Massey Energy Co 8-k (events Or Changes Between Quarterly Reports) 2009-02-23
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549
FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): February 23, 2009 (February 17, 2009)
MASSEY ENERGY COMPANY (Exact Nam e of Re gistran t as S pe cifie d in Its C h arte r)
Delaware
1-7775
95-0740960
(State of Incorporation )
(C om m ission File Nu m be r)
(I.R.S . Em ploye r Ide n tification No.)
4 North 4th Street, Richmond, Virginia 23219 (Addre ss of prin cipal e xe cu tive office s) (Zip C ode )
Registrant’s telephone number, including area code: (804) 788-1800 N/A (Form e r n am e , form e r addre ss an d form e r fiscal ye ar, if ch an ge d since last re port date )
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ®
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
®
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
®
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
®
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
Entry into a Material Definitive Agreement.
Non-Employee Director Compensation Summary On February 17, 2009, the Board of Directors of Massey Energy Company (the “Company”) approved changes recommended by the Compensation Committee of the Board of Directors to the Non-Employee Directors Compensation Summary. Clarifying language was added to the “Initial Grant of Restricted Stock” and “Annual Grant” Sections of the Non-Employee Directors Summary related to vesting. No changes were made to the actual compensation awarded to non-employee directors. The Non-Employee Directors Compensation Summary, as amended and restated, is effective as of February 17, 2009 and is attached hereto as Exhibit 10.1 and is hereby incorporated into this Item 1.01. Form Grant Agreements On February 17, 2009, the Board of Directors ratified the form stock option grant agreement recommended for approval by the Compensation Committee for non-employee directors electing all or a portion of their annual grant in the form of stock options pursuant to the Non-Employee Director Compensation Summary. In addition, the Board of Directors ratified a form stock option grant agreement recommended for approval by the Compensation Committee for the Chief Executive Officer’s additional stock option award granted in the Letter Agreement between the Company and Mr. Blankenship filed as Exhibit 10.11 to Form 8-K filed on December 24, 2008. The form grant agreements are attached as Exhibits 10.2 and 10.3, respectively, and are hereby incorporated into this Item 1.01. Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information required by this item is included in Item 1.01 and incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits Exhibit 10.1
Massey Energy Company Non-Employee Directors Compensation Summary
Exhibit 10.2
Form Non-Employee Director Stock Option Grant Agreement
Exhibit 10.3
Form Additional Stock Option Grant Agreement
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SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: February 23, 2009 MASSEY ENERGY COMPANY By: /s/ Richard R. Grinnan Richard R. Grinnan Vice President and Corporate Secretary
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Exhibit Index Exhibit 10.1
Massey Energy Company Non-Employee Directors Compensation Summary
Exhibit 10.2
Form Non-Employee Director Stock Option Grant Agreement
Exhibit 10.3
Form Additional Stock Option Grant Agreement Exhibit 10.1 MASSEY ENERGY COMPANY NON-EMPLOYEE DIRECTORS – COMPENSATION SUMMARY (Amended and Restated Effective February 17, 2009)
Annual Retainer
$44,000 annual retainer, plus $5,000 annual retainer, for Chairs of Board Committees ($15,000 for Chair of Audit Committee). $30,000 annual retainer for the Lead Director. Each annual retainer to be paid in four (4) equal installments payable as soon as administratively practicable following the end of the applicable calendar quarter.
Meeting Fees
$2,000 for each Board meeting attended, plus $2,000 for each Committee meeting attended ($3,000 for each Audit Committee meeting). Meeting fees to be paid as soon as administratively practicable following the meeting attended for which the fees are due.
Deferred Compensation
Annually directors may defer all or a portion of their retainer and meeting fees and elect to have such deferred amounts invested in: (1) an interest-bearing account or (2) phantom stock units based on Massey Energy common stock. Payment of deferred retainer and meeting fees and related earnings to be paid consistent with the terms of the plan pursuant to which such amounts are deferred.
Initial Grant of Restricted Stock
$110,000 worth of restricted shares one-time grant. The restricted shares may not be sold until they vest, but do receive dividends prior to vesting as paid to shareholders. One third of the shares vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director retires with Compensation Committee or Board approval as to vesting, (ii) the applicable director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation.
