Exhibit 10.19
A.T. MASSEY COAL COMPANY,
INC.
EXECUTIVE DEFERRED COMPENSATION
PLAN
(Amended and Restated as of
January 1, 2009)
TABLE OF
CONTENTS
|
|
|
|
|
|
|
|
|
Page
|
|
INTRODUCTION
|
|
1
|
|
|
|
|
ARTICLE I
|
|
|
|
DEFINITIONS
|
|
|
|
1.01.
|
|
Affiliate
|
|
1
|
|
1.02.
|
|
Beneficiary
|
|
1
|
|
1.03.
|
|
Board
|
|
1
|
|
1.04.
|
|
Bonus
Award
|
|
2
|
|
1.05.
|
|
Change of
Control
|
|
2
|
|
1.06.
|
|
Code
|
|
2
|
|
1.07.
|
|
Committee
|
|
2
|
|
1.08.
|
|
Company
|
|
2
|
|
1.09.
|
|
Deferred
Account
|
|
2
|
|
1.10.
|
|
Deferred
Benefit
|
|
2
|
|
1.11.
|
|
Election
Date
|
|
2
|
|
1.12.
|
|
Election
Form
|
|
2
|
|
1.13.
|
|
Eligible
Employee
|
|
2
|
|
1.14.
|
|
Excess
Benefit
|
|
3
|
|
1.15.
|
|
Excess Benefit
Account
|
|
3
|
|
1.16.
|
|
409A
Funds
|
|
3
|
|
1.17.
|
|
Incentive
Award
|
|
3
|
|
1.18.
|
|
Investment
Options
|
|
3
|
|
1.19.
|
|
Non-409A
Funds
|
|
3
|
|
1.20.
|
|
Participant
|
|
3
|
|
1.21.
|
|
Plan
|
|
3
|
|
1.22.
|
|
Profit Sharing
Plan
|
|
3
|
|
1.23.
|
|
Salary
|
|
3
|
|
1.24.
|
|
Terminate,
Terminating, or Termination
|
|
3
|
|
|
|
|
ARTICLE II
|
|
|
|
PARTICIPATION
|
|
|
|
2.01.
|
|
Excess
Benefits
|
|
4
|
|
2.02.
|
|
Salary
Deferrals
|
|
4
|
|
2.03.
|
|
Incentive Award
Deferrals
|
|
4
|
|
2.04.
|
|
Bonus Award
Deferrals
|
|
4
|
|
2.05.
|
|
Cessation of
Deferrals
|
|
4
|
|
|
|
|
ARTICLE III
|
|
|
|
EXCESS BENEFITS
|
|
|
|
3.01.
|
|
Applicability
|
|
4
|
|
3.02.
|
|
Amount of
Benefit
|
|
4
|
|
3.03.
|
|
Deferral
Periods
|
|
5
|
-i-
|
|
|
|
|
|
|
|
|
|
ARTICLE IV
|
|
|
|
DEFERRAL ELECTIONS
|
|
|
|
4.01.
|
|
Amounts Subject
to Deferral
|
|
5
|
|
4.02.
|
|
Elections
|
|
5
|
|
4.03.
|
|
Deferral
Periods
|
|
7
|
|
4.04.
|
|
Automatic
Cancellation of Deferral Elections upon Receipt of Hardship
Withdrawal from a 401(k) Plan
|
|
7
|
|
|
|
|
ARTICLE V
|
|
|
|
BENEFITS
|
|
|
|
5.01.
|
|
Accounts
|
|
8
|
|
5.02.
|
|
Distributions
|
|
8
|
|
|
|
|
ARTICLE VI
|
|
|
|
INVESTMENT OPTIONS
|
|
|
|
6.01.
|
|
Investment
Options
|
|
10
|
|
6.02.
|
|
Election of
Investment Options
|
|
10
|
|
6.03.
