Alpha Natural Resources, Inc. (formerly Foundation Coal Holdings, Inc.)
Exhibit
10.23
(formerly
Foundation Coal Holdings, Inc.)
2004
Stock Incentive Plan
Retention
plan Restricted Stock Unit Agreement (Employees)
This
Restricted Stock Unit 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 (the “Company”),
and the individual named as Award Recipient on Exhibit
A (the “Award
Recipient”).
The 2004
Stock Incentive Plan (as amended and restated, the “Plan”) was
established to aid the Company and its Affiliates in recruiting and retaining
key employees, directors or consultants of outstanding ability and to motivate
such employees, directors or consultants to exert their best efforts on behalf
of the Company and its Affiliates by providing compensation and incentives
through the granting of Awards. 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 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.
Agreement
The
parties agree as follows:
Section 1. Issuance of
Stock. Subject and
pursuant to all terms and conditions stated in this Agreement and in the Plan,
on the Issue Date, the Company hereby grants to Award Recipient the number of
restricted stock units (the “Units”)
for the Company’s Common Stock, par value $0.01 per share (the “Common
Stock”), set forth on Exhibit
A. For purposes of this Agreement, the “Shares” 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 the Company’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.
Section 2. Vesting;
Restriction on Transfer and Forfeiture of Unvested Shares.
(a) Except
as provided for by the Plan, 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 ceases to be employed by the
Company and its Affiliates or, if earlier, the date Award Recipient breaches the
confidentiality covenant in Section 9 hereof, any Units that are not vested in
accordance with this Section 2 shall be automatically forfeited to the Company
without any further obligation on the part of the Company. For purposes of
clarity, the vesting
requirements for Units granted under this Agreement constitute a modification of
any vesting provisions set forth in any plan applicable to Award Recipient,
or in any agreement between the Award Recipient and the Company and/or any
Affiliate, such that this Award shall not vest except as provided in this
Section 2 of the Agreement.
(b) Except
as provided herein and subject to the Award Recipient's continued Employment
with the Company and its Affiliates, the Units will vest according to the
vesting schedule set forth on Exhibit
A. If: (i) Award Recipient’s Employment is
involuntarily terminated without Cause (as defined below) during the 90-day
period immediately preceding a Change in Control (as defined below) or on or
within the one-year period immediately following a Change in Control, any
unvested Units shall immediately vest in full and shares subject to the Award
shall be issued to the Award Recipient immediately thereafter; (ii) Award
Recipient’s Employment with the Company is involuntarily terminated without
Cause, or as a result of Award Recipient’s Permanent Disability (as defined
below) or death, any unvested Units shall become vested based on the ratio of
the number of complete months the Award Recipient is employed or serves with the
Company and its Affiliates during the vesting period to the total number of
complete months in the vesting period and shares subject to the Award shall be
issued to the Award Recipient immediately thereafter; or (iii) Award Recipient’s
Employment is terminated for any other reason, including for Cause, due to
retirement or resignation, any unvested portion of the Award shall be forfeited.
Any and all payments under this Award shall be made in calendar year in which
the Award vests on a date determined by the Committee and, in all cases, within
the “applicable 2½ month period” specified in Treas. Reg.
Sec.1.409A-1(b)(4).
(c) For
purposes of this Agreement (and notwithstanding any definition set forth in the
Plan), the following terms shall have the following meanings: (i) a “Change in
Control” shall mean (A) any merger, consolidation or business
combination in which the stockholders of the Company 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 Shares 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 the Company approve any plan for the dissolution or
liquidation of the Company, or (E) a contested election of directors, as a
result of which or in connection with which the persons who were directors of
the Company 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 and its Affiliates' plans applicable to the Award
Recipient or employment policies in effect at the time of
termination. Notwithstanding the foregoing definition of Change in
Control and for purposes of this Agreement, a Change in Control shall not occur
with respect to any and all transactions necessary to effectuate, arising out of
or incidental to that certain Agreement and Plan of Merger between Alpha Natural
Resources, Inc. and Foundation Coal Holdings, Inc., dated May 11,
2009.
Section 3. Dividend
Equivalent Rights. Should a
regular cash dividend be declared on the Company’s Common Stock at a time when
unissued Shares of such Common Stock are subject to your Award, then the number
of Shares at that time subject to the 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
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X
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=
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the
additional number of Shares which will become subject to your Award by
reason of the cash dividend;
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A
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=
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the
number of unissued Shares subject to this Award as of the record date for
such dividend
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B
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=
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the
per Share amount of the cash dividend;
and
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C
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=
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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.
