Exhibit 10.3
AMENDMENT TO EMPLOYMENT AGREEMENT
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This Amendment to Employment Agreement (the "Amendment Agreement") is
entered into as of November 30, 2000, by and among A.T. Massey Coal Company,
Inc., a Virginia corporation ("Massey"); Fluor Corporation, a Delaware
corporation, which shall be renamed Massey Energy Company in connection with the
transactions described below (together with its successors and permitted
assigns, "Parent"); Fluor Corporation, a Delaware corporation (together with its
successors and permitted assigns, "New Fluor"); and Don L. Blankenship (the
"Executive").
WHEREAS, the Executive entered into an Employment Agreement with Massey and
Parent, dated as of October 1, 1998, pursuant to which the Executive is employed
as the Chairman and Chief Executive Officer of Massey; and
WHEREAS, the Executive entered into a Special Successor Development and
Retention Program agreement (the "SSDRP Agreement") with Parent and adopted by
Parent in September 1998 pursuant to which the Executive received certain
compensation and benefits; and
WHEREAS, the Board of Directors of Parent has determined to reorganize
Parent by separating from Parent all businesses currently conducted by Parent
other than certain businesses associated with Massey and to cause such
businesses to be owned and conducted, directly or indirectly, by New Fluor; and
WHEREAS, in order to effect such separation, the Board of Directors of
Parent has determined to distribute to the holders of Parent's common stock, par
value $0.625 per share, all of the outstanding shares of common stock of New
Fluor pursuant to a Distribution Agreement with Parent (the "Distribution"); and
WHEREAS, each of Parent, New Fluor, Massey, and Executive has determined
that it is necessary and desirable to address their rights and obligations under
the Employment Agreement, and to address the treatment of certain stock-based
compensation arrangements under the Employment Agreement, on or prior to the
consummation of the Distribution,
NOW, THEREFORE, in consideration of the mutual promises and commitments set
forth herein, the receipt and sufficiency of which all parties acknowledge, the
parties agree as follows:
1. Parent and Massey hereby ratify the Employment Agreement and SSDRP
Agreement and acknowledge and agree that they shall be bound by all the terms
thereof following the Distribution, except as expressly provided herein. The
Executive agrees that the execution of the Distribution Agreement, and the
consummation of the transactions provided for thereunder, shall not constitute a
termination of the Executive's employment under the Employment Agreement, the
SSDRP Agreement or otherwise, and that the Employment Agreement shall remain in
full force and effect following the Distribution, except as expressly provided
herein.
2. Upon consummation of the Distribution, notwithstanding anything to the
contrary in the Employment Agreement or SSDRP Agreement, the stock-based
compensation arrangements provided for under the Employment Agreement shall be
adjusted as follows:
a. Pursuant to Section 4(c) of the Employment Agreement and the terms of
the SSDRP Agreement, the Executive has been granted 31,264 shares of
Parent restricted stock and 17,559 Parent restricted unit share
equivalents. Upon consummation of the Distribution, (i) the foregoing
shares of Parent restricted stock and the foregoing Parent restricted
units shall continue in accordance with their terms and the terms of
the Employment Agreement and the plan(s) under which they were
granted, and (ii) Executive shall receive an equivalent number of
shares of New Fluor restricted stock and of New Fluor restricted unit
share equivalents. The New Fluor stock and units described in clause
(ii) of this Section 2(a) shall fully vest as of 4 p.m., New York City
Time, on the first trading day following the effective time of the
Distribution. In cancellation and satisfaction of the foregoing New
Fluor restricted units, Parent shall pay Executive $403,857,
concurrently with the vesting of the stock described in the preceding
sentence. In addition to the foregoing, Parent shall pay to the
Executive an amount equal to the difference, if any, obtained by
subtracting the Fair Market Value of the New Fluor restricted stock
from $719,072. The foregoing payment shall be made by Parent within
two weeks following the effective time of the Distribution. For
purposes of this Section 2(a), the term "trading day" means a day on
which Parent's common stock trades on the New York Stock Exchange, and
the Fair Market Value of the New Fluor restricted stock shall equal an
amount determined by multiplying 31,264 by the closing price of New
Fluor common stock reported for the first trading day following the
effective time of the Distribution. Except as provided in this clause
(a), Executive shall not have any claim or right to receive, hold,
exercise, or otherwise be entitled to any New Fluor restricted stock
or restricted units.
b. The Executive has been granted options potentially exercisable for
shares of Parent common stock in the number and at the exercise prices
set forth in Schedule A. Upon consummation of the Distribution, such
options shall continue in accordance with their terms and the terms of
the Employment Agreement and the plan(s) under which they were
granted, except that (i) the number of shares of Parent stock covered
by such options shall be multiplied by 3.4, and (ii) the exercise
price of such options shall be divided by 3.4. Executive shall not
have any claim or right to receive, hold, exercise, or otherwise be
entitled to any New Fluor stock options.
c. Pursuant to Section 4(d) of the Employment Agreement, the Executive
has been or will be granted 240,000 units of Parent Shadow Stock. Upon
consummation of the Distribution, (i) the units of Parent Shadow Stock
shall continue to be granted, vest and otherwise be subject to their
terms and the terms of the Employment Agreement and the plan(s) under
which they were granted, and (ii) within two weeks following the
effective time of the Distribution Parent shall pay Executive
$5,520,000. Executive shall not have any claim or right to receive,
hold, exercise, or otherwise be entitled to any New Fluor Shadow
Stock.
d. Pursuant to Section 4(e) of the Employment Agreement, the Executive
has been granted Stock Appreciation Rights ("SARs") on 300,000 shares
of Parent stock with a strike price of $40.59375 per share. Upon
consummation of the Distribution, (i) such SARs shall continue to
constitute SARs on 300,000 shares of Parent stock and otherwise shall
remain subject to their terms and the terms of
the Employment Agreement and the plan(s) under which they were
granted, except that the exercise price of such SARs shall be divided
by a fraction the numerator of which shall equal the opening price per
share for Parent Common Stock on the first trading date after the
effective time of the Distribution, and the denominator of which shall
equal the closing price per share of Parent common stock on the last
trading day before the effective time of the Distribution, and (ii)
Parent shall credit an amount equal to $2,778,700 to Executive's
account under the Deferred Compensation Plan maintained by Parent.
