Alpha Natural Resources, Inc. 2005 Long-Term Incentive Plan Restricted Stock Unit Award Agreement for employees
Exhibit 99.13
Alpha Natural Resources, Inc.
2005 Long-Term Incentive Plan
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
2
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
X
|
= | the additional number of Shares which will become subject to your Award by reason of the cash dividend; | ||
A
|
= | the number of unissued Shares subject to this Award as of the record date for such dividend; | ||
3
B
|
= | the per Share amount of the cash dividend; and | ||
C
|
= | 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. |
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
4
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
5
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.
6
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 __________
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]
7
EXHIBIT A
Name of Award Recipient:
Issue Date: ___, 200___
Number
of Shares Subject to Award: shares of Alpha’s common stock
Vesting Period/Schedule:
8
