ALPHA NATURAL RESOURCES, INC.
EXHIBIT
10.21
2005
LONG-TERM INCENTIVE PLAN
(FOR
EMPLOYEES)
This
Performance Share Award Agreement set forth below (this "Agreement")
is
dated as of the grant date (the "Grant
Date")
set
forth on the applicable Summary of Performance Share Grant and is between Alpha
Natural Resources, Inc., a Delaware corporation ("Alpha"),
and
the individual named on the Summary of Performance Share Grant (the
"Award
Recipient").
The
Award Recipient may view or obtain a copy of the Award Recipient's Summary
of
Performance Share Grant document by accessing Xxxxx Xxxxxx Benefit Access at
xxx.xxxxxxxxxxxxx.xxx.
Alpha
has
established its 2005 Long-Term Incentive Plan (the "Plan")
to
advance the interests of Alpha and its stockholders by providing incentives
to
certain eligible persons who contribute significantly to the strategic and
long-term performance objectives and growth of Alpha and any parent, subsidiary
or affiliate of Alpha. All capitalized terms not otherwise defined in this
Agreement have the same meaning given such capitalized terms in the
Plan.
Pursuant
to the provisions of the Plan, the Committee or its Designated Administrator
has
full power and authority to direct the execution and delivery of this Agreement
in the name and on behalf of Alpha, and has authorized the execution and
delivery of this Agreement.
Agreement
The
parties agree as follows:
Section
1. Performance
Share Award.
Subject
to and pursuant to all terms and conditions stated in this Agreement and in
the
Plan, as of the Grant Date, Alpha hereby makes a Performance Grant to Award
Recipient in the form of performance shares ("Performance
Shares").
Each
Performance Share awarded under this Agreement shall
represent
a right to receive one Share of Alpha's Common Stock, par value $0.01 per share
(the "Common
Stock"),
to
the extent such Performance Share is earned pursuant to the terms of this
Agreement. The
shares of Common Stock to be issued and delivered to Award Recipient, if any,
pursuant to the Performance Shares awarded under this Agreement, including
shares of capital stock, if any, issued from time to time with respect to such
shares of Common Stock as a result of a stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization are referred to in this Agreement as the “Share(s).”
Section 2.
Performance
Shares. The
target number of Performance Shares covered by this Agreement (the "Target
Award")
is set
forth on the Summary of Performance Share Grant. The
maximum
number of Performance Shares that may be earned pursuant to this Agreement
(the
"Maximum
Award")
is set
forth on the Summary of Performance Share Grant.
Section 3.
Performance
Period. The
"Performance
Period"
means
the performance period as set
forth
on the Summary of Performance Share Grant.
Section
4. Performance
Measures. Subject
to the provisions of this Agreement and the Summary of Performance Share Grant,
Alpha shall issue and deliver to the Award Recipient one (1) Share for each
whole Performance Share that is earned in accordance with the performance
schedule(s) set forth on the Summary of Performance Share Grant; provided,
however, that the Committee may reduce the number of Performance Shares earned
under this Award, but in no event may the Committee increase the number of
Performance Shares earned under this Award beyond the performance levels
achieved.
Section
5. Delivery
of Shares. Unless
the Award Recipient has elected to defer receipt of the Shares in accordance
with Section 6, and except as otherwise provided in this Agreement and subject
to satisfaction of the applicable tax withholding requirements set forth in
Section 9, Alpha shall cause stock certificate(s) representing the number
of Shares earned and determined under Section 4 to be issued to the Award
Recipient on the sixtieth (60th)
business day following the end of the Performance Period, or as soon as
administratively feasible thereafter (but in no event later than the
15th
day of
the third month following the date on which such Shares are earned);
provided,
however,
that:
(i) absent a Change of Control (as defined below), no certificate(s) for Shares
shall be delivered with respect to Performance Shares until the Committee has
certified in writing that the applicable performance targets set forth on the
Summary of Performance Grant and other material terms of this Agreement have
been achieved and (ii) Alpha shall not deliver stock certificate(s) representing
Shares if the Committee or Designated Administrator or other authorized agent
determines, in its or his sole discretion, that the issuance of such
certificate(s) would violate the terms of the Plan, this Agreement or applicable
law.
Section
6. Deferral
of Shares. The
Award
Recipient may elect in writing on or before the date that is six (6) months
prior to the end of the Performance Period, or such earlier date as may be
designated by Alpha (the "Latest
Deferral Date")
in
order to satisfy the deferral election requirements of Section 409A of the
Internal Revenue Code, as amended (the "Code"),
to
defer the issuance and delivery of all or a part of the Shares earned, provided
that in no event may an election to defer performance-based compensation be
made
after such compensation has become both substantially certain to be paid and
readily ascertainable. Any such election shall: (1) specify the date of
issuance for the earned Shares, which shall not be earlier than the first
anniversary of the original payment date or such other minimum deferral period
as may be designated by the Company in order to satisfy the deferral election
requirements of Section 409A of the Code; and (2) comply with all other
applicable deferral election requirements of Section 409A of the
Code.
