Alpha Natural Resources, Inc.
EXHIBIT
10.36
2005
Long-Term Incentive Plan
(Amended
and Restated on November 8, 2007)
This Director Deferred Compensation Agreement, as amended (this
“Agreement”), is entered into by and between Alpha Natural Resources, Inc., a Delaware corporation (the
“Company”), and __________________________ (“Director”), effective
January 1, 2008.
RECITALS
WHEREAS, the Company has established the Alpha
Natural Resources, Inc. 2005 Long-Term Incentive Plan (the “Plan”) to advance
the interests of the Company and its stockholders by providing incentives to
certain eligible persons who contribute significantly to the strategic and
long-term performance objectives and growth of the Company and any parent,
subsidiary or affiliate of the Company. All capitalized terms not
otherwise defined in this Agreement have the same meaning given such capitalized
terms in the Plan.
WHEREAS, the Board of Directors of the Company
(the “Board”) has authorized the grant by the Company to Non-Employee Directors
of the Board, in consideration for serving on the Board and, in the case of (iv)
and (v) below, as applicable, committees of the Board, the following cash
compensation: (i) an annual cash retainer (“Annual Board Retainer”); (ii) in the
case of the Lead Independent Director, an annual cash retainer (the "Annual Lead
Director Retainer"); (iii) fees for attending Board meetings (“Board Meeting
Fees”); (iv) an annual cash retainer for serving as the chairman of a committee
of the Board (“Annual Committee Chair Retainer”); and (v) fees for attending
Board committee meetings (“Committee Meeting Fees”, and together with the Annual
Board Retainer, Annual Lead Director Retainer, Board Meeting Fees and Annual
Committee Chair Retainer, “Compensation”);
WHEREAS, pursuant to Section 11 of the Plan, a
Non-Employee Director may elect to defer delivery of Compensation that would
otherwise be payable to the Non-Employee Director under the Plan, with the
permission of and on such terms as are established by the Committee (as such
term is defined in the Plan) in its discretion;
WHEREAS, the Committee has determined that a
Non-Employee Director may elect to defer the receipt of such Compensation, on
the terms set forth in this Agreement, by entering into this Agreement and
executing and delivering to the Company an Election Form (as defined below) to
that effect;
WHEREAS, Director is a Participant for purposes
of the Plan;
WHEREAS, the Company and Director desire to
establish the terms upon which Director may elect to defer all or a portion of
his or her Compensation;
WHEREAS, the Company and Director desire to
clarify, amend and restate the terms and conditions under which deferrals,
including prior deferrals, are governed; and
WHEREAS, pursuant to the provisions of the
Plan, the Committee or its Designated Administrator has full power and authority
to direct the execution and delivery of this Agreement in the name and on behalf
of the Company, and has authorized the execution and delivery of this
Agreement.
NOW, THEREFORE, in consideration of the mutual
covenants and promises contained herein, and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties agree as
follows:
AGREEMENT
Section
1. Election
to Defer. Director may elect to
defer, in accordance with the terms set forth in Section 2 of this Agreement,
receipt of up to 100% of the Compensation payable to him or her until
the date of a distribution event described in Section 4. If such an
election is made, the Compensation shall, at the election of the Director,
either be credited to the Cash Account (as defined below) established for the
Director, or credited to the Director’s Share Unit Account, and converted to
Share Units pursuant to Section 3 of this Agreement.
