                                       You acknowledge and agree that you will respect and safeguard Walter’s and its subsidiaries’ property, trade secrets and confidential information.  You acknowledge that Walter’s electronic communication systems (such as email and voicemail) are maintained to assist in the conduct of Walter’s and its subsidiaries’ business and that such systems and data exchanged or stored thereon are Walter property.  In the event you leave the employ of Walter, you will not disclose any trade secrets or confidential information you acquired while an employee of Walter to any other person or entity, including without limitation, a subsequent employer, or use such information in any manner.

 

8.                                       Compensation Recovery Policy.  You understand and agree that if any of Walter’s financial statements are required to be restated due to errors, omissions, fraud or misconduct, the Compensation Committee may, in its sole discretion but acting in good faith, direct that Walter recover all or a portion of any cash incentive, equity compensation or severance disbursements paid to you with respect to any fiscal year of Walter for which the financial results are negatively affected by such restatement.  For purposes of this provision, errors, omissions, fraud or misconduct may include and are not limited to circumstances where Walter has been required to prepare an accounting restatement due to material non-compliance with any financial reporting requirement, as enforced by the Securities and Exchange Commission, and the Compensation Committee has determined in its sole discretion that you had knowledge of the material noncompliance or the circumstances that gave rise to such noncompliance and failed to take reasonable steps to bring it to the attention of the appropriate individuals within Walter, or you personally and knowingly engaged in practices which materially contributed to the circumstances that enabled a material noncompliance to occur.

 

9.                                       This Agreement is intended to comply with Section 409A of the Code and will be interpreted accordingly.  References under this Agreement to the termination of your employment shall be deemed to refer to the date upon which you have experienced a “separation from service” within the meaning of Section 409A of the Code.  Notwithstanding anything in this Agreement to the contrary, (i) if at the time of your separation from service with Walter you are a “specified employee” as defined in Section 409A of the Code (and any related regulations or other pronouncements thereunder) and the deferral of the commencement of any payments or benefits otherwise payable hereunder or payable under any other compensatory arrangement between you and Walter as a result of such separation from service is necessary in order to prevent any accelerated or additional tax under

 


	
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Section 409A of the Code, then Walter will defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to you) until the first business day after the date that is six months following your separation from service (or the earliest date as is permitted under Section 409A of the Code), at which point all payments deferred pursuant to this paragraph shall be paid to you in a lump sum and (ii) if any other payments of money or other benefits due to you hereunder could cause the application of an accelerated or additional tax under Section 409A of the Code, such payments or other benefits shall be deferred if deferral will make such payment or other benefits compliant under Section 409A of the Code, or otherwise such payment or other benefits shall be restructured, to the extent possible, in a manner that does not cause such an accelerated or additional tax.  To the extent any reimbursements or in-kind benefits due to you under this Agreement constitute “deferred compensation” under Section 409A of the Code, any such reimbursements or in-kind benefits shall be paid to you in a manner consistent with Treasury Regulation Section 1.409A-3(i)(1)(iv).  For purposes of Section 409A of the Code, each payment made under this Agreement shall be designated as a “separate payment” within the meaning of Section 409A of the Code.

 

10.                                 Walter shall withhold from any amounts payable hereunder all Federal, state, city or other taxes as legally shall be required.

 

11.                                 You acknowledge and agree that you have read this Agreement carefully, have been advised by the Company to consult with an attorney regarding its contents, and that you fully understand the same.

 


	
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EXHIBIT B

 

WAIVER AND GENERAL RELEASE OF CLAIMS

 

This Waiver and General Release of Claims (“Waiver”) is entered into with respect to the mutual promises and the payments, rights and benefits provided under that certain letter agreement, entered into on March 2, 2011, by and between Walter Energy, Inc. (“Employer”) and Keith Calder (“Employee”) (the “Letter Agreement”).

 

1.             Employee separated his employment with Employer on                                   .

 

2.             In consideration for the payments, rights and benefits provided under the Letter Agreement, on behalf of himself, his heirs, executors, administrators, and assigns, Employee, to the fullest extent permitted by law, forever releases and discharges Employer and all of its affiliated or related entities, their parent, successors, assigns, officers, directors, agents, and employees from all claims, known or unknown, of any kind which Employee may have relating to Employer (in its capacities as Employee’s former employer or otherwise), and the other released parties referred to above and which exist or are based on occurrences which have occurred on or prior to the date of execution by Employee of this Waiver.  This release includes, but is not limited to, all liabilities relating to employment and separation from employment, and for the payment of earnings, bonuses, severance pay, salary, relocation benefits, accruals under any vacation, sick leave, or holiday plans, any employee benefits, any charge, claim or lawsuit under any federal, state, or local law, including but not limited to, claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000(e) et  seq., as amended, (specifically, but without limitation, by the Pregnancy Discrimination Act), the Civil Rights Act of 1991, the Civil Rights Act of 1866, the Age Discrimination in Employment Act, as amended by the Older Workers’ Benefit Protection Act, 29 U.S.C. §621 et  seq., the Americans with Disabilities Act, 42 U.S.C. §12101 et  seq., the Fair Labor Standards Act, 29 U.S.C. §201 et  seq., the Family and Medical Leave Act of 1993, 29 U.S.C. §2601 et  seq., the Employee Retirement Income Security Act, 29 U.S.C. §1001 et  seq., the Occupational Safety and Health Act, as amended, 29 U.S.C. §651, et  seq., the National Labor Relations Act, as amended, 29 U.S.C. §141, et  seq., the Immigration Reform Control Act, as amended, 29 U.S.C. §1801, et  seq., and any tort, contract, and quasi-contract or other common law claims, including, but not limited to, claims for wrongful termination, discrimination, harassment, retaliation, negligent or intentional infliction of emotional distress, negligent hiring, negligent supervision, negligence, invasion of privacy, defamation, slander, assault, battery, misrepresentation, or conspiracy.

