MASSEY ENERGY COMPANY Restricted Unit Agreement
EXHIBIT
10.4
XXXXXX
ENERGY COMPANY
[Number]
Restricted Units
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 Restricted Units. 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 [________] Restricted
Units. The Restricted Units shall become earned and payable only in cash
as more
fully set forth herein.
2. Restrictions. Except
as provided in this Agreement, the Restricted Units are nontransferable and
are
subject to a substantial risk of forfeiture during the Period of
Restriction. The Period of Restriction starts on the Grant Date and
ends when the Restricted Units vest or are forfeited.
3. Vesting. Subject
to Paragraph 5 and except as provided in Paragraph 6 below,
Participant’s interest in the Restricted Units shall become transferable and
nonforfeitable (“Vested”) with respect to one-third of the Restricted Units on
each of November 12, 2008, November 12, 2009, and November 12,
2010.
4. Death
or Disability. If Participant dies or
becomes permanently and totally disabled within the meaning of Section 22(e)(3)
of 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 Restricted
Units under Paragraph 5, Participant’s right to receive the Restricted
Units shall be fully “Vested” (i.e., the restrictions on transfer and risk of
forfeiture in Paragraph 2 above shall lapse).
5. Forfeiture. Subject
to Paragraph 6 below, all Restricted Units 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 or becoming Permanently and Totally Disabled.
6. Change
in Control. Notwithstanding any other
provision of this Agreement, Participant's right to receive the Restricted
Units
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.
7. 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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8. Confidentiality. Participant
agrees that this Agreement and the receipt of this award are conditioned
upon
Participant not disclosing the terms of this Agreement or the receipt of
the
Restricted Units 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 Restricted Units. 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.
9. 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.
10. 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.
11. Governing
Law. This Agreement shall be governed
by the laws of the State of Delaware.
12. 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.
13. 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.
14. 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.
15. Taxes. Participant
shall make arrangements acceptable to the Company for the satisfaction of
income
and employment tax withholding requirements attributable to the Vesting or
payment of this Award.
16. 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]
