EXHIBIT 10.12
MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR
NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
ARTICLE I
DEFINITIONS
Section 1.1. DEFINITIONS
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The following terms shall have the meanings set forth herein unless the
context clearly indicates to the contrary:
(a) "Age for Board Retirement" shall mean the age for mandatory retirement
of members of the Board as specified in the Bylaws of the Company, as
applied to Eligible Directors on the date of such Eligible Director's
retirement from the Board.
(b) "Award" shall mean an award of Restricted Stock pursuant to the
provisions of Article V hereof.
(c) "Awardee" shall mean an Eligible Director to whom Restricted Stock has
been awarded hereunder.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Change of Control" of the Company shall be deemed to have occurred if,
(i) a third person, including a "group" as defined in Section 13(d)(3) of
the Securities Exchange Act of 1934, acquires shares of the Company having
twenty-five percent or more of the total number of votes that may be cast
for the election of directors of the Company; or (ii) as the result of any
cash tender or exchange offer, merger or other business combination, or any
combination of the foregoing transactions (a "Transaction"), the persons
who were directors of the Company before the Transaction shall cease to
constitute a majority of the Board of the Company or any successor to the
Company.
(f) "Committee" shall mean members of the Board who are not eligible to
participate in the Plan.
(g) "Company" shall mean Massey Energy Company.
(h) "Eligible Director" shall mean a director of the Company who is not an
employee of the Company or any of its Subsidiaries.
(i) "Plan" shall mean the 1997 Massey Energy Company Restricted Stock Plan
for Non-Employee Directors as amended and restated effective November 30,
2000, the current terms of which are set forth herein.
(j) "Plan Effective Date" shall mean the Plan's original effective date
which was March 11, 1997. The effective date of this amended and restated
Plan is November 30, 2000.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
(k) "Restricted Stock" shall mean Stock that may be awarded to an Eligible
Director by the Committee pursuant to Article V hereof, which is
nontransferable and subject to a substantial risk of forfeiture until
specific conditions are met.
(l) "Restricted Stock Agreement" shall mean the agreement between the
Company and the Awardee with respect to Restricted Stock awarded hereunder.
(m) "Stock" shall mean the Common Stock of the Company or, in the event
that the outstanding shares of Stock are hereafter changed into or
exchanged for shares of a different stock or securities of the Company or
some other corporation, such other stock or securities.
(n) "Subsidiary" shall mean any corporation, the majority of the
outstanding capital stock of which is owned, directly, or indirectly, by
the Company or any partnership or joint venture in which either the Company
or such a corporation is at least a twenty percent (20%) equity
participant.
ARTICLE II
GENERAL
Section 2.1. NAME
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This Plan shall be known as the "Massey Energy Company 1997 Restricted
Stock Plan for Non-Employee Directors."
Section 2.2. PURPOSE
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The purpose of the Plan is to advance the interests of the Company and its
stockholders by affording to Eligible Directors of the Company an opportunity to
acquire or increase their proprietary interest in the Company by the grant to
such directors of Awards under the terms set forth herein. By encouraging non-
employee directors to become owners of Company shares, the Company seeks to
increase their incentive for enhancing stockholder value and to motivate, retain
and attract those highly competent individuals upon whose judgment, initiative,
leadership and continued efforts the success of the Company in large measure
depends.
Section 2.3. EFFECTIVE DATE
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The Plan was effective on March 11, 1997 upon its approval by the holders
of a majority of the shares of Stock of Fluor Corporation represented at an
annual or special meeting of the stockholders of Fluor Corporation. The
effective date of this amended and restated Plan is November 30, 2000.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
Section 2.4. LIMITATIONS
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Subject to adjustment pursuant to the provisions of Section 8.1 hereof, the
aggregate number of shares of Stock which may be issued as Awards shall not
exceed 60,000. Any such shares may be either authorized and unissued shares or
shares issued and thereafter acquired by the Company.
Section 2.5. AWARDS GRANTED UNDER PLAN
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Shares of Stock received pursuant to a Restricted Stock Agreement executed
hereunder with respect to which the restrictions provided for in Section 5.3
hereof have lapsed shall not again be available for Award grant hereunder. If
Restricted Stock is acquired by the Company pursuant to the provisions of
paragraph (c) of Section 5.3 hereof, new Awards may be granted hereunder
covering the number of shares to which such Restricted Stock acquisition
relates.
ARTICLE III
PARTICIPANTS
Section 3.1. ELIGIBILITY
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Any Eligible Director shall be eligible to participate in the Plan.
ARTICLE IV
ADMINISTRATION
Section 4.1. DUTIES AND POWERS OF COMMITTEE
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The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall also have complete authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to it, to determine the details and provisions of each Restricted Stock
Agreement, and to make all other determinations necessary or advisable in the
administration of the Plan.
