MASSEY ENERGY COMPANY Restricted Unit Agreement
EXHIBIT
10.4
XXXXXX
ENERGY COMPANY
[Number] Restricted
Units
THIS
AGREEMENT dated as of November 9, 2009,
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 9, 2009 (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 on the date Restricted Units become Vested (as defined
below). Payment of the value of the Restricted Units which become
Vested (as defined below) shall be made on the date the Restricted Units become
Vested.
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 9, 2010,
November 9,
2011, and November 9,
2012.
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:
|
|
If
to the Company:
|
|
By
hand-delivery:
|
By
mail:
|
|
Xxxxxx
Energy Company
|
Xxxxxx
Energy Company
|
|
Attention:
Corporate Secretary
|
Attention:
Corporate Secretary
|
|
0
Xxxxx Xxxxxx Xxxxxx
|
X.X.
Xxx 00000
|
|
Xxxxxxxx,
Xxxxxxxx 23219
|
Xxxxxxxx,
Xxxxxxxx 00000
|
|
|
If
to Participant:
|
|
|
[Name]
|
|
|
[Address]
|
|
|
[Address]
|
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:
President
_____________________________
[Participant]
