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Exhibit 10.4
EXHIBIT B
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT , dated _______________ ___, 2007
(the " Grant Date ") is made by and between PEABODY
ENERGY CORPORATION , a Delaware corporation (the "
Company "), and the undersigned employee of the Company or a
Subsidiary (as defined below) or an Affiliate (as defined below) of
the Company (" Grantee ").
WHEREAS , the Company wishes to afford
the Grantee the opportunity to own shares of its $.01 par value
Common Stock (" Common Stock ");
WHEREAS , the Company wishes to carry out
the Plan (as hereinafter defined), the terms of which are hereby
incorporated by reference and made a part of this Agreement;
and
WHEREAS , the Committee (as hereinafter
defined) appointed to administer the Plan has determined that it
would be to the advantage and best interest of the Company and its
stockholders to give the shares of Common Stock provided for herein
to the Grantee, on a restricted basis, as an incentive for
increased efforts during his or her term of office with the Company
or its Subsidiaries or Affiliates, and has advised the Company
thereof and instructed the undersigned officers to so grant;
NOW, THEREFORE , in consideration of the
mutual covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used in this
Agreement, they shall have the meaning specified below unless the
context clearly indicates to the contrary. Capitalized terms not
otherwise defined in this Agreement shall have the meaning
specified in the Plan.
Section 1.1 – " Affiliate ",
as applied to any Person, shall mean any other Person directly or
indirectly controlling, controlled by, or under common control
with, that Person. For purposes of this definition, the term "
control " (including, with correlative meanings, the terms "
controlling ", " controlled by " and " under
common control with "), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person,
whether through the ownership of voting securities, by contract or
otherwise.
Section 1.2 – " Board of
Directors " or " Board " shall mean the Board of
Directors of the Company.
Section 1.3 – " Cause "
shall mean (i) any material and uncorrected breach by Grantee of
the terms of his or her employment agreement with the Company, if
any, including, but not limited to, engaging in action in violation
of any restrictive covenants therein, (ii) any willful fraud or
dishonesty of Grantee involving the property or business of the
Company, (iii) a deliberate or willful refusal or failure of
Grantee to comply with any major corporate policy of the
Company
which is communicated to Grantee in writing, or
(iv) Grantee’s conviction of, or plea of nolo
contendere to, any felony if such conviction results in
Grantee’s imprisonment; provided that with respect to clauses
(i), (ii) or (iii) above, Grantee shall have 10 days following
written notice of the conduct that is the basis for the potential
termination for Cause within which to cure such conduct to prevent
termination for Cause by the Company.
Section 1.4 – " Committee "
shall mean the Compensation Committee of the Company, duly
appointed by the Board as the Administrator under Section 2 of the
Plan.
Section 1.5 – " EBITDA "
shall mean income from continuing operations before deducting early
debt extinguishment costs, net interest expenses, income taxes,
minority interests, asset retirement obligation expense and
depreciation, depletion and amortization.
Section 1.6 – " Good Reason
" shall mean (i) a reduction by the Company in Grantee’s Base
Salary, or (ii) a material reduction in the aggregate program of
employee benefits and perquisites to which Grantee is entitled
(other than a reduction that affects all executives).
Section 1.7 – " Person "
shall mean an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint
venture, governmental authority or other entity of whatever
nature.
Section 1.8 – " Plan " shall
mean the Peabody Energy Corporation 2004 Long-Term Equity Incentive
Plan, as amended from time to time.
Section 1.9 – " Pronouns "
The masculine pronoun shall include the feminine and neuter, and
the singular the plural, where the context so indicates.
Section 1.10 – " Retirement
" shall mean normal retirement at or after age 55 with at least ten
(10) years of service with the Company.
Section 1.11 – " Subsidiary
" shall mean any corporation in an unbroken chain of corporations
beginning with the Company if each of the corporations, or group of
commonly controlled corporations, other than the last corporation
in the unbroken chain then owns stock possessing 50% or more of the
total combined voting power of all classes of stock in one of the
other corporations in such chain.
Section 1.12 – " Termination of
Employment " shall mean a termination of the Grantee’s
employment with the Company, a Subsidiary or an Affiliate
(regardless of the reason therefor).
ARTICLE II
GRANT OF RESTRICTED STOCK
Section 2.1 – Grant of Restricted
Stock . For good and valuable consideration, the Company shall
grant to the Grantee the number of shares set forth on the
signature page hereof of its Common Stock (the "Restricted Stock")
upon the terms and subject to the conditions set forth in this
Agreement.
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Section 2.2 – Transfer
Restrictions . At any time prior to vesting in accordance with
Article III, the shares of Restricted Stock or any interest therein
cannot be directly or indirectly transferred, sold, assigned,
pledged, hypothecated or otherwise disposed of. Upon vesting in
accordance with Article III, the shares of Restricted Stock shall
cease to be restricted and shall become non-forfeitable, and the
Grantee shall own such shares free of all restrictions otherwise
imposed by this Agreement.
Section 2.3 – No Obligation of
Employment . Nothing in this Agreement or in the Plan shall
confer upon the Grantee any right to continue in the employ of the
Company or any Subsidiary or Affiliate or interfere with or
restrict in any way the rights of the Company and its Subsidiaries
or Affiliates, which are hereby expressly reserved, to terminate
the employment of the Grantee at any time for any reason
whatsoever, with or without Cause.
Section 2.4 – Adjustments in
Restricted Shares . In the event that the outstanding shares of
the stock subject to this Restricted Stock grant are, from time to
time, changed into or exchanged for a different number or kind of
shares of the Company or other securities of the Company by reason
of a merger, consolidation, recapitalization event,
reclassification, stock split, stock dividend, combination of
shares, or otherwise, the Committee shall make an appropriate and
equitable adjustment in the number and kind of shares that shall
constitute Restricted Stock and in any other characteristics or
terms applicable to the Restricted Stock as it may determine
appropriate in its sole discretion to equitably reflect such
corporate event or transaction. Any such adjustment made by the
Committee shall be final and binding upon the Grantee, the Company
and all other interested persons.
ARTICLE III
VESTING OF RESTRICTED STOCK
Section 3.1 – Restricted Stock .
Unless otherwise provided in this Agreement, the shares of
Restricted Stock shall become vested and non-forfeitable in
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