Executive shall not have any claim or right to receive, hold,
exercise, or otherwise be entitled to any New Fluor SARs.
e. The Parties to this Amendment Agreement hereby agree that the
provisions of this Section 2 shall operate in lieu of, and shall
supercede, any provision to the contrary in the terms of the
restricted stock, restricted unit, stock option, shadow stock and SAR
grants described above, in the Employment Agreement and the SSDRP
Agreement and in the plan(s) under which such arrangements were
granted, addressing the exercisability and/or adjustment of such
awards upon the Distribution or an equivalent event.
3. Release of New Fluor Parties. The Executive, on behalf of himself and
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anyone claiming through him ("Executive Parties"), agrees to release and further
not to sue New Fluor and its divisions, subsidiaries, partnerships, affiliates
and other related entities (whether or not such entities are wholly owned),
together with the past, present, and future owners, trustees, fiduciaries,
shareholders, administrators, directors, officers, agents, partners, employees,
representatives, attorneys, and the predecessors, successors, and assigns of
each of them (collectively, the "New Fluor Parties," provided however that the
term "New Fluor Parties" shall not include Parent, Massey or persons claiming
through either of them) with respect to any and all claims, whether currently
known or unknown, which the Executive Parties now have, have ever had, or may
ever have, against any of the New Fluor Parties arising from or related to any
act, omission, or thing occurring at any time before or on the date that the
Executive executes this Amendment Agreement.
Without limiting the foregoing language in any way, the claims released by
the Executive Parties include, but are not limited to, any and all claims
arising out of or related in any way to the Executive's employment with Massey.
The claims released by the Executive Parties also include, but are not limited
to, any and all claims that could have been asserted by the Executive Parties
against any of the New Fluor Parties in any federal, state, or local court,
commission, department, or agency under any common law theory or under any fair
employment, employment, contract, tort, federal, state, or local law,
regulation, ordinance, or executive order, including without limitation the
following laws as amended from time to time: the Consolidated Omnibus Budget
Reconciliation Act of 1985, the Age Discrimination in Employment Act, Title VII
of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act of 1870,
the Americans with Disabilities Act, the Older Workers' Benefit Protection Act,
the Employee Retirement Income Security Act, the Family and Medical Leave Act of
1993, the California Civil Code, and the California Fair Employment and Housing
Act.
4. Release of Executive Parties. New Fluor, on behalf of itself and
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anyone claiming through it, agrees to release and further not to sue the
Executive Parties with respect to any and all claims, whether currently known or
unknown, which the New Fluor
Parties now have, have ever had, or may ever have, against any of the Executive
Parties arising from or related to any act, omission, or thing occurring at any
time before or on the date that the Executive executes this Amendment Agreement.
5. California Civil Code 1542. The parties hereby acknowledge that they
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are familiar with California Civil Code Section 1542, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Each of the parties hereto knowingly and voluntarily waives and relinquishes all
rights and benefits that they may have under California Civil Code Section 1542
or a comparable state law and acknowledges and agrees that this waiver is an
essential and material term of this Agreement, and that without such waiver this
Agreement would not have been entered into.
6. Counterparts. The Amendment Agreement may be executed in multiple
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counterparts, each of which shall be fully effective as an original and all of
which together shall constitute one and the same instrument.
7. THE EXECUTIVE ACKNOWLEDGES THAT HE UNDERSTANDS THE TERMS AND EFFECTS
OF THIS AGREEMENT, THAT HE HAS BEEN ADVISED TO CONSULT AND HAS CONSULTED WITH AN
ATTORNEY PRIOR TO EXECUTING THIS AGREEMENT, AND THAT HE HAS BEEN INFORMED THAT
HE IS ENTITLED TO A PERIOD OF AT LEAST TWENTY-ONE (21) DAYS WITHIN WHICH TO
CONSIDER THIS AGREEMENT, BUT THAT HE MAY EXECUTE THIS AGREEMENT AT ANY TIME
PRIOR TO THE EXPIRATION OF THE TWENTY-ONE (21) DAY GRACE PERIOD. THE EXECUTIVE
FURTHER ACKNOWLEDGES THAT WITHIN SEVEN (7) DAYS FROM THE DATE OF EXECUTION OF
THIS AGREEMENT HE MAY, AT HIS SOLE OPTION, REVOKE THE AGREEMENT UPON WRITTEN
NOTICE TO MASSEY AND THE AGREEMENT WILL NOT BECOME EFFECTIVE UNTIL THE SEVEN
(7)-DAY REVOCATION PERIOD HAS EXPIRED.
IN WITNESS WHEREOF, the undersigned have executed this Agreement effective
as of the date set forth above.
FLUOR CORPORATION,
a Delaware Corporation incorporated in 1978
(to be renamed Massey Energy Company as of
the Distribution)
By: /s/ Philip J. Carroll, Jr.
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FLUOR CORPORATION,
a Delaware corporation incorporated in 2000
By: /s/ L. N. Fisher
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A.T. MASSEY COAL COMPANY, INC.
By: /s/ Jeffrey M. Jarosinski
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DONALD L. BLANKENSHIP
By: /s/ Donald L. Blankenship
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