|
|
Method of
Crediting Interest Adjustments
|
|
10
|
|
|
|
|
ARTICLE VII
|
|
|
|
OTHER DISTRIBUTION EVENTS
|
|
|
|
7.01.
|
|
Change of
Control
|
|
11
|
|
7.02.
|
|
Unforeseeable
Emergency
|
|
11
|
|
7.03.
|
|
Withdrawals of
Non-409A Funds
|
|
12
|
|
|
|
|
ARTICLE VIII
|
|
|
|
PARTICIPANT RIGHTS IN THE UNFUNDED
PLAN
|
|
|
|
|
|
|
ARTICLE IX
|
|
|
|
TERMINATION OF EMPLOYMENT
|
|
|
|
9.01.
|
|
Termination of
Employment
|
|
13
|
|
9.02.
|
|
Vesting
|
|
13
|
|
9.03.
|
|
Reemployment
|
|
13
|
|
|
|
|
ARTICLE X
|
|
|
|
TERMINATION, AMENDMENT OR MODIFICATION OF
PLAN
|
|
|
|
10.01.
|
|
Amendment or
Termination
|
|
13
|
|
10.02.
|
|
Notice
Requirement
|
|
13
|
|
10.03.
|
|
Limitation on
Amendment, Termination, etc.
|
|
14
|
|
10.04.
|
|
Effect of Plan
Termination
|
|
14
|
|
|
|
|
ARTICLE XI
|
|
|
|
OTHER BENEFITS AND AGREEMENTS
|
|
|
|
|
|
|
ARTICLE XII
|
|
|
|
RESTRICTIONS ON TRANSFER OF BENEFITS
|
|
|
-ii-
|
|
|
|
|
|
|
|
|
|
ARTICLE XIII
|
|
|
|
ADMINISTRATION OF THE PLAN
|
|
|
|
13.01.
|
|
The
Committee
|
|
15
|
|
13.02.
|
|
Indemnification
of the Committee
|
|
15
|
|
13.03.
|
|
Powers of the
Committee
|
|
15
|
|
13.04.
|
|
Information
|
|
15
|
|
|
|
|
ARTICLE XIV
|
|
|
|
MISCELLANEOUS
|
|
|
|
14.01.
|
|
Binding
Nature
|
|
15
|
|
14.02.
|
|
Governing
Law.
|
|
15
|
|
14.03.
|
|
Use of
Masculine and Feminine; Singular and Plural
|
|
16
|
|
14.04.
|
|
No Guarantee of
Employment
|
|
16
|
|
14.05.
|
|
Electronic
Administration
|
|
16
|
|
14.06.
|
|
Deferred
Compensation Plan Omnibus Provision
|
|
16
|
|
|
|
|
ARTICLE XV
|
|
|
|
ADOPTION
|
|
|
|
|
|
|
EXHIBIT I
|
|
|
|
PLAN INVESTMENT OPTIONS
|
|
|
-iii-
INTRODUCTION
The Board of Directors of A.T.
Massey Coal Company, Inc. adopted the Executive Deferred
Compensation Plan effective August 1, 1995. The Board
determined that the adoption of the Plan would assist it in
attracting and retaining those employees whose judgment, abilities
and experience will contribute to its continued progress. The
purpose of the Plan is to permit eligible employees to defer a
portion of their salary, bonus and incentive awards and to provide
a benefit for these employees whose benefits under the
Company’s Profit Sharing Plan are limited by the application
of certain limitation provisions of the Code. Eligible Employees
are selected by the Committee to participate in the
Plan.
The Plan is intended to be unfunded
and maintained primarily for the purpose of providing deferred
compensation for a “select group of management or highly
compensated employees” (as such phrase is used in the
Employee Retirement Income Security Act of 1974, as amended). The
Plan must be administered and construed in a manner that is
consistent with that intent.
