MASSEY ENERGY COMPANY Restricted Stock Award Agreement
EXHIBIT
10.3
XXXXXX
ENERGY COMPANY
[Number]
Restricted Shares
THIS
AGREEMENT dated as of November 12, 2007, between XXXXXX ENERGY COMPANY, a
Delaware Corporation (the “Company”) and [________] (“Participant”) is made
pursuant and subject to the provisions of the Xxxxxx Energy Company 2006
Stock
and Incentive Compensation Plan, as amended from time to time (the “Plan”), a
copy of which is attached. All terms used herein that are defined in the
Plan
have the same meaning given them in the Plan.
1. Award
of Restricted Stock. Pursuant to the
Plan, the Company, on November 12, 2007 (the “Grant Date”), granted to
Participant, subject to the terms and conditions of the Plan and subject
further
to the terms and conditions herein set forth, an award of [________] shares
of
Stock which are designated as Restricted Stock.
2. Restrictions. Except
as provided in this Agreement, the shares of Restricted Stock are
nontransferable and are subject to a substantial risk of forfeiture during
the
Period of Restriction. The Period of Restriction starts on the Grant
Date and ends when the shares of Restricted Stock vest or are forfeited.
During
the Period of Restriction, the shares of Restricted Stock shall be subject
to
and bear the following legend if certificated prior to vesting:
“The
sale
or other transfer of the shares of Xxxxxx Energy Company stock represented
by
this certificate, whether voluntary, involuntary, or by operation of law,
is
subject to certain restrictions on transfer set forth in the Xxxxxx Energy
Company 2006 Stock and Incentive Compensation Plan, in the rules and
administrative procedures adopted pursuant to such Plan, and in an associated
Restricted Stock Agreement. A copy of the Plan, such rules and procedures,
and
the applicable Restricted Stock Agreement may be obtained from the Secretary
of
Xxxxxx Energy Company.”
3. Stock
Power. With respect to shares of
Restricted Stock forfeited under Paragraph 6, Participant does hereby
irrevocably constitute and appoint the Secretary and the Assistant Secretary
as
his or her attorney to transfer the forfeited shares on the books of the
Company
with full power of substitution in the premises. The Secretary and/or the
Assistant Secretary shall use the authority granted in this Paragraph 3 to
cancel any shares of Restricted Stock that are forfeited under
Paragraph 6.
4. Vesting. Subject
to Paragraph 6 and except as provided in Paragraph 7 below,
Participant’s interest in the shares of Restricted Stock shall become
transferable and nonforfeitable (“Vested”) with respect to one-third of the
shares of Restricted Stock on each of November 12, 2008, November 12, 2009,
and
November 12, 2010.
5. Death
or Disability. If Participant dies or
becomes permanently and totally disabled within the meaning of Section 22(e)(3)
of the Code (“Permanently and Totally Disabled”) while in the employ or service
of the Company or a Subsidiary and prior to the forfeiture of the shares
of
Restricted Stock under Paragraph 6, Participant’s right to receive the
Restricted Stock shall be fully “Vested” (i.e., the restrictions on transfer and
risk of forfeiture in Paragraph 2 above shall lapse).
6. Forfeiture. Subject
to Paragraph 7 below, all shares of Restricted Stock that are not then
Vested shall be forfeited if Participant’s employment or service with the
Company and its Subsidiaries terminates for any reason other than on account
of
Participant’s death or becoming Permanently and Totally Disabled.
7. Change
in Control. Notwithstanding any other
provision of this Agreement, Participant's right to receive the Restricted
Stock
shall be Vested if Participant's employment is terminated by the Company
or an
Affiliate without Cause within two years following a Change in Control.
For purposes of this Agreement, Cause shall occur upon:
(i) the willful and continued failure by Participant
substantially to perform Participant's duties with the Company or an Affiliate
(other than any such failure resulting from Participant's incapacity due
to
physical or mental illness) after written demand for substantial performance
is
delivered to Participant by the Company or an Affiliate which specifically
identifies the manner in which the Company or Affiliate believes that
Participant has not substantially performed Participant's duties,
(ii) Participant’s willful breach of fiduciary duty, willful
violation of any law, rule, or regulation (other than traffic violations
or
similar offenses), willful violation of a final cease and desist order or
willfully engaging in any other gross misconduct which is materially and
demonstrably injurious to the Company or any Affiliate, or
(iii) Participant’s conviction of, or pleading guilty
or nolo condentere to, the commission of a felony involving fraud,
embezzlement, theft or moral turpitude.
For
purposes hereof, no act, or failure to act, on Participant’s part described in
clause (i) or (ii) above shall be considered “willful” unless done, or omitted
to be done, by Participant not in good faith and without reasonable belief
that
Participant's action or omission was in the best interest of the Company
and its
Affiliates. The fact that Participant is or shortly may be “retirement
eligible” and thus eligible for or entitled to post-retirement benefits from any
plan, arrangement or program sponsored, participated in or contributed to
by the
Company or an Affiliate shall not prevent Participant’s termination from being
considered for Cause.
