Alpha Natural Resources, Inc.
Exhibit 10.11
2005
Long-Term Incentive Plan
Restricted
Stock Unit Award Agreement for non-employee directors
This
Restricted Stock Unit Award Agreement is dated as of the issue date (the "Issue
Date") set forth on Exhibit
A attached
hereto (this "Agreement"),
and is between Alpha Natural Resources, Inc., a Delaware corporation ("Alpha"),
and the individual named as Award Recipient on Exhibit
A (the "Award
Recipient").
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.
Agreement
The
parties agree as follows:
Section 1. Issuance of
Stock.
(a) Subject
and pursuant to all terms and conditions stated in this Agreement and in the
Plan, on the Issue Date, Alpha hereby grants to Award Recipient the number of
restricted stock units (the "Units")
for Alpha’s common stock, par value $0.01 per share (the "Common
Stock"), set forth on Exhibit
A. Each Unit represents the right to receive one share of Common Stock
following the vesting date of that Unit. Except as otherwise provided herein,
the Units shall vest on the six-month anniversary of the Award Recipient's
Separation from Service as provided on Exhibit
A and the shares of Alpha Common Stock which vest under your Unit Award
will be issued to you on such six-month anniversary date, or if the vesting date
is not a business day, on the next following business day (or as soon as
reasonably practicable but in no event later than the 15th day of the third
month following such date), subject to your satisfaction of all applicable
income and employment withholding taxes. For purposes of this
Agreement, the "Shares" of
Common Stock to be issued under this Award shall include all of the shares of
Common Stock issued to Award Recipient pursuant to this Agreement plus any
Shares issued with respect to such shares of Common Stock before the Shares are
actually issued under this Award, including, but not limited to, shares of
Alpha’s capital stock issued by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization.
(b) Notwithstanding
the foregoing or any provision of this Agreement or the Plan to the contrary,
the delivery of any vested Shares shall be delayed until six (6) months after
Award Recipient's Separation from Service to the extent required by Section
409A(a)(2)(B)(i) as
provided under the terms of the Plan.
Section 2. Vesting;
Restriction on Transfer and Forfeiture of Unvested Units.
(a) None
of the Units may be sold, transferred, pledged, hypothecated or otherwise
encumbered or disposed of until they have vested and been settled in Shares in
accordance with the terms of this Section 2 and Exhibit
A. Except as set forth in this Section 2, if the Award
Recipient breaches the confidentiality covenant as described in Section 9
hereof, any Units that are not vested or otherwise settled in Shares in
accordance with this Section 2 shall be automatically forfeited to Alpha without
any further obligation on the part of Alpha.
(b) Except
as provided herein, the Units will vest according to the vesting schedule set
forth on Exhibit
A. If: (i) a Change of Control (as defined below)
occurs, any unvested Units shall vest, and the Shares subject to the Award shall
be issued to the Award Recipient, immediately prior to the consummation of the
Change of Control; (ii) Award Recipient experiences a Separation from Service as
a result of Award Recipient’s Permanent Disability (as defined below) or death,
any unvested Units shall become vested as of such Separation from Service; or
(iii) Award Recipient experiences a Separation from Service as a result of the
dissolution or liquidation of Alpha, any unvested Units shall vest.
(c) For
purposes of this Agreement, if any, the following terms shall have the following
meanings:
(i) the
term "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), or (D) 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. Notwithstanding
the foregoing or any provision of this Agreement or the Plan to the contrary, it
is intended that the foregoing definition of Change of Control qualify as a
change in the ownership or effective control of a corporation, or a change in
the ownership of a substantial portion of the assets of a corporation, within
the meaning of Treas. Reg. Section 1.409A-3(i)(5), and shall be interpreted and
construed to effectuate such intent;
(ii) the
term "Permanent
Disability" shall mean the Award Recipient is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can be expected to
last for a continuous period of not less than 12 months.
(iii) the
term "Separation from
Service" shall mean the Award Recipient's complete cessation of services
for the Company (including all persons treated as a single employer under
Sections 414(b) and 414(c)); provided the cessation of services constitutes a
good-faith and complete termination of the service relationship and the
expiration of all contractual relationships to provide services. For
purposes hereof, the determination of controlled group members shall be made
pursuant to the provisions of Sections 414(b) and 414(c); provided that the
language "at least 50 percent" shall be used instead of "at least 80 percent" in
each place that it appears in Section 1563(a)(1), (2) and (3) and Treas. Reg.
Section 1.414(c)-2; provided, further, where legitimate business reasons exist
(within the meaning of Treas. Reg. Section 1.409A-1(h)(3)), the language "at
least 20 percent" shall be used instead of "at least 80 percent" in each place
it appears. Whether an Award Recipient has experienced a Separation
from Service will be determined based on all of the facts and circumstances in
accordance with the guidance issued under Section 409A and, to the extent not
inconsistent therewith, the terms of the Plan.
Section
3. Dividend Equivalent
Rights.