Section 4.2. MAJORITY RULE
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A majority of the members of the Committee shall constitute a quorum, and
any action taken by a majority present at a meeting at which a quorum is present
or any action taken without a meeting evidenced by a writing executed by a
majority of the whole Committee shall constitute the action of the Committee.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
Section 4.3. COMPANY ASSISTANCE
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The Company shall supply full and timely information to the Committee on
all matters relating to Eligible Directors, their death, retirement, disability
or removal or resignation from the Board and such other pertinent facts as the
Committee may require. The Company shall furnish the Committee with such
clerical and other assistance as is necessary in the performance of its duties.
ARTICLE V
AWARDS
Section 5.1. AWARD GRANT AND RESTRICTED STOCK AGREEMENT
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The Committee shall grant to each Eligible Director who is a member of the
Board during all or any portion of each calendar year during the term of the
Plan (including the calendar year in which the Plan amended and restated
Effective Date occurs) an Award of 500 shares of Restricted Stock, (as adjusted
to reflect the distribution of Fluor Corporation from the Company) which grant
shall be made in respect of any calendar year on the date of the first regularly
scheduled meeting of the Board during such calendar year occurring concurrently
with or after such Eligible Director's appointment to the Board.
Each Award granted hereunder must be granted within ten years from the
effective date of the Plan. The Awardee shall be entitled to receive the Stock
subject to such Award only if the Company and the Awardee enter into a written
Restricted Stock Agreement dated as of the date of the Award, which Agreement
shall set forth such terms and conditions as may be determined by the Committee
consistent with the Plan.
Section 5.2. CONSIDERATION FOR ISSUANCE
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No shares of Restricted Stock shall be issued to an Awardee hereunder
unless and until the Committee shall have determined that consideration has been
received by the Company, in the form of labor performed for or services actually
rendered to the Company by the Awardee, having a fair value of not less than the
then fair market value of a like number of shares of Stock subject to all of the
herein provided conditions and restrictions applicable to Restricted Stock, but
in no event less than the par value of such shares.
Section 5.3. RESTRICTIONS ON SALE OR OTHER TRANSFER
--------------------------------------
Each share of Stock received pursuant to each Restricted Stock Agreement
shall be subject to acquisition by Massey Energy Company, and may not be sold or
otherwise transferred except pursuant to the following provisions:
(a) The shares of Stock represented by the Restricted Stock Agreement shall
be held in book entry form with the Company's transfer agent until the
restrictions lapse in
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
accordance with the conditions established by the Committee pursuant to
Section 5.4 hereof, or until the shares of stock are forfeited pursuant to
paragraph (c) of this Section 5.3. Notwithstanding the foregoing, the
Awardee may request that, prior to the lapse of the restrictions or
forfeiture of the shares, certificates evidencing such shares be issued in
his name and delivered to him, and each such certificate shall bear the
following legend:
"The shares of Massey Energy Company common stock evidenced
by this certificate are subject to acquisition by Massey
Energy Company, and such shares may not be sold or otherwise
transferred except pursuant to the provisions of the
Restricted Stock Agreement by and between Massey Energy
Company and the registered owner of such shares."
(b) No such shares may be sold, transferred or otherwise alienated or
hypothecated so long as such shares are subject to the restriction provided
for in this Section 5.3.
(c) All of the Awardee's Restricted Stock remaining subject to any
restriction hereunder shall be forfeited to, and be acquired at no cost by,
the Company in the event that the Committee determines that any of the
following circumstances has occurred:
(i) the Awardee has engaged in knowing and willful misconduct in
connection with his or her service as a member of the Board;
(ii) the Awardee, without the consent of the Committee, at any time
during his or her period of service as a member of the Board, becomes
a principal of, serves as a director of, or owns a material interest
in, any business that directly or through a controlled subsidiary
competes with the Company or any Subsidiary; or
(iii) the Awardee does not stand for reelection to, or voluntarily
quits or resigns from, the Board for any reason, except under
circumstances that would cause such restrictions to lapse under
Section 5.4.
Section 5.4. LAPSE OF RESTRICTIONS
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The restrictions imposed under Section 5.3 above upon Restricted Stock held
by any Awardee will, as to any such Restricted Stock held by the Awardee for at
least six months, lapse once the Awardee has completed five years of service on
the Board or any of the following occurs:
(a) the Awardee attains the Age for Board Retirement or obtains Board
approval of early retirement in accordance with Section 5.5;
(b) the Awardee dies or becomes permanently and totally disabled; or
(c) any Change of Control occurs.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
In no event will the restrictions imposed under Section 5.3 lapse as to any
shares of Restricted Stock awarded to any Awardee until the Awardee has held
such shares for six months. Subject to the prior sentence, the Board may, in its
sole and absolute discretion, cause the five-year restriction to lapse with
respect to an Eligible Director who leaves the service of the Board.
Section 5.5. EARLY RETIREMENT
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An Eligible Director who leave the Board prior to the Age for Board
Retirement, may, upon application to and in the sole discretion of the
Committee, be granted early retirement status.
Section 5.6. RIGHTS AS STOCKHOLDER
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Subject to the provisions of Section 5.3 hereof, upon the issuance to the
Awardee of Restricted Stock hereunder, the Awardee shall have all the rights of
a stockholder with respect to such Stock, including the right to vote the shares
and receive all dividends and other distributions paid or made with respect
thereto.