Section
2. Deferral
Election and Election Form. Director may make an
election to defer up to 100% of the Compensation payable to him or
her by completing and delivering an election form in the form attached hereto as
Exhibit
A(the “Election Form”) to
the Company. An Election Form delivered to the Company with respect
to Compensation shall indicate whether the amount of such Compensation shall be
credited to the Director’s Cash Account or Share Unit Account; provided, that if an Election Form delivered to
the Company with respect to Compensation does not indicate whether the amount of
such Compensation shall be credited to the Director’s Cash Account or Share Unit
Account, the amount of such Compensation shall be credited to the Director’s
Cash Account. An Election Form effective for Compensation payable to
he Director must be delivered to the Company prior to the first day of the
calendar year in which the Director's annual service period begins and shall
apply only to Compensation earned and otherwise payable for service periods
beginning after the end of the calendar year in which such Election Form is
delivered to the Company. If, however, the Director is newly eligible
to participate in the Plan, the Director may make an election and deliver the
Election Form to the Company within 30 days after the date on which Director
initially became eligible to defer such Compensation and otherwise participate
in the Plan; provided, however, any such Election Form will apply
only to Compensation earned and payable after the date on which the Election
Form is delivered to the Company. An Election Form will remain
in effect from year to year and be irrevocable unless otherwise changed in a
timely manner;
provided, however, if the Director suffers a disability, receives a distribution
on account of Unforeseeable Emergency or dies, the Director's deferral election
shall be cancelled. For purposes of this Section, a
disability refers to any medically determinable physical or mental impairment
resulting in the Director’s inability to perform the duties of his or her
position or any substantially similar position, where such impairment can be
expected to result in death or can be expected to last for a continuous period
of not less than six months. A new Election Form shall apply only to
Compensation earned and otherwise payable for service periods beginning in
calendar years after the last day of the calendar year in which the revised
Election Form is delivered to the Company.
Section
3. Director
Accounts.
(a) Share
Unit Accounts.
(i)
Compensation deferred and elected
by the Director to be credited to the Director’s Share Unit Account, as provided
in the Election Form delivered to the Company pursuant to Section 2 of this
Agreement, shall be credited to the Director’s share unit bookkeeping account
(the “Share Unit Account”). The amount so credited to each Share Unit
Account shall be equal to the amount of such Compensation, converted as of the
payment dates established by the Committee into share units (the “Share Units”)
equivalent to whole Shares based on the Fair Market Value of a Share on such
payment date. For purposes of this Agreement, “Fair Market Value”
shall mean the closing price per share of the Company’s common stock as reported
on The New York Stock Exchange, or if such date is not a regular trading date on
such exchange, on the next following regular trading date. The number
of Share Units for full Shares so determined shall be credited to the Director’s
Share Unit Account. Any unconverted balance remaining in the
Director’s Share Unit Account after such conversion, together with other
subsequent credits of deferred Compensation thereto, shall be converted into
Share Units to the extent possible on the next designated payment
date.
(ii)
Additional credits shall be made
to the Director’s Share Unit Account equal to the cash dividends (or the fair
market value of dividends paid in property other than Shares) that the Director
would have received had he or she been the owner on each cash dividend record
date of a number of Shares equal to the number of Share Units in his or her
Share Unit Account on such date. In the case of a dividend paid in
Shares or a common stock split, additional credits will be made to a Director’s
Share Unit Account of a number of Share Units equal to the number of full Shares
that the Director would have received had he or she been the owner on each
record date of a number of Shares equal to the number of Share Units in his or
her Share Unit Account on such date. Any cash dividends (or dividends
paid in property other than Shares) shall be distributed to the Director on or
before December 31 of each year, as applicable. In the event of a
stock split, stock dividend, reclassification, reorganization, redesignation, or
other change in the Company’s capitalization, the number of Share Units in the
Director’s Share Unit Account shall be proportionately adjusted or substituted
to reflect such change.
(b) Cash
Accounts. Compensation deferred and
elected by the Director to be credited to the Director’s Cash Account, as
provided in the Election Form delivered to the Company pursuant to Section 2 of
this Agreement, shall be credited as a dollar amount to the Director’s cash
bookkeeping account (the “Cash Account”). The amount so credited to
each Cash Account shall be equal to the amount of the Compensation on the
payment dates therefor specified by the Committee. Interest
on the amount of the Cash Account shall be credited thereto as of the last day
of each calendar quarter and shall accrue at the rate of the Xxxxx'x AAA
corporate bond rate or such other rate as approved by the Board and/or
Committee.
