Alpha Natural Resources, Inc.
Exhibit
10.17
2005
Long-Term Incentive Plan
Retention
plan Restricted Stock Unit Agreement (Employees)
This
Restricted Stock Unit Agreement is dated as of the issue date (the “Issue
Date”) set forth on Exhibit
A attached hereto (this “Agreement”),
and is between Alpha Natural Resources, Inc., a Delaware corporation (“Alpha”),
and the individual named as Award Recipient on Exhibit
A (the “Award
Recipient”).
Alpha has
established its 2005 Long-Term Incentive Plan (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. All capitalized terms not otherwise defined in
this Agreement have the same meaning given such capitalized terms in the
Plan.
Pursuant
to the provisions of the Plan, the Committee has full power and authority to
direct the execution and delivery of this Agreement in the name and on behalf of
Alpha, and has authorized the execution and delivery of this
Agreement.
Agreement
The
parties agree as follows:
Section 1. Issuance of
Stock. Subject and
pursuant to all terms and conditions stated in this Agreement and in the Plan,
on the Issue Date, Alpha hereby grants to Award Recipient the number of
restricted stock units (the “Units”)
for Alpha’s Common Stock, par value $0.01 per share (the “Common
Stock”), set forth on Exhibit
A. For purposes of this Agreement, the “Shares” to
be issued under this Award shall include all of the shares of Common Stock
issued to Award Recipient pursuant to this Agreement plus any Shares issued with
respect to such shares of Common Stock before the Shares are actually issued
under this Award, including, but not limited to, shares of Alpha’s capital stock
issued by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
Section 2. Vesting;
Restriction on Transfer and Forfeiture of Unvested Shares.
(a) None
of the Units may be sold, transferred, pledged, hypothecated or otherwise
encumbered or disposed of until they have vested in accordance with the terms of
this Section 2 and Exhibit
A. Except as set forth in this Section 2, effective at the
close of business on the date Award Recipient ceases to be employed by the
Company or, if earlier, the date Award Recipient breaches the confidentiality
covenant in Section 9 hereof, any Units that are not vested in accordance with
this Section 2 shall be automatically forfeited to Alpha without any further
obligation on the part of Alpha. For purposes of
clarity, the vesting
requirements for Units granted under this Agreement constitute a modification of
any vesting provisions set forth in any plan applicable to Award Recipient,
or in any agreement between the Award Recipient and the Company, such that
this Award shall not vest except as provided in this Section 2 of the
Agreement.
(b) Except
as provided herein and subject to the Award Recipient's continued employment
with the Company, the Units will vest according to the vesting schedule set
forth on Exhibit
A. If: (i) Award Recipient’s employment is
involuntarily terminated without Cause (as defined below) during the 90-day
period immediately preceding a Change in Control (as defined below) or on or
within the one-year period immediately following a Change in Control, any
unvested Units shall immediately vest in full and shares subject to the Award
shall be issued to the Award Recipient immediately thereafter; (ii) Award
Recipient’s employment with the Company is involuntarily terminated without
Cause, or as a result of Award Recipient’s Permanent Disability (as defined
below) or death, any unvested Units shall become vested based on the ratio of
the number of complete months the Award Recipient is employed or serves with the
Company during the vesting period to the total number of complete months in the
vesting period and shares subject to the Award shall be issued to the Award
Recipient immediately thereafter; or (iii) Award Recipient’s employment is
terminated for any other reason, including for Cause, due to retirement or
resignation, any unvested portion of the Award shall be forfeited. Any and all
payments under this Award shall be made in calendar year in which the Award
vests on a date determined by the Committee and, in all cases, within the
“applicable 2½ month period” specified in Treas. Reg.
Sec.1.409A-1(b)(4).
(c) For
purposes of this Agreement, the following terms shall have the following
meanings: (i) a “Change of
Control” shall mean (A) 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, (B) the sale
of all or substantially all of Alpha’s assets in a single transaction or
a series of related transactions, (C) 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),
(D) the stockholders of Alpha approve any plan for the dissolution or
liquidation of Alpha, or (E) 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;
(ii) the term “Permanent
Disability” shall mean Award Recipient’s physical or mental incapacity to
perform his or her usual duties with such condition likely to remain
continuously and permanently as determined by the Company; (iii) the term “Cause”
shall mean “Employer Cause” as set forth in any employment agreement between the
Award Recipient and the Company or, in the absence of such an agreement, "Cause"
as defined by the Company’s plans applicable to the Award Recipient or
employment policies in effect at the time of termination.