ARTICLE VI
STOCK CERTIFICATES
Section 6.1. STOCK CERTIFICATES
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The Company shall not be required to issue or deliver any certificate for
shares of Stock received as Restricted Stock pursuant to a Restricted Stock
Agreement executed hereunder, prior to fulfillment of all of the following
conditions:
(a) the admission of such shares to listing on all stock exchanges on which
the Stock is then listed;
(b) the completion of any registration or other qualification of such
shares under any federal or state law or under the rulings or regulations
of the Securities and Exchange Commission or any other governmental
regulatory body, which the Committee shall in its sole discretion deem
necessary or advisable;
(c) the obtaining of any approval or other clearance from any federal or
state governmental agency which the Committee shall in its sole discretion
determine to be necessary or advisable; and
(d) the lapse of such reasonable period of time following the execution of
the Restricted Stock Agreement as the Committee from time to time may
establish for reasons of administrative convenience.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
ARTICLE VII
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
Section 7.1. TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
-----------------------------------------------
The Committee may at any time terminate, and may at any time and from time
to time and in any respect amend or modify, the Plan provided that, if under
applicable laws or the rules of any securities exchange upon which the Company's
common stock is listed, the consent of the Company's stockholders is required
for such amendment or modification, such amendment or modification shall not be
effective until the Company obtains such consent, and provided, further, that no
termination, amendment or modification of the Plan shall in any manner affect
any Restricted Stock Agreement theretofore executed pursuant to the Plan without
the consent of the Awardee.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. ADJUSTMENT PROVISIONS
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(a) Subject to Section 8.l(b) below, if the outstanding shares of Stock of
the Company are increased, decreased, or exchanged for a different number
or kind of shares or other securities, or if additional shares or new or
different shares or other securities are distributed with respect to such
shares of Stock or other securities, through merger, consolidation, sale of
all or substantially all of the property of the Company, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse
stock split or other distribution with respect to such shares of Stock or
other securities, an appropriate and proportionate adjustment may be made
in (i) the maximum number and kind of shares provided in Section 2.4 and
(ii) the number and kind of shares or other securities subject to the
outstanding Awards.
(b) Adjustments under Section 8.l(a) will be made by the Committee, whose
determination as to what adjustments will be made and the extent thereof
will be final, binding, and conclusive. No fractional interests will be
issued under the Plan resulting from any such adjustments.
Section 8.2. CONTINUATION OF BOARD SERVICE
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Nothing in the Plan or in any instrument executed pursuant to the Plan will
confer upon any Eligible Director any right to continue to serve on the Board.
Section 8.3. COMPLIANCE WITH GOVERNMENT REGULATIONS
--------------------------------------
No shares of Stock will be issued hereunder unless and until all
applicable requirements imposed by federal and state securities and other laws,
rules, and regulations and by any
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
regulatory agencies having jurisdiction and by any stock exchanges upon which
the Stock may be listed have been fully met. As a condition precedent to the
issuance of shares of Stock pursuant hereto, the Company may require the
employee to take any reasonable action to comply with such requirements.
Section 8.4. PRIVILEGES OF STOCK OWNERSHIP
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No director and no beneficiary or other person claiming under or through
such employee will have any right, title, or interest in or to any shares of
Stock allocated or reserved under the Plan or subject to any Award except as to
such shares of Stock, if any, that have been issued to such director.
Section 8.5. WITHHOLDING
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The Company may make such provisions as it deems appropriate to withhold
any taxes the Company determines it is required to withhold in connection with
any Award. The Company may require the director to satisfy any relevant tax
requirements before authorizing any issuance of Stock to the director. Such
settlement may be made in cash or [previously acquired] Stock.
Section 8.6. NONTRANSFERABILITY
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An Award may be exercised during the life of the director solely by the
director or the director's duly appointed guardian or personal representative.
No Award and no other right under the Plan, contingent or otherwise, will be
assignable or subject to any encumbrance, pledge, or charge of any nature.
Section 8.7. OTHER COMPENSATION PLANS
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The adoption of the Plan shall not affect any other stock option or
incentive or other compensation plans in effect for the Company or any
Subsidiary, nor shall the Plan preclude the Company from establishing any other
forms of incentive or other compensation for employees or directors of the
Company or any Subsidiary.
Section 8.8. PLAN BINDING ON SUCCESSORS
--------------------------
The Plan shall be binding upon the successors and assigns of the Company.
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MASSEY ENERGY COMPANY
1997 RESTRICTED STOCK PLAN FOR NON-EMPLOYEE DIRECTORS
As Amended and Restated Effective November 30, 2000
Section 8.9. SINGULAR, PLURAL; GENDER
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Whenever used herein, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender.
Section 8.10. HEADINGS, ETC., NO PART OF PLAN
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Headings of Articles and Sections hereof are inserted for convenience and
reference; they constitute no part of the Plan.
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