Initial Grant of Restricted Units
$74,000 worth of restricted units one-time grant. Portions of the units become earned and payable at the same time as each portion of the Initial Grant of Restricted Stock to which such units relate vests.
Annual Grant
$80,000 worth of restricted shares and/or non-qualified stock options annual grant. The proportion of each annual grant made in restricted shares and/or non-qualified stock options will be at the sole discretion of the director. A pro rata portion of the annual grant is given to a new director whose term begins during a fiscal year. The restricted
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shares may not be sold until they vest, but do receive dividends prior to vesting as paid to shareholders. One third of the shares vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director retires with Compensation Committee or Board approval as to vesting, (ii) the director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation. One third of the non-qualified stock options vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director with Compensation Committee or retires with Compensation Committee or Board approval as to vesting, (ii) the director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation. Non-qualified stock options which are vested at cessation of service on the Board remain exercisable for the remainder of the full original option term (normally ten years from date of grant). Insurance
$75,000 life insurance (may require medical examination). $250,000 travel accident insurance while traveling for Massey Energy Company. $75,000,000 Directors and Officers liability insurance.
Physicals
An annual physical, at the election of the director.
Supplemental Health Insurance
Secondary supplemental health insurance, at the election of the director.
2 Exhibit 10.2 MASSEY ENERGY COMPANY Non-Employee Director Non-Qualified Stock Option Agreement [Number] Non-Qualified Stock Options THIS AGREEMENT dated as of , between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [ ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Award of Non-Qualified Stock Options. Pursuant to the Plan, the Company, on (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [ ] NonQualified Stock Options, hereinafter described as “Options” or “Option,” at the option price of $ per share, being not less than the Fair Market Value of such shares on the Grant Date, or on the next preceding trading date if no Company shares traded on the New York Stock Exchange on the Grant Date. This Option is exercisable as hereinafter provided. 2. Nontransferability. This Option may not be transferred except by will or by the laws of descent and distribution. During Participant’s lifetime, this Option may be exercised only by Participant. 3. Expiration Date. This Option shall expire ten years from the Grant Date (the “Expiration Date”). 4. Exercisability. Subject to Paragraph 7 and except as provided in Paragraph 8 below, Participant’s interest in the Options shall become exercisable (“Vested”) with respect to one-third of the Options on each of , , and . Once this Option, or any portions thereof, has become exercisable in accordance with the preceding sentence it shall continue to be exercisable until the termination of Participant’s rights hereunder pursuant to Paragraph 5, 6, 7, or 8 or until the Option has expired pursuant to Paragraph 3. A partial exercise of this Option shall not affect Participant’s right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. 5. Death, Retirement or Disability. If Participant dies, retires or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (“Permanently and Totally Disabled”) while serving on the Board and prior to the forfeiture of the Options under Paragraph 7 below, Participant shall thereupon become entitled to exercise such Options in full to the extent not Vested or exercised as of the date of Participant’s death, retirement or becoming Permanently and Totally Disabled, and all such Options shall be exercisable by Participant (or if Participant is deceased, his estate or other successor in interest following Participant’s death) during the remainder of the period preceding the Expiration Date. For purpose of this Agreement, retirement shall mean Participant’s cessation of service on the Board with the express approval (which may be withheld and is not guaranteed) at such time by the Board of Directors, or the Committee that administers the Plan, of such cessation being retirement,
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and a Vesting event, for purposes of the Options; and if such approval is not provided, then such cessation shall not be considered retirement for purposes hereof and such cessation shall not operate to Vest the Options. 6. Exercise after Cessation of Service. If Participant ceases to serve on the Board prior to the Expiration Date for reasons other than death, retirement or Permanent and Total Disability, his then Vested and unexercised Options shall be exercisable during the remainder of the period preceding the Expiration Date. 7. Forfeiture. Subject to Paragraph 8 below, all Options that are not then Vested shall be forfeited if Participant’s service on the Board terminates for any reason other than on account of Participant’s death, retirement, or Permanent and Total Disability. 8. Change in Control. Notwithstanding any other provision of this Agreement, Participant’s Options shall be Vested in full to the extent not then Vested or exercised if Participant’s service on the Board terminates within two years following a Change in Control other than on account of a voluntary resignation from service on the Board and such Options shall be exercisable during the remainder of the period preceding the Expiration Date. 9. Notice. Any notice or other communications given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: By hand-delivery: Massey Energy Company Attention: Corporate Secretary 4 North Fourth Street Richmond, Virginia 23219