The Company amended and restated the
Plan effective January 1, 2005 and now desires to amend and
restate the Plan again in order to provide for compliance with the
final regulations under Code Section 409A effective
January 1, 2009, to the extent applicable to accounts under
the Plan;
NOW, THEREFORE, the Company hereby
declares that the current terms and conditions of the A.T. Massey
Coal Company, Inc. Executive Deferred Compensation Plan as amended
and restated effective January 1, 2009 are as
follows:
ARTICLE I
DEFINITIONS
The following phrases or terms have
the indicated meanings:
1.01. Affiliate means
(i) any entity that is a member of a controlled group of
corporations as defined in Code Section 1563(a), determined
without regard to Code Sections 1563(a)(4) and 1563(e)(3)(c), of
which the Company is a member according to Code
Section 414(b); (ii) an unincorporated trade or business
that is under common control with the Company as determined
according to Code Section 414(c); (iii) a member of an
affiliated service group of which the Company is a member according
to Code Section 414(m); or (iv) any entity required to be
aggregated with the Company according to Code
Section 414(o).
1.02. Beneficiary
means the person, persons, entity, entities or the estate of a
Participant, who is designated by the Participant on a form
provided by the Company to receive benefits on account of the
Participant’s death, or in the absence of any designation,
the personal representative of the Participant’s
estate.
1.03. Board means the
Board of Directors of A.T. Massey Coal Company, Inc.
-1-
1.04. Bonus Award shall mean any
bonus, pay adjustment, or other similar payment from the Company or
any Affiliate designated by the Committee.
1.05. Change of
Control shall be deemed to have occurred if, (i) a
third person, including a “group” as defined in
Section 1.409A-3(i)(5)(v)(B) of the Treasury Regulations,
acquires (or has acquired during the 12-month period ending on the
date of the most recent acquisition by such third person or group)
shares of Massey Energy Company (formerly named Fluor Corporation)
having 30% or more of the total voting power of the stock of Massey
Energy 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
Massey Energy Company before the Transaction are replaced during
any 12-month period as directors of Massey Energy Company or any
successor to Massey Energy Company by directors whose appointment
or election is not endorsed by a majority of the directors of
Massey Energy Company before the Transaction.
1.06. Code means the
Internal Revenue Code of 1986, as amended, and, to the extent not
inconsistent therewith, regulations and other guidance issued
thereunder.
1.07. Committee means
the Executive Benefit Committee appointed by the Board which shall,
in accordance with the provisions of Article XII hereof, be
responsible for the management and administration of the
Plan.
1.08. Company means
A.T. Massey Coal Company, Inc.
1.09. Deferred Account
means a bookkeeping record established for each Participant who
elects to receive a Deferred Benefit. A Deferred Account shall be
established only for purposes of measuring a Deferred Benefit and
not to segregate assets or to identify assets that may be used to
satisfy a Deferred Benefit. A Deferred Account shall be credited
with that amount of a Participant’s Salary, Bonus Award or
Incentive Award deferred as a Deferred Benefit according to a
Participant’s Election Form. A Deferred Account also shall be
credited periodically with interest under Plan Article
VI.
1.10. Deferred Benefit
means the benefit available to an Eligible Employee who has
executed a valid Election Form to defer his Salary, Bonus Award or
Incentive Award.
1.11. Election Date
means the date by which an Eligible Employee must submit a valid
Election Form. An Eligible Employee’s Election Date, for
Salary to be deferred, shall be a date that is at least fifteen
(15) days prior to the payroll period for which his Salary
will be reduced and as specified in Plan Section 4.02 or, for
a Bonus Award or Incentive Award to be deferred, the date specified
in Plan Section 4.02.
1.12. Election Form
means the form that a Participant uses to elect to receive a
Deferred Benefit pursuant to Plan Section 4.01. A
Participant’s distribution election, investment election and
Beneficiary designation are part of the Participant’s
Election Form.
1.13. Eligible
Employee means an individual who (i) is employed by
the Company or an Affiliate; and (ii) is a member of
management or is a highly compensated employee.