8. Voting
Rights. During the Period of Restriction, Participant
shall be entitled to exercise voting rights with respect to the shares of
Restricted Stock.
9. Dividends
and Other Distributions. During the Period of
Restriction, Participant shall be entitled to receive all dividends and other
distributions paid in cash or property other than Stock with respect to the
shares of Restricted Stock. If any dividends or distributions are paid in
Stock,
such Stock shall be subject to the same restrictions on transferability and
the
same rules for vesting, forfeiture and custody as the shares of Restricted
Stock
with respect to which they were distributed. No fractional shares of Restricted
Stock shall accrue under this Paragraph, and if
Participant
would otherwise be entitled to a fractional share under this Paragraph, such
fractional share shall be disregarded and forfeited.
10. Issuance
and Custody of Certificates. The
Restricted Stock shall be issued in book entry form but may, on direction
of the
Committee, be issued in electronic form or in certificated form. Custody
of
stock certificates evidencing the shares of Restricted Stock shall be retained
by the Company. The Company shall cause shares of Restricted Stock which
are
Vested to be issued in book entry or electronic form or in certificated form
in
the name of Participant without the restrictions referred to in Paragraph 2
above and shall deliver to Participant stock certificates evidencing such
shares, or to Participant’s trading account in electronic form if so
requested.
11. Notice. Any
notice or other communications given pursuant to this Agreement shall be
in
writing and shall be personally delivered or mailed by United States registered
or certified mail, postage prepaid, return receipt requested, to the following
addresses:
|
If
to the Company:
|
|
|
By
hand-delivery:
|
By
mail:
|
|
Xxxxxx
Energy Company
|
Xxxxxx
Energy Company
|
|
Attention:
Corporate Secretary
|
Attention:
Corporate Secretary
|
|
0
Xxxxx Xxxxxx Xxxxxx
|
X.X.
Xxx 00000
|
|
Xxxxxxxx,
Xxxxxxxx 23219
|
Xxxxxxxx,
Xxxxxxxx 00000
|
|
If
to Participant:
|
|
|
[Name]
|
|
|
[Address]
|
|
|
[Address]
|
12. Confidentiality. Participant
agrees that this Agreement and the receipt of Restricted Stock subject
to this
award are conditioned upon Participant not disclosing the terms of this
Agreement or the receipt of the Restricted Stock to anyone other than
Participant’s spouse, confidential financial advisor, or senior management of
the Company prior to the date Participant is Vested in shares of Restricted
Stock. If Participant discloses such information to any person other than
those
named in the prior sentence, except as may be required by law, Participant
agrees that this award will be forfeited.
13. Fractional
Shares. A fractional share shall not
Vest hereunder, and when any provision hereof may cause a fractional share
to
Vest, any Vesting in such fractional share shall be postponed until such
fractional share and other fractional shares equal a Vested whole
share.
14. No
Right to Continued Employment or
Service. This Agreement does not confer
upon Participant any right to continue in the employ or service of the Company
or a Subsidiary, nor shall it interfere in any way with the right of the
Company
or a Subsidiary to terminate such employment or service at any
time.
15. Change
due to Capital Adjustments. The terms
of this Award shall be adjusted as the Committee determines and as provided
in
the Plan for events which, in the judgment of the Committee, necessitates
such
action.
16. Governing
Law. This Agreement shall be governed
by the laws of the State of Delaware.
17. Conflicts. In
the event of any conflict between the provisions of the Plan as in effect
on the
date hereof and the provisions of this Agreement, the provisions of the Plan
shall govern. All references herein to the Plan shall mean the Plan as in
effect
on the date hereof or as duly amended.
18. Participant
Bound by Plan. Participant hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all
the
terms and provisions thereof which are incorporated by reference into this
Agreement.
19. Binding
Effect. Subject to the limitations
stated above and in the Plan, this Agreement shall be binding upon and inure
to
the benefit of the legatees, distributees, and personal representatives of
Participant and the successors of the Company.
20. Taxes. Participant
shall make arrangements acceptable to the Company for the satisfaction of
income
and employment tax withholding requirements attributable to the Vesting of
this
Award.
21. Employment
and Service. In determining cessation
of employment or service, transfers between the Company and/or any Subsidiary
shall be disregarded, and changes in status between that of a Member, a
Non-Employee Service Provider and a Non-Employee Director shall be
disregarded.
IN
WITNESS WHEREOF, the Company has caused this Agreement to be signed by a
duly
authorized officer, and Participant has affixed his signature
hereto.
XXXXXX
ENERGY COMPANY
By:
__________________________
Name:
Xxxxxx X. Xxxxxxxx, Xx.
Its:
Executive Vice President and Chief Administrative Officer
_____________________________
[Participant]