(c) Book-entry
Accounts. Each
Share Unit Account and Cash Account (together, the “Director Accounts”) shall be
maintained on the books of the Company until full payment of the balance thereof
has been made to the applicable Director (or the beneficiaries of a deceased
Director) as provided under the terms of this Agreement. No funds
shall be set aside or earmarked for any Director Account, which shall be purely
a bookkeeping device.
Section 4.
Distribution
of Director Accounts.
(a) Distribution
of Share Unit Accounts. Upon the Director’s
Separation from Service (as defined below), the Company shall distribute the
Director’s Share Unit Account to the Director in the form of Shares (which may
be originally issued Shares or treasury Shares held by the Company or one or
more of its subsidiaries) in a lump sum on the six month anniversary of the date
the Director Separates from Service (or, if sooner, the date of the Director's
death).
(b) Distribution
of Cash Accounts. Upon the Director’s
Separation from Service, the Company shall distribute the Director’s Cash
Account to the Director in the form of cash in a lump sum on the six month
anniversary of the date the Director Separates from Service (or, if sooner, the
date of the Director's death).
(c) Special
Circumstances.
(i)
Notwithstanding any provision
herein to the contrary, the Director shall receive the Shares and cash
attributable to his or her Director Accounts in a single lump sum within 30 days
after any of the following events (each, a “Change in
Control”):
(A)
a person, or several persons
acting as a group, acquires more than 50% of the outstanding stock of the
Company (which stock remains outstanding), measured by voting power or fair
market value; persons will not be considered to be “acting as a group” solely
because they purchase or own stock of the same corporation at the same time, or
as a result of the same public offering; persons will be considered to be
“acting as a group” if they are owners of an entity that enters into a merger,
consolidation, reorganization, or purchase or acquisition of stock, in which the
Company is not the surviving entity, or as otherwise provided in the applicable
guidance issued under Section 409A;
(B)
a person, or several persons
acting as a group, acquires, during any 12-month period ending on the date of
the most recent acquisition by such person or persons, 30% or more of the
outstanding voting stock of the Company;
(C)
a majority of the members of the
Board are replaced during any 12-month period by members whose appointment or
election is not endorsed by a majority of the members of the Board before the
date of appointment or election; or
(D)
a person, or several persons
acting as a group, acquires (or has acquired during any 12-month period ending
on the date of the most recent acquisition by such person or persons) assets
from the Company that have a total gross fair market value equal to or greater
than 40% of the total gross fair market value of the Company’s assets
immediately prior to such acquisition or acquisitions; “gross fair market value”
means the value of the assets of the Company, or the value of the assets being
disposed of, determined without regard to any liabilities associated with such
assets.
(ii)
Notwithstanding any provision
herein to the contrary, the Director may apply to the Committee or Designated
Administrator for a lump sum distribution from the Director Accounts upon the
occurrence of an Unforeseeable Emergency (as defined below). Amounts
distributed in the case of an Unforeseeable Emergency shall not exceed the
amount necessary to satisfy such Unforeseeable Emergency plus amounts necessary
to pay taxes and penalties reasonably anticipated as a result of such
distribution. In making the forgoing determination, the Committee or
Designated Administrator shall consider the extent to which the Director’s
financial hardship resulting from the Unforeseeable Emergency is or may be
relieved through reimbursement or compensation by insurance or otherwise, or by
liquidation of his or her assets (to the extent such liquidation would not
itself cause severe financial hardship). For purposes of this
Agreement, “Unforeseeable Emergency” means that the Director experiences a
severe financial hardship resulting from one of the following: an
illness or accident of the Director, his or her spouse, beneficiary or dependent
(as
defined in § 152(a) of the Code, without regard to Section 152(b)(1), (b)(2) and
(d)(1)(B)); the need
to pay for the funeral expenses of a spouse, beneficiary or dependent (as
defined above);loss of the
Director’s property due to casualty; or other similar extraordinary and
unforeseeable circumstances arising from events beyond the Director’s
control.
(d) Manner
of Payment/Beneficiary Designation.