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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. Issuance and
Delivery of Shares; Rights as an
Award Recipient. The parties agree that, subject to
satisfaction of the applicable tax withholding requirements set forth in
Section 6 and the other terms and conditions of this Agreement and the
Plan, certificate(s) or other evidence of ownership representing the Shares
underlying the Units shall be delivered to Award Recipient at the end of the
vesting period set forth on Exhibit
A. Promptly following the end of the vesting period set forth on Exhibit
A, Alpha or its designated agent shall (a) deliver to Award Recipient
certificates or other evidence of ownership representing vested Shares,
provided, however, that Award Recipient has complied with any withholding tax
requirements as set forth in Section 6 and the other terms and conditions of
this Agreement and the Plan, and (b) cancel any Shares that have been forfeited
by Award Recipient pursuant to Section 2. Any and all payments under this Award
shall be made in calendar year in which the Award vests on a date determined by
the Committee and, in all cases, within the “applicable 2½ month period”
specified in Treas. Reg. Sec.1.409A-1(b)(4). The Company shall not
issue stock certificate(s) or other evidence of ownership representing Shares if
the Committee or other authorized agent determines, in its or his sole
discretion, that the issuance of such certificate(s) or other evidence of
ownership would violate the terms of the Plan, this Agreement or applicable law.
Except as otherwise provided in the Plan, the Award Recipient shall not have any
of the rights or privileges of a stockholder of the Company, including voting
rights and actual dividend rights, with respect to any of the Shares underlying
an Award unless and until the Award Recipient becomes the record holder of the
Shares following their actual issuance to the Award Recipient and the Award
Recipient’s satisfaction of applicable withholding taxes.
Section 6. 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 vesting of the Units and 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. 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 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 or any Affiliate, nor shall the Plan or the Agreement be deemed to limit
in any way the Company’s and Affiliates' rights to terminate the Employment of
the Award Recipient at any time. For purposes of this Agreement, the
Committee shall determine whether the Award Recipient has terminated Employment
with the Company and its Affiliates.
Section 8. Further
Assistance. Award Recipient
will provide assistance reasonably requested by the Company and its Affiliates
in connection with actions taken by Award Recipient while employed by the
Company and/or its Affiliates, including but not limited to assistance in
connection with any lawsuits or other claims against the Company and/or its
Affiliates arising from events during the period in which Award Recipient was
employed by the Company or any Affiliate.
Section 9. Confidentiality. Award
Recipient acknowledges that the business of the Company and its Affiliates is
highly competitive and that the Company’s and its Affiliates' 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 and its
Affiliates use in their 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 and its Affiliates
in maintaining their competitive position. Award Recipient
acknowledges that by reason of Award Recipient’s duties to and association with
the Company and its Affiliates, 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 and its Affiliates. 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 and its Affiliates, 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 and its Affiliates 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 and its Affiliates would not
be considered confidential to the Company and its Affiliates. 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 (including its Affiliates) 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 (including its Affiliates) 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
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
Committee (or its designee) of the Plan upon any question arising under the
Plan, and this Agreement (including, without limitation, the date of any
termination of Award Recipient’s Employment with the Company and its
Affiliates). 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 related 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 (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 on the signature page or Exhibit
A. 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. 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 16. 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, the Company 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
the Company determines it is not excepted).
Section 17. 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 and its
Affiliates, 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 designees
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 Recipients and
shall remain solely responsible.
(d) Award
Recipient acknowledges that, by receipt of this Award, Award Recipient has read
this Section 17 and consents to the electronic delivery of the Plan and related
documents, as described in this Section 17. 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.
[Remainder
of this Page Intentionally Left Blank]
IN WITNESS WHEREOF, the
parties hereto have signed this Agreement as of this [Issued day] of [Issued
Month], [Issued Year].
By _______________________________
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Senior
Vice President Human Resources
Address:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Senior Vice President
Human Resources
AWARD
RECIPIENT
__________________________
Name: [Recipient
Name]
EXHIBIT
A
Name of Award
Recipient: [Recipient Name]
Address of Award
Recipient: [Address]
Issue
Date:
[Issue Date]
Number of Units Subject to
Award:
[# of Units]
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Vesting
Period/Schedule:
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The
Award shall vest on the third anniversary of the Issue Date – [Issue Date]
unless otherwise provided in the
Agreement.
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