By mail: Massey Energy Company Attention: Corporate Secretary P.O. Box 26765 Richmond, Virginia 23261
If to Participant: [Name] [Address] [Address] 10. Confidentiality. Participant agrees that this Agreement and the receipt of Options subject to this award are conditioned upon Participant not disclosing the terms of this Agreement or the receipt of the Options to anyone other than Participant’s spouse, confidential financial advisor, or senior management of the Company prior to the date Participant is Vested in the Options. If Participant discloses such information to any person other than those named in the prior sentence, except as may be required by law, Participant agrees that this award will be forfeited. 11. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded. 2
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12. No Right to Continued Service. This Agreement does not confer upon Participant any right to continue in service on the Board, nor shall it interfere in any way with the right of the Company to terminate such service at any time in accordance with any applicable procedures or law relating to the same. 13. Change due to Capital Adjustments. The terms of this Award shall be adjusted as the Committee determines and as provided in the Plan for events which, in the judgment of the Committee, necessitates such action. 14. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 15. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof or as duly amended. 16. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof which are incorporated by reference into this Agreement. 17. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto. MASSEY ENERGY COMPANY By: Name: Its:
[Participant] 3 Exhibit 10.3 MASSEY ENERGY COMPANY Non-Qualified Stock Option Agreement [Number] Non-Qualified Stock Options THIS AGREEMENT dated as of December , 20[year 1], between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and Don L. Blankenship (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Award of Non-Qualified Stock Options. Pursuant to the Plan, the Company, on December , 20[year 1] (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [ ] Non-Qualified Stock Options, hereinafter described as “Options” or “Option,” at the option price of $ per share, being not less than the Fair Market Value of such shares on the Grant Date, or on the next preceding trading date if no Company shares traded on the New York Stock Exchange on the Grant Date. This Option is exercisable as hereinafter provided. 2. Nontransferability. This Option may not be transferred except by will or by the laws of descent and distribution. During Participant’s lifetime this Option may be exercised only by Participant. 3. Expiration Date. This Option shall expire ten years from the Grant Date (the “Expiration Date”) unless it otherwise is forfeited in accordance with Paragraph 4. 4. Exercisability. Subject to Paragraph 5 below, if the Participant remains employed by the Company until December 30, 20[year 2], Participant shall have the right to exercise this Option after the Option vests on December 30, 20[year 2] during, but only during, the first twenty days exercise is permissible for the Participant (the “Exercise Period”) pursuant to the Company’s trading window policy and applicable securities laws in effect from time to time (the “Company Trading Policy”), otherwise the Option shall be automatically forfeited. Once this Option has become exercisable in accordance with the preceding sentence it shall continue to be exercisable during the Exercise Period subject to Paragraph 5 or 6 . A partial exercise of this Option shall not affect Participant’s right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. 5. Death. If Participant dies (whether or not in the employ of the Company) after the Option vests on December 30, 20[year 2], and prior to the end of the Exercise period or the forfeiture of the Options pursuant to Paragraphs 4 and 7, Participant’s estate or other successor in interest shall have the right, as provided in this Paragraph, to exercise this Option in full to the extent not exercised at Participant’s death. If Participant remains employed by the Company until December 30, 20[year 2] and dies (whether or not then in the employ of the Company) prior to the end of the Exercise Period, Participant’s estate or other successor in interest shall be entitled, as provided in this Paragraph, to exercise this Option
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in full to the extent not exercised at Participant’s
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death. In either such case this Option shall be exercisable, but shall only be exercisable, by Participant’s estate or other successor in interest during the Exercise Period which would have been applicable if Participant had survived or until the date that is three months after the date of Participant’s death, whichever is longer, but in no event later than the Expiration Date. 6. Exercise after Termination of Employment for any Reason Other Than Death. If Participant ceases to be employed by the Company on or after December 30, 20[year 2] for any reason other than death, this Option shall be exercisable by Participant during the Exercise Period as provided in Paragraph 4 or, if applicable, by Participant’s estate or other successor in interest pursuant to Paragraph 5. 7. Forfeiture. Subject to the preceding Paragraph, this Option shall be forfeited if Participant’s employment with the Company terminates prior to December 30, 20[year 2] for any reason. In addition, this Option shall be forfeited to the extent this Option is not exercised by the last date for exercise provided in Paragraph 4 or, if applicable, in Paragraph 5. 8. Notice. Any notice or other communications given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: By hand-delivery: Massey Energy Company Attention: Corporate Secretary 4 North Fourth Street Richmond, Virginia 23219
