EXHIBIT 10.6
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
ARTICLE I
DEFINITIONS
Sec. 1.1 DEFINITIONS
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As used herein, the following terms shall have the meanings hereinafter set
forth unless the context clearly indicates to the contrary:
(a) "Award" shall mean an award of Restricted Stock pursuant to the
provisions of Article VI hereof.
(b) "Awardee" shall mean an Eligible Employee to whom Restricted Stock has
been awarded hereunder.
(c) "Board" shall mean the Board of Directors of the Company.
(d) "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.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(f) "Committee" shall mean the Compensation Committee of the Board.
(g) "Company" shall mean Massey Energy Company.
(h) "Eligible Employee" shall mean an employee who is an officer of the
Company or any Subsidiary or who is a member of the Executive
Management Team of the Company and its Subsidiaries.
(i) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(j) "Executive Management Team" shall mean those employees who were
determined to be eligible to participate in the Fluor Corporation and
Subsidiaries Executive Incentive Compensation Program or in other
similar management incentive compensation programs of any Subsidiary.
(k) "Fair Market Value" shall mean the average of the highest price and
the lowest price per share at which the Stock is sold in the regular
way on the New York
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
Stock Exchange on the day an Option is granted hereunder or, in the
absence of any reported sales on such day, the first preceding day on
which there were such sales.
(l) "Grantee" shall mean an Eligible Employee to whom Rights have been
granted hereunder.
(m) "Incentive Stock Option" shall mean an incentive stock option, as
defined under Section 422 of the Code and the regulations thereunder
to purchase Stock.
(n) "Nonqualified Stock Option" shall mean a stock option other than an
Incentive Stock Option to purchase Stock.
(o) "Option" shall mean an option to purchase Stock granted pursuant to
the provisions of Article V hereof and refers to both Incentive Stock
Options and Nonqualified Stock Options.
(p) "Optionee" shall mean an Eligible Employee to whom an Option has been
granted hereunder.
(q) "Plan" shall mean the Massey Energy Company 1988 Executive Stock Plan,
the current terms of which are set forth herein. The Plan is an
amendment and restatement of the 1988 Fluor Executive Stock Plan.
(r) "Prior Plans" shall mean the 1971 Fluor Stock Option Plan, the 1977
Fluor Executive Stock Plan, the 1981 Fluor Executive Stock Plan and
the 1982 Fluor Executive Stock Option Plan.
(s) "Restricted Stock" shall mean Stock that may be awarded to an Eligible
Employee by the Committee pursuant to Article VI hereof, which is
nontransferable and subject to a substantial risk of forfeiture until
specific conditions are met. Conditions may be based on continuing
employment or achievement of preestablished performance objectives.
(t) "Return on Average Shareholders' Equity" shall mean, for any fiscal
year, the percentage amount reported as "Return on Average
Shareholders Equity" in the "Highlights" section of the Company's
Annual Report to Stockholders for such fiscal year.
(u) "Restricted Stock Agreement" shall mean the agreement between the
Company and the Awardee with respect to Restricted Stock awarded
hereunder.
(v) "Rights" shall mean Stock Appreciation Rights granted as provided
herein.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
(w) "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.
(x) "Stock Appreciation Right" or "Right" shall mean a right granted
pursuant to Article VIII hereof to receive a number of shares of Stock
or, in the discretion of the Committee, an amount of cash or a
combination of shares and cash, based on the increase in the Fair
Market Value of the shares subject to the Right.
(y) "Stock Appreciation Rights Agreement" shall mean the agreement between
the Company and the Grantee evidencing the grant of Rights as provided
herein.
(z) "Stock Option Agreement" shall mean the agreement between the Company
and the Optionee under which the Optionee may purchase Stock
hereunder.
(aa) "Stock Payment" shall mean a payment in shares of Stock to replace all
or any portion of the compensation (other than base salary) that would
otherwise become payable to any Eligible Employee of the Company.
(bb) "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.
(cc) "Ten Year Treasury Yield" shall mean, for any fiscal period, the daily
average percent per annum yield for U. S. Government Securities - 10
year Treasury constant maturities, as published in the Federal Reserve
statistical release or any successor publication.
ARTICLE II
GENERAL
Sec. 2.1 NAME
----
This Plan shall be known as the "Massey Energy Company 1988 Executive Stock
Plan."
