A.T. MASSEY COAL COMPANY, INC.
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
| Page | ||
| INTRODUCTION | 1 | |
| ARTICLE I | ||
| DEFINITIONS | ||
| 1.01. Affiliates | 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. Incentive Award | 3 | |
| 1.17. 409A Funds | 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 | 3 | |
| 2.02. Salary Deferrals | 4 | |
| 2.03. Incentive Award Deferrals | 4 | |
| 2.04. Bonus Award Deferrals | 4 | |
| ARTICLE III | ||
| EXCESS BENEFITS | ||
| 3.01. Applicability | 4 | |
| 3.02. Amount of Benefit | 4 | |
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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 | 5 | |
| ARTICLE IV | ||
| DEFERRAL ELECTIONS | ||
| 4.01. Amounts Subject to Deferral | 5 | |
| 4.02. Elections | 5 | |
| 4.03. Deferral Periods | 6 | |
| ARTICLE V | ||
| BENEFITS | ||
| 5.01. Accounts | 7 | |
| 5.02. Distributions | 7 | |
| ARTICLE VI | ||
| INVESTMENT OPTIONS | ||
| 6.01. Investment Options | 8 | |
| 6.02. Election of Investment Options | 9 | |
| 6.03. Method of Crediting Interest Adjustments | 9 | |
| ARTICLE VII | ||
| OTHER DISTRIBUTION EVENTS | ||
| 7.01. Change of Control | 9 | |
| 7.02. Unforeseeable Emergency | 10 | |
| 7.03. Withdrawals of Non-409A Funds | 10 | |
| ARTICLE VIII | ||
| PARTICIPANT RIGHTS IN THE UNFUNDED PLAN | ||
| ARTICLE IX | ||
| TERMINATION OF EMPLOYMENT | ||
| 9.01. Termination of Employment | 11 | |
| 9.02. Vesting | 11 | |
| 9.03. Reemployment | 11 | |
| ARTICLE X | ||
| TERMINATION, AMENDMENT OR MODIFICATION OF PLAN | ||
| 10.01. Amendment or Termination | 12 | |
| 10.02. Notice Requirement | 12 | |
| 10.03. Limitation on Amendment, Termination, etc. | 12 | |
| 10.04. Effect of Plan Termination | 12 | |
| ARTICLE XI | ||
| OTHER BENEFITS AND AGREEMENTS | ||
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
| ARTICLE XII | ||
| RESTRICTIONS ON TRANSFER OF BENEFITS | ||
| ARTICLE XIII | ||
| ADMINISTRATION OF THE PLAN | ||
| 13.01. The Committee | 13 | |
| 13.02. Indemnification of the Committee | 13 | |
| 13.03. Powers of the Committee | 14 | |
| 13.04. Information | 14 | |
| ARTICLE XIV | ||
| MISCELLANEOUS | ||
| 14.01. Binding Nature | 14 | |
| 14.02. Governing Law. | 14 | |
| 14.03. Use of Masculine and Feminine; Singular and Plural | 14 | |
| 14.04. No Guarantee of Employment | 14 | |
| 14.05. Electronic Administration | 15 | |
| 14.06. Nonqualified Deferred Compensation Plan Omnibus Provision | 15 | |
| ARTICLE XV | ||
| ADOPTION | ||
| EXHIBIT I | ||
| PLAN INVESTMENT OPTIONS | 17 | |
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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 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 the Bonus Award is paid for any Bonus 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 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 Eligible Employee at the time of his deferral election, payment of such amounts shall be deferred until such Eligible Employee’s Termination. The Eligible Employee may specify a deferral period which may not extend beyond the date upon which such Eligible Employee 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 Eligible Employee’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.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
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, provided, however, that the Committee may permit a specified deferral period election to be made for any 409A Funds not later than December 31, 2005 pursuant to transition rules under Code Section 409A.