By mail: Massey Energy Company Attention: Corporate Secretary P.O. Box 26765 Richmond, Virginia 23261
If to Participant: [Name] [Address] [Address] 9. Confidentiality. Participant agrees that this Agreement and the receipt of Options subject to this award are conditioned upon Participant not disclosing the terms of this Agreement or the receipt of the Options to anyone other than Participant’s spouse, confidential financial advisor, or senior management of the Company prior to December 30, 20[year 2]. If Participant discloses such information to any person other than those named in the prior sentence, except as may be required by law, Participant agrees that this award will be forfeited. 10. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded. 11. No Right to Continued Employment. This Agreement does not confer upon Participant any right to continue in the employ of the Company, nor shall it interfere in any way with the right of the Company to terminate such employment at any time. 2
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12. Change due to Capital Adjustments. The terms of this Award shall be adjusted as the Committee determines and as provided in the Plan for events which, in the judgment of the Committee, necessitates such action. 13. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 14. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof or as duly amended. 15. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof which are incorporated by reference into this Agreement. 16. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. 17. Taxes. Participant shall make arrangements acceptable to the Company for the satisfaction of income and employment tax withholding requirements attributable to the exercise of any Option. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto. MASSEY ENERGY COMPANY By: Name: Its:
[Participant] 3
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D. C. 20549
FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of report (Date of earliest event reported): February 23, 2009 (February 17, 2009)
MASSEY ENERGY COMPANY (Exact Nam e of Re gistran t as S pe cifie d in Its C h arte r)
Delaware
1-7775
95-0740960
(State of Incorporation )
(C om m ission File Nu m be r)
(I.R.S . Em ploye r Ide n tification No.)
4 North 4th Street, Richmond, Virginia 23219 (Addre ss of prin cipal e xe cu tive office s) (Zip C ode )
Registrant’s telephone number, including area code: (804) 788-1800 N/A (Form e r n am e , form e r addre ss an d form e r fiscal ye ar, if ch an ge d since last re port date )
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: ®
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
®
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
®
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
®
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01.
Entry into a Material Definitive Agreement.
Non-Employee Director Compensation Summary On February 17, 2009, the Board of Directors of Massey Energy Company (the “Company”) approved changes recommended by the Compensation Committee of the Board of Directors to the Non-Employee Directors Compensation Summary. Clarifying language was added to the “Initial Grant of Restricted Stock” and “Annual Grant” Sections of the Non-Employee Directors Summary related to vesting. No changes were made to the actual compensation awarded to non-employee directors. The Non-Employee Directors Compensation Summary, as amended and restated, is effective as of February 17, 2009 and is attached hereto as Exhibit 10.1 and is hereby incorporated into this Item 1.01. Form Grant Agreements On February 17, 2009, the Board of Directors ratified the form stock option grant agreement recommended for approval by the Compensation Committee for non-employee directors electing all or a portion of their annual grant in the form of stock options pursuant to the Non-Employee Director Compensation Summary. In addition, the Board of Directors ratified a form stock option grant agreement recommended for approval by the Compensation Committee for the Chief Executive Officer’s additional stock option award granted in the Letter Agreement between the Company and Mr. Blankenship filed as Exhibit 10.11 to Form 8-K filed on December 24, 2008. The form grant agreements are attached as Exhibits 10.2 and 10.3, respectively, and are hereby incorporated into this Item 1.01. Item 5.02
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information required by this item is included in Item 1.01 and incorporated herein by reference. Item 9.01 Financial Statements and Exhibits. (d) Exhibits Exhibit 10.1
Massey Energy Company Non-Employee Directors Compensation Summary
Exhibit 10.2
Form Non-Employee Director Stock Option Grant Agreement
Exhibit 10.3
Form Additional Stock Option Grant Agreement
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SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Date: February 23, 2009 MASSEY ENERGY COMPANY By: /s/ Richard R. Grinnan Richard R. Grinnan Vice President and Corporate Secretary
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Exhibit Index Exhibit 10.1
Massey Energy Company Non-Employee Directors Compensation Summary
Exhibit 10.2
Form Non-Employee Director Stock Option Grant Agreement
Exhibit 10.3
Form Additional Stock Option Grant Agreement Exhibit 10.1 MASSEY ENERGY COMPANY NON-EMPLOYEE DIRECTORS – COMPENSATION SUMMARY (Amended and Restated Effective February 17, 2009)
Annual Retainer
$44,000 annual retainer, plus $5,000 annual retainer, for Chairs of Board Committees ($15,000 for Chair of Audit Committee). $30,000 annual retainer for the Lead Director. Each annual retainer to be paid in four (4) equal installments payable as soon as administratively practicable following the end of the applicable calendar quarter.
