Alpha Natural Resources, Inc.
Exhibit
10.26
2005
Long-Term Incentive Plan
(For
EMPLOYEES)
This
Performance Share Award Agreement set forth below (this "Agreement")
is dated as of the grant date (the "Grant
Date") set forth on the applicable Summary of Performance Share Grant and
is between Alpha Natural Resources, Inc., a Delaware corporation ("Alpha"),
and the individual named on the Summary of Performance Share Grant (the "Award
Recipient"). The Award Recipient may view or obtain a copy of
the Award Recipient's Summary of Performance Share Grant document by accessing
Xxxxx Xxxxxx Benefit Access at xxx.xxxxxxxxxxxxx.xxx.
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.
Pursuant
to the provisions of the Plan, the Committee or its Designated Administrator has
full power and authority to direct the execution and delivery of this Agreement
in the name and on behalf of Alpha, and has authorized the execution and
delivery of this Agreement.
Agreement
The
parties agree as follows:
Section 1. Performance Share
Award. Subject to and
pursuant to all terms and conditions stated in this Agreement and in the Plan,
as of the Grant Date, Alpha hereby makes a Performance Grant to Award Recipient
in the form of performance shares ("Performance
Shares"). Each Performance Share awarded under this Agreement
shall represent a right to receive one Share of Alpha's Common Stock, par value
$0.01 per share (the "Common
Stock"), to the extent such Performance Share is earned pursuant to the
terms of this Agreement. The shares of Common Stock to be issued and
delivered to Award Recipient, if any, pursuant to the Performance Shares awarded
under this Agreement, including shares of capital stock, if any, issued from
time to time with respect to such shares of Common Stock as a result of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization are referred to
in this Agreement as the “Share(s).”
Section 2. Performance
Shares. The
target number of Performance Shares covered by this Agreement (the "Target
Award") is set forth on the Summary of Performance Share
Grant.
Section 3. Performance
Period. The
"Performance
Period" means the performance period as set forth on the Summary of
Performance Share Grant.
Section 4. Performance
Measures. Subject to the
provisions of this Agreement and the Summary of Performance Share Grant, Alpha
shall issue and deliver to the Award Recipient one (1) Share for each whole
Performance Share that is earned in accordance with the performance
schedule(s)
set forth
on the Summary of Performance Share Grant; provided, however, that the Committee
may reduce the number of Performance Shares earned under this Award, but in no
event may the Committee increase the number of Performance Shares earned under
this Award beyond the performance levels achieved.
Section 5. Delivery of
Shares. Except as otherwise
provided in this Agreement and subject to satisfaction of the applicable tax
withholding requirements set forth in Section 8, Alpha shall cause stock
certificate(s) or other evidence of ownership representing the number of Shares
earned and determined under Section 4 to be delivered to the Award
Recipient in the first calendar year immediately following the end of the
Performance Period on or before March 15th of such calendar year; provided,
however, that: (i) absent a Change of Control (as defined below), no
certificate(s) for, or other evidence of ownership of, Shares shall be delivered
with respect to Performance Shares unless the Committee has certified in writing
that the applicable performance targets set forth on the Summary of Performance
Grant and other material terms of this Agreement have been achieved; and (ii)
Alpha shall not deliver stock certificate(s) or other evidence of ownership
representing Shares if the Committee or Designated Administrator or other
authorized agent determines, in its or his sole discretion, that the delivery of
such certificate(s) or other evidence of ownership would violate the terms of
the Plan, this Agreement or applicable law.
Section 6. Termination of
Employment/Change of Control:
(a) Except
as set forth in this Section 6 or as otherwise provided in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and
the Company, if any, if (i) Award Recipient ceases to be employed by the Company
for any reason prior to the end of the Performance Period, or (ii) Award
Recipient breaches the confidentiality covenant as described in Section 11, then
effective at the close of business on the date the Award Recipient ceases to be
employed by the Company, or the date the Award Recipient breaches the
confidentiality covenant as described in Section 11 hereof, as applicable, all
of Award Recipient’s Performance Shares covered by this Agreement, whether
earned or unearned, shall be automatically cancelled and forfeited in their
entirety without any further obligation on the part of Alpha, such that Alpha
shall not be obligated to issue any Shares or any other compensation to Award
Recipient with respect to such cancelled and forfeited Performance
Shares.