ARTICLE V
BENEFITS
5.01. Accounts
(a) Deferred Benefit Account. Deferred Benefits shall be credited to a Deferred Account as of the last day of the payroll period in which the deferred Salary would have been paid and with respect to any Bonus or Incentive Award, as of the date such award is payable to the Eligible Employee. Interest shall accrue monthly on the balance in a Deferred Account as described in Article VI.
(b) Excess Benefit Account. Excess Benefits shall be credited to an Excess Benefit Account as of the time specified in Article III. Interest shall accrue monthly on the balance in a Excess Benefit Account as described in Article VI.
5.02. Distributions
(a) All Deferred Benefits and Excess Benefits, less withholding for applicable income and employment taxes, shall be paid in cash on the date specified in the Participant’s applicable Election Form or if not specified following the Participant’s Termination.
(b) Deferred Benefits and Excess Benefits shall be paid in a lump sum unless the Participant’s applicable Election Form specifies annual installment payments over a period of up to twenty years. Installment payments will be made in approximately equal amounts during each year of the installment period. For a Deferred Benefit or an Excess Benefit payable in installments, interest under Article VI shall continue to accrue on the unpaid balance of a Deferred Account or Excess Benefit Account, as applicable.
Unless otherwise specified in a Participant’s applicable Election Form, any lump sum payment shall be paid or installment payments shall begin January 31 of the year after the Participant’s Termination, provided, however, that no payment of 409A Funds shall be made, or commence to be made, earlier than the earliest time of payment permitted under Code Section 409A coinciding with or following the Participant’s Termination (including without limitation deferral of payment until six months after separation from service in the event the Participant is a key employee of a publicly traded employer).
Unless otherwise permitted by the Committee, any form of payment election for Salary deferrals shall also apply to a Participant’s Excess Benefit. Otherwise, the time for filing a form
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
of payment 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 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. This rule may be applied for separate years or portions of a Participant’s Excess Benefit Account on such basis as it determines.
Any specified form of payment 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 form of payment elections for separate years or deferrals on such basis as it determines.
(c) Notwithstanding any other provision of this Plan or a Participant’s Election Form, the Committee in its sole discretion for a Participant’s Non-409A Funds may postpone, and the Committee shall for a Participant’s 409A Funds postpone, the distribution of all or part of a Deferred Benefit or Excess Benefit to the extent that the payment would not be deductible under Code Section 162(m). A Deferred Benefit of Excess Benefit distribution that is postponed pursuant to the preceding sentence shall be paid as soon as it is possible to do so within the deduction limitations of Code Section 162(m).
(d) A Participant or Beneficiary may not assign Deferred Benefits or Excess Benefits. Only one Beneficiary designation form may be effective at any one time to designate one or more Beneficiaries for all of his Deferred Benefits or Excess Benefits under the Plan. Such designations are revocable. Each Beneficiary shall receive his portion of the Participant’s Deferred Account and the Participant’s Excess Benefit Account, as applicable, on January 31 of the year following the Participant’s death. The Committee may insist that multiple Beneficiaries agree upon a single distribution method.
(e) If Plan interest adjustments are not determined on a daily valuation basis, unless otherwise determined by the Committee, any lump sum or installment payment shall be made in an initial payment and a true-up payment by paying 90% of the previous month end (or other time of valuation hereunder) balance at the designated payment date and then making a second payment truing up the payment which shall include both the remaining 10% plus an interest adjustment for the month (or partial portion of the month if paid earlier than the end of the month) of the initial 90% payment, which second payment shall be made during the month following the month of the initial payment. The Committee may change the 90% and 10% figures in order to anticipate substantial fluctuations in interest adjustments.
