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EXHIBIT 10.21
ALPHA NATURAL RESOURCES, INC.
2005 LONG-TERM INCENTIVE PLAN
PERFORMANCE SHARE AWARD AGREEMENT
(FOR EMPLOYEES)
This
Performance Share Award Agreement set forth below (this
"
Agreement ")
is dated as of the grant date (the "
Grant Date ")
set forth on the applicable Summary of Performance Share Grant and
is between Alpha Natural Resources, Inc., a Delaware corporation
("
Alpha "),
and the individual named on the Summary of Performance Share Grant
(the "
Award Recipient ").
The Award Recipient may view or obtain a copy of the Award
Recipient's Summary of Performance Share Grant document by
accessing Smith Barney Benefit Access at
www.benefitaccess.com .
Alpha
has established its 2005 Long-Term Incentive Plan (the
"
Plan ")
to advance the interests of Alpha and its stockholders by providing
incentives to certain eligible persons who contribute significantly
to the strategic and long-term performance objectives and growth of
Alpha and any parent, subsidiary or affiliate of Alpha. All
capitalized terms not otherwise defined in this Agreement have the
same meaning given such capitalized terms in the Plan.
Pursuant
to the provisions of the Plan, the Committee or its Designated
Administrator has full power and authority to direct the
execution and delivery of this Agreement in the name and on
behalf of Alpha, and has authorized the execution and delivery
of this Agreement.
Agreement
The
parties agree as follows:
Section 1.
Performance Share Award
. Subject
to and pursuant to all terms and conditions stated in this
Agreement and in the Plan, as of the Grant Date, Alpha hereby makes
a Performance Grant to Award Recipient in the form of performance
shares ( "
Performance Shares ").
Each Performance Share awarded under this Agreement
shall
represent
a right to receive one Share of Alpha's Common Stock, par value
$0.01 per share (the "
Common Stock "),
to the extent such Performance Share is earned pursuant to the
terms of this Agreement. The
shares of Common Stock to be issued and delivered to Award
Recipient, if any, pursuant to the Performance Shares awarded under
this Agreement, including shares of capital stock, if any, issued
from time to time with respect to such shares of Common Stock as a
result of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization are referred to in this Agreement as the
“
Share(s) .”
Section 2.
Performance Shares.
The
target number of Performance Shares covered by this Agreement (the
"
Target Award ")
is set forth on the Summary of Performance Share Grant.
The
maximum
number of Performance Shares that may be earned pursuant to this
Agreement (the "
Maximum Award ")
is set forth on the Summary of Performance Share
Grant.
Section 3.
Performance Period.
The
"
Performance Period "
means the performance period as set
forth on the Summary of Performance Share Grant .
Section 4.
Performance Measures.
Subject
to the provisions of this Agreement and the Summary of Performance
Share Grant, Alpha shall issue and deliver to the Award Recipient
one (1) Share for each whole Performance Share that is earned in
accordance with the performance schedule(s) set forth on the
Summary of Performance Share Grant; provided, however, that the
Committee may reduce the number of Performance Shares earned under
this Award, but in no event may the Committee increase the number
of Performance Shares earned under this Award beyond the
performance levels achieved.
Section 5.
Delivery of Shares.
Unless
the Award Recipient has elected to defer receipt of the Shares in
accordance with Section 6, and except as otherwise provided in this
Agreement and subject to satisfaction of the applicable tax
withholding requirements set forth in Section 9, Alpha shall
cause stock certificate(s) representing the number of Shares earned
and determined under Section 4 to be issued to the Award
Recipient on the sixtieth (60
th )
business day following the end of the Performance Period, or as
soon as administratively feasible thereafter (but in no event later
than the 15
th day
of the third month following the date on which such Shares are
earned);
provided ,
however ,
that: (i) absent a Change of Control (as defined below), no
certificate(s) for Shares shall be delivered with respect to
Performance Shares until the Committee has certified in writing
that the applicable performance targets set forth on the Summary of
Performance Grant and other material terms of this Agreement have
been achieved and (ii) Alpha shall not deliver stock certificate(s)
representing Shares if the Committee or Designated Administrator or
other authorized agent determines, in its or his sole discretion,
that the issuance of such certificate(s) would violate the terms of
the Plan, this Agreement or applicable law.