-2-
1.14. Excess Benefit means the
benefit available to an Eligible Employee pursuant to Plan
Section 3.02.
1.15. Excess Benefit
Account means the bookkeeping record established for each
Participant who is entitled to receive an Excess Benefit. An Excess
Benefit Account shall be established only for purposes of measuring
an Excess Benefit and not to segregate or to identify assets that
may be used to satisfy an Excess Benefit. An Excess Benefit Account
also shall be credited periodically with interest under Plan
Article VI.
1.16. 409A Funds shall
mean that part of any Deferred Account or Excess Benefit Account
considered to be deferred compensation and covered by the rules of
Code Section 409A.
1.17. Incentive Award
means any cash award made pursuant to the terms of the Massey
Energy Company 1999 Executive Performance Incentive Plan or any
other incentive plan or arrangement of Massey Energy Company, the
Company or any Affiliate designated by the Committee.
1.18. Investment
Options shall mean the investment options shown on Exhibit
I.
1.19. Non-409A Funds
shall mean that part of any Deferred Account or Excess Benefit
Account not considered to be deferred compensation covered by the
rules of Code Section 409A including the part of any Deferred
Account or Excess Benefit Account as of December 31, 2004, the
right to which is earned and vested as of such date, plus any
future contributions to such accounts, the right to which was
earned and vested as of such date, to the extent such contributions
are actually made, and applicable earnings (less losses) on such
amounts.
1.20. Participant
means an Eligible Employee who satisfies the requirements for
participation set forth in Article II. An individual shall remain a
Participant only so long as the individual remains an Eligible
Employee and he continues to satisfy such requirements.
1.21. Plan means the
A.T. Massey Coal Company, Inc. Executive Deferred Compensation
Plan, as amended and restated hereafter.
1.22. Profit Sharing
Plan means the Coal Company Salary Deferral and Profit
Sharing Plan.
1.23. Salary means a
Participant’s base salary and does not include commissions,
bonuses, incentive pay, equity compensation or other irregular
payments from the Company or any Affiliate designated by the
Committee.
1.24. Terminate, Terminating,
or Termination with respect to a Participant, mean the
cessation of Participant’s employment with the Company and
its Affiliates on account of death, disability, severance or any
other reason. Cessation of employment shall be interpreted
consistent with the rules for a “separation from
service” for purposes of Code Section 409A, and the
Company and each Affiliate shall be treated as a single
employer.
-3-
ARTICLE II
PARTICIPATION
2.01. Excess
Benefits
The Committee shall designate the
Eligible Employees who are entitled to accrue Excess Benefits under
the Plan and shall determine the date such Eligible Employees may
begin participation. A Participant shall continue to participate
and accrue Excess Benefits until such date as the Committee may
declare he is no longer a Participant entitled to accrue Excess
Benefits or until the date that he is no longer an Eligible
Employee.
2.02. Salary
Deferrals
The Committee shall select the
Eligible Employees who are entitled to defer all or a portion of
their Salary pursuant to the provisions of Plan
Section 4.02(a).
2.03. Incentive Award
Deferrals
The Committee shall select the
Eligible Employees who will be entitled to defer all or a portion
of their Incentive Award pursuant to the provisions of Plan
Section 4.02(b).
2.04. Bonus Award
Deferrals
The Committee shall select the
Eligible Employees who are entitled to defer all or a portion of
their Bonus Award pursuant to the provisions of Plan
Section 4.02(c).
2.05. Cessation of
Deferrals
Elections of Eligible Employees to
defer all or a portion of their Salary, Incentive Award and Bonus
Award will cease as soon as permissible under Section 409A of
the Code on and after such date the Committee declares that the
Eligible Employee is no longer a Participant entitled to defer all
or any portion of his Salary, Incentive Award or Bonus Award or he
is no longer an Eligible Employee.