ARTICLE VI
INVESTMENT OPTIONS
6.01. Investment Options
The Company has selected the Investment Options described in Exhibit I any of which may be changed, modified or deleted, or additional investment options may be added, from time to time by the Committee.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
6.02. Election of Investment Options
(a) At the time that an Eligible Employee first becomes a Participant, the Participant shall allocate deferrals and accounts among the Investment Options. Such Investment Options will be used as a measure of the investment performance of his Deferred Account and his Excess Benefit Account, if applicable. A Participant may specify that all or any 10% multiple of his Deferred Account and his Excess Benefit Account, if applicable, be deemed to be invested in one or more of the Investment Options.
(b) A Participant may reallocate the Investment Options for his Deferred Account and his Excess Benefit Account once every six months (or more frequently as the Committee may permit) in 10% multiples (or such other multiple or a specified dollar amount as the Committee may permit). Any reallocation will be effective as of the first day of the calendar month (or such more frequent period as the Committee may provide) following the date on which an appropriately completed election form is received by the Committee. Until a Participant delivers a new Investment Option form to the Committee (or its delegate), his prior Investment Options shall control. If a Participant fails to select an Investment Option for his Deferred Account and his Excess Benefit Account, he shall be deemed to have elected the Default Investment Option as provided in Exhibit I.
6.03. Method of Crediting Interest Adjustments
Interest will be credited to a Participant’s Deferred Account and his Excess Benefit Account as follows: As of the last day of each month (or such more frequent period as the Committee may provide) in which any amount remains credited to the Deferred Account or the Excess Benefit Account of a Participant, each portion of such accounts deemed invested in a particular Investment Option shall either be credited or debited with an amount equal to that determined by multiplying the balance of such portion of such account as of the last day of the preceding month (or such more frequent period as the Committee may provide) by the return rate for that month (or other provided period) for the applicable Investment Option. As to the applicable amount distributed, the Company shall make crediting or debiting adjustments to each Participant’s Deferred Account or his Excess Benefit Account on the last day of the month (or such more frequent period as the Committee may provide) of the date of distribution.
ARTICLE VII
OTHER DISTRIBUTION EVENTS
7.01. Change of Control
Notwithstanding any other provision of this Plan, if a Participant’s employment with the Company or its subsidiaries Terminates for any reason other than death, within the two-year period beginning on the date that a Change of Control occurs, then the Company shall pay to the Participant within the first 15 days of the month following such termination a lump sum distribution of his Deferred Account and his Excess Benefit Account. If the Participant dies after Termination but before payment of any amount under this Plan Section, then such amount shall
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
be paid to the Beneficiary within the first 15 days of the month following the Participant’s death. Notwithstanding the foregoing, in the case of any 409A Funds, payment thereof shall not be made earlier than the earliest time of payment permitted under Code Section 409A. In addition, notwithstanding the foregoing, this Section 7.01 shall not apply to any Non-409A Funds to which this withdrawal right was not available on October 3, 2004.
7.02. Unforeseeable Emergency
(a) A distribution of a portion of a Participant’s Deferred Account or Excess Benefit Account because of an Unforeseeable Emergency will be permitted only to the extent required by the Participant to satisfy the emergency need plus, in the case of a withdrawal of 409A Funds if approved by the Committee, amounts necessary to pay taxes reasonably anticipated as a result of the distribution. Whether an Unforeseeable Emergency has occurred will be determined solely by the Committee. Distributions in the event of a Unforeseeable Emergency may be made by and with the approval of the Committee upon written request by a Participant.
(b) An “Unforeseeable Emergency” is defined as a severe financial hardship to the Participant caused by sudden or unexpected illness or accident of the Participant or of a dependent of the Participant (as defined in Code Section 152(a)), a loss of the Participant’s property due to casualty, or other extraordinary and unforeseeable circumstances caused by a result of events beyond the Participant’s control. The circumstances that will constitute an Unforeseeable Emergency will depend upon the facts of each case, but, in any event, any distribution under this Plan Section shall not exceed the amount required by the Participant to satisfy the Unforeseeable Emergency after (i) reimbursement or compensation through insurance or otherwise, (ii) liquidation of the Participant’s assets, to the extent such liquidation would not itself cause a severe financial hardship, or (iii) suspension, to the extent available under the Plan and not prohibited by the deferral election change rules of Code Section 409A, of deferrals under the Plan.
