ALPHA NATURAL RESOURCES, INC. GRANTEE STOCK OPTION AGREEMENT
Exhibit 10.1
GRANTEE
STOCK OPTION AGREEMENT
This
Stock Option Agreement (this "Agreement") is between Alpha Natural Resources,
Inc., a Delaware corporation ("Alpha"), and the individual named as Grantee
on
the signature page of this Agreement (the "Grantee").
Alpha
has
established its 2005 Long-Term Incentive Plan (as amended, 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.
This
Agreement evidences an option grant as follows:
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GRANTED
TO:
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NUMBER
OF SHARES:
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EFFECTIVE
DATE OF GRANT:
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EXPIRATION
DATE:
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EXERCISE
PRICE PER SHARE:
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VESTING
SCHEDULE:
Pursuant
to the provisions of the Plan, the Board of Directors of Alpha (the "Board")
or
a Committee designated by the Board (the "Committee") has full power and
authority to direct the execution and delivery of this Agreement in the name
and
on behalf of Alpha. The Board or the Committee authorized the
execution and delivery of this Agreement. All capitalized terms not
otherwise defined in this Agreement have the same meaning given such capitalized
terms in the Plan.
AGREEMENT
The
parties agree as follows:
SECTION
1. GRANT
OF STOCK OPTION; TERM. Subject and pursuant to all terms and
conditions stated in this Agreement and in the Plan, Alpha hereby grants to
Grantee an option (the "Option") to purchase the number of shares of Alpha's
common stock, par value $0.01 per share (the "Common Shares"), set forth above
(the "Option Shares"), at the exercise price set forth above. If a
Change of Control (as defined below) occurs, the unvested portion of this
Option, unless previously cancelled and forfeited, shall vest immediately prior
to the consummation of the Change of Control. In the event of a
Change of Control, the Committee, in its sole discretion, may provide for the
(i) payment of an amount (in cash or, in the discretion of the Committee,
in the form of consideration paid to Alpha stockholders in connection with
the
Change in Control) equal to the excess, if any, of the Fair Market Value of
the
unexercised Option Shares over the aggregate exercise price of such Option
Shares, and/or (ii) issuance of substitute Awards for the unexercised
portion of the Option.
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
in a single transaction or a series of related transactions, (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 stockholders of Alpha
approve any plan for 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.
Grantee
hereby accepts the Option on such terms and conditions, including, without
limitation, the confidentiality provisions set forth in Section 8 of this
Agreement. The Option is a [SELECT APPLICABLE OPTION TYPE AND
DELETE INAPPLICABLE OPTION TYPE: [Nonqualified Stock Option]
[Incentive Stock Option]] (as such term is defined in the
Plan). Grantee shall, subject to the limitations of this Agreement
and the Plan, have the right to exercise the Option by purchasing all or any
part of the vested Option Shares then available for purchase under the vesting
schedule set forth above (less any Option Shares previously purchased upon
exercise of this Option).
SECTION
2. PROCEDURES
FOR EXERCISE. In order to exercise all or any part of the
Option, Grantee shall deliver to Alpha: (i) written notice of
the number of vested Option Shares to be purchased, (ii) payment of the
exercise price of such Option Shares in the form of cash or, if permitted by
the
Committee: (A) Common Shares, (B) the surrender of another
outstanding Award under the Plan, (C) if there is a public market for the
Common Shares at such time, subject to such rules as may be established by
the
Committee, through delivery of irrevocable instructions to a broker to sell
the
Common Shares otherwise deliverable upon the exercise of the Option and deliver
promptly to Alpha an amount equal to the aggregate exercise price payable for
the Option Shares, or (D) any combination thereof, and (iii) payment
of any required withholding pursuant to Section 5. The Option
shall be deemed to have been exercised as of (i) the close of business on
the date the required documents and required consideration are received by
Alpha
or, (ii) if the exercise of the Option occurs in connection with a Change
of Control, then immediately prior to the consummation of the Change of Control,
provided the required documents and required consideration are received by
Alpha
at or prior to the consummation of the Change of Control. If Grantee
disposes of Common Shares acquired upon the exercise of an Incentive Stock
Option either (i) within two years after the date of grant of such
Incentive Stock Option or (ii) within one year after the transfer of such
Common Shares to the Grantee, then Grantee shall notify Alpha of such
disposition and of the amount realized upon such disposition.