Sec. 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 Employees of the Company and its
Subsidiaries an opportunity to acquire or increase their proprietary interest in
the Company by the grant to such employees of Options, Awards or Rights under
the terms set forth herein. By thus encouraging such employees to become owners
of Company shares and by granting such employees with a form of cash incentive
compensation which is measured by the increase in market value of Company
shares, the Company seeks to motivate, retain and attract those highly competent
individuals
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
upon whose judgment, initiative, leadership and continued efforts the success of
the Company in large measure depends.
Sec. 2.3 EFFECTIVE DATE
--------------
The Plan was effective in 1988, upon its approval by the holders of a
majority of the shares of Stock of the Fluor Corporation as of the date of the
1988 annual meeting of the shareholders of Fluor Corporation. The effective
date of this amended and restated Plan is November 30, 2000.
Sec. 2.4 LIMITATIONS
-----------
Subject to adjustment pursuant to the provisions of Section 11.1 hereof,
the aggregate number of shares of Stock which may either be issued as Awards,
subject to Options or issued pursuant to the exercise of Options, or reflected
in grants of Stock Appreciation Rights shall not exceed the sum of (a) 5,500,000
plus (b) that number of shares represented by options, awards or rights under
Prior Plans which expire or are otherwise terminated at any time after the
original effective date of this Plan. Any such shares may be either authorized
and unissued shares or shares issued and thereafter acquired by the Company. No
Eligible Employee may receive more than fifteen percent (15%) of the aggregate
number of shares of Stock which may be issued as Awards, subject to Options or
issued pursuant to the exercise of Options or reflected in grants of Stock
Appreciation Rights.
Sec. 2.5 OPTIONS, AWARDS AND RIGHTS GRANTED UNDER PLAN
---------------------------------------------
Shares of Stock with respect to which an Option granted hereunder shall
have been exercised, and shares of Stock received pursuant to a Restricted Stock
Agreement executed hereunder with respect to which the restrictions provided for
in Section 6.3 hereof shall have lapsed and shares of Stock reflected in a Stock
Appreciation Right, to the extent that such Right has become exercisable, shall
not again be available for Option, Award or Rights grant hereunder. If Options
or Rights granted hereunder shall expire or terminate for any reason without
being wholly exercised, or if Restricted Stock is acquired by the Company
pursuant to the provisions of paragraph (c) of Section 6.3 hereof, new Options,
Awards or Rights may be granted hereunder covering the number of shares to which
such Option or Rights expiration or termination or Restricted Stock acquisition
relates.
ARTICLE III
PARTICIPANTS
Sec. 3.1 ELIGIBILITY
-----------
Any Eligible Employee shall be eligible to participate in the Plan;
provided, however, that no member of the Committee shall be eligible to
participate. The Committee may grant Options, Awards or Rights to any Eligible
Employee in accordance with such determinations as the Committee from time to
time in its sole discretion shall make.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
ARTICLE IV
ADMINISTRATION
Sec. 4.1 DUTIES AND POWERS OF COMMITTEE
------------------------------
The Plan shall be administered by the Committee. Subject to the express
provisions of the Plan, the Committee shall have sole discretion and authority
to determine from among Eligible Employees those to whom and the time or times
at which Options, Rights or Awards may be granted, the number of shares of Stock
to be subject to each Option or Award, the number of Rights to be awarded and
the period for the exercise of such Option or Rights which need not be the same
for each grant hereunder. 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 Stock Option Agreement, Stock Appreciation
Rights Agreement and Restricted Stock Agreement, and to make all other
determinations necessary or advisable in the administration of the Plan.
Sec. 4.2 MAJORITY RULE
-------------
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.