Section
7. Termination of Employment/Change of Control:
(a) Except
as
set forth in this Section 7 or as otherwise provided in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and
the Company, if any, if
(i)
Award Recipient ceases to be employed by the Company for any reason prior to
the
end of the Performance Period, or (ii) Award Recipient breaches the
confidentiality covenant as described in Section 12, then effective
at the close of business on the date the Award Recipient ceases to be employed
by the Company, or the date the Award Recipient breaches the confidentiality
covenant as described in Section 12 hereof, as applicable, all of Award
Recipient’s Performance Shares covered
by this Agreement, whether earned or unearned, shall
be
automatically cancelled and forfeited in
their
entirety
without
any further obligation on the part of Alpha,
such
that Alpha shall not be obligated to issue any Shares or any other compensation
to Award Recipient with respect to such cancelled and forfeited Performance
Shares.
(b) Unless
otherwise provided in a Company plan applicable to Award Recipient or an
agreement between the Award Recipient and the Company, if any, if during the
Performance Period (i) the Award Recipient ceases to be employed by the Company
as a result of Award Recipient's Permanent Disability (as defined below) or
death, (ii) the Award Recipient's employment is terminated by the Company other
than for Cause (as defined below), or (iii) the Award Recipient ceases to be
employed by the Company as a result of Award Recipient's Retirement (as defined
below), the Award Recipient shall be entitled to receive a prorated portion
of
the Performance Shares to the extent earned pursuant to Section 4 above,
determined at the end of the Performance Period and based on the ratio of the
number of complete months the Award Recipient is employed or serves during
the
Performance Period to the total number of months in the Performance Period.
Any
Shares to which Award Recipient becomes entitled to receive pursuant to the
preceding sentence will be issued and delivered to Award Recipient in accordance
with the provisions of Sections 5 and 6 of the Agreement;
provided, that any
payments due on the Award Recipient's death shall be paid to the Award
Recipient's estate.
(c) In
the
event that a Change of Control occurs prior to the end of the Performance
Period, the Performance Shares that have not been previously cancelled and
forfeited shall become fully vested and payable at the Target Award level (and
the Performance Period shall thereafter be deemed to have terminated). Payment
of any amount pursuant to the preceding sentence may be made in cash and/or
securities or other property, in the Committee's discretion, and will be made
contemporaneous
with the consummation of the Change of
Control.
(d) For
purposes of this Agreement and unless otherwise defined in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and
the Company, if any, the following terms shall have the following meanings:
(i)
a "Change
of Control"
shall
mean (A) any merger, consolidation or business combination in which the
stockholders of Alpha immediately prior to the merger, consolidation or business
combination do not own at least a majority of the outstanding equity interests
of the surviving parent entity, (B) the sale of all or substantially all of
Alpha's assets in a single transaction or a series of related transactions,
(C) the acquisition of beneficial ownership or control of (including,
without limitation, power to vote) a majority of the outstanding Common Shares
by any person or entity (including a "group" as defined by or under
Section 13(d)(3) of the Exchange Act), (D) the stockholders of Alpha
approve any plan for the dissolution or liquidation of Alpha, or (E) a
contested election of directors, as a result of which or in connection with
which the persons who were directors of Alpha before such election or their
nominees cease to constitute a majority of the Board; (ii) the term
"Permanent
Disability"
shall
mean Award Recipient's physical or mental incapacity to perform his or her
usual
duties with such condition likely to remain continuously and permanently as
determined by the Company; (iii) the term "Cause"
shall
mean "Employer Cause" as set forth in any employment agreement between the
Award
Recipient and the Company or, in the absence of such an agreement, "Cause"
as
defined by the Company’s employment policies in effect at the time of
termination; and (iv) the term "Retirement"
shall
mean Award Recipient's retirement at
Alpha’s
normal retirement age, as prescribed from time to time by Alpha’s employment or
retirement policies then in effect, or retirement under circumstances approved
by the Committee (either before or after retirement).
Section
8. Limitation
of Rights; Investment
Representation.
