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

Exhibit 10.3

 

A.T. MASSEY COAL COMPANY, INC.

 

EXECUTIVE DEFERRED COMPENSATION PLAN

 

(Amended and Restated as of January 1, 2005)

A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

Effective August 1, 1995

 

TABLE OF CONTENTS

 

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

 

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

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). The Plan must be administered and construed in a manner that is consistent with that intent.

 

The Company desires to amend and restate the Plan in order to provide for good faith compliance with Code Section 409A effective January 1, 2005, 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, 2005 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 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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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

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 13(d)(3) of the Securities Exchange Act of 1934, acquires shares of Massey Energy Company (formerly named Fluor Corporation) having 25% or more of the total number of votes that may be cast for the election of directors 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 or the Company before the Transaction shall cease to constitute a majority of the Board of Directors of the Company or Massey Energy Company or any successor to the Company or Massey Energy Company.

 

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 shall be a date that is fifteen days prior to the payroll period for which his Salary will be reduced or, for a Bonus Award or Incentive Award 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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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

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 account balance 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 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 account balance not considered to be deferred compensation covered by the rules of Code Section 409A.

 

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.

 

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 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 his employment with the Company on account of death, disability, severance or any other reason. In determining cessation of employment by reason of separation from service for purposes of the Plan and Code Section 409A, the Company and each Affiliate shall be treated as a single employer.

 

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

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

participation. A Participant shall continue to participate 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

 

Any Eligible Employee who earns an Incentive Award will be entitled to defer such Incentive Award or portion thereof 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).

 

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 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 Eligible Employee for such calendar year under the Profit Sharing Plan, if such Eligible Employee had received a matching Company 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

 

(b) the amount of Company matching contributions which would have been made to the account of such Eligible Employee 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 Employee had contributed to the Profit Sharing Plan the amounts deferred under Article IV of this Plan and 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 Eligible Employee’s total cash compensation (Salary, Bonus Awards and Incentive Awards combined), minus amounts contributed by the Eligible Employee under the Profit Sharing Plan. Interest shall accrue on a Participant’s Excess Benefit Account in accordance with Article VI.

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

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 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 permit a specified deferral period election to be made for a Participant’s Excess Benefit consisting of any 409A Funds not later than December 31, 2005 pursuant to transition rules 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 may elect to defer all or any portion of his Salary, any Incentive Award or any Bonus Award.

 

4.02. Elections

 

(a) Salary Deferrals . The amount of Salary to be deferred for future payroll periods must be specified by the Eligible Employee in writing on an Election Form delivered to his corporate employer as a fixed percentage of 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 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 30 days after a Eligible Employee is first designated as a Participant. 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 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. Notwithstanding the foregoing, the Committee may permit deferral elections to be made with respect to any amount payable in or attributable to 2005 or before by any designated date not later than March 15, 2005 pursuant to transition rules under Code Section 409A provided any such election utilizing such a transition rule is only effective with respect to compensation which is not yet payable and has not been paid when the deferral election is filed. 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 except pursuant to such 2005 transition rules under Code Section 409A which the Committee permits to be used in the administration of the Plan.

 

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A.T. MASSEY COAL COMPANY, INC.

Executive Deferred Compensation Plan

(Amended and Restated as of January 1, 2005)

 

(b) Incentive Awards Deferrals . The amount of any Incentive Award to be deferred must be specified by the Eligible Employee in writing on an Election Form delivered to his corporate employer no later than the last day of the calendar year preceding 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 to be made (i) not later than March 15, 2005 pursuant to transition rules under Code Section 409A with respect to any amount payable in or attributable to 2005 or before by any designated date provided any such election utilizing such a transition rule is only effective with respect to compensation which is not yet payable and has not been paid when the deferral election is filed and/or (ii) not later than 6 months prior to the end of the period for which performance is measured in determining the amount of the Incentive Award for any Incentive Award which is performance-based compensation based on services performed over a period of at least 12 months (within the meaning of Code Section 409A(a)(4)(B)(iii)) and is payable after 2004. 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 Eligible Employee in writing on an Election Form delivered to his corporate employer no later than the last day of the calendar year preceding 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 to be made (i) not later