Sec. 4.3 COMPANY ASSISTANCE
------------------
The Company shall supply full and timely information to the Committee on
all matters relating to eligible employees, their employment, death, retirement,
disability or other termination of employment, 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
OPTIONS
Sec. 5.1 OPTION GRANT AND AGREEMENT
--------------------------
Each Option granted hereunder shall be evidenced by minutes of a meeting or
the written consent of the Committee and by a written Stock Option Agreement
dated as of the date of grant and executed by the Company and the Optionee,
which Agreement shall set forth such terms and conditions as may be determined
by the Committee consistent with the Plan.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
Sec. 5.2 PARTICIPATION LIMITATION
------------------------
The Committee shall not grant an Incentive Stock Option to any employee for
such number of shares of Stock that, immediately after the grant, the total
number of shares of Stock owned or subject to Options exercisable by and/or
Awards outstanding in the hands of such employee (or by such persons whose
shares such employee is considered as owning pursuant to the provisions of the
second succeeding sentence) exceed ten percent of the total combined voting
power of all classes of stock of the Company. This restriction does not apply
if, at the time such Incentive Stock Option is granted, the Incentive Stock
Option purchase price is at least 110% of the Fair Market Value on the date of
grant and the Incentive Stock option by its terms is not exercisable after the
expiration of five (5) years from the date of grant. For purposes of this
Section 5.2, an employee shall be considered as owning the stock owned, directly
or indirectly, by or for his brothers and sisters (whether by the whole or half
blood), spouse, ancestors and lineal descendants; and the stock owned, directly
or indirectly, by or for a corporation, partnership, estate or trust shall be
considered as being owned proportionately by or for its shareholders, partners
or beneficiaries.
Sec. 5.3 OPTION PRICE
------------
The purchase price of Stock under each option will be determined by the
Committee but may not be less than the Fair Market Value on the date of grant.
Sec. 5.4 OPTION PERIOD
-------------
Each option granted hereunder must be granted within ten years from the
effective date of the Plan. The period for the exercise of each option shall be
determined by the Committee, but in no instance shall such period exceed ten
years from the date of grant of the Option.
Sec. 5.5 OPTION EXERCISE
---------------
(a) Options granted hereunder may not be exercised unless and until the
Optionee shall have been or remained in the employ of the Company or
its Subsidiaries for one year from and after the date such Option was
granted, except as otherwise provided in Section 5.7 hereof.
(b) Options may be exercised with respect to whole shares only, for such
shares of Stock and within the period permitted for the exercise
thereof as determined by the Committee, and shall be exercised by
written notice of intent to exercise the Option with respect to a
specified number of shares delivered to the Company at its principal
office in the State of Delaware, and payment in full to the Company at
said office of the amount of the Option price for the number of shares
of Stock with respect to which the Option is then being exercised. The
purchase price may be paid by the assignment and delivery to the
Company of shares of Stock or a combination of cash and shares of
Stock equal in value to the exercise price. Any shares assigned and
delivered to the Company in payment or partial payment of the purchase
price will be valued at their Fair Market Value on the exercise date.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
(c) The Fair Market Value of the Stock at the date of grant for which any
employee may exercise Incentive Stock Options in any calendar year
under the Plan (or any other stock option plan of the Company adopted
after December 31, 1986) may not exceed $100,000.
Sec. 5.6 NONTRANSFERABILITY OF OPTION
----------------------------
No Option shall be transferred by an Optionee otherwise than by a will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order as defined in the Code or Title I of ERISA. During the lifetime
of an Optionee, the Option shall be exercisable only by him.
Sec. 5.7 EFFECT OF DEATH OR OTHER TERMINATION OF EMPLOYMENT
--------------------------------------------------
(a) If, prior to a date one year from the date on which an Option shall
have been granted, the Optionee's employment with the Company or its
Subsidiaries shall be terminated by the Company or Subsidiary with or
without cause, or by the act of the Optionee, the Optionee's right to
exercise such Option shall terminate and all rights thereunder shall
cease; provided, however, that if the Optionee shall die, retire or
become permanently and totally disabled, as determined in accordance
with applicable Company personnel policies, or if the Optionee's
employment with the Company or its Subsidiaries shall be terminated
within two years after a Change of Control of the Company and such
termination occurs prior to a date one year from the date on which an
Option shall have been granted, such Option shall become exercisable
in full on the date of such death, retirement, disability or
termination of employment.
(b) If, on or after one year from the date on which an Option shall have
been granted, an Optionee's employment with the Company or its
Subsidiaries shall be terminated for any reason other than death,
retirement or permanent total disability, or within two years
following a Change of Control of the Company, the Optionee shall have
the right, during the period ending three months after such
termination, to exercise such Option to the extent that it was
exercisable at the date of such termination and shall not have been
exercised, subject, however, to the provisions of Section 5.4 hereof.