(b) Unless otherwise provided in a Company
plan applicable to Award Recipient or an agreement between the Award Recipient
and the Company, if any, if during the Performance Period (i) the Award
Recipient ceases to be employed by the Company as a result of Award Recipient's
Permanent Disability (as defined below) or death, (ii) the Award Recipient's
employment is terminated by the Company other than for Cause (as defined below),
or (iii) the Award Recipient ceases to be employed by the Company as a result of
Award Recipient's Retirement (as defined below), the Award Recipient shall be
entitled to receive a prorated portion of the Performance Shares to the extent
earned pursuant to Section 4 above, determined at the end of the Performance
Period and based on the ratio of the number of complete months the Award
Recipient is employed or serves during the Performance Period to the total
number of months in the Performance Period. Any Shares to which Award
Recipient becomes entitled to receive pursuant to the preceding sentence will be
issued and delivered to Award Recipient in accordance with the provisions of
Section 5 of the Agreement; provided, that any payments due on the Award
Recipient's death shall be paid to the Award Recipient's
estate.
(c) In
the event that a Change of Control occurs prior to the end of the Performance
Period, the Performance Shares that have not been previously cancelled and
forfeited shall become fully vested and payable at the Target Award level (and
the Performance Period shall thereafter be deemed to have
terminated). Payment of any amount pursuant to the preceding sentence
may be made in cash and/or
securities
or other property, in the Committee's discretion, and will be made
contemporaneous with the consummation of the Change of Control.
(d) For
purposes of this Agreement and unless otherwise defined in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and
the Company, if any, the following terms shall have the following
meanings: (i) a "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), (D) the
stockholders of Alpha approve any plan for the dissolution or liquidation of
Alpha, or (E) 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; (ii) the
term "Permanent
Disability" shall mean Award Recipient's physical or mental incapacity to
perform his or her usual duties with such condition likely to remain
continuously and permanently as determined by the Company; (iii) the term "Cause"
shall mean "Employer Cause" as set forth in any employment agreement between the
Award Recipient and the Company or, in the absence of such an agreement, "Cause"
as defined by the Company’s employment policies in effect at the time of
termination; and (iv) the term "Retirement"
shall mean Award Recipient's retirement at Alpha’s normal retirement
age, as prescribed from time to time by Alpha’s employment or retirement
policies then in effect, or retirement under circumstances approved by the
Committee (either before or after retirement).
Section 7. Limitation of
Rights; Investment
Representation. Except as otherwise provided in the Plan or
this Agreement, no holder of Performance Shares shall be, or have any of the
rights or privileges of, a stockholder of Alpha with respect to any Shares
unless and until certificates or other evidence of ownership representing such
Shares shall have been issued or reflected in such person’s
name. Prior to actual receipt of the Shares under this Award, Award
Recipient may not transfer any interest in the Award or the underlying
Shares. Award Recipient acknowledges and agrees that the Shares which
Award Recipient acquires pursuant to this Agreement, if any, 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, and shall not be sold or otherwise disposed of in any manner
which would constitute a violation of any applicable securities laws, whether
federal or state. Any attempt to transfer the Performance Shares or Shares
in violation of this Section or the Plan shall render this Award of Performance
Shares null and void.