Section 3. Dividend
Equivalent Rights. Should a
regular cash dividend be declared on Alpha’s Common Stock at a time when
unissued Shares of such Common Stock are subject to your Award, then the number
of Shares at that time subject to the Award will automatically be increased by
an amount determined in accordance with the following formula, rounded down to
the nearest whole share:
X = (A x
B)/C, where
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X
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=
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the
additional number of Shares which will become subject to your Award by
reason of the cash dividend;
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A
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=
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the
number of unissued Shares subject to this Award as of the record date for
such dividend;
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B
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=
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the
per Share amount of the cash dividend;
and
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C
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=
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the
closing selling price per Share of Alpha’s Common Stock on the New York
Stock Exchange on the payment date of such
dividend.
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The additional Shares resulting from
such calculation will be subject to the same terms and conditions (including,
without limitation, any applicable vesting requirements and forfeiture
provisions) as the unissued Shares of Common Stock to which they relate under
the Award.
Section 4. Investment
Representation. Award Recipient hereby acknowledges that the
Units and Shares relating to the Units shall not be sold, transferred, assigned,
pledged or hypothecated in the absence of an effective registration statement
for the shares under the Securities Act of 1933, as amended (the "Securities
Act"), and applicable state securities laws or an applicable exemption
from the registration requirements of the Securities Act and any applicable
state securities laws or as otherwise provided herein or in the
Plan. Award Recipient also agrees that the Units and Shares which
Award Recipient acquires pursuant to this Agreement will not be sold or
otherwise disposed of in any manner which would constitute a violation of any
applicable securities laws, whether federal or state.
Section 5. Issuance and
Delivery of Shares; Rights as an
Award Recipient. The parties agree that, subject to
satisfaction of the applicable tax withholding requirements set forth in
Section 6 and the other terms and conditions of this Agreement and the
Plan, certificate(s) or other evidence of ownership representing the Shares
underlying the Units shall be delivered to Award Recipient at the end of the
vesting period set forth on Exhibit
A. Promptly following the end of the vesting period set forth
on Exhibit
A, Alpha or its designated agent shall (a) deliver to Award Recipient
certificates or other evidence of ownership representing vested Shares,
provided, however, that Award Recipient has complied with any withholding tax
requirements as set forth in Section 6 and the other terms and conditions of
this Agreement and the Plan, and (b) cancel any Shares that have been forfeited
by Award Recipient pursuant to Section 2. Any and all payments under this Award
shall be made in calendar year in which the Award vests on a date determined by
the Committee and, in all cases, within the “applicable 2½ month period”
specified in Treas. Reg. Sec.1.409A-1(b)(4). Alpha shall not issue
stock certificate(s) or other evidence of ownership representing Shares if the
Committee or other authorized agent determines, in its or his sole discretion,
that the issuance of such certificate(s) or other evidence of ownership would
violate the terms of the Plan, this Agreement or applicable
law. Except as otherwise provided in the Plan, the Award Recipient
shall not have any of the rights or privileges of a stockholder of Alpha,
including voting rights and actual dividend rights, with respect to any of the
Shares underlying an Award unless and until the Award Recipient becomes the
record holder of the Shares following their actual issuance to the Award
Recipient and the Award Recipient’s satisfaction of applicable withholding
taxes.
Section 6. Income
Taxes. Award Recipient acknowledges that any income for
federal, state or local income tax purposes that Award Recipient is required to
recognize on account of the vesting of the Units and issuance of the Shares to
Award Recipient shall be subject to withholding of tax by the
Company. In accordance with administrative procedures established by
the Company, Award Recipient may elect to satisfy Award Recipient’s minimum
statutory withholding tax obligations, if any, on account of the vesting of the
Units and/or issuance of Shares, in one or a combination of the following
methods: in cash or by separate check made payable to the Company
and/or by authorizing the Company to withhold from the Shares to be issued to
the Award Recipient a sufficient number of whole Shares distributable in
connection with such Award equal to the applicable minimum statutory withholding
tax obligation. In the event Award Recipient 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 Award Recipient and the Company until such payment has been made or
arrangements for such payment satisfactory to the Company have been
made.
