Exhibit 4.7
ALPHA NATURAL RESOURCES, INC.
2005 LONG-TERM INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
This Restricted Stock Agreement set forth below (this "AGREEMENT") is
dated as of the date set forth on the signature page of this Agreement (the
"ISSUE DATE") and is between Alpha Natural Resources, Inc., a Delaware
corporation ("ALPHA"), and the individual named as Stockholder on the signature
page of this Agreement (the "STOCKHOLDER").
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. ISSUANCE OF STOCK. Subject and pursuant to all terms and
conditions stated in this Agreement and in the Plan, as of the Issue Date Alpha
hereby issues to Stockholder, and Stockholder hereby purchases from Alpha, the
number of shares of Alpha's Common Stock, par value $0.01 per share (the "COMMON
STOCK") set forth on the signature page of this Agreement for total
consideration as set forth on the signature page of this Agreement (the
"PURCHASE PRICE"). Stockholder hereby delivers to Alpha a duly executed copy of
this Agreement, payment in full for the Purchase Price and payment of any
required withholding pursuant to Section 5. For purposes of this Agreement, the
"PURCHASED SHARES" shall include all of the shares of Common Stock issued to
Stockholder pursuant to this Agreement, including shares of Alpha's capital
stock issued with respect to such shares of Common Stock by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization.
SECTION 2. VESTING; RESTRICTION ON TRANSFER AND FORFEITURE OF UNVESTED
SHARES.
(a) None of the Purchased Shares may be sold, transferred, pledged,
hypothecated or otherwise encumbered or disposed of until they have vested
in accordance with this Section 2. Effective at the close of business on
the date Stockholder ceases to be employed by [ADD FOR NON-EMPLOYEE BOARD
MEMBERS ONLY, DELETE FOR EMPLOYEES: , or to serve as a member of the Board
of Directors of,] the Company, any Purchased Shares that are not vested in
accordance with this Section 2 shall be automatically forfeited to Alpha
without any further obligation on the part of Alpha. Stockholder hereby
assigns and transfers any forfeited Purchased Shares and the stock
certificate(s), if any, representing such shares to Alpha.
(b) The Purchased Shares will vest according to the vesting schedule
set forth on Schedule 1 attached to this Agreement. If a Change of Control
(as defined below) occurs, any unvested Purchased Shares shall vest
immediately prior to the consummation of the Change of Control. If
Stockholder ceases to be employed by [Add For Non-Employee Board Members
Only, Delete For Employees: , or to serve as a member of the Board of
Directors of,] the Company as a result of Stockholder's Permanent
Disability (as defined below) or death, any unvested Purchased Shares
shall become vested as of immediately prior to such termination of
employment [Add For Non-Employee Board Members Only, Delete For Employees:
or service as a member of the Company's Board of Directors]. If
Stockholder's employment by the Company is terminated by the Company other
than for Cause (as defined below), then the number of Purchased Shares
that are vested at the close of business on the date Stockholder ceases to
be employed by the Company shall be calculated as if Stockholder had been
continuously employed by the Company for an additional three months.
Vesting shall be tolled during any period in which Stockholder is on an
approved leave of absence from employment with the Company.
(c) For purposes of this Agreement, a "CHANGE OF CONTROL" shall mean
(i) 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, (ii) the sale of all or
substantially all of Alpha's assets, (iii) 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), (iv) the dissolution or liquidation of Alpha, (v) 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, or (vi) any
other event specified by the Board or the Committee. Notwithstanding the
forgoing, no transaction shall be considered to have effected a Change of
Control if (i) a majority of the equity interests of the surviving parent
entity is owned directly or indirectly by the AMCI Parties (as defined in
the Stockholders Agreement) or by a private equity fund controlled by
First Reserve Corporation or its affiliates or (ii) entities controlled by
the AMCI Parties or by a private equity fund controlled by First Reserve
Corporation or its affiliates have the right to appoint a majority of the
board of directors of the surviving parent entity. The term "PERMANENT
DISABILITY" shall mean Stockholder'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. The term
"CAUSE" shall mean "employer cause" as set forth in any employment
agreement between the Stockholder 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.
(d) The certificates or book-entries representing unvested Purchased
Shares will bear the following legend:
"The securities represented by this [certificate/book entry] are
subject to forfeiture and restrictions on transfer as set forth in a
Restricted Stock Agreement between the issuer and the initial holder
of these shares, dated as of _________, 20__. A copy of any such
agreement may be obtained by the holder without charge at the
issuer's principal place of business or upon written request."