SECTION
3. TERMINATION
OF EMPLOYMENT, RETIREMENT, DISABILITY OR DEATH.
(a) Except
as
otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, vesting shall cease on the date
Grantee 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 and shall be tolled during any period in
which Grantee is on an approved leave of absence from employment with the
Company. Except as otherwise provided by the Committee or by any
agreement, plan or other arrangement between the Grantee and Alpha, following
Grantee's last day of employment with [ADD FOR NON-EMPLOYEE BOARD
MEMBERS ONLY, DELETE FOR EMPLOYEES: , or service as a member of the
Board of Directors of,] the Company, this Option shall only be
exercisable for the number of Option Shares that are vested as of Grantee's
last
day of employment with [ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE
FOR EMPLOYEES: , or service as a member of the Board of Directors
of,] the Company (less any Option Shares previously acquired upon
exercise of this Option).
(b) Except
as
provided in Section 3(c) or 3(d), by the Committee, or by any agreement,
plan or other arrangement between the Grantee and Alpha, following Grantee's
last day of employment with [ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY,
DELETE FOR EMPLOYEES: , or service as a member of the Board of
Directors of,] the Company, this Option may be exercised at any time
and from time to time within the lesser of (i) the 90-day period commencing
on the first day after Grantee's last day of employment with [ADD FOR
NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR EMPLOYEES: , or service
as a member of the Board of Directors of,] the Company or (ii) the
remaining term of the Option.
(c) Except
as
otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, if termination of employment
[ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR
EMPLOYEES: or service as a member of the Board of Directors]
occurs due to death or disability while Grantee is an employee [ADD FOR
NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR EMPLOYEES: or a member of
the Board of Directors] of the Company, then this Option may be
exercised at any time and from time to time within the lesser of (i) the
one year period commencing on the first day after Grantee's last day of
employment with [ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR
EMPLOYEES: , or service as a member of the Board of Directors
of,] the Company or (ii) the remaining term of the
Option.
(d) Except
as
otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, if termination of employment occurs
due to retirement at or after normal retirement age, as prescribed from time
to
time by the Company's retirement policy, or retirement under circumstances
approved by the Committee (either before or after retirement), then this Option
may be exercised at any time within the lesser of (i) the three month
period commencing on the first day after Grantee's last day of employment with
[ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR
EMPLOYEES: , or service as a member of the Board of Directors
of,] the Company, or, if Grantee dies during the three month period
commencing on the first day after Grantee's last day of employment with
[ADD FOR NON-EMPLOYEE BOARD MEMBERS ONLY, DELETE FOR
EMPLOYEES: , or service as a member of the Board of Directors
of,] the Company, then the one year period commencing on the first day
after Grantee's last day of employment with [ADD FOR NON-EMPLOYEE BOARD
MEMBERS ONLY, DELETE FOR EMPLOYEES: , or service as a member of the
Board of Directors of,] the Company, or (ii) the remaining term of
the Option.
SECTION
4. ISSUANCE
AND DELIVERY OF OPTION SHARES; RIGHTS AS A STOCKHOLDER. The
stock certificate(s), or other evidence of, the Option Shares shall be given
to
Grantee subject to satisfaction of the applicable tax withholding requirements
set forth in Section 5. Alpha shall not issue stock
certificate(s), or provide other evidence of, the Option Shares if the
administrator of the Plan or its authorized agent determines, in its sole
discretion, that the issuance of such certificate(s) or other evidence of the
Option 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 Option Shares unless and until certificates or other evidence of
the
Option Shares representing such shares shall have been delivered to such
person.