Section 6.
Deferral of Shares.
The
Award Recipient may elect in writing on or before the date that is
six (6) months prior to the end of the Performance Period, or such
earlier date as may be designated by Alpha (the "
Latest Deferral Date ")
in order to satisfy the deferral election requirements of Section
409A of the Internal Revenue Code, as amended (the "
Code "),
to defer the issuance and delivery of all or a part of the Shares
earned, provided that in no event may an election to defer
performance-based compensation be made after such compensation has
become both substantially certain to be paid and readily
ascertainable. Any such election shall: (1) specify the date
of issuance for the earned Shares, which shall not be earlier than
the first anniversary of the original payment date or such other
minimum deferral period as may be designated by the Company in
order to satisfy the deferral election requirements of Section 409A
of the Code; and (2) comply with all other applicable deferral
election requirements of Section 409A of the Code.
Section 7. Termination of Employment/Change of
Control:
(a)
Except
as set forth in this Section 7 or as otherwise provided in a
Company plan applicable to Award Recipient or an agreement
between the Award Recipient and the Company, if any,
if
(i) Award Recipient ceases to be employed by the Company for
any reason prior to the end of the Performance Period, or (ii)
Award Recipient breaches the confidentiality covenant as
described in Section 12, then effective
at the close of business on the date the Award Recipient
ceases to be employed by the Company, or the date the Award
Recipient breaches the confidentiality covenant as described
in Section 12 hereof, as applicable, all of Award
Recipient’s Performance Shares covered
by this Agreement, whether earned or unearned,
shall
be automatically cancelled and forfeited in
their entirety without
any further obligation on the part of Alpha ,
such that Alpha shall not be obligated to issue any Shares or
any other compensation to Award Recipient with respect to such
cancelled and forfeited Performance Shares .
(b)
Unless
otherwise provided in a Company plan applicable to Award
Recipient or an agreement between the Award Recipient and the
Company, if any, if during the Performance Period (i) the
Award Recipient ceases to be employed by the Company as a
result of Award Recipient's Permanent Disability (as defined
below) or death, (ii) the Award Recipient's employment is
terminated by the Company other than for Cause (as defined
below), or (iii) the Award Recipient ceases to be employed by
the Company as a result of Award Recipient's Retirement (as
defined below), the Award Recipient shall be entitled to
receive a prorated portion of the Performance Shares to the
extent earned pursuant to Section 4 above, determined at the
end of the Performance Period and based on the ratio of the
number of complete months the Award Recipient is employed or
serves during the Performance Period to the total number of
months in the Performance Period. Any Shares to which Award
Recipient becomes entitled to receive pursuant to the
preceding sentence will be issued and delivered to Award
Recipient in accordance with the provisions of Sections 5 and
6 of the Agreement; provided,
that
any
payments due on the Award Recipient's death shall be paid to the
Award Recipient's estate.
(c)
In
the event that a Change of Control occurs prior to the end of the
Performance Period, the Performance Shares that have not been
previously cancelled and forfeited shall become fully vested and
payable at the Target Award level (and the Performance Period shall
thereafter be deemed to have terminated). Payment of any amount
pursuant to the preceding sentence may be made in cash and/or
securities or other property, in the Committee's discretion, and
will be made contemporaneous
with the consummation of the Change of Control
.
(d)
For
purposes of this Agreement and unless otherwise defined in a
Company plan applicable to Award Recipient or an agreement between
the Award Recipient and the Company, if any, the following terms
shall have the following meanings: (i) a "
Change of Control "
shall mean (A) any merger, consolidation or business
combination in which the stockholders of Alpha immediately prior to
the merger, consolidation or business combination do not own at
least a majority of the outstanding equity interests of the
surviving parent entity, (B) the sale of all or substantially
all of Alpha's assets in a single transaction or a series of
related transactions, (C) the acquisition of beneficial
ownership or con
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