Alpha Natural Resources, Inc. Grantee Stock Option Agreement
EXHIBIT
10.21
This
Stock Option Agreement (this "Agreement")
is between Alpha Natural Resources, Inc., a Delaware corporation ("Alpha"),
and the individual named as Grantee on the signature page of this Agreement (the
"Grantee").
Alpha has
established its 2005 Long-Term Incentive Plan (as amended, 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.
This
Agreement evidences an option grant as follows:
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Granted
To:
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Number
of Shares:
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Effective
Date of Grant:
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Expiration
Date:
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Exercise
Price Per Share:
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Vesting
Schedule:
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Pursuant
to the provisions of the Plan, the Board of Directors of Alpha (the "Board") or
a Committee designated by the Board (the "Committee")
has full power and authority to direct the execution and delivery of this
Agreement in the name and on behalf of Alpha. The Board or the
Committee authorized the execution and delivery of this
Agreement. All capitalized terms not otherwise defined in this
Agreement have the same meaning given such capitalized terms in the
Plan.
Agreement
The
parties agree as follows:
Section
1. Grant of
Stock Option; Term. Subject and
pursuant to all terms and conditions stated in this Agreement and in the Plan,
Alpha hereby grants to Grantee an option (the "Option")
to purchase the number of shares of Alpha's common stock, par value $0.01 per
share (the "Common
Shares"), set forth above (the "Option
Shares"), at the exercise price set forth above. If a Change
of Control (as defined below) occurs, the unvested portion of this Option,
unless previously cancelled and forfeited, shall vest immediately prior to the
consummation of the Change of Control. In the event of a Change of
Control, the Committee, in its sole discretion, may provide for the
(i) payment of an amount (in cash or, in the discretion of the Committee,
in the form of consideration paid to Alpha stockholders in connection with the
Change in Control) equal to the excess, if any, of the Fair Market Value of the
unexercised Option Shares over the aggregate exercise price of such Option
Shares, and/or (ii) issuance of substitute Awards for the unexercised
portion of the Option.
For
purposes of this Agreement, a "Change of
Control" shall mean (i) 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, (ii) the sale
of all or substantially all of Alpha's assets in a single transaction or a
series of related transactions, (iii) 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),
(iv) the stockholders of Alpha approve any plan for the dissolution or
liquidation of Alpha, (v) 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 or
(vi) any other event specified by the Board or the Committee.
Grantee
hereby accepts the Option on such terms and conditions, including, without
limitation, the confidentiality provisions set forth in Section 8 of this
Agreement. The Option is a [select applicable option type and
delete inapplicable option type: [Nonqualified Stock Option]
[Incentive Stock Option]] (as such term is defined in the
Plan). Grantee shall, subject to the limitations of this Agreement
and the Plan, have the right to exercise the Option by purchasing all or any
part of the vested Option Shares then available for purchase under the vesting
schedule set forth above (less any Option Shares previously purchased upon
exercise of this Option).
Section
2. Procedures
for Exercise. In order to
exercise all or any part of the Option, Grantee shall deliver to
Alpha: (i) written notice of the number of vested Option Shares
to be purchased, (ii) payment of the exercise price of such Option Shares
in the form of cash or, if permitted by the
Committee: (A) Common Shares, (B) the surrender of another
outstanding Award under the Plan, (C) if there is a public market for the
Common Shares at such time, subject to such rules as may be established by the
Committee, through delivery of irrevocable instructions to a broker to sell the
Common Shares otherwise deliverable upon the exercise of the Option and deliver
promptly to Alpha an amount equal to the aggregate exercise price payable for
the Option Shares, or (D) any combination thereof, and (iii) payment
of any required withholding pursuant to Section 5. The Option
shall be deemed to have been exercised as of (i) the close of business on
the date the required documents and required consideration are received by Alpha
or, (ii) if the exercise of the Option occurs in connection with a Change
of Control, then immediately prior to the consummation of the Change of Control,
provided the required documents and required consideration are received by Alpha
at or prior to the consummation of the Change of Control. If Grantee
disposes of Common Shares acquired upon the exercise of an Incentive Stock
Option either (i) within two years after the date of grant of such
Incentive Stock Option or (ii) within one year after the transfer of such
Common Shares to the Grantee, then Grantee shall notify Alpha of such
disposition and of the amount realized upon such disposition.
Section
3. Termination of Employment,
Retirement, Disability or Death.