(c) Upon termination of an Optionee's employment with the Company or its
Subsidiaries by reason of retirement or permanent total disability, as
determined in accordance with applicable Company personnel policies,
or within two years following a Change of Control of the Company, such
Optionee shall have the right, during the period ending three years
after such termination, to exercise his Option in full, without regard
to any installment exercise provisions, to the extent that it shall
not have been exercised, subject, however, to the provisions of
Section 5.4 hereof.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
(d) If an Optionee shall die (i) while in the employ of the Company or its
Subsidiaries, or (ii) within three months after termination of
employment where such termination did not occur either by reason of
retirement or permanent total disability or "within two years
following a Change of Control of the Company, or (iii) within three
years after termination of employment where such termination occurred
either by reason of retirement or permanent total disability or within
two years following a Change of Control of the Company, the executor
or administrator of the estate of the decedent or the person or
persons to whom an Option granted hereunder shall have been validly
transferred by the executor or the administrator pursuant to a will or
the laws of descent and distribution shall have the right, during the
period ending three years after the date of the Optionee's death, to
exercise the Optionee's Option (A) in full, without regard to any
installment exercise provisions, to the extent that it shall not have
been exercised, if the Optionee shall have died while in the employ of
the Company or its Subsidiaries or within three years after
termination of employment where such termination occurred either by
reason of retirement or permanent total disability or within two years
following a Change of Control of the Company, or (B), to the extent
that it was exercisable at the date of the Optionee's death and shall
not have been exercised, if the Optionee shall have died within three
months after termination of employment where such termination did not
occur by reason of either retirement or permanent total disability or
within two years following a Change of Control of the Company,
subject, however, to the provisions of Section 5.4 hereof.
(e) No transfer of an Option by the Optionee by a will or by the laws of
descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and
an authenticated copy of the will and/or such other evidence as the
Committee may deem necessary to establish the validity of the transfer
and the acceptance by the transferee or transferees of the terms and
conditions of such Option.
(f) The foregoing notwithstanding, the Committee may elect, in its sole
discretion, to make grants of Options which have provisions regarding
the effect of death or other termination of employment which are
different than those set forth in paragraphs (a) through (d) of this
Section 5.7, provided that such provisions do not materially increase
the benefits that would otherwise accrue to an Optionee under
paragraphs (a) through (d) of Section 5.7.
Sec. 5.8 RIGHTS AS STOCKHOLDER
---------------------
An Optionee or a transferee of an Option shall have no rights as a
stockholder with respect to any shares subject to such Option prior to the
purchase of such shares by exercise of such Option as provided herein.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
ARTICLE VI
AWARDS
Sec. 6.1 AWARD GRANT AND RESTRICTED STOCK AGREEMENT
------------------------------------------
The Committee may grant Awards of Restricted Stock to Awardees. No Awards
may be made during any fiscal year unless, for the preceding fiscal year, Return
on Average Shareholders' Equity exceeded the Ten Year Treasury Yield by more
than three percentage points. Each Award granted hereunder must be granted
within ten years from the effective date of the Plan and shall be evidenced by
minutes of a meeting or the written consent of the Committee. The Committee
shall from time to time establish various Award grade levels which shall set
forth the maximum number of shares which may be awarded annually to each
Eligible Employee in each grade level. The Committee shall have the sole
discretion and authority to make an Award to an Eligible Employee of less than
the maximum number of shares applicable to his assigned grade level or to make
no Award at all to any such Eligible Employee. In no event shall the total
number of shares of Restricted Stock awarded to an Eligible Employee in any
fiscal year exceed 15,000. The Awardee shall be entitled to receive the Stock
subject to such Award only if the Company and the Awardee, within 30 days after
the date of the Award, 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.
Sec. 6.2 CONSIDERATION FOR ISSUANCE
--------------------------
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.
Sec. 6.3 RESTRICTIONS ON SALE OR OTHER TRANSFER
--------------------------------------
Each share of Stock received pursuant to each Restricted Stock Agreement
shall be subject to acquisition by Fluor Corporation, 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 accordance with the conditions
established by the Committee pursuant to Section 6.4 hereof, or until
the shares of stock are forfeited pursuant to paragraph (c) of this
Section 6.3. 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:
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
"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 6.3.