Except
as otherwise provided in the Plan or this Agreement, no holder of Performance
Shares shall be, or have any of the rights or privileges of, a stockholder
of
Alpha with respect to any Shares unless and until certificates representing
such
Shares shall have been issued in such person’s name. Prior
to
actual receipt of the Shares under this Award, Award Recipient may not transfer
any interest in the Award or the underlying Shares. Award Recipient acknowledges
and agrees that the Shares which Award Recipient
acquires
pursuant to this Agreement, if any, shall not be sold, transferred, assigned,
pledged or hypothecated in the
absence of an effective registration statement for the Shares under the
Securities Act of 1933, as amended (the "Securities
Act"),
and
applicable state securities laws or an applicable exemption from the
registration requirements of the Securities Act and any applicable state
securities laws, and shall not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether
federal or state. Any
attempt to transfer the Performance Shares or Shares in violation of this
Section or the Plan shall render this Award of Performance Shares null and
void.
Section 9. Income
Taxes. Award
Recipient acknowledges that any income for federal, state or local income tax
purposes that Award Recipient is required to recognize on account of the
issuance and delivery of Shares to Award Recipient shall be subject to
withholding of tax by the Company. Award Recipient agrees that the Company
may
either withhold an appropriate amount from any compensation (including the
Shares) or any other payment of any kind then payable or that may become payable
to Award Recipient, or require Award Recipient to make a cash payment to the
Company equal to the amount of withholding required in the opinion of the
Company. In the event Award Recipient does not make such payment when requested,
the Company may refuse to issue or cause to be delivered any Shares under this
Agreement or any other incentive plan agreement entered into by Award Recipient
and the Company until such payment has been made or arrangements for such
payment satisfactory to the Company have been made.
Section 10. Rights
to Continued Employment.
Neither the Plan nor this Agreement shall be deemed to give Award Recipient
any
right to continue to be employed by the Company, nor shall the Plan or the
Agreement be deemed to limit in any way the Company's right to terminate the
employment of the Award Recipient at any time.
Section 11. Further
Assistance.
Award
Recipient will provide assistance reasonably requested by the Company in
connection with actions taken by Award Recipient while employed by the Company,
including, but not limited to, assistance in connection with any lawsuits or
other claims against the Company arising from events during the period in which
Award Recipient was employed.
Section 12. Confidentiality. Award
Recipient acknowledges that the business of the Company is highly competitive
and that the Company's strategies, methods, books, records, and documents,
technical information concerning their products, equipment, services, and
processes, procurement procedures and pricing techniques, the names of and
other
information (such as credit and financial data) concerning former, present
or
prospective customers and business affiliates, all comprise confidential
business information and trade secrets which are valuable, special, and unique
assets which the Company uses in their business to obtain a competitive
advantage over competitors. Award Recipient further acknowledges that protection
of such confidential business information and trade secrets against unauthorized
disclosure and use is of critical importance to the Company in maintaining
its
competitive position. Award Recipient acknowledges that by reason of Award
Recipient's duties to and association with the Company, Award Recipient has
had
and will have access to and has and will become informed of confidential
business information which is a competitive asset of the Company. Award
Recipient hereby agrees that Award Recipient will not, at any time during or
after employment, make any unauthorized disclosure of any confidential business
information or trade secrets of the Company, or make any use thereof, except
in
the carrying out of employment responsibilities. Award Recipient shall take
all
necessary and appropriate steps to safeguard confidential business information
and protect it against disclosure, misappropriation, misuse, loss and theft.
Confidential business information shall not include information in the public
domain (but only if the same becomes part of the public domain through a means
other than a disclosure prohibited hereunder). The above notwithstanding, a
disclosure shall not be unauthorized if (i) it is required by law or by a court
of competent jurisdiction or (ii) it is in connection with any judicial,
arbitration, dispute resolution or other legal proceeding in which Award
Recipient's legal rights and obligations as an employee or under this Agreement
are at issue; provided, however, that Award Recipient shall, to the extent
practicable and lawful in any such events, give prior notice to the Company
of
Award Recipient's intent to disclose any such confidential business information
in such context so as to allow the Company an opportunity (which Award Recipient
will not oppose) to obtain such protective orders or similar relief with respect
thereto as may be deemed appropriate. Any information not specifically related
to the Company would not be considered confidential to the Company. In addition
to any other remedy available at law or in equity, in the event of any breach
by
Award Recipient of the provisions of this Section 12 which is not waived in
writing by the Company, all vesting of the Performance Shares shall cease
effective upon the occurrence of the actions or inactions by Award Recipient
constituting a breach by Award Recipient of the provisions of this Section
12.
Section 13. Binding
Effect; No Third Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the Company and
Award Recipient and their respective heirs, representatives, successors and
permitted assigns. This Agreement shall not confer any rights or remedies upon
any person other than the Company and the Award Recipient and their respective
heirs, representatives, successors and permitted assigns. The parties agree
that
this Agreement shall survive the issuance of the Shares.