(a) Except
as otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, vesting shall cease on the date
Grantee ceases to be employed by [add for non-employee board members
only, delete for employees: , or to serve as a member of the Board of
Directors of,] the Company and shall be tolled during any period in which
Grantee is on an approved leave of absence from employment with the
Company. Except as otherwise provided by the Committee or by any
agreement, plan or other arrangement between the Grantee and Alpha, following
Grantee's last day of employment with [add for non-employee board members
only, delete for employees: , or service as a member of the Board of
Directors of,] the Company, this Option shall only be exercisable for the
number of Option Shares that are vested as of Grantee's last day of employment
with [add for non-employee
board members only, delete for employees: , or service as a member of
the Board of Directors of,] the Company (less any Option Shares
previously acquired upon exercise of this Option).
(b) Except
as provided in Section 3(c) or 3(d), by the Committee, or by any agreement,
plan or other arrangement between the Grantee and Alpha, following Grantee's
last day of employment with [add for non-employee board members
only, delete for employees: , or service as a member of the Board of
Directors of,] the Company, this Option may be exercised at any time and
from time to time within the lesser of (i) the 90-day period commencing on
the first day after Grantee's last day of employment with [add for non-employee board members
only, delete for employees: , or service as a member of the Board of
Directors of,] the Company or (ii) the remaining term of the
Option.
(c) Except
as otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, if termination of employment [add for non-employee board members
only, delete for employees: or service as a member of the Board of
Directors] occurs due to death or disability while Grantee is an employee
[add for non-employee board
members only, delete for employees: or a member of the Board of
Directors] of the Company, then this Option may be exercised at any time
and from time to time within the lesser of (i) the one year period
commencing on the first day after Grantee's last day of employment with [add for non-employee board members
only, delete for employees: , or service as a member of the Board of
Directors of,] the Company or (ii) the remaining term of the
Option.
(d) Except
as otherwise provided by the Committee or by any agreement, plan or other
arrangement between the Grantee and Alpha, if termination of employment occurs
due to retirement at or after normal retirement age, as prescribed from time to
time by the Company's retirement policy, or retirement under circumstances
approved by the Committee (either before or after retirement), then this Option
may be exercised at any time within the lesser of (i) the three month
period commencing on the first day after Grantee's last day of employment with
[add for non-employee board
members only, delete for employees: , or service as a member of the
Board of Directors of,] the Company, or, if Grantee dies during the three
month period commencing on the first day after Grantee's last day of employment
with [add for non-employee
board members only, delete for employees: , or service as a member of
the Board of Directors of,] the Company, then the one year period
commencing on the first day after Grantee's last day of employment with [add for non-employee board members
only, delete for employees: , or service as a member of the Board of
Directors of,] the Company, or (ii) the remaining term of the
Option.
Section
4. Issuance
and Delivery of Option Shares; Rights as a Stockholder. The stock
certificate(s), or other evidence of, the Option Shares shall be given to
Grantee subject to satisfaction of the applicable tax withholding requirements
set forth in Section 5. Alpha shall not issue stock
certificate(s), or provide other evidence of, the Option Shares if the
administrator of the Plan or its authorized agent determines, in its sole
discretion, that the issuance of such certificate(s) or other evidence of the
Option Shares would violate the terms of the Plan, this Agreement or applicable
law. Except as otherwise provided in the Plan, no person shall be, or
have any of the rights or privileges of, a stockholder of Alpha with respect to
any of the Option Shares unless and until certificates or other evidence of the
Option Shares representing such shares shall have been delivered to such
person.
Section
5. Income
Taxes. Grantee
acknowledges that any income for federal, state or local income tax purposes
that Grantee is required to recognize on account of the grant, vesting and/or
exercise of the Option shall be subject to withholding of tax by the
Company. Grantee agrees that the Company may either withhold an
appropriate amount from any compensation or any other payment of any kind then
payable or that may become payable to Grantee, or require Grantee to make a cash
payment to the Company equal to the amount of withholding required in the
opinion of the Company. In the event Grantee 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 Grantee and the Company until such payment has been made or arrangements
for such payment satisfactory to the Company have been made.
Section
6. Rights as
a Grantee. Neither the Plan
nor this Agreement shall be deemed to give Grantee any right to continue to be
employed by [add for
non-employee board members only, delete for employees: or perform
services for] the Company, nor shall the Plan or the Agreement be deemed
to limit in any way the Company's right to terminate the employment of [add for non-employee board members
only, delete for employees: or performance of services by] the
Grantee at any time.