ARTICLE III
EXCESS
BENEFITS
3.01.
Applicability
This Article III applies only to
those Participants who are eligible for an Excess Benefit pursuant
to Plan Section 2.01.
3.02. Amount of
Benefit
As of each December 31, the
Company shall credit the Excess Benefit Account of each Eligible
Employee who is entitled to accrue an Excess Benefit with an amount
equal to the sum of:
(a) the excess of the amount of
Company matching contributions which would have been made to the
account of such Participant for such calendar year under the Profit
Sharing Plan, if such Participant had received a Company matching
contribution at the percentage rate applicable to non-highly
compensated participants, over the actual amount of Company
matching contributions allocated to his accounts for such calendar
year; plus
-4-
(b) the amount of Company matching
contributions which would have been made to the account of such
Participant for such calendar year under the Profit Sharing Plan,
but for the limitations imposed by Code Sections 401(a)(17), 402(g)
and 415 if the Participant had contributed to the Profit Sharing
Plan the amounts deferred under Article IV of this Plan and had
received a Company matching contribution at the percentage rate
applicable to non-highly compensated participants; provided,
however, that in no event shall any Company matching contribution
apply to amounts deferred, in excess of ten percent of the
Participant’s total cash compensation (Salary, Bonus Awards
and Incentive Awards combined), minus amounts contributed by the
Participant under the Profit Sharing Plan. Interest shall accrue on
a Participant’s Excess Benefit Account in accordance with
Article VI.
3.03. Deferral
Periods
Unless otherwise permitted by the
Committee, any time of payment election for Salary deferrals shall
also apply to a Participant’s Excess Benefit. This rule may
be applied for separate years or portions of a Participant’s
Excess Benefit Account on such basis as it determines.
The time for filing a specified
deferral period election for a Participant’s Excess Benefit
attributable to a year is the same as for filing a Salary deferral
election for that same year, provided, however, that the Committee
may not permit a specified deferral period election to be made for
a Participant’s Excess Benefit later than the last day of the
calendar year immediately preceding the calendar year for which the
Excess Benefit will be credited or any earlier date required
therefor under Code Section 409A.
ARTICLE IV
DEFERRAL
ELECTIONS
4.01. Amounts Subject to
Deferral
Subject to the effect of any
previously authorized or required deductions, reductions or income
or employment tax withholdings applicable to such compensation, an
Eligible Employee who is selected to be a Participant may elect to
defer all or any portion of his Salary, any Incentive Award or any
Bonus Award, as applicable.
4.02.
Elections
(a) Salary Deferrals . The
amount of Salary to be deferred for future payroll periods must be
specified by the Participant in writing on an Election Form
delivered to his corporate employer as a fixed percentage of his
Salary. A deferral election for a calendar year must be filed by
the date designated by the Committee but in no event later than the
last day of the calendar year immediately preceding the calendar
year it is to become effective and will continue in effect until a
subsequent election or termination of the election is received by
the Company and becomes effective, provided, however, that a
deferral election may be filed through thirty
-5-
(30) days after the Eligible Employee is first
designated as a Participant to the extent permitted by Code
Section 409A for a Participant’s first year of
eligibility. Thereafter, a new Election Form may be filed annually
by the date designated by the Committee but in no event later than
the last day of the calendar year immediately preceding the
calendar year it is to become effective, and any modification or
revocation shall be effective on the first day of the calendar year
to which such modification or revocation relates. Any Salary
deferral election for a calendar year may not be changed, revoked
or re-initiated after the latest time for making it or during the
calendar year for which made.