(c) Unless the Committee in its discretion determines otherwise, upon an
Awardee's termination of employment for any reason, all of the
Awardee's Restricted Stock remaining subject to restriction shall be
acquired by the Company effective as of the date of such termination
of employment. Upon the occurrence or non-occurrence of such other
events as shall be determined by the Committee and specified in the
Awardee's Restricted Stock Agreement relating to any such Restricted
Stock, all of such Restricted Stock remaining subject to restriction
shall be acquired by the Company upon the occurrence or non-
occurrence of such event.
Sec. 6.4 LAPSE OF RESTRICTIONS
---------------------
The restrictions imposed upon Restricted Stock under Section 6.3 above will
lapse in accordance with such conditions as are determined by the Committee and
set forth in the Restricted Stock Agreement.
Sec. 6.5 RIGHTS AS STOCKHOLDER
---------------------
Subject to the provisions of Section 6.3 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 VII
STOCK CERTIFICATES
Sec. 7.1 STOCK CERTIFICATES
------------------
The Company shall not be required to issue or deliver any certificate for
shares of Stock purchased upon the exercise of any Option granted hereunder or
any portion thereof, or 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;
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
(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 exercise of
the Option or the execution of the Restricted Stock Agreement as the
Committee from time to time may establish for reasons of
administrative convenience.
ARTICLE VIII
GRANT AND EXERCISE OF RIGHTS
Sec. 8.1 RIGHTS GRANTS AND AGREEMENTS
----------------------------
The Committee may approve the grant of Rights related or unrelated to
Options, subject to the following terms and conditions:
(a) A Stock Appreciation Right may be granted:
(i) at any time if unrelated to an Option;
(ii) only at the time of grant if related to an Option.
(b) A Stock Appreciation Right grant in connection with an Option will
entitle the holder of the related Option, upon exercise of the Stock
Appreciation Right, to surrender such Option, or any portion thereof
to the extent unexercised, with respect to the number of shares as to
which such Stock Appreciation Right is exercised, and to receive
payment of an amount computed pursuant to Sec. 8.1(d). Such Option
will, to the extent surrendered, then cease to be exercisable.
(c) Subject to Section 8.1(g), a Stock Appreciation Right granted in
connection with an Option hereunder will be exercisable at such time
or times, and only to the extent that a related Option is exercisable,
and will not be transferable except to the extent that such related
Option may be transferable.
(d) Upon the exercise of a Stock Appreciation Right related to an Option,
the holder will be entitled to receive payment of an amount determined
by multiplying:
(i) The difference obtained by subtracting the purchase price of a
share of Stock specified in the related Option from the Fair
Market Value of a share of Stock on the date of exercise of such
Stock Appreciation Right, by
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
(ii) The number of shares as to which such Stock Appreciation Right
has been exercised.
(e) The Committee may grant Stock Appreciation Rights unrelated to
Options. Section 8.l(d) shall be used to determine the amount payable
at exercise under such Stock Appreciation Right except that, in lieu
of the price specified in the related option, the initial share value
specified in the award, which may not be less than the Fair Market
Value on the date of the award, shall be used.
(f) Payment of the amount determined under Section 8.1(d) or (e) may be
made solely in whole shares of Stock in a number determined at their
Fair Market Value on the date of exercise of the Stock Appreciation
Right or, alternatively, at the sole discretion of the Committee,
solely in cash or in a combination of cash and shares as the Committee
deems advisable. If the Committee decides to make full payment in
shares of Stock, and the amount payable results in a fractional share,
payment for the fractional share will be made in cash. Notwithstanding
the foregoing, payment of the amount determined under Section 8.1(d)
or (e) shall be made solely in cash if the Awardee is an "officer" of
the Company for purposes of Section 16(b) of the Securities Exchange
Act of 1934 (the "Exchange Act").
(g) The Committee may, at the time a Stock Appreciation Right is granted,
impose such conditions on the exercise of the Stock Appreciation Right
as may be required to satisfy the requirements of Rule 16b-3 of the
Exchange Act (or any other comparable provisions in effect at the time
or times in question). Without limiting the generality of the
foregoing, the Committee may determine that a Stock Appreciation Right
may be exercised only during the period beginning on the third
business day and ending on the twelfth business day following the
publication of the Company's quarterly and annual summarized financial
data.
(h) The date of the grant shall be the date of such Committee action. Each
grant shall be evidenced by minutes of a meeting or the written
consent of the Committee and by a written Stock Appreciation Rights
Agreement dated as of the date of the grant and executed by the
Grantee and the Company, which Agreement shall set forth such terms
and conditions as may be determined by the Committee consistent with
the Plan.
