Alpha Natural Resources, Inc. (formerly Foundation Coal Holdings, Inc.)
Exhibit
10.25
(formerly
Foundation Coal Holdings, Inc.)
2004
Stock 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 (the "Company"),
and the individual named as Award Recipient on Exhibit
A (the "Award
Recipient").
The 2004
Stock Incentive Plan (as amended and restated, the “Plan”) was
established to aid the Company and its Affiliates in recruiting and retaining
key employees, directors or consultants of outstanding ability and to motivate
such employees, directors or consultants to exert their best efforts on behalf
of the Company and its Affiliates by providing compensation and incentives
through the granting of Awards. 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 has full power and authority to
direct the delivery of this Agreement in the name and on behalf of the Company,
and has authorized the delivery of this Agreement.
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, the Company hereby grants to Award Recipient the number
of restricted stock units (the "Units")
for the Company’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 the Company 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 the
Company’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) Except
as provided for in the Plan, 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 the Company
without any further obligation on the part of the Company.
(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 the Company, 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 the Company 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 the Company’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 the Company 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 the Company’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 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 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 or any Affiliate, nor shall the Plan or the
Agreement be deemed to limit in any way the Company’s or any Affiliate'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 and its Affiliates
in connection with actions taken by Award Recipient while providing services to
the Company and its Affiliates, including but not limited to assistance in
connection with any lawsuits or other claims against the Company and/or its
Affiliates arising from events during the period in which Award Recipient was
providing services to the Company or any Affiliate.
Section 9. Confidentiality. Award
Recipient acknowledges that the business of the Company and its Affiliates is
highly competitive and that the Company’s and its Affiliates' 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 and its
Affiliates use 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 and its Affiliates
in maintaining their competitive position. Award Recipient
acknowledges that by reason of Award Recipient’s duties to and association with
the Company and its Affiliates, 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 and its Affiliates. 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 and its Affiliates, 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 and its Affiliates 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 and its Affiliates would not be considered confidential to the
Company and its Affiliates. 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 Units 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 (including its Affiliates) 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 (including its Affiliates) 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 acceptance of this Award, (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, in the case of the Company, the
address set forth in Section 18 herein and, in the case of the Award Recipient,
to most recent address provided by the Award Recipient to the
Company. 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, the Company may, in its sole discretion and
subject to the terms of the Plan, 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 Senior 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.
[Signature
page follows]
IN WITNESS WHEREOF, the
parties hereto have signed this Agreement as of this [Issue Date] day of [Issue
Month], [Issue Year].
By _____________________________
Name: Xxxxxxx
XxXxxxx
Title: Senior
Vice President Human Resources
Address:
Xxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: Senior Vice President
Human Resources
AWARD
RECIPIENT
___________________________
Name: [Recipient
Name]
EXHIBIT
A
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Name
of Award Recipient:
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[Recipient
Name]
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Address
of Award Recipient:
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[Recipient
Address]
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Issue Date:
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[Issue
Date]
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Number
of Units Subject to Award:
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[Unit
Number]
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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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