Should a
regular cash dividend be declared on Alpha’s Common Stock at a time when
unissued Shares of such Common Stock are subject to your Award, then the number
of Shares at that time subject to your Award will automatically be increased by
an amount determined in accordance with the following formula, rounded down to
the nearest whole share:
X = (A x
B)/C, where
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X
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=
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the
additional number of Shares which will become subject to your Award by
reason of the cash dividend;
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A
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=
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the
number of unissued Shares subject to this Award as of the record date for
such dividend;
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B
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=
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the
per Share amount of the cash dividend;
and
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C
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=
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the
closing selling price per Share of the Company’s Common Stock on the New
York Stock Exchange on the payment date of such
dividend.
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The additional Shares resulting from
such calculation will be subject to the same terms and conditions (including,
without limitation, any applicable vesting requirements and forfeiture
provisions) as the unissued Shares of Common Stock to which they relate under
the Award.
Section 4. Investment
Representation. Award Recipient hereby acknowledges that the
Units and Shares relating to the Units shall not be sold, transferred, assigned,
pledged or hypothecated in the absence of an effective registration statement
for such securities 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 or as otherwise provided herein or in the
Plan. Award Recipient also agrees that the Units and Shares which
Award Recipient acquires pursuant to this Agreement will not be sold or
otherwise disposed of in any manner which would constitute a violation of any
applicable securities laws, whether federal or state.
Section 5. Stockholder
Rights. You will not have any stockholder rights, including
voting rights and actual dividend rights, with respect to the shares subject to
your Award until you become the record holder of those shares following their
actual issuance to you and your satisfaction of the applicable withholding
taxes.
Section 6. Taxes.
Award Recipient should generally recognize ordinary income for federal income
tax purposes on the date the Shares which vest under the Award are actually
issued to the Award Recipient, and Award Recipient will be solely responsible
for any such income tax obligations and any other tax obligations that may arise
with respect to such Shares (or Units).
Section 7. No Right to
Perform Continued Services. Neither the Plan nor this
Agreement shall be deemed to give Award Recipient any right to continue to
perform services for the Company, nor shall the Plan or the Agreement be deemed
to limit in any way the Company’s right to terminate the performance of services
by the Award Recipient at any time.
Section 8. Further
Assistance. Award Recipient
will provide assistance reasonably requested by the Company in connection with
actions taken by Award Recipient while providing services to 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 providing services to the Company.
Section 9. 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 its 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, 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 9 which is not waived in
writing by the Company, all vesting of the 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 9.
Section 10. 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 11. Agreement to
Abide by Plan; Conflict between Plan and Agreement. The Plan
is hereby incorporated by reference into this Agreement and the Plan is 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 (ii) agrees to abide by
all of the terms and conditions of this Agreement, and the
Plan. Award Recipient accepts as binding, conclusive and final all
decisions or interpretations of the Committee (or its designee) of the Plan upon
any question arising under the Plan, and this Agreement (including, without
limitation, the date of Award Recipient’s Separation from
Service). In the event of any conflict between the Plan and this
Agreement, the Plan shall control and this Agreement shall be deemed to be
modified accordingly, except to the extent that the Plan gives the Committee
express authority to vary the terms of the Plan by means of this Agreement, in
which case, this Agreement shall govern.
Section 12. Entire
Agreement. Except as otherwise provided herein, the Plan and
this Agreement constitute the entire agreement between the parties and supersede
any prior understandings, agreements, or representations by or between the
parties, written or oral, to the extent they relate in any way to the subject
matter of this Agreement.
Section 13. 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 14. 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 it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient at the address set forth in Section 18
herein or Exhibit
A. 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 15. 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 Shares,
or take any other action it deems necessary or advisable, to comply with Section
409A (or, if applicable, to cause this Award to be excepted from Section
409A).
Section 16. Section
409A. This Award is
intended to comply with Section 409A (or an exception thereto) and the
regulations promulgated thereunder and shall be construed
accordingly. Notwithstanding, Award Recipient recognizes and
acknowledges that Section 409A may impose upon Award Recipient certain taxes or
interest charges for which Award Recipient is and shall remain solely
responsible.
Section 17. Legends. The
Company may at any time place legends referencing the provisions of this
Agreement, and any applicable federal or state securities law restrictions on
all certificates, if any, representing the Shares relating to this
Award.
Section 18. Acknowledgments.
(a) By
accepting the Units, the Award Recipient acknowledges receipt of a copy of the
Plan and the prospectus relating to the Units, and agrees to be bound by the
terms and conditions set forth in the Plan and this Agreement, 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
Committee’s or its designee'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 18 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 18. 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.
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EXHIBIT
A
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Name
of Award Recipient:
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Address
of Award Recipient:
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Issue Date:
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Number
of Units Subject to Award:
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Vesting
Period/Schedule:
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Except
as otherwise provided in the Agreement, this Award shall vest upon the
six-month anniversary of the Award Recipient's Separation from Service
with the Company.
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Issuance
Schedule of Shares:
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Except
as otherwise provided in the Agreement, the Shares subject to the Award
will be issued on the six-month anniversary date of the Award Recipient's
Separation from Service (or as soon as reasonably practicable but in no
event later than the 15th day of the third month following such
date).
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