Meeting Fees
$2,000 for each Board meeting attended, plus $2,000 for each Committee meeting attended ($3,000 for each Audit Committee meeting). Meeting fees to be paid as soon as administratively practicable following the meeting attended for which the fees are due.
Deferred Compensation
Annually directors may defer all or a portion of their retainer and meeting fees and elect to have such deferred amounts invested in: (1) an interest-bearing account or (2) phantom stock units based on Massey Energy common stock. Payment of deferred retainer and meeting fees and related earnings to be paid consistent with the terms of the plan pursuant to which such amounts are deferred.
Initial Grant of Restricted Stock
$110,000 worth of restricted shares one-time grant. The restricted shares may not be sold until they vest, but do receive dividends prior to vesting as paid to shareholders. One third of the shares vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director retires with Compensation Committee or Board approval as to vesting, (ii) the applicable director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation.
Initial Grant of Restricted Units
$74,000 worth of restricted units one-time grant. Portions of the units become earned and payable at the same time as each portion of the Initial Grant of Restricted Stock to which such units relate vests.
Annual Grant
$80,000 worth of restricted shares and/or non-qualified stock options annual grant. The proportion of each annual grant made in restricted shares and/or non-qualified stock options will be at the sole discretion of the director. A pro rata portion of the annual grant is given to a new director whose term begins during a fiscal year. The restricted
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shares may not be sold until they vest, but do receive dividends prior to vesting as paid to shareholders. One third of the shares vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director retires with Compensation Committee or Board approval as to vesting, (ii) the director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation. One third of the non-qualified stock options vest per year, assuming continued service, or all vest upon the earlier occurrence of any of the following while serving as a director: (i) the director with Compensation Committee or retires with Compensation Committee or Board approval as to vesting, (ii) the director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation. Non-qualified stock options which are vested at cessation of service on the Board remain exercisable for the remainder of the full original option term (normally ten years from date of grant). Insurance
$75,000 life insurance (may require medical examination). $250,000 travel accident insurance while traveling for Massey Energy Company. $75,000,000 Directors and Officers liability insurance.
Physicals
An annual physical, at the election of the director.
Supplemental Health Insurance
Secondary supplemental health insurance, at the election of the director.
2 Exhibit 10.2 MASSEY ENERGY COMPANY Non-Employee Director Non-Qualified Stock Option Agreement [Number] Non-Qualified Stock Options THIS AGREEMENT dated as of , between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [ ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Award of Non-Qualified Stock Options. Pursuant to the Plan, the Company, on (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [ ] NonQualified Stock Options, hereinafter described as “Options” or “Option,” at the option price of $ per share, being not less than the Fair Market Value of such shares on the Grant Date, or on the next preceding trading date if no Company shares traded on the New York Stock Exchange on the Grant Date. This Option is exercisable as hereinafter provided. 2. Nontransferability. This Option may not be transferred except by will or by the laws of descent and distribution. During Participant’s lifetime, this Option may be exercised only by Participant. 3. Expiration Date. This Option shall expire ten years from the Grant Date (the “Expiration Date”). 4. Exercisability. Subject to Paragraph 7 and except as provided in Paragraph 8 below, Participant’s interest in the Options shall become exercisable (“Vested”) with respect to one-third of the Options on each of , , and . Once this Option, or any portions thereof, has become exercisable in accordance with the preceding sentence it shall continue to be exercisable until the termination of Participant’s rights hereunder pursuant to Paragraph 5, 6, 7, or 8 or until the Option has expired pursuant to Paragraph 3. A partial exercise of this Option shall not affect Participant’s right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. 5. Death, Retirement or Disability. If Participant dies, retires or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (“Permanently and Totally Disabled”) while serving on the Board and prior to the forfeiture of the Options under Paragraph 7 below, Participant shall thereupon become entitled to exercise such Options in full to the extent not Vested or exercised as of the date of Participant’s death, retirement or becoming Permanently and Totally Disabled, and all such Options shall be exercisable by Participant (or if Participant is deceased, his estate or other successor in interest following Participant’s death) during the remainder of the period preceding the Expiration Date. For purpose of this Agreement, retirement shall mean Participant’s cessation of service on the Board with the express approval (which may be withheld and is not guaranteed) at such time by the Board of Directors, or the Committee that administers the Plan, of such cessation being retirement,