Section
7. Further
Assistance. Grantee will
provide assistance reasonably requested by the Company in connection with
actions taken by Grantee while employed by or providing service to 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
Grantee was employed or providing service.
Section
8. Confidentiality. Grantee
acknowledges that the businesses of the Company are 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. Grantee 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. Grantee acknowledges that by reason of
Grantee's duties to and association with the Company, Grantee 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. Grantee
hereby agrees that Grantee will not, at any time during or after employment
[add for non-employee board
members only, delete for employees: or service as a member of the
Company's Board of Directors], 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 [add for non-employee board members
only, delete for employees: or responsibilities as a member of the
Company's Board of Directors]. Grantee 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 Grantee's legal rights and
obligations as an employee [add
for non-employee board members only, delete for employees: or
director] or under this Agreement are at issue; provided, however, that
Grantee shall, to the extent practicable and lawful in any such events, give
prior notice to the Company of Grantee's intent to disclose any such
confidential business information in such context so as to allow the Company an
opportunity (which Grantee 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.
Section
9. Securities
Laws. Grantee
acknowledges that applicable securities laws may restrict the right and govern
the manner in which Grantee may dispose of the Option Shares obtained upon
exercise of the Option and Grantee agrees not to offer, sell or otherwise
dispose of any such shares in a manner that would violate the Securities Act of
1933, as amended, or any other federal or state law.
Section
10. Prohibition
on Transfer or Assignment. Except as
provided in the Plan, neither this Agreement nor the Option may be transferred
or assigned, other than an assignment by will or by laws of descent and
distribution, and this Option shall be exercisable during the Grantee's lifetime
only by Grantee or by such permitted assignee.
Section
11. Binding
Effect; No Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the Company and Grantee 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 Grantee and their respective heirs,
representatives, successors and permitted assigns. The parties agree
that this Agreement shall survive the exercise or termination of the
Option.
Section
12. 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. Grantee, 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. Grantee accepts as
binding, conclusive and final all decisions or interpretations of the
administrator of the Plan upon any question arising under the Plan and this
Agreement (including, without limitation, the cause of any termination of
Grantee's employment with the Company). 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.
Section
13. Entire
Agreement. Except as
otherwise provided by the Committee or any agreement, plan or other arrangement
between the Grantee and Alpha, 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
14. 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 anything herein to the contrary, Alpha may, in
its sole discretion and without the Grantee's consent, modify or amend
(prospectively or retroactively) the terms of this Agreement, impose conditions
on the timing and effectiveness of the exercise of the Option by the Grantee, or
take any other action it deems necessary or advisable, to cause the Option to
comply with Section 409A of the Code (or an exception thereto). The
Grantee recognizes and acknowledges that Section 409A of the Code may impose
upon the Grantee certain taxes or interest charges which the Grantee is and
shall remain solely responsible.
Section
15. 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
16. 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 at the
address set forth below the recipient's signature to this
Agreement. 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
17. 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
18. Acknowledgements.
(a) By
accepting this Option, Grantee acknowledges receipt of a copy of the Plan and
the prospectus relating to this Award, 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, Grantee recognizes and
acknowledges that Section 409A of the Code may impose upon Grantee certain taxes
or interest charges for which Grantee is and shall remain solely
responsible.
(d) Grantee acknowledges that, by receipt of this Award,
Grantee has read this Section 18 and consents to the electronic delivery of the
Plan and related documents, as described in this Section 18. Grantee
acknowledges that Grantee may receive from Alpha a paper copy of any documents
delivered electronically at no cost if Grantee contacts the Vice President of
Human Resources of the Company by telephone at (▇▇▇) ▇▇▇-▇▇▇▇ or by mail to ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Grantee further
acknowledges that Grantee will be provided with a paper copy of any documents
delivered electronically if electronic delivery fails.
EXECUTED ______________ ____,
20___
ALPHA
NATURAL RESOURCES, INC. GRANTEE
By
_______________________________ __________________________________
Address:
Address:
Alpha Natural Resources,
Inc. __________________________________
One Alpha
Place __________________________________
▇.▇. ▇▇▇ ▇▇▇▇ __________________________________
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: General
Counse
Social
Security No.
__________________________________
Revised
11/8/07