Alpha Natural Resources, Inc.
EXHIBIT
10.23
2005
Long-Term Incentive Plan
(For
EMPLOYEES)
This
Restricted Stock Agreement set forth below (this “Agreement”)
is dated as of the issue date (the “Issue
Date”) set forth on the applicable Summary of Restricted Stock Grant, and
is between Alpha Natural Resources, Inc., a Delaware corporation (“Alpha”),
and the individual named as Stockholder on the Summary of Restricted Stock Grant
(the “Stockholder”). The
Stockholder may view or obtain a copy of the Stockholder’s Summary of Restricted
Stock 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. 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 grants to Stockholder the number of shares of
Alpha’s Common Stock, par value $0.01 per share (the “Common
Stock”), set forth on the Summary of Restricted Stock
Grant. For purposes of this Agreement, the “Shares”
shall include all of the shares of Common Stock issued to Stockholder pursuant
to this Agreement or issued with respect to such shares of Common Stock,
including, but not limited to, shares of Alpha’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.
Section 2. Vesting;
Restriction on Transfer and Forfeiture of Unvested Shares.
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(a)
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None
of the Shares may be sold, transferred, pledged, hypothecated or otherwise
encumbered or disposed of until they have vested in accordance with the
terms of this Section 2 and the Summary of Restricted Stock Grant. Except
as set forth in this Section 2 or as otherwise provided in a Company plan
applicable to Stockholder or an agreement between the Stockholder and the
Company, if any, effective at the close of business on the date
Stockholder ceases to be employed by the Company or, if earlier, the date
Stockholder breaches the confidentiality covenant as described in Section
8 hereof, any 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 Shares and the stock certificate(s) or other evidence of
ownership representing such shares to
Alpha.
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(b)
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The
Shares will vest according to the vesting schedule set forth on the
Summary of Restricted Stock Grant. Unless otherwise provided in
a Company plan applicable to Stockholder or an agreement between the
Stockholder and the Company, if any, if: (i) a Change of
Control (as defined below) occurs, any unvested Shares shall vest
immediately prior to the consummation of the Change of Control; (ii)
Stockholder ceases to be employed by the Company as a result of
Stockholder’s Permanent Disability (as defined below) or death, any
unvested Shares shall become vested as of such termination of employment;
or (iii) Stockholder’s employment is terminated by the Company other than
for Cause (as defined below), then the number of 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.
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Vesting shall
be tolled during any period in which Stockholder is on an approved leave of
absence from employment with the Company.
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(c)
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For
purposes of this Agreement and unless otherwise defined in a Company plan
applicable to Stockholder or an agreement between the Stockholder 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 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; and (iii) 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.
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(d)
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The
certificates, if any, representing unvested Shares will bear the following
legend:
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“The
securities represented by this certificate are subject to forfeiture and
restrictions on transfer as set forth in the Restricted Stock Agreement
(including the 2005 Long-Term Incentive Plan and the applicable Summary of
Restricted Stock Grant incorporated therein) between the issuer and the initial
holder of these shares. A copy of any such documents 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
Shares 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. Stockholder also agrees that the 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 Shares;Rights as a
Stockholder. The parties agree that, subject to satisfaction
of the applicable tax withholding requirements set forth in Section 5,
certificate(s) or other evidence of ownership representing the Shares shall be
delivered to Stockholder, together with a blank, executed assignment separate
from certificate in the form of Exhibit A, to Alpha
or its designated agent to be held in escrow until the date all Shares have
vested or been forfeited pursuant to Section 2 (the “Escrow
Period”). Stockholder agrees, promptly following acceptance of
this Agreement, to contact Alpha’s human resources department to obtain a blank
assignment separate from certificate in the form of Exhibit A, and to
manually execute and deliver such certificate to Alpha’s human resources
department. Promptly following the end of the Escrow Period, Alpha or its
designated agent, as escrow agent, shall (a) deliver to Stockholder certificates
or other evidence of ownership representing vested Shares, provided, however,
that Stockholder has complied with any withholding tax requirements as set forth
in Section 5, and (b) cancel any Shares that have been forfeited by Stockholder
pursuant to Section 2. Prior to the end of the Escrow Period, if
Stockholder wishes to transfer any Shares which have vested pursuant to Section
2, Alpha shall take action reasonably requested by Stockholder to facilitate
such transfer, including causing the delivery of certificates or other evidence
of ownership representing such shares to be transferred. Alpha shall
not issue 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 issuance of such
certificate(s) or other evidence of ownership 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 Shares unless and until
certificates or other evidence of ownership representing such Shares shall have
been issued or reflected in such person’s name.
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 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
(including the Shares) 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 (the
“Code”), with respect to any
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 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 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 by the Company.
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, 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. 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 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 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 Shares.
Section 10. 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 Restricted Stock Grant are 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 the Summary of Restricted Stock Grant, and (ii) agrees to abide by all of
the terms and conditions of this Agreement, the Summary of Restricted Stock
Grant and the Plan. Stockholder 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 Stockholder’s employment with
the Company) and the Summary of Restricted Stock Grant. In the event
of any conflict between the Plan and this Agreement and/or the Summary of
Restricted Stock Grant, the Plan shall control and this Agreement and/or the
Summary of Restricted Stock 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
and/or the Summary of Restricted Stock Grant, in which case, this Agreement
and/or the Summary of Restricted Stock Grant shall govern.
Section 11. Entire
Agreement. Except as otherwise provided herein, in any Company
plan applicable to the Stockholder, or in any other agreement between
Stockholder and the Company, this Agreement, the Plan and the Summary of
Restricted Stock Grant, which Stockholder has reviewed and accepted in
connection with the grant of the Shares reflected by 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 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 in the Summary of Restricted Stock
Grant. 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.
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, Alpha may, in its sole discretion and without
the Stockholder’s consent, 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 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 16. Acknowledgments.
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(a)
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By
accepting the Shares, the Stockholder acknowledges receipt of a copy of
the Plan, the Summary of Restricted Stock Grant, and the prospectus
relating to the Shares, and agrees to be bound by the terms and conditions
set forth in the Plan, the Summary of Restricted Stock Grant, and this
Agreement, as in effect and/or amended from time to
time.
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(b)
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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.
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(c)
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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, Stockholder recognizes and
acknowledges that Section 409A of the Code may impose upon the Stockholder
certain taxes or interest charges for which the Stockholder is and shall
remain solely responsible.
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(d)
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Stockholder
acknowledges that, by receipt of this Award, Stockholder has read this
Section 16 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 16. Stockholder
acknowledges that Stockholder may receive from the Company a paper copy of
any documents delivered electronically at no cost if Stockholder 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. Stockholder further acknowledges that Stockholder will be
provided with a paper copy of any documents delivered electronically if
electronic delivery fails.
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Revised: 11/8/2007