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and a Vesting event, for purposes of the Options; and if such approval is not provided, then such cessation shall not be considered retirement for purposes hereof and such cessation shall not operate to Vest the Options. 6. Exercise after Cessation of Service. If Participant ceases to serve on the Board prior to the Expiration Date for reasons other than death, retirement or Permanent and Total Disability, his then Vested and unexercised Options shall be exercisable during the remainder of the period preceding the Expiration Date. 7. Forfeiture. Subject to Paragraph 8 below, all Options that are not then Vested shall be forfeited if Participant’s service on the Board terminates for any reason other than on account of Participant’s death, retirement, or Permanent and Total Disability. 8. Change in Control. Notwithstanding any other provision of this Agreement, Participant’s Options shall be Vested in full to the extent not then Vested or exercised if Participant’s service on the Board terminates within two years following a Change in Control other than on account of a voluntary resignation from service on the Board and such Options shall be exercisable during the remainder of the period preceding the Expiration Date. 9. Notice. Any notice or other communications given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: By hand-delivery: Massey Energy Company Attention: Corporate Secretary 4 North Fourth Street Richmond, Virginia 23219
By mail: Massey Energy Company Attention: Corporate Secretary P.O. Box 26765 Richmond, Virginia 23261
If to Participant: [Name] [Address] [Address] 10. Confidentiality. Participant agrees that this Agreement and the receipt of Options subject to this award are conditioned upon Participant not disclosing the terms of this Agreement or the receipt of the Options to anyone other than Participant’s spouse, confidential financial advisor, or senior management of the Company prior to the date Participant is Vested in the Options. If Participant discloses such information to any person other than those named in the prior sentence, except as may be required by law, Participant agrees that this award will be forfeited. 11. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded. 2
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12. No Right to Continued Service. This Agreement does not confer upon Participant any right to continue in service on the Board, nor shall it interfere in any way with the right of the Company to terminate such service at any time in accordance with any applicable procedures or law relating to the same. 13. Change due to Capital Adjustments. The terms of this Award shall be adjusted as the Committee determines and as provided in the Plan for events which, in the judgment of the Committee, necessitates such action. 14. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 15. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof or as duly amended. 16. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof which are incorporated by reference into this Agreement. 17. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto. MASSEY ENERGY COMPANY By: Name: Its:
[Participant] 3 Exhibit 10.3 MASSEY ENERGY COMPANY Non-Qualified Stock Option Agreement [Number] Non-Qualified Stock Options THIS AGREEMENT dated as of December , 20[year 1], between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and Don L. Blankenship (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan. 1. Award of Non-Qualified Stock Options. Pursuant to the Plan, the Company, on December , 20[year 1] (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [ ] Non-Qualified Stock Options, hereinafter described as “Options” or “Option,” at the option price of $ per share, being not less than the Fair Market Value of such shares on the Grant Date, or on the next preceding trading date if no Company shares traded on the New York Stock Exchange on the Grant Date. This Option is exercisable as hereinafter provided. 2. Nontransferability. This Option may not be transferred except by will or by the laws of descent and distribution. During Participant’s lifetime this Option may be exercised only by Participant. 3. Expiration Date. This Option shall expire ten years from the Grant Date (the “Expiration Date”) unless it otherwise is forfeited in accordance with Paragraph 4. 4. Exercisability. Subject to Paragraph 5 below, if the Participant remains employed by the Company until December 30, 20[year 2], Participant shall have the right to exercise this Option after the Option vests on December 30, 20[year 2] during, but only during, the first twenty days exercise is permissible for the Participant (the “Exercise Period”) pursuant to the Company’s trading window policy and applicable securities laws in effect from time to time (the “Company Trading Policy”), otherwise the Option shall be automatically forfeited. Once this Option has become exercisable in accordance with the preceding sentence it shall continue to be exercisable during the Exercise Period subject to Paragraph 5 or 6 . A partial exercise of this Option shall not affect Participant’s right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement. 