(b) Incentive Awards
Deferrals . The amount of any Incentive Award to be deferred
must be specified by the Participant in writing on an Election Form
delivered to his corporate employer no later than the last day of
the calendar year immediately preceding the calendar year that
includes the beginning of the period for which performance is
measured in determining the amount of the Incentive Award. The
amount to be deferred may be a fixed dollar amount or a percentage
of the Incentive Award. Notwithstanding the foregoing, the
Committee may permit deferral elections for any amount of an
Incentive Award which is performance-based compensation based on
services to be performed over a period of at least twelve
(12) months (within the meaning of Code
Section 409A(a)(4)(B)(iii)) to be made not later than six
(6) months prior to the end of the period for which the
performance is to be measured to determine the amount of the
Incentive Award that will become payable. Any Incentive Award
deferral election may not be modified or revoked by the Participant
after the latest time for making the election.
(c) Bonus Awards Deferrals .
The amount of any Bonus Award to be deferred must be specified by
the Participant in writing on an Election Form delivered to his
corporate employer no later than the last day of the calendar year
preceding the calendar year that includes the beginning of the
period for which the Bonus Award is paid. The amount to be deferred
may be a fixed dollar amount or a percentage of the Bonus Award.
Notwithstanding the foregoing, the Committee may permit deferral
elections for any amount of a Bonus Award which is
performance-based compensation based on services performed over a
period of at least twelve (12) months (within the meaning of
Code Section 409A(a)(4)(B)(iii)) to be made not later than six
(6) months prior to the end of the period for which the
performance is to be measured to determine the amount of the Bonus
Award that will become payable. Any Bonus Award deferral election
may not be modified or revoked by the Participant after the latest
time for making the election.
(d) Initial Deferrals with
respect to Certain Forfeitable Rights . In addition to the
foregoing deferral election options, the Committee may offer a
deferral right under the Plan with respect to a legally binding
right to any Incentive and/or Bonus Award payment otherwise
scheduled to be made in a subsequent year that is subject to a
forfeiture condition requiring the Participant’s continued
services for a period of at least thirteen (13) months from
the date the Participant obtains the legally binding right, through
a deferral election in writing on an Election Form delivered to his
corporate employer no later than the 30th day after the Participant
obtains the legally binding right to the compensation, provided
that the election is effective at least twelve (12) months in
advance of the earliest date at which the forfeiture condition
could lapse. Any such Incentive or Bonus Award deferral election
may not be modified or revoked by the Participant after the latest
time for making the election.
-6-
(e) Initial Deferral Election
with Respect to Short-term Deferrals . In addition to the
foregoing deferral election options, the Committee may offer a
deferral right under the Plan with respect to a legally binding
right to any Incentive and/or Bonus Award payment in a subsequent
taxable year that, absent a deferral election, would not be treated
as a deferral of compensation under Code Section 409A by
reason of the “short-term deferral” provisions of
Treas. Reg. Section 1.409A-1(b)(4), through a deferral
election in writing on an Election Form delivered to his corporate
employer, provided that the election is made at least twelve
(12) months in advance of the date the “short-term
deferral” amount would otherwise be paid, the election is not
effective for twelve (12) months and payment is deferred at
least five (5) years from the date the “short-term
deferral” amount would otherwise be paid. Any such Incentive
or Bonus Award deferral election may not be modified or revoked by
the Participant after the latest time for making the
election.
4.03. Deferral
Periods
Unless otherwise
specified by the Participant at the time of his deferral election,
payment of such amounts shall be deferred until such
Participant’s Termination. The Participant may specify a
deferral period which may not extend beyond the date upon which
such Participant reaches age 70 1
/
2 . If a specific deferral period
has been selected, the deferral period shall end upon the earlier
to occur of: (i) the Participant’s Termination or
(ii) the expiration of the specified deferral period. Any
specified deferral period may not be modified or revoked by the
Participant after the latest time for making the deferral election
in question. The Committee may permit separate deferral period
elections for separate years or deferrals on such basis as it
determines.
The time for filing a specified
deferral period election is the same as for filing the Salary,
Incentive Award or Bonus Award deferral election to which it
relates.
4.04. Automatic Cancellation
of Deferral Elections upon Receipt