Sec. 8.2 RIGHTS PERIOD
-------------
The period for the exercise of each Right granted hereunder shall be
determined by the Committee, but in no instance shall such period exceed ten
years from the date of grant.
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MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
Sec. 8.3 RIGHTS EXERCISE
---------------
(a) Rights granted hereunder may not be exercised unless and until the
Grantee shall have been or remained in the employ of the Company or
its Subsidiaries for one year from and after the date of grant of such
Rights, except as otherwise provided in Section 8.5 hereof.
(b) Rights granted hereunder may be exercised with respect to whole Rights
only, in such number as determined by the Committee, and shall be
exercised by written notice of intent to exercise with respect to a
specified number of Rights delivered to the Company at its principal
office in the State of Delaware.
Sec. 8.4 NONTRANSFERABILITY OF RIGHTS
----------------------------
No Rights granted hereunder shall be transferred by a Grantee otherwise
than by a will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title I of ERISA.
During the lifetime of a Grantee, such Rights shall be exercisable only by him.
Sec. 8.5 EFFECT OF DEATH OR OTHER TERMINATION OF EMPLOYMENT
--------------------------------------------------
(a) If, prior to a date one year from the date on which Rights shall have
been granted, the Grantee's employment with the Company or its
Subsidiaries shall be terminated by the Company or Subsidiary with or
without cause, or by the act of the Grantee, the Grantee's right to
exercise such Rights shall terminate and all rights thereunder shall
cease; provided, however, that if the Grantee shall die, retire, or
become permanently and totally disabled, as determined in accordance
with applicable Company personnel policies, or if the Grantee's
employment with the Company or its Subsidiaries shall be terminated
within two years after a Change of Control of the Company and such
termination occurs prior to a date one year from the date on which
such Rights shall have been granted, such Rights shall become
exercisable in full on the date of such death or disability.
(b) If, on or after one year from the date on which Rights shall have been
granted, a Grantee's employment with the Company or its Subsidiaries
shall be terminated for any reason other than death, retirement or
permanent total disability, or within two years following a Change of
Control of the Company, the Grantee shall have the right, during the
period ending three months after such termination, to exercise such
Rights to the extent that they were exercisable at the date of such
termination and shall not have been exercised, subject, however, to
the provisions of Section 8.2 hereof.
(c) Upon termination of a Grantee's employment with the Company or its
Subsidiaries by reason of retirement or permanent total disability, as
determined in accordance with applicable Company personnel policies,
or within two years following a Change of Control of the Company, such
Grantee shall have the right,
13
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
during the period ending three years after such termination, to
exercise his Rights in full, without regard to any installment
exercise provisions, to the extent that they shall not have been
exercised, subject, however, to the provisions of Section 8.2 hereof.
(d) If a Grantee shall die (i) while in the employ of the Company or its
Subsidiaries, or (ii) within three months after termination of
employment where such termination did not occur either by reason of
retirement or permanent total disability or within two years following
a Change of Control of the Company, or (iii) within three years after
termination of employment where such termination occurred either by
reason of retirement or permanent total disability or within two years
following a Change of Control of the Company, the executor or
administrator of the estate of the decedent or the person or persons
to whom Rights granted hereunder shall have been validly transferred
by the executor or the administrator pursuant to a will or the laws of
descent and distribution shall have the right, during the period
ending three years after the date of the Grantee's death, to exercise
the Grantee's Rights (A) in full, without regard to any installment
exercise provisions, to the extent that they shall not have been
exercised, if the Grantee shall have died while in the employ of the
Company or its Subsidiaries or within three years after termination of
employment where such termination occurred either by reason of
retirement or permanent total disability or within two years following
a Change of Control of the Company, or (B) to the extent that they
were exercisable at the date of the Grantee's death and shall not have
been exercised, if the Grantee shall have died within three months
after termination of employment where such termination did not occur
by reason of either retirement or permanent total disability or within
two years following a Change of Control of the Company, subject,
however, to the provisions of Section 8.2 hereof.
(e) No transfer of Rights by a Grantee by a will or by the laws of descent
and distribution shall be effective to bind the Company unless the
Company shall have been furnished with written notice thereof and an
authenticated copy of the will and/or such other evidence as the
Committee may deem necessary to establish the validity of the transfer
and the acceptance by the transferee or transferees of the terms and
conditions of such Rights.