5. Death. If Participant dies (whether or not in the employ of the Company) after the Option vests on December 30, 20[year 2], and prior to the end of the Exercise period or the forfeiture of the Options pursuant to Paragraphs 4 and 7, Participant’s estate or other successor in interest shall have the right, as provided in this Paragraph, to exercise this Option in full to the extent not exercised at Participant’s death. If Participant remains employed by the Company until December 30, 20[year 2] and dies (whether or not then in the employ of the Company) prior to the end of the Exercise Period, Participant’s estate or other successor in interest shall be entitled, as provided in this Paragraph, to exercise this Option
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in full to the extent not exercised at Participant’s
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death. In either such case this Option shall be exercisable, but shall only be exercisable, by Participant’s estate or other successor in interest during the Exercise Period which would have been applicable if Participant had survived or until the date that is three months after the date of Participant’s death, whichever is longer, but in no event later than the Expiration Date. 6. Exercise after Termination of Employment for any Reason Other Than Death. If Participant ceases to be employed by the Company on or after December 30, 20[year 2] for any reason other than death, this Option shall be exercisable by Participant during the Exercise Period as provided in Paragraph 4 or, if applicable, by Participant’s estate or other successor in interest pursuant to Paragraph 5. 7. Forfeiture. Subject to the preceding Paragraph, this Option shall be forfeited if Participant’s employment with the Company terminates prior to December 30, 20[year 2] for any reason. In addition, this Option shall be forfeited to the extent this Option is not exercised by the last date for exercise provided in Paragraph 4 or, if applicable, in Paragraph 5. 8. Notice. Any notice or other communications given pursuant to this Agreement shall be in writing and shall be personally delivered or mailed by United States registered or certified mail, postage prepaid, return receipt requested, to the following addresses: If to the Company: By hand-delivery: Massey Energy Company Attention: Corporate Secretary 4 North Fourth Street Richmond, Virginia 23219
By mail: Massey Energy Company Attention: Corporate Secretary P.O. Box 26765 Richmond, Virginia 23261
If to Participant: [Name] [Address] [Address] 9. Confidentiality. Participant agrees that this Agreement and the receipt of Options subject to this award are conditioned upon Participant not disclosing the terms of this Agreement or the receipt of the Options to anyone other than Participant’s spouse, confidential financial advisor, or senior management of the Company prior to December 30, 20[year 2]. If Participant discloses such information to any person other than those named in the prior sentence, except as may be required by law, Participant agrees that this award will be forfeited. 10. Fractional Shares. Fractional shares shall not be issuable hereunder, and when any provision hereof may entitle Participant to a fractional share such fraction shall be disregarded. 11. No Right to Continued Employment. This Agreement does not confer upon Participant any right to continue in the employ of the Company, nor shall it interfere in any way with the right of the Company to terminate such employment at any time. 2
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12. Change due to Capital Adjustments. The terms of this Award shall be adjusted as the Committee determines and as provided in the Plan for events which, in the judgment of the Committee, necessitates such action. 13. Governing Law. This Agreement shall be governed by the laws of the State of Delaware. 14. Conflicts. In the event of any conflict between the provisions of the Plan as in effect on the date hereof and the provisions of this Agreement, the provisions of the Plan shall govern. All references herein to the Plan shall mean the Plan as in effect on the date hereof or as duly amended. 15. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof which are incorporated by reference into this Agreement. 16. Binding Effect. Subject to the limitations stated above and in the Plan, this Agreement shall be binding upon and inure to the benefit of the legatees, distributees, and personal representatives of Participant and the successors of the Company. 17. Taxes. Participant shall make arrangements acceptable to the Company for the satisfaction of income and employment tax withholding requirements attributable to the exercise of any Option. IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly authorized officer, and Participant has affixed his signature hereto. MASSEY ENERGY COMPANY By: Name: Its:
[Participant] 3