SECTION 3. INVESTMENT REPRESENTATION. Stockholder hereby acknowledges that
the Purchased Shares which Stockholder acquires pursuant to this Agreement shall
be acquired for investment without a
view to distribution, within the meaning of the Securities Act of 1933, as
amended (the "SECURITIES ACT"), and shall not be sold, transferred, assigned,
pledged or hypothecated in the absence of an effective registration statement
for the shares under 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. Stockholder also agrees that the
Purchased Shares which Stockholder 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 4. ISSUANCE AND DELIVERY OF PURCHASED SHARES; RIGHTS AS A
STOCKHOLDER. The parties agree that, subject to satisfaction of the applicable
tax withholding requirements set forth in Section 5, the issuance of the
Purchased Shares in the name of Stockholder shall be evidenced by a stock
certificate, appropriate entry on the books of Alpha or of a duly authorized
transfer agent of Alpha, or other appropriate means as determined by the Alpha.
Alpha shall not issue the Purchased Shares if the Committee or Designated
Administrator or other authorized agent determines, in its or his sole
discretion, that the issuance of the Purchased Shares would violate the terms of
the Plan, this Agreement or applicable law. Except as otherwise provided in the
Plan, no person shall be, or have any of the rights or privileges of, a
stockholder of Alpha with respect to any of the Purchased Shares unless and
until the issuance of the Purchased Shares in such person's name is evidenced by
a stock certificate, appropriate entry on the books of Alpha or of a duly
authorized transfer agent of Alpha, or other appropriate means as determined by
Alpha.
SECTION 5. INCOME TAXES. Stockholder acknowledges that any income for
federal, state or local income tax purposes that Stockholder is required to
recognize on account of the issuance of the Purchased Shares to Stockholder
shall be subject to withholding of tax by the Company. Stockholder agrees that
the Company may either withhold an appropriate amount from any compensation or
any other payment of any kind then payable or that may become payable to
Stockholder, or require Stockholder to make a cash payment to the Company equal
to the amount of withholding required in the opinion of the Company. In the
event Stockholder 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 Stockholder and the Company until
such payment has been made or arrangements for such payment satisfactory to the
Company have been made. Stockholder agrees further to notify the Company
promptly if Stockholder files an election pursuant to Section 83(b) of the
Internal Revenue Code of 1986, as amended, with respect to any Purchased Shares.
SECTION 6. RIGHTS AS A STOCKHOLDER. Neither the Plan nor this Agreement
shall be deemed to give Stockholder any right to continue to be employed by [add
for non-employee board members only, delete for employees: or perform services
for] 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 [add for non-employee
board members only, delete for employees: or performance of services by] the
Stockholder at any time.
SECTION 7. FURTHER ASSISTANCE. Stockholder will provide assistance
reasonably requested by the Company in connection with actions taken by
Stockholder 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 Stockholder was employed.
SECTION 8. CONFIDENTIALITY. Stockholder 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. Stockholder 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. Stockholder acknowledges that by reason of Stockholder's
duties to and association with the Company, Stockholder 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. Stockholder hereby agrees that
Stockholder will not, at any time during or after employment [add for
non-employee board members only, delete for employees: or service as a member of
the Company's Board of Directors], 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 [add for
non-employee board members only, delete for employees: or responsibilities as a
member of the Company's Board of Directors]. Stockholder 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 Stockholder's
legal rights and obligations as an employee [add for non-employee board members
only, delete for employees: or director] or under this Agreement are at issue;
provided, however, that Stockholder shall, to the extent practicable and lawful
in any such events, give prior notice to the Company of Stockholder's intent to
disclose any such confidential business information in such context so as to
allow the Company an opportunity (which Stockholder 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 Stockholder of the
provisions of this Section 8 which is not waived in writing by the Company, all
vesting of the Purchased Shares shall cease effective upon the occurrence of the
actions or inactions by Stockholder constituting a breach by Stockholder of the
provisions of this Section 8.
SECTION 9. BINDING EFFECT; NO THIRD PARTY BENEFICIARIES. This Agreement
shall be binding upon and inure to the benefit of the Company and Stockholder
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 Stockholder and their respective heirs,
representatives, successors and permitted assigns. The parties agree that this
Agreement shall survive the issuance of the Purchased Shares.
SECTION 10. AGREEMENT TO ABIDE BY PLAN; CONFLICT BETWEEN PLAN AND
AGREEMENT. The Plan is hereby incorporated by reference into this Agreement and
made a part hereof as though fully set forth in this Agreement. Stockholder, by
execution of this Agreement, (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. Stockholder accepts as binding,
conclusive and final all decisions or interpretations of the administrator of
the Plan upon any question arising under the Plan and this Agreement (including,
without limitation, the date of any termination of Stockholder's employment with
the Company). 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.
SECTION 11. ENTIRE AGREEMENT. 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 12. 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 13. 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 14. 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.
EXECUTED as of ___________, 20__.
ALPHA NATURAL RESOURCES, INC. STOCKHOLDER
By ____________________________________ ____________________________________
Name: _________________________________
Address: __________________________
Title: ________________________________ __________________________
Social Security No. ________________
Address:
Alpha Natural Resources, Inc.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
NUMBER OF PURCHASED SHARES: ______
AGGREGATE CONSIDERATION FOR PURCHASED SHARES: ________________________
SCHEDULE 1
VESTING SCHEDULE