Upon distribution pursuant to this
Section 4, the Company, or its designee, shall deliver to the Director a
certificate, or other evidence of ownership, representing a number of Shares
equal to the number of Share Units in the Director’s Share Unit Account,
registered in the name of such Director (or his or her beneficiaries), and any
remaining cash shall be distributed to the Director (or his or her
beneficiaries), together with the cash distributed from the Cash
Account. In the event of the Director’s death, payment of any amount
due under this Agreement shall be made to the beneficiary or beneficiaries
designated by the Director in a writing delivered to the Company. If
the Director fails to designate a beneficiary, payment of any amount due under
the Agreement shall be made to the duly appointed and qualified executor or
other personal representative of the Director to be distributed in accordance
with his or her will or applicable intestacy law; or in the event that there
shall be no such representative duly appointed and qualified within six months
after the date of death, then to such persons as, at the date of the Director’s
death, would be entitled to share in the distribution of such Director’s
personal estate under the provisions of the applicable statute then in force
governing the descent of intestate property, in the proportions specified in
such statute.
Notwithstanding any other provision of
this Agreement, if a Director’s service as a member of the Board is terminated,
the Director shall not be entitled to any Compensation for any period of time
after the Director’s termination.
(e) Section
409A.
It is intended that distribution
events authorized under this Agreement qualify as a permissible distribution
events for purposes of Section 409A of the Code, and this Agreement shall be
interpreted and construed accordingly in order to comply with Section 409A of
the Code, the regulations and other binding guidance promulgated thereunder
("Section 409A"). This Agreement and all deferral elections made
hereunder shall be administered, interpreted and construed in accordance with
Section 409A. The Company reserves the right to
accelerate, delay or modify distributions to the extent permitted under Section
409A. For purposes of this Agreement, "Separation from Service" shall mean the
Director's death, retirement or other termination of service with the Company
and all of its controlled group members within the meaning of Section 409A of
the Code. For purposes hereof, the determination of controlled group
members shall be made pursuant to the provisions of Section 414(b) and 414(c) of
the Code; provided that the language "at least 50 percent" shall be used instead
of "at least 80 percent" in each place it appears in Section 1563(a)(1),(2) and
(3) of the Code and Treas. Reg. § 1.414(c)-2; provided, further, where
legitimate business reasons exist (within the meaning of Treas. Reg. §
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 the Director has
a Separation from Service will be determined based on all of the facts and
circumstances and in accordance with the guidance issued under Section 409A.
Notwithstanding any provision herein to the contrary, if the Director is a
"specified employee" for purposes of Section 409A any payment to the Director
due upon Separation from Service will be delayed for a period of six (6)
months after the date the Director Separates from Service (or, if earlier, the
death of the Director).
Section 5.
Nontransferability. Director Accounts, and any
rights and privileges pertaining thereto, may not be transferred, assigned,
pledged or hypothecated in any manner, by operation of law or otherwise, other
than (i) by will or by the laws of descent and distribution or (ii) if permitted
by the Committee and to the extent allowed by the Code and by law, to a grantor
trust in which the Director is the sole beneficial owner pursuant to Code
Section 671 and state law, and shall not be subject to execution, attachment or
similar process.
Section
6. Director’s
Rights Unsecured. The right of the Director
or his or her beneficiary to receive a distribution hereunder shall be an
unsecured claim against the general assets of the Company, and neither the
Director nor his or her beneficiary shall have any rights in or against any
amounts credited to the Director’s Share Unit Account, Cash Account or any other
specific assets of the Company. All amounts credited to the
Director’s Share Unit Account or Cash Account shall constitute general assets of
the Company and may be disposed of by the Company at such time and for such
purposes as it may deem appropriate.
Section 7.
Tax
Advisor. Nothing
contained in this Agreement is intended, nor shall it be construed, as providing
advice to the Director regarding the tax consequences of this Agreement and the
Election Form to the Director. The Company urges the Director to
consult his or her own personal tax advisor to determine the particular tax
consequences of this Agreement and the Election Form to the Director, including
the effect of federal, state and local taxes, and any changes in the tax laws
from the date of this Agreement.
