MASSEY ENERGY COMPANY Non-Employee Director Annual Restricted Stock Award Agreement
EXHIBIT
10.3
XXXXXX
ENERGY COMPANY
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Shares of Restricted Stock
THIS
AGREEMENT dated as of the ____ day of ____________, ____, 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 such plan may be
amended from time to time (the “Plan”), a copy of which is attached. All
capitalized terms used herein that are defined in the Plan have the same meaning
given them in the Plan.
1. Award of
Restricted Stock. On _____________,
_____, pursuant to the Plan, the Committee 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, hereinafter
described 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.
3. Stock
Power. With respect to
shares of Restricted Stock forfeited under Paragraph 6 below, Participant does
hereby irrevocably constitute and appoint the Secretary and each Assistant
Secretary of the Company as his attorney-in-fact 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 below.
4. Vesting. Subject to
Paragraph 6 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 _____________, ____,
_____________, ____, and _____________, ____.
5. Death,
Retirement, or Disability. If Participant dies, retires
or becomes permanently and totally disabled within the meaning of Section
22(e)(3) of the Internal Revenue Code of 1986, as amended (“Permanently and
Totally Disabled”) while in the employee or service of the Company or a
Subsidiary and prior to the forfeiture of the shares of Restricted Stock under
Paragraph 6 below, 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). For purpose of this Agreement, the Restricted
Stock shall be fully Vested upon retirement of Participant in accordance with
the requirements regarding retirement set forth in the Company’s Bylaws or upon
approval by the Board of Directors of an early retirement.
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6. Forfeiture. Subject to
Paragraph 5 below and Paragraph 7 below, all shares of Restricted Stock that are
not then Vested shall be forfeited if Participant’s service on the Board
terminates for any reason other than on account of Participant’s death,
retirement, or Permanent and Total Disability or within two years following a
Change in Control.
7. Change in
Control.
Notwithstanding any other provision of this Agreement, Participant’s Restricted
Stock shall be Vested if Participant’s employment or service terminates within
two years following a Change in Control.
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 9, and if Participant would otherwise be
entitled to a fractional share under this Paragraph 9, such fractional share
shall be disregarded and forfeited.
8. Custody
of Certificates. Custody of stock
certificates evidencing the shares of Restricted Stock shall be retained by the
Company. The Company shall deliver to Participant the stock
certificates evidencing the shares of Restricted Stock that Vest.
9. 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:
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Xxxxxx
Energy Company
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0
Xxxxx Xxxxxx Xxxxxx
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Xxxxxxxx,
Xxxxxxxx 00000
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Attn: Corporate
Secretary
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If
to Participant:
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________________________
________________________
10. 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.
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11. No Right
to Continued Service. This Agreement
does not confer upon Participant any right to continue to serve on the Board of
Directors of the Company, nor shall it interfere in any way with the right of
the Company to terminate such service at any time, if permissible.
12. Change in
Capital Structure. The terms of this
Agreement shall be adjusted as the Committee determines is equitably required in
the event that (a) the Company (i) effects one or more stock dividends, stock
split-ups, subdivisions or consolidations of shares or (ii) engages in a
transaction to which Section 424 of the Code applies or (b) there occurs any
other event which, in the judgment of the Committee, necessitates such
action.
13. Governing
Law. This Agreement
shall be governed by the laws of the State of Delaware.
14. 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.
15. 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.
16. 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.
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
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_____________________________
[Authorized
Officer]
[Title]
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Date:
___________, ____
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_____________________________
[Participant]
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Date:
___________, ____
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