MASSEY ENERGY COMPANY Amended and Restated Incentive Award Agreement (Based on Cumulative Earnings Before Taxes)
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ENERGY COMPANY
Amended
and Restated
(Based
on Cumulative Earnings Before Taxes)
THIS
AGREEMENT dated as of December 31, 2009, between ▇▇▇▇▇▇ ENERGY COMPANY, a
Delaware Corporation (the “Company”) and [________] (“Participant”) is made
pursuant and subject to the provisions of the ▇▇▇▇▇▇ Energy Company 2006 Stock
and Incentive Compensation Plan, as amended from time to time (the “Plan”), a
copy of which is attached. This Agreement amends, restates and
replaces that certain Incentive Award Agreement (Based on Cumulative Earnings
Before Taxes) dated as of November 9, 2009 between the Company and
Participant. All terms used herein that are defined in the Plan have
the same meaning given them in the Plan.
1. Incentive
Award. Pursuant to the
Plan, the Company, on November 9, 2009 (the “Grant Date”), awarded to
Participant, subject to the terms and conditions of the Plan and subject further
to the terms and conditions herein set forth, the opportunity to earn a cash
payment based on the satisfaction of the performance criteria set forth in
Paragraph 3 below (the “Incentive Award”).
2. Definitions.
(a) Earnout Period
means the three year period from January 1, 2010
through December 31,
2012 (“Earnout Period”).
(b) Performance
Period EBT means the Company’s cumulative earnings before taxes, for the
three fiscal years of the Company ending December 31, 2010,
December 31,
2011, and December 31, 2012
(the “Performance Period EBT”), all as confirmed by the Company’s Chief
Financial Officer and the Chairman of the Compensation Committee (“Committee”);
provided, however, that extraordinary, unusual or infrequently occurring events
and transactions, may, in the sole discretion of the Committee, be excluded
pursuant to the Plan in such determination.
3. Amount of
Award. Subject to
Paragraph 5 and except as provided in Paragraph 4 below, Participant’s
Incentive Award will be calculated under the amount and formula shown in column
(b) below, based on satisfaction of the criteria set forth in column (a)
below:
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(a)
Performance Period EBT
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(b)
Participant’s Incentive
Award
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High
Target
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$[________]
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$[________]
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Middle
Target
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$[________]
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$[________]
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Low
Target
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$[________]
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$[________]
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If the
Performance Period EBT falls between any target amounts, the amount of
Participant’s Incentive Award is calculated proportionately between the two
nearest target levels. No Incentive Award will be paid if the
Performance Period EBT is less than the low target of $[ ]
million and no increase to the Incentive Award will be made for
cumulative earnings before taxes above the high target of $[ ]
million.
Participant’s
Incentive Award for the Earnout Period, to the extent earned, will be paid in
cash no later than the March 15 immediately following the calendar year in which
the Earnout Period ends.
4. Death or
Disability. If Participant
dies or becomes permanently and totally disabled within the meaning of Section
22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”)
(“Permanently and Totally Disabled”) while in the employ or service of the
Company or a Subsidiary within the Earnout Period, Participant or Participant’s
estate will be entitled to receive a pro rata portion of Participant’s Incentive
Award as calculated pursuant to Section 3, based on the portion of the Earnout
Period elapsed prior to Participant’s death or becoming Permanently and Totally
Disabled.
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5. Forfeiture. Participant’s
right to receive an Incentive Award is forfeited if Participant’s employment or
service with the Company and its Subsidiaries terminates during the Earnout
Period 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, if Participant's employment is terminated
during the Earnout Period by the Company or an Affiliate without Cause within
two years following a Change in Control that occurs on or after the date of this
Agreement and on or before the end of the Earnout Period, the Company shall pay
Participant in cash a lump sum amount equal to $__________ within ten (10) days
after his termination of employment. 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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▇▇▇▇▇▇
Energy Company
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▇▇▇▇▇▇
Energy Company
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Attention:
Corporate Secretary
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Attention:
Corporate Secretary
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▇▇▇▇▇▇▇▇,
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▇▇▇▇▇▇▇▇,
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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 Incentive Award are
conditioned upon Participant not disclosing the terms of this Agreement or the
receipt of the Incentive Award to anyone other than Participant’s spouse,
confidential financial advisor, or senior management of the Company prior to end
of the Earnout Period. 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 Incentive Award will be forfeited.
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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.
11. 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. 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.
14. 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.
15. 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, thereby
evidencing his agreement hereto.
▇▇▇▇▇▇
ENERGY COMPANY
By:
__________________________
Name:
Its:
_____________________________
[Participant]
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