Section 8.
Company’s
Election to Terminate. At any time and for any
reason, the Board may terminate the Agreement; provided however, that any such
termination shall not reduce the accrued benefit of any
Director. Termination of this Agreement shall not be a
distribution event under the Plan or this Agreement unless otherwise permitted
under Section 409A of the Code or other applicable law.
Section
9. Withholding
for Taxes and other Deductions. The Company shall have the
right to deduct from any Compensation, or from any deferral, distribution or
payment thereof or withdrawal therefrom, any applicable taxes that the Company
is required by applicable law to withhold and any amounts owed by the Director
to the Company.
Section
10. No
Right to Directorship.
Nothing contained in the Plan, this Agreement, any Election Form or other
related document shall be construed to (a) confer upon Director any right
to continue to serve as a director of the Company, (b) restrict in any way
the Company’s right to terminate or change the terms or conditions of Director’s
directorship at any time, or (c) confer upon Director or any other person
any claim or right to any Compensation or other Award or distribution under this
Agreement or the Plan except in accordance with their terms.
Section
11. No
Rights as a Stockholder. Director shall have
no voting or any other rights as a stockholder of the Company with respect to
the Share Units. Upon, but not prior to, distribution of the Share Unit Accounts
in the form of Shares to Director (in accordance with Section 4 hereof),
Director shall have all of the rights of a stockholder of the
Company. Director’s right to receive Shares under this Agreement
shall be no greater than the right of any unsecured general creditor of the
Company.
Section
12. Further
Assurances. Director will
provide assistance reasonably requested by the Company in connection with
actions taken by Director while serving as a director of 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 Director was
serving as a director of the Company.
Section
13. Confidentiality. Director
acknowledges that the business of the Company is highly competitive and that the
Company’s strategies, methods, books, records and documents, technical
information concerning its products, equipment, services and processes,
procurement procedures and pricing techniques, and 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. Director 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. Director acknowledges that by reason of
Director’s duties to and association with the Company, Director 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. Director
hereby agrees that he or she 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 responsibilities
as a member of the Board. Director 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 Director’s legal rights and
obligations as a director or under this Agreement are at issue; provided however,
that Director shall, to the extent practicable and lawful in any such events,
give prior notice to the Company of Director’s intent to disclose any such
confidential business information in such context so as to allow the Company an
opportunity (which Director 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 Director of the
provisions of this Section 13 which is not waived in writing by the Company, all
Shares and cash in the Director Accounts shall be forfeited to the Company upon
the occurrence of the actions or inactions by Director constituting a breach by
Director of the provisions of this Section 13.
Section 14.
Expenses. Costs of administration of
this Agreement will be paid by the Company.
Section
15. Notices. All notices, requests,
demands, claims and other communications under this Agreement (including,
but not limited to, the Election Form) 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 in the
Company records. 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 10.
Section 16.
Waiver. No waiver by any party at
any time of any breach by any other party of, or compliance with, any condition
or provision of this Agreement to be performed by any other party shall be
deemed a waiver of any other provisions or conditions at the same time or at any
prior or subsequent time.
Section
17. Binding
Effect; No Third-Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of the Company and the Director 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 Director and their respective heirs,
representatives, successors and permitted assigns.
Section 18.
Agreement
to Abide by Plan; Conflict between Plan and Agreement. The Plan is hereby
incorporated by reference into this Agreement and made a part hereof as though
fully set forth in this Agreement. Director, 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. Director accepts as
binding, conclusive and final all decisions or interpretations of the Committee
or Designated Administrator of the Plan upon any question arising under the Plan
and this Agreement (including, without limitation, the date of any termination
of the Director’s term of service as a director of the Company). In
the event of any conflict between the Plan and this Agreement and/or a Election
Form, the Committee shall have exclusive authority and discretion to reconcile
such conflict, and in the absence of any such determination, the Plan shall
govern.