(f) The foregoing notwithstanding, the Committee may elect, in its sole
discretion, to make grants of Rights which have provisions regarding
the effect of death or other termination of employment which are
different than those set forth in paragraphs (a) through (d) of this
Section 8.5, provided that such provisions do not materially increase
the benefits that would otherwise accrue to a Grantee under paragraphs
(a) through (d) of Section 8.5.
14
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
Sec. 8.6 NO RIGHTS AS STOCKHOLDER
------------------------
Nothing herein contained shall be deemed to give any Grantee any rights as
a stockholder of the Company.
ARTICLE IX
STOCK PAYMENT
Sec. 9.1 STOCK PAYMENT
-------------
The Committee may approve payments of Stock to any Eligible Employee for
all or any portion of the compensation (other than base salary) that would
otherwise become payable to such Eligible Employee in cash.
ARTICLE X
TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
Sec. 10.1 TERMINATION, AMENDMENT AND MODIFICATION OF PLAN
-----------------------------------------------
The Board may at any time, upon recommendation of the Committee, terminate,
and may at any time and from time to time and in any respect amend or modify,
the Plan, provided, however, that no such action of the Board without approval
of the stockholders of the Company may:
(a) increase the total number of shares of Stock subject to the Plan
except as contemplated in Section 11.1 hereof;
(b) materially increase the benefits accruing to participants under the
Plan;
(c) withdraw the administration of the Plan from the Committee; or
(d) permit any person while a member of the Committee to be eligible to
receive an Option, Right or Restricted Stock under the Plan; and
provided further, that no termination, amendment or modification of
the Plan shall in any manner affect any Stock Option Agreement,
Restricted Stock Agreement or Stock Appreciation Rights Agreement
theretofore executed pursuant to the Plan without the consent of such
Optionee, Awardee or Grantee.
15
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
ARTICLE XI
MISCELLANEOUS
Sec. 11.1 ADJUSTMENT PROVISIONS
---------------------
(a) Subject to Section 11.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, (ii) the number and kind of
shares or other securities subject to the outstanding Options, Awards
and Grants, and (iii) the price for each share or other unit of any
other securities subject to outstanding Options or Grants without
change in the aggregate purchase price or value as to which such
Options or Grants remain exercisable.
(b) Adjustments under Section 11.1(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.
Sec. 11.2 CONTINUATION OF EMPLOYMENT
--------------------------
Nothing in the Plan or in any instrument executed pursuant to the Plan will
confer upon any Eligible Employee any right to continue in the employ of the
Company or any Subsidiary or affect the right of the Company or any Subsidiary
to terminate the employment of any Eligible Employee at any time with or without
cause.
Sec. 11.3 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 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.
16
MASSEY ENERGY COMPANY
1988 EXECUTIVE STOCK PLAN
As Amended and Restated Effective November 30, 2000
Sec. 11.4 PRIVILEGES OF STOCK OWNERSHIP
-----------------------------
No employee 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 Option, Right or
Award except as to such shares of Stock, if any, that have been issued to such
employee.
Sec. 11.5 WITHHOLDING
-----------
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 Option, Award or Right. The Company may require the employee to satisfy any
relevant tax requirements before authorizing any issuance of Stock to the
employee. Such settlement may be made in cash or Stock.
Sec. 11.6 NONTRANSFERABILITY
------------------
An Option, Award or Right may be exercised during the life of the employee
solely by the employee or the employee's duly appointed guardian or personal
representative. No Option, Award or Right and no other right under the Plan,
contingent or otherwise, will be assignable or subject to any encumbrance,
pledge, or charge of any nature.
Sec. 11.7 OTHER COMPENSATION PLANS
------------------------
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 of the Company or any
Subsidiary.
Sec. 11.8 PLAN BINDING ON SUCCESSORS
--------------------------
The Plan shall be binding upon the successors and assigns of the Company.
Sec. 11.9 SINGULAR, PLURAL; GENDER
------------------------
Whenever used herein, nouns in the singular shall include the plural, and
the masculine pronoun shall include the feminine gender.
Sec. 11.10 HEADINGS, ETC., NO PART OF PLAN
-------------------------------
Headings of Articles and Sections hereof are inserted for convenience and
reference; they constitute no part of the Plan.
17