Section 7. No Right to
Employment. Neither the Plan nor this Agreement shall be
deemed to give Award Recipient any right to continue to be employed by 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 the Award Recipient at any
time. For purposes of this Agreement and unless otherwise determined
by the Committee, a change in the Award Recipient's status from employee to
non-employee shall constitute a termination of employment
hereunder.
Section 8. Further
Assistance. Award Recipient
will provide assistance reasonably requested by the Company in connection with
actions taken by Award Recipient while employed by 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 Award
Recipient was employed by the Company.
Section 9. Confidentiality. Award
Recipient acknowledges that the business of the Company is 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 their business to obtain a competitive
advantage over competitors. Award Recipient 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. Award Recipient acknowledges
that by reason of Award Recipient’s duties to and association with the Company,
Award Recipient 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. Award Recipient hereby agrees that Award Recipient will not,
at any time, 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. Award Recipient
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 Award Recipient’s legal rights and
obligations as an employee or under this Agreement are at issue; provided,
however, that Award Recipient shall, to the extent practicable and lawful in any
such events, give prior notice to the Company of Award Recipient’s intent to
disclose any such confidential business information in such context so as to
allow the Company an opportunity (which Award Recipient 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. In addition to
any other remedy available at law or in equity, in the event of any breach by
Award Recipient of the provisions of this Section 9 which is not waived in
writing by the Company, all vesting of the Units shall cease effective upon the
occurrence of the actions or inactions by Award Recipient constituting a breach
by Award Recipient of the provisions of this Section 9.
Section 10. Binding Effect;
No Third Party Beneficiaries. This Agreement shall be binding
upon and inure to the benefit of the Company and Award Recipient 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 Award Recipient and their respective
heirs, representatives, successors and permitted assigns. The parties
agree that this Agreement shall survive the issuance of the Shares.
Section 11. Agreement to
Abide by Plan; Conflict between Plan and Agreement. The Plan
is hereby incorporated by reference into this Agreement and the Plan is made a
part hereof as though fully set forth in this Agreement. Award
Recipient, 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. Award Recipient accepts as binding, conclusive and final all
decisions or interpretations of the Committee (or its designee) of the Plan upon
any question arising under the Plan, and this Agreement (including, without
limitation, the date of any termination of Award Recipient’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, except to the extent that the Plan gives the Committee
express authority to vary the terms of the Plan by means of this Agreement, in
which case, this Agreement shall govern.
Section 12. Entire
Agreement. Except as otherwise provided herein, the Plan and
this Agreement constitute the entire agreement between the parties and supersede
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 13. 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 14. 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 on the signature page or Exhibit
A. 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.
(i)
Section 15. 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 16. 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, Alpha may, in its sole discretion and without
the Award Recipient's consent, modify or amend the terms of this Agreement,
impose conditions on the timing and effectiveness of the issuance of the Shares,
or take any other action it deems necessary or advisable, to cause this Award to
be excepted from Section 409A of the Code (or to comply therewith to the extent
Alpha determines it is not excepted).
Section 17. Acknowledgments.
(a) By
accepting the Units, the Award Recipient acknowledges receipt of a copy of the
Plan and the prospectus relating to the Units, and agrees to be bound by the
terms and conditions set forth in the Plan and this Agreement, 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
Committee’s or its designees discretion. Both Internet Email and the
World Wide Web are required in order to access documents
electronically.
(c) This
Award is intended to be excepted from coverage under Section 409A of the Code
and the regulations promulgated thereunder and shall be interpreted and
construed accordingly. Notwithstanding, Award Recipient recognizes
and acknowledges that Section 409A of the Code may impose upon the Award
Recipient certain taxes or interest charges for which the Award Recipients and
shall remain solely responsible.
(d) Award
Recipient acknowledges that, by receipt of this Award, Award Recipient has read
this Section 17 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 17. Award Recipient
acknowledges that Award Recipient may receive from the Company a paper copy of
any documents delivered electronically at no cost if Award Recipient 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. Award Recipient
further acknowledges that Award Recipient will be provided with a paper copy of
any documents delivered electronically if electronic delivery
fails.
[Remainder
of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the
parties hereto have signed this Agreement as of this ____________,
2009.
By ____________________________
Name:
Title:
Address:
Xxx Xxxxx Xxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Attn: [Vice President of Human
Resources]
AWARD
RECIPIENT
________________________________________
EXHIBIT
A
Name
of Award Recipient:
Address
of Award Recipient:
Issue
Date: ________________, 2009
Number
of Units Subject to Award:
Vesting
Period/Schedule:
