Alpha Natural Resources, Inc. 2005 Long-Term Incentive Plan PERFORMANCE SHARE UNIT AWARD AGREEMENT FOR EMPLOYEES
EXHIBIT 10.44
Alpha Natural Resources, Inc.
2005 Long-Term Incentive Plan
2005 Long-Term Incentive Plan
PERFORMANCE SHARE UNIT AWARD AGREEMENT FOR EMPLOYEES
This Performance Share Unit Award Agreement set forth below (this “Agreement”) is dated as of
the grant date (the “Grant Date”) set forth on Exhibit A and is between Alpha Natural
Resources, Inc., a Delaware corporation (“Alpha”), and the Eligible Person to whom the Committee
has made this Performance Grant (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 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 Alpha, and has authorized the execution and delivery of this Agreement.
Agreement
The parties agree as follows:
Section 1. Performance Share Unit Award. Subject to and pursuant to all terms and conditions
stated in this Agreement and in the Plan, as of the Grant Date, Alpha hereby makes a Performance
Grant to Award Recipient in the form of performance share units (“Performance Share Units”). Each
Performance Share Unit awarded under this Agreement shall represent a right to receive one Share of
Alpha’s Common Stock, par value $0.01 per share (the “Common Stock”), to the extent such
Performance Share Unit is earned pursuant to the terms of this Agreement. The shares of Common
Stock to be issued and delivered to Award Recipient, if any, pursuant to the Performance Share
Units awarded under this Agreement, including shares of capital stock, if any, issued from time to
time with respect to such shares of Common Stock as a result of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization are referred to in this Agreement as the “Share(s).”
Section 2. Performance Share Units. The target number of Performance Share Units covered by
and subject to the terms of this Agreement (the “Target Award”) is set forth on Exhibit A.
Section 3. Performance Period. The “Performance Period” means the performance period as set
forth on Exhibit A.
Section 4. Performance Measures. Subject to the provisions of this Agreement, Alpha shall
issue and deliver to the Award Recipient one (1) Share for each whole Performance Share Unit that
is earned in accordance with the performance measures set forth on Exhibit A; provided,
however, that the Committee may reduce the number of Performance Share Units earned under this
Award, but in no event
may the Committee increase the number of Performance Share Units earned under this Award
beyond the performance levels achieved.
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
Section 5. Delivery of Shares. Except as otherwise provided in this Agreement and subject to
satisfaction of the applicable tax withholding requirements set forth in Section 9, Alpha shall
cause stock certificate(s) or other evidence of ownership representing the number of Shares earned
and determined under Section 4 to be delivered to the Award Recipient in the first calendar year
immediately following the end of the Performance Period on or before March 15th of such calendar
year; provided, however, that: (i) except as provided below, no certificate(s) for, or other
evidence of ownership of, Shares shall be delivered with respect to Performance Share Units unless
the Committee has certified in writing that the applicable performance targets set forth on
Exhibit A and other material terms of this Agreement have been achieved; and (ii) the
Company shall not deliver stock certificate(s) or other evidence of ownership representing Shares
if the Committee or Designated Administrator or other authorized agent determines, in its or his
sole discretion, that the delivery of such certificate(s) or other evidence of ownership would
violate the terms of the Plan, this Agreement or applicable law.
Section 6. Separation from Service.
(a) Except as set forth in this Section 6 or as otherwise provided in a Company plan
applicable to Award Recipient or any agreement between the Award Recipient and the Company, if (i)
Award Recipient Separates from Service for any reason prior to the end of the Performance Period,
or (ii) Award Recipient breaches the confidentiality covenant as described in Section 12, then
effective at the close of business on the date the Award Recipient Separates from Service, or the
date the Award Recipient breaches the confidentiality covenant as described in Section 12 hereof,
as applicable, all of Award Recipient’s Performance Share Units covered by this Agreement, whether
earned or unearned, shall be automatically cancelled and forfeited in their entirety without any
further obligation on the part of Alpha, such that Alpha shall not be obligated to issue any Shares
or any other compensation to Award Recipient with respect to such cancelled and forfeited
Performance Share Units.
(b) Unless otherwise provided in a Company plan applicable to Award Recipient or any
agreement between the Award Recipient and the Company, if during the Performance Period (i) the
Award Recipient Separates from Service as a result of Award Recipient’s Permanent Disability (as
defined below) or death, (ii) the Award Recipient experiences an involuntary Separation from
Service by the Company other than for Cause (as defined below), or (iii) the Award Recipient
Separates from Service as a result of Award Recipient’s Retirement (as defined below), the Award
Recipient shall be entitled to receive a prorated portion of the Performance Share Units to the
extent earned pursuant to Section 4 above, determined at the end of the Performance Period and
based on the ratio of the number of complete months the Award Recipient is employed or serves
during the Performance Period to the total number of months in the Performance Period. Any Shares
to which Award Recipient becomes entitled to receive pursuant to the preceding sentence will be
issued and delivered to Award Recipient in accordance with the provisions of Section 5 of the
Agreement; provided, that any payments due on the Award Recipient’s death shall be paid to the
Award Recipient’s estate.
(c) Unless otherwise provided in a Company plan applicable to Award Recipient or any
agreement between the Award Recipient and the Company, in the event that a Change of Control occurs
prior to the end of the Performance Period and the Award Recipient experiences an involuntary
Separation from Service by the Company other than for Cause (i) within the 90-day period
immediately preceding a Change of Control, or (ii) prior to the end of the Performance Period and
on or within the one (1) year period following such Change of Control, the Performance Share Units
that have not been previously cancelled and forfeited shall become fully vested and payable at the
Target Award level (and the Performance Period shall thereafter be deemed to have terminated). Any
Shares to which Award Recipient becomes entitled to receive pursuant to the preceding sentence will
be issued and delivered to Award Recipient contemporaneous with the consummation of the Change of
Control or, if later, on or before the sixtieth (60th) day following the Award Recipient’s
Separation from Service (but, in each case, within the short-term deferral exception as specified
in Treas. Reg. § 1.409A-1(b)(4)).
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
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(d) For purposes of this Agreement and unless otherwise defined in a Company plan
applicable to Award Recipient or an agreement between the Award Recipient and the Company, if any,
the following terms shall have the following meanings: (i) a “Change of Control” shall mean (A)
any merger, consolidation or business combination in which the stockholders of Alpha immediately
prior to the merger, consolidation or business combination do not own at least a majority of the
outstanding equity interests of the surviving parent entity, (B) the sale of all or substantially
all of the Company’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 Stock by any person or entity (including a “group” as defined by
or under Section 13(d)(3) of the Exchange Act), (D) the stockholders of Alpha approve any plan for
the dissolution or liquidation of Alpha, or (E) a contested election of directors, as a result of
which or in connection with which the persons who were directors of Alpha before such election or
their nominees cease to constitute a majority of the Board; (ii) the term “Permanent Disability”
shall mean Award Recipient’s physical or mental incapacity to perform his or her usual duties with
such condition likely to remain continuously and permanently as determined by the Company; (iii)
the term “Cause” shall mean “Employer Cause” as set forth in any employment agreement between the
Award Recipient and the Company or, in the absence of such an agreement, “Cause” as defined by the
Company’s employment policies in effect at the time of Separation from Service; (iv) the term
“Retirement” shall mean (A) the date Award Recipient reaches the age of 62 with ten (10) Years of
Service, (B) the date the Award Recipient reaches the age of 65, or (C) 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 “Years of Service” shall mean the aggregate annual
periods of continuous employment or other service with the Company measured from the Award
Recipient’s date of hire (or re-hire) and ending on the date the Award Recipient Separates from
Service, including employment or other service with any affiliates or subsidiaries which become
such after the Grant Date, including any predecessors and any other entities for this purpose as
approved by the Committee (or its delegatee(s)), and provided that an absence or leave approved by
the Company, to the extent permitted by applicable provisions of the Code, shall not be considered
an interruption of employment or performance of services for any purpose under this Agreement; and
(vi) the term “Separation from Service” or “Separates 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.
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
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Section 7. Clawback/Recoupment.
(a) The Committee may, to the extent permitted by governing law, require reimbursement of any
payment of Shares received in settlement of this Award if the Award Recipient is an employee of pay
grade 22 or higher as of the Grant Date where: (i) the payment was predicated upon the achievement
of certain financial results that were subsequently the subject of a restatement of the Company’s
financial statements filed with the Securities and Exchange Commission, which restatement occurs no
more than three years from the date of settlement of this Award, where the Committee reasonably
determines that any employee engaged in intentional misconduct that caused or partially caused the
need for the restatement, and a lower payment would have been made to the Award Recipient based
upon the restated financial results; provided, however, that the Committee reserves the discretion
to determine that any Award Recipient shall not be subject to this provision; or (ii) the Award
Recipient engaged in ethical misconduct in violation of the Company’s Code of Business Ethics,
which the Committee reasonably determines caused material business or reputational harm to the
Company.
(b) If the Committee reasonably determines that any payment of Shares received in settlement
of this Award should be reimbursed under subsections (a)(i) or (a)(ii), then the following shall
apply: (i) in the event reimbursement is required under subsection (a)(i), the Award Recipient
shall be required to reimburse the Company in an amount equal to the dollar value of the Common
Stock the Award Recipient received in excess of what the Award Recipient would have received on
such date had the payment been based upon such restated financial results; or (ii) in the event
reimbursement is required under subsection (a)(ii), the Award Recipient shall be required to
promptly reimburse the Company in an amount the Committee reasonably determines to be appropriate,
which could equal the full value of the Common Stock the Award Recipient received during such
three-year period. Notwithstanding the foregoing, the Company shall not be required to make any
additional payment in the event that the restated financial results would have resulted in a
greater number of Shares upon payment of the Award to the Award Recipient.
(c) In the event the Award Recipient is obligated to reimburse the Company for amounts under
subsections (b)(i) or (b)(ii), the Company may, at its sole election: (i) require the Award
Recipient to pay the amount in a lump sum within 30 days of such determination; (ii) deduct the
amount from any other compensation owed to the Award Recipient (as a condition to receiving the
performance-based compensation under this Award, the Award Recipient agrees to permit the deduction
provided for by this subsection); or (iii) a combination of subsections (c)(i) and (c)(ii).
(d) By accepting this Award, the Award Recipient agrees that timely payment to the Company as
set forth in this Section 7 is reasonable and necessary, and that timely payment to the Company as
set forth in this Section 7 is not a penalty, and it does not preclude the Company from seeking all
other remedies that may be available to the Company. The Award Recipient further acknowledges and
agrees that the Award Recipient’s Performance Share Units shall be cancelled and forfeited without
payment by the Company if the Committee reasonably determines that the Award Recipient has engaged
in the conduct specified under subsection (a).
Section 8. Limitation of Rights; Investment Representation. Except as otherwise provided in
the Plan or this Agreement, no holder of Performance Share Units shall be, or have any of the
rights or privileges of, a stockholder of Alpha with respect to any Shares unless and until
certificates or other
evidence of ownership representing such Shares shall have been issued or reflected in such
person’s name. Prior to actual receipt of the Shares under this Award, Award Recipient may not
transfer any interest in the Award or the underlying Shares. Award Recipient acknowledges and
agrees that the Shares which Award Recipient acquires pursuant to this Agreement, if any, 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, and shall not be sold or otherwise
disposed of in any manner which would constitute a violation of any applicable securities laws,
whether federal or state. Any attempt to transfer the Performance Share Units or Shares in
violation of this Section or the Plan shall render this Award of Performance Share Units null and
void.
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
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Section 9. Income Taxes. Award Recipient acknowledges that any income for federal, state or
local income tax purposes that Award Recipient is required to recognize on account of the issuance
and delivery of 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 his or her minimum statutory withholding tax obligations, if any, on account of the
issuance of Shares or settlement of this Award in one or a combination of the following methods: in
cash or separate check made payable to the Company or by authorizing the Company to withhold from
the Shares to be issued to the Award Recipient hereunder a sufficient number of whole Shares
distributable in connection with this Award equal to the applicable minimum statutory withholding
tax obligation. In the event Award Recipient does not make such payment when requested, the Company
may refuse to issue or cause to be delivered any Shares under this Agreement or any other incentive
plan agreement entered into by Award Recipient and the Company until such payment has been made or
arrangements for such payment satisfactory to the Company have been made.
