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A.T. MASSEY COAL COMPANY, INC. EXECUTIVE DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

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Massey Coal Company, Inc

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Title: A.T. MASSEY COAL COMPANY, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
Governing Law: Virginia     Date: 12/24/2008
Industry: Coal     Sector: Energy

A.T. MASSEY COAL COMPANY, INC. EXECUTIVE DEFERRED COMPENSATION PLAN, Parties: massey coal company  inc
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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

  

 

 

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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

  

 

 

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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.

 

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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.

 

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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.

 

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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

 

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(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

 

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(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.

 

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(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


 
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