Alpha Natural Resources, Inc.
Exhibit
10.18
2005
Long-Term Incentive Plan
Restricted
Stock Unit Award Agreement for employees
This
Restricted Stock Unit Award 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 delivery of this Agreement in the name and on behalf of Alpha, and
has authorized the delivery of this Agreement.
Agreement
The
parties agree as follows:
Section 1. Issuance of
Stock.
(a) 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. Except as otherwise provided herein, the shares of Alpha
Common Stock which vest each year under your Unit Award will be issued to you on
the vesting date or if the vesting date is not a business day, on the
immediately following business day (or as soon as reasonably practicable but in
no event later than the 15th day of the third month following such date),
subject to your satisfaction of all applicable income and employment withholding
taxes. For purposes of this Agreement, the "Shares" of
Common Stock 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.
(b) Notwithstanding
the foregoing or any provision of this Agreement or the Plan to the contrary,
the delivery of any vested Shares shall be delayed until six (6) months after
Award Recipient's Separation from Service to the extent required by Section
409A(a)(2)(B)(i) as
provided under the terms of the Plan.
Section 2. Vesting;
Restriction on Transfer and Forfeiture of Unvested Units.
(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 experiences a Separation from
Service or, if earlier, the date Award Recipient breaches the confidentiality
covenant as described 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.
(b) Except
as provided herein, the Units will vest according to the vesting schedule set
forth on Exhibit
A. Unless otherwise provided in a Company plan applicable to
Award Recipient or an agreement between the Award Recipient and the Company, if
any, if: (i) a Change of Control (as defined below) occurs, any
unvested Units shall vest immediately prior to the consummation of the Change of
Control; (ii) Award Recipient experiences a Separation from Service as a result
of Award Recipient’s Permanent Disability (as defined below), death or Normal
Retirement (as defined below), any unvested Units shall become vested as of such
Separation from Service; (iii) Award Recipient experiences a Separation from
Service as a result of Early Retirement (as defined below), any unvested Units
will vest 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 months in the vesting period; (iv) Award Recipient
experiences an involuntary Separation from Service as a result of the
dissolution or liquidation of Alpha or the Award Recipient's employer, any
unvested Units shall vest immediately prior to such dissolution or liquidation
event; or (v) Award
Recipient experiences an involuntary Separation from Service by the Company
other than for Cause (as defined below), then the number of Units that are
vested at the close of business on the date Award Recipient experiences an
involuntary Separation from Service by the Company shall be calculated as if
Award Recipient had been continuously employed by the Company for an additional
three months.
(c) For
purposes of this Agreement, the following terms shall have the following
meanings:
(i) the
term "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), or (D) 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. Notwithstanding
the foregoing or any provision of this Agreement or the Plan to the contrary, it
is intended that the foregoing definition of Change of Control qualify as a
change in the ownership or effective control of a corporation, or a change in
the ownership of a substantial portion of the assets of a corporation, within
the meaning of Treas. Reg. Section 1.409A-3(i)(5), and shall be interpreted and
construed to effectuate such intent;
(ii) the
term "Permanent
Disability" shall mean the Award Recipient is, by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or can be expected to last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not less than
three months under an accident and health plan covering employees of the Award
Recipient's employer;
(iii) the
term "Normal Retirement" shall mean (i) the date
Award Recipient reaches the age of 62 with ten (10) Years of Service or (ii) the
date Award Recipient reaches the age of 65;
(iv) the
term "Early
Retirement" shall mean a combination of age and Years of Service which
equals 80 (for example, an Award Recipient who reaches the age of 50 with thirty
(30) Years of Service);
(v) 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 the Award Recipient's Separation
from Service; and
(vi) the
term "Separation from
Service" shall mean the Award Recipient's death, retirement or other
termination of employment or service with the employer (including all persons
treated as a single employer under Sections 414(b) and 414(c)). For
purposes hereof, the determination of controlled group members shall be made
pursuant to the provisions of Sections 414(b) and 414(c); provided that the
language "at least 50 percent" shall be used instead of "at least 80 percent" in
each place that it appears in Section 1563(a)(1), (2) and (3) and Treas. Reg.
Section 1.414(c)-2; provided, further, where legitimate business reasons exist
(within the meaning of Treas. Reg. Section 1.409A-1(h)(3)), the language "at
least 20 percent" shall be used instead of "at least 80 percent" in each place
it appears. Whether an Award Recipient has experienced a Separation
from Service will be determined based on all of the facts and
circumstances in accordance with the guidance issued under Section
409A and, to the extent not inconsistent therewith, the terms of the
Plan.
(vii) the
term "Years
of Service" shall mean "years of eligible service" as determined for
purposes of the Alpha Natural Resources, LLC and Subsidiaries Retiree Medical
Benefit Plan (including any successor plan thereto).
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 the Award, then the number
of Shares at that time subject to your 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 the Company’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. Rights as an
Award Recipient. You will not have any stockholder rights,
including voting rights and actual dividend rights, with respect to the shares
subject to your Award until you become the record holder of those shares
following their actual issuance to you and your satisfaction of the applicable
withholding taxes.
Section 6. Taxes and
Withholdings. Award Recipient acknowledges that any income
for federal, state or local income tax purposes, including payroll taxes, that
the Award Recipient is required to recognize on account of the vesting of the
Units and/or 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. Notwithstanding any
provision herein to the contrary, in the event an Award becomes subject to FICA
taxes before the Shares under the Award would otherwise be issued, the Company
shall (and without providing the Award Recipient with an election) issue to the
Award Recipient a sufficient number of whole Shares under such Award, that does
not exceed the applicable minimum statutory withholding tax obligation with
respect to such FICA taxes and any federal, state or local income taxes that may
apply as a result of such accelerated issuance of Shares and the Company shall
withhold such Shares to satisfy such FICA and any related income tax liability;
provided, however, that any such accelerated issuance of Shares shall be made
only to the extent permitted under Treasury Regulations section
1.409A-3(j)(4)(vi). In the event Award Recipient does not make such
payments when requested or required, 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.
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 its 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 acceptance of this Award, (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 Award Recipient’s Separation from
Service). 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 relate 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 it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient at, in the case of the Company, the
address set forth in Section 18 herein and, in the case of the Award Recipient,
the most recent address provided by the Award Recipient to the
Company. 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 15. 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 comply with Section
409A (or, if applicable, to cause this Award to be excepted from Section
409A).
Section 16. Section
409A. This Award is
intended to comply with Section 409A (or an exception thereto) and the
regulations promulgated thereunder and shall be construed
accordingly. Notwithstanding, Award Recipient recognizes and
acknowledges that Section 409A may impose upon Award Recipient certain taxes or
interest charges for which Award Recipient is and shall remain solely
responsible.
Section 17. Legends. The
Company may at any time place legends referencing the provisions of this
Agreement, and any applicable federal or state securities law restrictions on
all certificates, if any, representing the Shares relating to this
Award.
Section 18. 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 designee's discretion. Both Internet Email and the
World Wide Web are required in order to access documents
electronically.
(c) Award
Recipient acknowledges that, by receipt of this Award, Award Recipient has read
this Section 18 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 18. 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.
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EXHIBIT
A
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Name
of Award Recipient:
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Issue
Date: ____________, 2009
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Number
of Units Subject to Award:
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Vesting
Period/Schedule:
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