Section 10. Rights to Continued Employment. Neither the Plan nor this Agreement shall be
deemed to give Award Recipient any right to continue to be employed by, or provide services to, the
Company, nor shall the Plan or the Agreement be deemed to limit in any way the Company’s right to
terminate the employment or services of the Award Recipient at any time.
Section 11. 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 12. 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 during or after employment, 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
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
5
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 12 which is not waived in writing by the Company, all vesting of the
Performance Share 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 12.
Section 13. 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 14. Agreement to Abide by Plan; Conflict between Plan and Agreement. The Plan is
hereby incorporated by reference into this Agreement and is made a part hereof as though fully set
forth in this Agreement. Award Recipient, by execution of this Agreement, (i) represents that he
or she is familiar with the terms and provisions of the Plan , and (ii) agrees to abide by all of
the terms and conditions of this Agreement and the Plan. Award Recipient accepts as binding,
conclusive and final all decisions or interpretations of the Designated Administrator 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 Designated Administrator the express
authority to vary the terms of the Plan by means of this Agreement, in which case, this Agreement
shall govern.
Section 15. Entire Agreement. Except as otherwise provided herein, in any Company plan
applicable to the Award Recipient, or in any other agreement between Award Recipient and the
Company, this Agreement and the Plan, each of which Award Recipient has reviewed and accepted in
connection with the grant of the Performance Share Units reflected by this Agreement, constitutes
the entire agreement between the parties and supersedes 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 16. 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 17. Notice. All notices, requests, demands, claims, and other communications under
this Agreement shall be in writing. Any notice, request, demand, claim, or other communication
under this Agreement shall be deemed duly given if (and then two business days after) it is sent by
registered or certified mail, return receipt requested, postage prepaid, and addressed to the
intended recipient and, if to Alpha, at its address provided in Section 20, and, if to the Award
Recipient, the Award Recipient’s most recent address set forth in the Company’s 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
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
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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 18. Counterparts. This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together shall constitute one and the same
instrument.
Section 19. 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 subject to the terms of the Plan, modify or
amend the terms of this Agreement, impose conditions on the timing and effectiveness of the
issuance of the Shares, or take any other action it deems necessary or advisable, to cause this
Award to be excepted from Section 409A of the Code (or to comply therewith to the extent Alpha
determines it is not excepted).
Section 20. Acknowledgements.
(a) By accepting this Award of Performance Share Units, the Award Recipient
acknowledges receipt of a copy of the Plan, and the prospectus relating to this Award of
Performance Share Units, and agrees to be bound by the terms and conditions set forth in this
Agreement and the Plan, 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 Designated Administrator’s discretion. Both Internet Email and the World Wide Web are required
in order to access documents electronically.
(c) This Award is intended to be excepted from coverage under Section 409A of the
Code and the regulations promulgated thereunder and shall be interpreted and construed accordingly.
Notwithstanding, Award Recipient recognizes and acknowledges that Section 409A of the Code may
impose upon the Award Recipient certain taxes or interest charges for which the Award Recipient is
and shall remain solely responsible.
(d) Award Recipient acknowledges that, by receipt of this Award, Award Recipient has
read this Section 20 and consents to the electronic delivery of the Plan and related documents, as
described in this Section 20. 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 Senior Vice President of Human Resources of the Company by telephone at (▇▇▇) ▇▇▇-▇▇▇▇
or by mail to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. 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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Performance Share Unit Award Agreement
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for Employees (Grades 22-30)
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of this , 2010.
| ALPHA NATURAL RESOURCES, INC. |
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| By | ||||
| Name: | ||||
| Title: | ||||
Address:
Alpha Natural Resources, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President of Human Resources
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President of Human Resources
AWARD RECIPIENT
Performance Share Unit Award Agreement
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for Employees (Grades 22-30)
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EXHIBIT A
Name of Award Recipient:
Target Number of Performance Share Units:
Grant Date:
Performance Period:
Award Metrics
Performance Share Unit Award Agreement
for Employees (Grades 22-30)
for Employees (Grades 22-30)
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