Section 14. Agreement
to Abide by Plan; Conflict between Plan and Agreement. The
Plan is hereby incorporated by reference into this Agreement and the Plan and
Summary of Performance Share Grant are made a part hereof as though fully set
forth in this Agreement. Award Recipient, by execution of this Agreement, (i)
represents that he or she is familiar with the terms and provisions of the
Plan
and the Summary of Performance Share Grant, and (ii) agrees to abide by all
of
the terms and conditions of this Agreement, the Summary of Performance Share
Grant and the Plan. Award Recipient accepts as binding, conclusive and final
all
decisions or interpretations of the Designated Administrator of the Plan upon
any question arising under the Plan, this Agreement (including, without
limitation, the date of any termination of Award Recipient's employment with
the
Company) and the Summary of Performance Share Grant. In the event of any
conflict between the Plan and this Agreement or the Summary of Performance
Share
Grant, the Plan shall control and this Agreement and/or the Summary of
Performance Share Grant shall be deemed to be modified accordingly, except
to
the extent that the Plan gives the Designated Administrator the express
authority to vary the terms of the Plan by means of this Agreement or the
Summary of Performance Share Grant, in which case, this Agreement and/or the
Summary of Performance Share Grant shall govern.
Section 15. Entire
Agreement. Except
as otherwise provided herein, in any Company plan applicable to the Award
Recipient, or in any other agreement between Award Recipient and the Company,
this Agreement, the Plan, and the Summary of Performance Share Grant which
Award
Recipient has reviewed and accepted in connection with the grant of the
Performance Shares reflected by this Agreement, constitutes the entire agreement
between the parties and supersedes any prior understandings, agreements, or
representations by or between the parties, written or oral, to the extent they
related in any way to the subject matter of this Agreement.
Section 16. Choice
of Law. To
the extent not superseded by federal law, the laws of the state of Delaware
(without regard to the conflicts laws of Delaware) shall control in all matters
relating to this Agreement and any action relating to this Agreement must be
brought in State and Federal Courts located in the Commonwealth of
Virginia.
Section 17. Notice. All
notices, requests, demands, claims, and other communications under this
Agreement shall be in writing. Any notice, request, demand, claim, or other
communication under this Agreement shall be deemed duly given if (and then
two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient at the
address set forth below the recipient's signature to this Agreement. Either
party to this Agreement may send any notice, request, demand, claim, or other
communication under this Agreement to the intended recipient at such address
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been
duly
given unless and until it actually is received by the intended recipient. Either
party to this Agreement may change the address to which notices, requests,
demands, claims, and other communications hereunder are to be delivered by
giving the other party notice in the manner set forth in this
section.
Section 18. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which together shall constitute one and the same
instrument.
Section
19. Amendments.
This
Agreement may be amended or modified at any time by an instrument in writing
signed by the parties hereto, or as otherwise provided under the Plan.
Notwithstanding, Alpha may, in its sole discretion and without the Award
Recipient's consent, modify or amend the terms of this Agreement, impose
conditions on the timing and effectiveness of the issuance of the Common Shares,
or take any other action it deems necessary or advisable, to cause this Award
to
comply with Section 409A of the Code (or an exception thereto). Award Recipient
recognizes and acknowledges that Section 409A of the Code may impose upon the
Award Recipient certain taxes or interest charges for which the Award Recipient
is and shall remain solely responsible.
Section
20. Acknowledgements.
(a) By
accepting this Award of Performance Shares, the Award Recipient acknowledges
receipt of a copy of the Plan, the Summary of Performance Share Grant and the
prospectus relating to this Award of Performance Shares, and agrees to be bound
by the terms and conditions set forth in this Agreement, the Summary of
Performance Share Grant and the Plan, as in effect and/or amended from time
to
time.
(b) The
Plan
and related documents, which may include but do not necessarily include the
Plan
prospectus, this Agreement and financial reports of the Company, may be
delivered to you electronically. Such means of delivery may include but do
not necessarily include the delivery of a link to a Company intranet site or
the
internet site of a third party involved in administering the Plan, the delivery
of the documents via e-mail or CD-ROM or such other delivery determined at
the
Designated Administrator’s discretion. Both Internet Email and the World Wide
Web are required in order to access documents electronically.
(c) Award
Recipient acknowledges that, by receipt of this Award, Award Recipient has
read
this Section 20 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 20. Award Recipient
acknowledges that Award Recipient may receive from the Company a paper copy
of
any documents delivered electronically at no cost if Award Recipient contacts
the Vice President of Human Resources of the Company by telephone at (000)
000-0000 or by mail to Xxx Xxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxxx, XX 00000.
Award Recipient further acknowledges that Award Recipient will be provided
with
a paper copy of any documents delivered electronically if electronic delivery
fails.