 

3.             Employee represents that he has not filed any charges, including, but not limited to, charges against Employer with the Equal Employment Opportunity Commission (“EEOC”), suits, claims or complaints against Employer or the other released parties referred to above.  This Waiver forever bars all actions, claims and suits which arose or might arise in the future from any occurrences arising prior to the date of this Waiver and authorizes any court or administrative agency to dismiss any claim filed by Employee with prejudice.  If any administrative agency files any charge, claim or suit on Employee’s behalf, Employee agrees to waive all rights to recovery of any equitable or monetary relief and attorneys’ fees.

 

4.             Except as required by law, and unless and until this Waiver is disclosed by Employer or any of its affiliates as may be required by law, the parties to this Waiver agree that

 

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the existence and terms of this Waiver will remain confidential; provided that Employee may reveal the terms of the Waiver to his legal, tax and financial advisors, and immediate family, in deciding whether to execute this Waiver, so long as Employee advises each such person that they must keep its terms confidential on the same basis as is required of Employee.

 

5.             Employee acknowledges that during the course of his employment, he has had access to Employer’s confidential information.  Employee agrees not to use or disclose to any person or entity, at any time, any confidential information of Employer without first obtaining Employer’s written consent.  The term “confidential information” means any information not generally known which concerns Employer’s business or proposed future business and which gives or is intended to give Employer an advantage over its competitors who do not have the information.  Employee agrees that he is required to return all severance payments provided under the Letter Agreement if he fails to maintain the confidentiality of the proprietary information of Employer.  This amount shall serve as liquidated damages for the failure to maintain the confidentiality of the proprietary information and not as a penalty, and has been agreed to as a fair approximation of the damages likely to result from Employee’s failure to act properly with respect to the confidential information, and shall not release Employee from the effect of this Waiver.

 

6.             This Waiver shall not in any way be construed as an admission by Employer that it has acted wrongfully with respect to Employee or that Employee has any rights whatsoever against Employer or the other released parties set forth in paragraph 2 above.

 

7.             Employee specifically acknowledges the following:

 

a.             That Employee does not release or waive any right or claim that he may have which arises after the date of this Waiver.

 

b.             That he is releasing, among other rights, all claims and rights under the Age Discrimination in Employment Act (“ADEA”) and the Older Workers’ Benefit Protection Act (“OWBPA”), 29 U.S.C. §621, et  seq.

 

c.             That he possesses sufficient education and experience to fully understand the terms of this Waiver as it had been written, the legal and binding effect of the Waiver, and the exchange of benefits and promises herein.

 

d.             That he understands and agrees that Employer’s obligations to perform under the Letter Agreement is conditioned upon Employee’s performance of all agreements, releases and covenants to Employer.

 

e.             That he has twenty-one (21) days to consider this Waiver.

 

f.              That he has seven (7) days to revoke this Waiver after acceptance.  A revocation must be in writing stating: “I hereby revoke the Waiver and General Release of Claims I executed on [insert date]” and postmarked via certified mail within such seven (7) day period to Walter Energy, Inc. attention Jim Skomp c/o Human

 

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Resources, Post Office Box 361370, Birmingham, Alabama 35236-1370.  This Waiver shall not become enforceable until the revocation period has expired.  If the last day of the revocation period is a Saturday, Sunday or legal holiday in Alabama, then the revocation period (and the deadline for the postmarking of the revocation letter) shall not expire until the next following day which is not a Saturday, Sunday, or legal holiday.

 

g.             That he has read this Waiver fully and completely and he understands its significance.

 

h.             That he enters into this Waiver knowingly and voluntarily and on his own free will and choice.

 

i.              That he has been encouraged and given significant opportunity to consult with an attorney of his choice.

 

8.             Employer and Employee agree that in the event it becomes necessary to enforce any provision of this Waiver, the prevailing party to such action, including appeals, shall be entitled to all their costs and attorneys’ fees.

 

9.             This Waiver shall be binding upon Employee and upon Employee’s heirs, administrators, representatives, executors, successors and assigns, and shall inure to the benefit of Employer and the other released parties and their successors and assigns.

 

10.           Employee represents that no inducements, statements or representations have been made that are not set out in this Waiver or the Letter Agreement and that Employee does not rely on any inducements, statements or representations not set forth herein or therein.

 

11.           Employee acknowledges that any and all prior understandings and agreements between the parties to this Waiver with respect to the subject matter of this Waiver are merged into this Waiver, which fully and completely expresses the entire Waiver and understanding of the parties to this Waiver with respect to the subject matter hereof.  This Waiver may not be orally amended, modified or changed and may be amended, modified or changed only by written instrument or instruments executed by duly authorized officers or other representatives of the parties to this Waiver.

 

12.           This Waiver shall in all respects be interpreted, enforced and governed under the laws of the State of Delaware.  The language of all parts of this Waiver shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties to this Waiver.

 

13.           Should any provision of this Waiver be declared or be determined by any Court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Waiver.

 

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PLEASE READ CAREFULLY.  THIS WAIVER INCLUDES

A RELEASE OF ALL KNOWN AND UNKNOWN CLAIMS.

 

 

	
 
    	
 
    
	
 
    	
 
    
	
 
    	
Name Printed:
    
	
 
    	
 
    
	
 
    	
Date:
    	
 
    
	
 
    	
 
    
	
 
    	
 
    
	
Date hand delivered to Employee:                                 .
    
	
 
    	
 
    
	
21-day period to consider this Waiver ends:                                       .
    


 

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