MASSEY ENERGY COMPANY Non-Qualified Stock Option Agreement
EXHIBIT
10.2
XXXXXX
ENERGY COMPANY
[Number]
Non-Qualified Stock Options
THIS
AGREEMENT dated as of November 12, 2007, 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 amended from time to time (the “Plan”), a
copy of which is attached. All terms used herein that are defined in the Plan
have the same meaning given them in the Plan.
1. Award
of Non-Qualified
Stock
Options. Pursuant to the Plan, the
Company, on November 12, 2007 (the “Grant Date”), 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 [________] Non-Qualified Stock
Options, hereinafter described as “Options” or “Option,” at the option price of
$________ per share, being not less than the Fair Market Value of such shares
on
the Grant Date, or on the next preceding trading date if no Company shares
traded on the New York Stock Exchange on the Grant Date. This Option
is exercisable as hereinafter provided.
2. Nontransferability. This
Option may not be transferred except by will or by the laws of descent and
distribution. During Participant’s lifetime, this Option may be exercised only
by Participant.
3. Expiration
Date. This Option shall expire ten
years from the Grant Date (the “Expiration Date”).
4. Exercisability. Subject
to Paragraph 7 and except as provided in Paragraph 8 below,
Participant’s interest in the Options shall become exercisable (“Vested”) with
respect to one-third of the Options on each of November 12, 2008, November
12,
2009, and November 12, 2010. Once this Option, or any portions
thereof, has become exercisable in accordance with the preceding sentence it
shall continue to be exercisable until the termination of Participant’s rights
hereunder pursuant to Paragraph 5, 6, 7, or 8 or until the Option has
expired pursuant to Paragraph 3. A partial exercise of this Option shall
not affect Participant’s right to exercise this Option with respect to the
remaining shares, subject to the conditions of the Plan and this
Agreement.
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
(the “Code”) (“Permanently and Totally Disabled”) while in the employ or service
of the Company or a Subsidiary and prior to the forfeiture of the Options under
Paragraph 7, Participant shall thereupon become entitled to exercise such
Options in full to the extent not vested or exercised as of the date of
Participant’s death, Retirement or becoming Permanently and Totally Disabled,
and all such Options shall be exercisable by Participant (or if Participant
is
deceased, his estate or other successor in interest following Participant’s
death) during the remainder of the period preceding the Expiration Date or
until
the date that is three years after the date of Participant’s death, Retirement
or Total and Permanent Disability, whichever is shorter.
For
purposes of this Agreement, “Retire” or “Retirement” means retiring directly
from active service under one of the Company’s qualified pension plans with a
vested benefit on or after the attainment of age 55.
6. Exercise
after Termination of Employment or
Service. If Participant ceases to be
employed by or in the service of the Company and its Subsidiaries prior to
the
Expiration Date for reasons other than death, Retirement or Permanent and Total
Disability, this Option shall be exercisable to the extent exercisable under
Paragraph 4, during the remainder of the period preceding the Expiration
Date or until the date that is three months after the date Participant ceases
to
be employed by or in the service of the Company and its Subsidiaries for reasons
other than death, Retirement or Permanent and Total Disability, whichever is
shorter.
7. Forfeiture. Subject
to the preceding Paragraph and Paragraph 8 below, all Options that are
not then Vested shall be forfeited if Participant’s employment or service with
the Company and its Subsidiaries terminates for any reason other than on account
of Participant’s death, Retirement, or Permanent and Total
Disability.
8. Change
in Control. Notwithstanding any other
provision of this Agreement, Participant's right to receive the Options shall
be
Vested if Participant's employment is terminated by the Company or an Affiliate
without Cause within two years following a Change in Control. For purposes
of this Agreement, Cause shall occur upon:
(i) the willful and continued failure by Participant
substantially to perform Participant's duties with the Company or an Affiliate
(other than any such failure resulting from Participant's incapacity due to
physical or mental illness) after written demand for substantial performance
is
delivered to Participant by the Company or an Affiliate which specifically
identifies the manner in which the Company or Affiliate believes that
Participant has not substantially performed Participant's duties,
(ii) Participant’s willful breach of fiduciary duty, willful
violation of any law, rule, or regulation (other than traffic violations or
similar offenses), willful violation of a final cease and desist order or
willfully engaging in any other gross misconduct which is materially and
demonstrably injurious to the Company or any Affiliate, or
(iii) Participant’s conviction of, or pleading guilty
or nolo condentere to, the commission of a felony involving fraud,
embezzlement, theft or moral turpitude.
For
purposes hereof, no act, or failure to act, on Participant’s part described in
clause (i) or (ii) above shall be considered “willful” unless done, or omitted
to be done, by Participant not in good faith and without reasonable belief
that
Participant's action or omission was in the best interest of the Company and
its
Affiliates. The fact that Participant is or shortly may be “retirement
eligible” and thus eligible for or entitled to post-retirement benefits from any
plan, arrangement or program sponsored, participated in or contributed to by
the
Company or an Affiliate shall not prevent Participant’s termination from being
considered for Cause.
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:
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If
to the Company:
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By
hand-delivery:
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By
mail:
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Xxxxxx
Energy Company
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Xxxxxx
Energy Company
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Attention:
Corporate Secretary
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Attention:
Corporate Secretary
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0
Xxxxx Xxxxxx Xxxxxx
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X.X.
Xxx 00000
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Xxxxxxxx,
Xxxxxxxx 23219
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Xxxxxxxx,
Xxxxxxxx 00000
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If
to Participant:
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[Name]
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[Address]
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[Address]
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10. Confidentiality. Participant
agrees that this Agreement and the receipt of Options subject to this award
are
conditioned upon Participant not disclosing the terms of this Agreement or
the
receipt of the Options to anyone other than Participant’s spouse, confidential
financial advisor, or senior management of the Company prior to the date
Participant is Vested in the Options. If Participant discloses such
information to any person other than those named in the prior sentence, except
as may be required by law, Participant agrees that this award will be
forfeited.
11. Fractional
Shares. Fractional shares shall not be
issuable hereunder, and when any provision hereof may entitle Participant to
a
fractional share such fraction shall be disregarded.
12. No
Right to Continued Employment or
Service. This Agreement does not confer
upon Participant any right to continue in the employ or service of the Company
or a Subsidiary, nor shall it interfere in any way with the right of the Company
or a Subsidiary to terminate such employment or service at any
time.
13. Change
due to Capital Adjustments. The terms
of this Award shall be adjusted as the Committee determines and as provided
in
the Plan for events which, in the judgment of the Committee, necessitates such
action.
14. Governing
Law. This Agreement shall be governed
by the laws of the State of Delaware.
15. 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 or as duly amended.
16. 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 which are incorporated by reference into this
Agreement.
17. 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.
18. Taxes. Participant
shall make arrangements acceptable to the Company for the satisfaction of income
and employment tax withholding requirements attributable to the exercise of
any
Option.
19. Employment
and Service. In determining cessation
of employment or service, transfers between the Company and/or any Subsidiary
shall be disregarded, and changes in status between that of a Member, a
Non-Employee Service Provider and a Non-Employee Director shall be
disregarded.
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
By:
__________________________
Name:
Xxxxxx X. Xxxxxxxx, Xx.
Its:
Executive Vice President and Chief Administrative Officer
_____________________________
[Participant]
