ALPHA NATURAL RESOURCES, INC. AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN ROLLOVER RESTRICTED STOCK UNIT AGREEMENT
Exhibit 99.5
ROLLOVER RESTRICTED STOCK UNIT AGREEMENT
THIS AGREEMENT, is made as of [DATE], 2009 (the “Award Date”), between ALPHA NATURAL
RESOURCES, INC. (f/k/a Foundation Coal Holdings, Inc.) (the “Company”) and [NAME] (the
“Participant”).
RECITALS:
WHEREAS, Alpha Natural Resources, Inc. (“Alpha”) and Foundation Coal Holdings, Inc.
(“Foundation”) have entered into that certain Agreement and Plan of Merger (the “Merger
Agreement”), dated as of May 11, 2009, which provides, among other things, for the merger of
Alpha with and into Foundation (the “Merger”), with Foundation continuing as the surviving
corporation (the “Surviving Corporation”) of the Merger;
WHEREAS, pursuant to Section 2.3(d) of the Merger Agreement, upon the effective time of the
Merger, certain restricted stock units representing the right to receive shares of Foundation’s
common stock, par value $0.01 per share (the “Prior RSUs”) and certain cash units
representing the right to receive a cash payment of $14.02 per cash unit upon achievement of
certain performance-based goals held by the Participant prior to the Merger (the “Prior Cash
Units”)(collectively, the “Prior Awards”), granted pursuant to an award agreement
between the Participant and Foundation dated [[DATE1] and [DATE2]] under the Foundation Amended and
Restated 2004 Stock Incentive Plan shall become fully vested and shall be assumed by the Surviving
Corporation and each Prior Award converted into the right to receive a vested Surviving Corporation
restricted stock unit or Surviving Corporation cash unit, as the case may be, that shall be settled
on the date(s) set forth below;
WHEREAS, in connection with the Merger, the Surviving Corporation shall assume the Foundation
Amended and Restated 2004 Stock Incentive Plan, the terms of which are hereby incorporated by
reference and made a part of this Agreement; and
WHEREAS, the Compensation Committee of the Board of Directors of the Surviving Corporation
(the “Committee”) has determined that the Participant be awarded the restricted stock units
and cash units provided for herein pursuant to the Plan and the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties
agree as follows:
1. Definitions. Capitalized terms not otherwise defined herein shall have the same
meanings as in the Plan.
2. Award of RSUs and Cash Units. The Surviving Corporation hereby awards to the
Participant, subject to the terms and conditions of this Agreement and the Plan, [tba] vested
restricted stock units (“RSUs”)
and [tba] vested cash units (“Cash Units”). The
Participant shall not possess any incidents of ownership (including, without limitation, dividend
and voting rights) in Shares in respect of RSUs until such RSUs have been distributed to the
Participant in the form of Shares on the settlement date(s) set forth in Section 3 hereof.
3. Settlement of RSUs and Cash Units. RSUs and Cash Units will be settled as follows:
| Number of RSUs and Cash Units | Settlement Date | |
[# of RSUs granted under the 2009 MIP]
|
[2/27/2012] |
| Number of RSUs and Cash Units | Settlement Date | |
[# of Cash Units granted under the 2009 MIP]
|
[2/27/2012] |
4. Delivery of Shares Underlying RSUs and Payment of Cash Underlying the Cash Units.
As soon as practicable following the applicable settlement date set forth in Section 3 above, but
in no event later than thirty (30) days after such date and regardless of whether or not the
Participant is then currently employed by the Surviving Corporation, the Surviving Corporation
shall, as the case may be: (x) issue or cause there to be transferred to the Participant a number
of Shares equal to the number of vested RSUs awarded to the Participant under this Agreement and
(y) pay to the Participant an amount in cash equal to the product of the number of vested Cash
Units awarded to the Participant under this Agreement multiplied by $14.02, and all such Cash Units
shall thereafter be cancelled.
5. Transferability. Unless otherwise determined by the Committee, an RSU may not be
assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by the
Participant otherwise than by will or by the laws of descent and distribution, and any such
purported assignment, alienation, pledge, attachment, sale, transfer or encumbrance shall be void
and unenforceable against the Surviving Corporation or any Affiliate; provided that the designation
of a beneficiary shall not constitute an assignment, alienation, pledge, attachment, sale, transfer
or encumbrance.
6. Withholding. The Surviving Corporation or its Affiliate shall withhold from any
payment due or transfer of the Shares made with respect to RSUs or Cash Units, as the case may be,
the minimum required withholding amount in respect of RSUs or Cash Units or any payment or transfer
with respect to RSUs or Cash Units or under the Plan and take such action as may be necessary in
the opinion of the Surviving Corporation to satisfy all obligations for the payment of such taxes.
7. Notices. Any notice under this Agreement shall be addressed to the Surviving
Corporation in care of its General Counsel at the principal executive office of the Surviving
Corporation and to the Participant at the address appearing in the personnel records of the
Surviving Corporation for the Participant or to either party at such other address as either party
hereto may hereafter designate in writing to the other. Any such notice shall be deemed effective
upon receipt thereof by the addressee.
8. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without regard to conflicts of laws.
9. RSUs and Cash Units Subject to the Plan. By entering into this Agreement, the
Participant agrees and acknowledges that the Participant has received and read a copy of the Plan.
RSUs, the Shares received in respect of RSUs and the Cash Units are subject to the Plan. The terms
and provisions of the Plan as it may be amended from time to time are hereby incorporated by
reference. In the event of a conflict between any term or provision contained herein and a term or
provision of the Plan, the applicable terms and provisions of the Plan will govern and prevail.
10. Counterparts. This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Any counterpart or other signature hereupon delivered by
facsimile shall be deemed for all purposes as constituting good and valid execution and delivery of
this Agreement by such party.
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IN WITNESS WHEREOF, this Agreement has been executed and delivered by the parties hereto.
| ALPHA NATURAL RESOURCES, INC. (f/k/a Foundation Coal Holdings, Inc.) | ||||||
| By: | ||||||
| Participant | ||||||
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