(c) Notwithstanding the foregoing, this Section shall not apply to any Non-409A Funds to which this withdrawal right was not available on October 3, 2004.
7.03. Withdrawals of Non-409A Funds
A Participant may elect by filing with the Company a form specified by the Committee, to receive an amount equal to 90% of his Non-409A Funds in his Deferred Account or Excess Benefit Account at any time prior to his Termination. The amount of any withdrawal shall be distributed to the Participant in a single lump sum as soon as administratively practical following such election. If a Participant makes an election described in this Plan Section, the balance of the Participant’s Non-409A Funds in his Deferred Account or Excess Benefit Account not distributed to the Participant shall be forfeited to the Company; and the amount to which he is entitled under this Section 7.03 shall be distributed to the Participant in a single lump sum as soon as administratively practical following such election. In addition, unless prohibited by the deferral election change rules of Code Section 409A, the Participant shall be prohibited from making a Salary deferral for the balance of the year in which this distribution is made and for the
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
following year. Unless prohibited by the deferral election change rules of Code Section 409A, any elections previously made pursuant to Plan Section 4.01 shall cease to be effective. Notwithstanding the foregoing, this Section shall not apply to any Non-409A Funds to which this withdrawal right was not available on October 3, 2004.
ARTICLE VIII
PARTICIPANT RIGHTS IN THE UNFUNDED PLAN
The Company has only a contractual obligation to pay the benefits described in the Plan. All benefits are to be satisfied solely out of the general corporate assets of the Company which shall remain subject to the claims of its creditors. No assets of the Company will be segregated or committed to the satisfaction of its obligations to any Participant or Beneficiary under this Plan. No obligation under the Plan shall be deemed to be secured by any pledge or any encumbrance on any property of the Company. Assets segregated or identified by the Company for the purpose of paying benefits pursuant to the Plan remain general corporate assets subject to the claims of the Company’s creditors.
ARTICLE IX
TERMINATION OF EMPLOYMENT
9.01. Termination of Employment
Except as provided in Plan Section 9.02, a Participant who ceases to be an Eligible Employee or whose employment with the Company and its Affiliates is terminated either with or without cause for reasons other than death or retirement, shall immediately cease to be a Participant under this Plan and shall forfeit all rights under this Plan. Further, except as provided in Plan Section 9.02, in no event shall an individual who was a Participant but is not a Participant at the time of such individual’s death or retirement, have any rights under the Plan. A Participant on authorized leave of absence from the Company shall not be deemed to have terminated employment or lost his status as an Eligible Employee for the duration of such leave of absence.
9.02. Vesting
A Participant’s right to amounts credited to his Deferred Account and his Excess Benefit Account are always fully vested and nonforfeitable.
9.03. Reemployment
A Participant who ceases to be an employee of the Company and who is subsequently reemployed by the Company shall not accrue any additional benefits on account of such later service for periods in which he is not a Participant.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
ARTICLE X
TERMINATION, AMENDMENT OR MODIFICATION OF PLAN
10.01. Amendment or Termination
Except as otherwise specifically provided, the Company reserves the right to terminate, amend or modify this Plan, wholly or partially, at any time and from time to time. Such right to terminate, amend or modify the Plan shall be exercised by the Board.
10.02. Notice Requirement
(a) Plan Section 10.01 notwithstanding, no action to terminate the Plan shall be taken except upon written notice to each Participant to be affected thereby, which notice shall be given not less than 30 days prior to such action.
(b) Any notice which shall be or may be given under the Plan shall be in writing and shall be mailed by United States mail, postage prepaid. If notice is to be given to the Company such notice shall be addressed to it at 4 North Fourth Street, Richmond, Virginia 23219; addressed to the attention of the Senior Vice President and General Counsel. If notice is to be given to a Participant, such notice shall be addressed to the Participant’s last known address.