Section
19. Entire
Agreement. Except as otherwise
provided herein, in any Company plan applicable to the Director, or in any other
agreement between the Director and the Company, this Agreement, the Election
Form and the Plan, which the Director has reviewed and accepted in connection
with the grant of the Compensation reflected by 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 20.
Interpretation;
Amendment. No
amendment or modification of the terms of the Agreement shall be binding on the
parties hereto unless reduced to writing and signed by the Director and the
Company; provided, however, that the Company may, in its sole
discretion and without the Director’s consent, modify or amend the terms of this
Agreement or a deferral election, or take any other action it deems necessary or
advisable, to cause this Agreement to comply with Section 409A (or an exception
thereto). Director recognizes and acknowledges that Section 409A may
impose upon the Director certain taxes or interest charges for which the
Director is and shall remain solely responsible.
Section
21. 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
22. Counterparts. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original but all of which together shall constitute one and the same
instrument.
Section 23.
Severability. In the event any provision
of this Agreement is held illegal or invalid, the remaining provisions of this
Agreement shall not be affected thereby.
Section 24.
Acknowledgements.
(a)
By submitting an Election Form, the Director acknowledges receipt of a copy of
the Plan, and the prospectus relating to the Shares, and agrees to be bound by
the terms and conditions set forth in the Plan, the Election Form and this
Agreement, as in effect and/or amended from time to time.
(b)
RESERVED.
(c)
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 the Director 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 Designated Administrator’s
discretion. Both Internet Email and access to the World Wide Web are
required in order to access documents electronically.
(d)
By submitting an Election Form, the Director acknowledges that he or she has
read this Section 24 and consents to the electronic delivery of the Plan and
related documents, as described herein. Director acknowledges that he or
she may receive from the Company a paper copy of any documents delivered
electronically at no cost if Director 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. Director further acknowledges
that he or she will be provided with a paper copy of any documents delivered
electronically if electronic delivery fails.
IN WITNESS
WHEREOF, the parties have
executed this Agreement as of the date first written above.
________________________
By
__________________________________
Date
Its
___________________________________
DIRECTOR
_________________________
______________________________________
Date
[Name]
Election, Deferral and Beneficiary
Designation Form
for Non-Employee
Directors
under the Alpha Natural Resources, Inc.
2005 Long-Term Incentive Plan
I, ___________________________, a director of Alpha Natural Resources,
Inc., a Delaware corporation (the “Company”), pursuant to the Director Deferred
Compensation Agreement, by and between me (as the “Director”) and the Company
(the “Agreement”), hereby make the following elections with respect to my
Compensation (as defined in the Agreement) on the date indicated below, subject
to the terms and conditions of the Agreement. Capitalized terms used
herein but not otherwise defined have the meanings given to such terms in the
Agreement.
1.
Irrevocable
Elections Regarding Deferral of Compensation
a.
Election
Regarding Deferral of Annual Board Retainer
_____
|
TO
DEFER receipt of 100% of the Annual Board Retainer that is otherwise
payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 100% of the Annual Board Retainer that is otherwise
payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Board Retainer that is otherwise
payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Board Retainer that is otherwise
payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
NOT
TO DEFER receipt of the Annual Board Retainer payable to me.
|
b.
Election
Regarding Deferral of Annual Lead Director Retainer
_____
|
TO
DEFER receipt of 100% of the Annual Lead Director Retainer that is
otherwise payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 100% of the Annual Lead Director Retainer that is
otherwise payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Lead Director Retainer that is
otherwise payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Lead Director Retainer that is
otherwise payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
NOT
TO DEFER receipt of the Annual Lead Director Retainer payable to me.
|
|
c.
|
Election
Regarding Deferral of Annual Committee Chair
Retainer
|
_____
|
TO
DEFER receipt of 100% of the Annual Committee Chair Retainer that is
otherwise payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 100% of the Annual Committee Chair Retainer that is
otherwise payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Committee Chair Retainer that is
otherwise payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 50% of the Annual Committee Chair Retainer that is
otherwise payable to me, and to credit such amount to my Share Unit Account.
|
_____
NOT TO DEFER receipt of the Annual Committee Chair Retainer payable to
me.
d.