Section 8. Income
Taxes. Award Recipient acknowledges that any income for
federal, state or local income tax purposes that Award Recipient is required to
recognize on account of the issuance and delivery of Shares to Award Recipient
shall be subject to withholding of tax by the Company. In accordance
with administrative procedures established by the Company, Award Recipient may
elect to satisfy his or her minimum statutory withholding tax obligations, if
any, on account of the issuance of Shares or settlement of this Award in one or
a combination of the following methods: in cash or separate check made payable
to the Company or by authorizing the Company to withhold from the Shares to be
issued to the Award Recipient hereunder a sufficient number of whole Shares
distributable in connection with this Award equal to the applicable minimum
statutory withholding tax obligation. In the event Award Recipient does not make
such payment when requested, the Company may refuse to issue or cause to be
delivered any Shares under this Agreement or any other incentive plan agreement
entered into by
Award
Recipient and the Company until such payment has been made or arrangements for
such payment satisfactory to the Company have been made.
Section 9. Rights to
Continued Employment. Neither the Plan nor this Agreement
shall be deemed to give Award Recipient any right to continue to be employed by
the Company, nor shall the Plan or the Agreement be deemed to limit in any way
the Company's right to terminate the employment of the Award Recipient at any
time.
Section 10. Further
Assistance. Award Recipient
will provide assistance reasonably requested by the Company in connection with
actions taken by Award Recipient while employed by 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 employed.
Section 11. 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 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 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 during or after employment, 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 11 which is not waived in
writing by the Company, all vesting of the Performance 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
11.
Section 12. 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 13. Agreement to
Abide by Plan; Conflict between Plan and Agreement. The Plan
is hereby incorporated by reference into this Agreement and the Plan and Summary
of Performance Share Grant are 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 the Summary of Performance Share Grant, and (ii) agrees to abide by all of
the terms and conditions of this Agreement, the Summary of Performance Share
Grant and the Plan. Award Recipient accepts as binding, conclusive
and final all decisions or interpretations of the Designated Administrator of
the Plan upon any question arising under the Plan, this Agreement (including,
without limitation, the date of any termination of Award Recipient's employment
with the Company) and the Summary of Performance Share Grant. In the
event of any conflict between the Plan and this Agreement or the Summary of
Performance Share Grant, the Plan shall control and this Agreement and/or the
Summary of Performance Share Grant shall be deemed to be modified accordingly,
except to the extent that the Plan gives the Designated Administrator the
express authority to vary the terms of the Plan by means of this Agreement or
the Summary of Performance Share Grant, in which case, this Agreement and/or the
Summary of Performance Share Grant shall govern.
Section 14. Entire
Agreement. Except as otherwise provided herein, in any Company
plan applicable to the Award Recipient, or in any other agreement between Award
Recipient and the Company, this Agreement, the Plan, and the Summary of
Performance Share Grant which Award Recipient has reviewed and accepted in
connection with the grant of the Performance Shares reflected by this Agreement,
constitutes the entire agreement between the parties and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the subject matter of
this Agreement.
Section 15. 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 16. 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 (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient at
the address set forth below the recipient's signature to this
Agreement. 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 17. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and the same
instrument.
Section 18. 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
Common Shares, or take any other action it deems necessary or advisable, to
cause this Award to be excepted from Section 409A of the Code (or to comply
therewith to the extent Alpha determines it is not excepted).
Section
19. Acknowledgements.
(a) By
accepting this Award of Performance Shares, the Award Recipient acknowledges
receipt of a copy of the Plan, the Summary of Performance Share Grant and the
prospectus relating to this Award of Performance Shares, and agrees to be bound
by the terms and conditions set forth in this Agreement, the Summary of
Performance Share Grant and the Plan, 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
Designated Administrator’s discretion. Both Internet Email and the
World Wide Web are required in order to access documents
electronically.
(c) This
Award is intended to be excepted from coverage under Section 409A of the Code
and the regulations promulgated thereunder and shall be interpreted and
construed accordingly. Notwithstanding, Award Recipient recognizes
and acknowledges that Section 409A of the Code may impose upon the Award
Recipient certain taxes or interest charges for which the Award Recipient is and
shall remain solely responsible.
(d) Award
Recipient acknowledges that, by receipt of this Award, Award Recipient has read
this Section 19 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 19. 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.
Revised: 12/12/08