SECTION
5. INCOME
TAXES. Grantee acknowledges that any income for federal,
state or local income tax purposes that Grantee is required to recognize on
account of the grant, vesting and/or exercise of the Option shall be subject
to
withholding of tax by the Company. Grantee 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 Grantee, or
require Grantee to make a cash payment to the Company equal to the amount of
withholding required in the opinion of the Company. In the event
Grantee 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 Grantee and the Company until such
payment has been made or arrangements for such payment satisfactory to the
Company have been made.
SECTION
6. RIGHTS
AS A GRANTEE. Neither the Plan nor this Agreement shall be
deemed to give Grantee 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 Grantee at any
time.
SECTION
7. FURTHER
ASSISTANCE. Grantee will provide assistance reasonably
requested by the Company in connection with actions taken by Grantee while
employed by or providing service to 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 Grantee was employed or providing
service.
SECTION
8. CONFIDENTIALITY. Grantee
acknowledges that the businesses of the Company are 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 its business to obtain a competitive advantage
over competitors. Grantee 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. Grantee acknowledges that by reason of
Grantee's duties to and association with the Company, Grantee 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. Grantee
hereby agrees that Grantee 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]. Grantee 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
Grantee'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
Grantee shall, to the extent practicable and lawful in any such events, give
prior notice to the Company of Grantee's intent to disclose any such
confidential business information in such context so as to allow the Company
an
opportunity (which Grantee 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.
SECTION
9. SECURITIES
LAWS. Grantee acknowledges that applicable securities laws
may restrict the right and govern the manner in which Grantee may dispose of
the
Option Shares obtained upon exercise of the Option and Grantee agrees not to
offer, sell or otherwise dispose of any such shares in a manner that would
violate the Securities Act of 1933, as amended, or any other federal or state
law.
SECTION
10. PROHIBITION
ON TRANSFER OR ASSIGNMENT. Except as provided in the Plan,
neither this Agreement nor the Option may be transferred or assigned, other
than
an assignment by will or by laws of descent and distribution, and this Option
shall be exercisable during the Grantee's lifetime only by Grantee or by such
permitted assignee.
SECTION
11. BINDING
EFFECT; NO THIRD PARTY BENEFICIARIES. This Agreement shall
be binding upon and inure to the benefit of the Company and Grantee 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 Grantee and their respective heirs,
representatives, successors and permitted assigns. The parties agree
that this Agreement shall survive the exercise or termination of the
Option.
SECTION
12. 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. Grantee, 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. Grantee 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 cause of any termination of
Grantee'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
13. ENTIRE
AGREEMENT. Except as otherwise provided by the Committee or
any agreement, plan or other arrangement between the Grantee and Alpha, 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
14. 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 anything herein to the contrary, Alpha may, in
its sole discretion and without the Grantee's consent, modify or amend
(prospectively or retroactively) the terms of this Agreement, impose conditions
on the timing and effectiveness of the exercise of the Option by the Grantee,
or
take any other action it deems necessary or advisable, to cause the Option
to
comply with Section 409A of the Code (or an exception thereto). The
Grantee recognizes and acknowledges that Section 409A of the Code may impose
upon the Grantee certain taxes or interest charges which the Grantee is and
shall remain solely responsible.
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. ACKNOWLEDGEMENTS.
(a) By
accepting this Option, Grantee acknowledges receipt of a copy of the Plan and
the prospectus relating to this Award, and agrees to be bound by the terms
and
conditions set forth in this Agreement 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) Grantee
acknowledges that, by receipt of this Award, Grantee has read this Section
18
and consents to the electronic delivery of the Plan and related documents,
as
described in this Section 18. Grantee acknowledges that Grantee may
receive from Alpha a paper copy of any documents delivered electronically at
no
cost if Grantee 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. Grantee further acknowledges that Grantee will be
provided with a paper copy of any documents delivered electronically if
electronic delivery fails.
EXECUTED
___________ __, 20__.
ALPHA
NATURAL RESOURCES, INC. GRANTEE
By
Address: Address:
Xxx
Xxxxx
Xxxxx
X.X.
Xxx
0000 ____________________________________
Xxxxxxxx,
XX
00000
Attn: General
Counsel
Social
Security No.