Election
Regarding Deferral of Board Meeting Fees
_____
|
TO
DEFER receipt of 100% of the Board Meeting Fees that are otherwise payable
to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 100% of the Board Meeting Fees that are otherwise payable
to me, and to credit such amount to my Share Unit Account.
|
_____
|
TO
DEFER receipt of 50% of the Board Meeting Fees that are otherwise payable
to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 50% of the Board Meeting Fees that are otherwise payable
to me, and to credit such amount to my Share Unit Account.
|
_____ NOT
TO DEFER receipt of the Board Meeting Fees payable to me.
|
e.
|
Election
Regarding Deferral of Committee Meeting
Fees
|
_____
|
TO
DEFER receipt of 100% of the Committee Meeting Fees that are otherwise
payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 100% of the Committee Meeting Fees that are otherwise
payable to me, and to credit such amount to my Share Unit Account.
|
_____
|
TO
DEFER receipt of 50% of the Committee Meeting Fees that are otherwise
payable to me, and to credit such amount to my Cash Account.
|
_____
|
TO
DEFER receipt of 50% of the Committee Meeting Fees that are otherwise
payable to me, and to credit such amount to my Share Unit Account.
|
_____
NOT TO DEFER receipt of the Committee Meeting Fees payable to me.
2.
Terms
Common to the Elections
With respect to the foregoing elections,
I understand that:
(a)
except as specified below,
I understand that this deferral election shall be subject to the terms
and conditions of the Agreement, as amended, and will remain in effect from year
to year and be irrevocable unless otherwise changed by me in a timely manner or
otherwise terminated in accordance with the terms of the Agreement;
(b)
if I have filed this Election Form
within 30 calendar days of the date on which I first become eligible to make
elections with respect to my Compensation under the Agreement, the election(s) I
have made will be effective for the Compensation that I earn and that is payable
to me after the date that I file this Election Form with the
Company;
(c)
neither I nor my legal
representative shall be, or have any of the rights and privileges of, a
stockholder of the Company with respect to any Shares payable upon distribution
of a deferred Share Unit unless and until certificates for such Shares, or other
evidence of ownership, have been issued and delivered to me;
(g)
this Election Form is intended to
comply with Section 409A and shall be administered, interpreted and construed
accordingly;
(h)
this Election Form shall become
irrevocable as of the close of business on each December 31st of the calendar
year preceding the calendar year that contains the start of the service period
to which it applies (or immediately with respect to initial eligibility
elections), and shall be cancelled only upon the death or disability of the
Director or an Unforeseeable Emergency to the extent consistent with Section
409A;
(i)
the Company has not and will not
provide me with any advice or opinion regarding the tax consequences of this
election and the Agreement, and I am solely responsible for obtaining my own tax
advisor with respect to these matters;
(j)
the Company shall not be liable
for, and nothing provided or contained in this Election Form, the Agreement or
the Plan will be construed to obligate or cause the Company to be liable for,
any tax, interest or penalties imposed on the Director related to or arising
with respect to any violation of Section 409A; and
(k)
in the event of any discrepancy
between the Agreement and this Election Form, the Agreement shall
control.
If I shall cease to be a director of the
Company by reason of my death, or if I shall die after I become entitled to a
distribution under the Agreement but prior to receipt of the entire distribution
to which I am entitled, then all of the distribution to which I am entitled
under the Agreement and which has not been distributed to me at the date of my
death shall be distributed to ____________________________ (insert name of
beneficiary). If no beneficiary is named, distributions shall be made
as provided in the Agreement.
Date:
________________________ ______________________________________
[Name]
Receipt acknowledged on behalf of the
Company:
Date:
By
___________________________________
________________________
Its
____________________________________