Alpha Natural Resources, Inc. (formerly Foundation Coal Holdings, Inc.) 2004 Stock Incentive Plan Restricted Stock Unit Award Agreement for non-employee directors
Exhibit 99.8
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) 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
2
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
| X = | the additional number of Shares which will become subject to your Award by reason of the cash dividend; | ||
| A = | the number of unissued Shares subject to this Award as of the record date for such dividend; | ||
| B = | the per Share amount of the cash dividend; and | ||
| C = | 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. |
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
3
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
4
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
5
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.
[Remainder of this Page Intentionally Left Blank]
6
EXHIBIT A
Name of Award Recipient: |
||
Address of Award Recipient: |
||
Issue Date: August ___, 2009 |
||
Number of Shares Subject to Award:
|
shares of the Company’s common stock | |
Vesting Period/Schedule:
|
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. | |
Issuance Schedule of Shares:
|
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). |
7