10.03. Limitation on Amendment, Termination, etc.
The rights of the Company set forth in Plan Section 10.01 are subject to the condition that the Board or its delegate shall take no action to amend or terminate the Plan if such amendment or termination would decrease the benefit that has commenced prior to the effective date of the amendment or termination or would become payable if the Participant terminated for any reason (other than for cause) including death, on such effective date.
10.04. Effect of Plan Termination
Except as provided in Plan Sections 10.01 and 10.03 and in the following sentence, upon the termination of this Plan by the Board, the Plan shall no longer be of any further force or effect, and neither the Company, any Affiliate nor any Participant shall have any further obligation or right under this Plan. Likewise, the rights of any individual who was a Participant and whose designation as a Participant is revoked or rescinded by the Committee shall cease upon such action except with respect to benefits that have accrued for such individual as of the date of revocation or rescission.
Notwithstanding any other provision herein to the contrary, in the event of Plan termination, payment of 409A Funds in Deferred Accounts and Excess Benefit Accounts shall not occur earlier than any time permitted under Code Section 409A.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
ARTICLE XI
OTHER BENEFITS AND AGREEMENTS
The benefits provided for a Participant and his Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program of the Company for its employees, and, except as may otherwise be expressly provided for, the Plan shall supplement and shall not supersede, modify or amend any other plan or program of the Company in which a Participant is participating.
ARTICLE XII
RESTRICTIONS ON TRANSFER OF BENEFITS
No right or benefit under the Plan shall be subject to anticipation, alienation, sale, assignment, pledge, encumbrance or charge, and any attempt to do so shall be void. No right or benefit hereunder shall in any manner be liable for or subject to the debts, contracts, liabilities, or torts of the person entitled to such benefit. If any Participant or Beneficiary under the Plan should become bankrupt or attempt to anticipate, alienate, sell, assign, pledge, encumber or charge any right to a benefit hereunder, then such right or benefit, in the discretion of the Committee, shall cease and terminate, and, in such event, the Committee may hold or apply the same or any part thereof for the benefit of such Participant or Beneficiary, his or her spouse, children, or other dependents, or any of them, in such manner and in such portion as the Committee may deem proper.
ARTICLE XIII
ADMINISTRATION OF THE PLAN
13.01. The Committee
The Plan shall be administered by the Committee. Subject to the provisions of the Plan, the Committee may adopt such rules and regulations as may be necessary to carry out the purposes hereof. The Committee’s interpretation and construction of any provision of the Plan shall be final and conclusive.
13.02. Indemnification of the Committee
The Company shall indemnify and save harmless each member of the Committee against any and all expenses and liabilities arising out of membership on the Committee, excepting only expenses and liabilities arising out of a member’s own willful misconduct. Expenses against which a member of the Committee shall be indemnified hereunder shall include without limitation, the amount of any settlement or judgment, costs, counsel fees, and related charges reasonably incurred in connection with a claim asserted, or a proceeding brought or settlement thereof. The foregoing right of indemnification shall be in addition to any other rights to which any such member may be entitled.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
13.03. Powers of the Committee
In addition to the powers hereinabove specified, the Committee shall have the power to compute and certify the amount and kind of benefits from time to time payable to Participants and their Beneficiaries under the Plan, to authorize all disbursements for such purposes, and to determine whether a Participant is entitled to a benefit under the Plan.
13.04. Information
To enable the Committee to perform its functions, the Company shall supply full and timely information to the Committee on all matters relating to the compensation of all Participants, their retirement, death or other cause for termination of employment, and such other pertinent facts as the Committee may require.
ARTICLE XIV
MISCELLANEOUS
14.01. Binding Nature
The Plan shall be binding upon the Company, any participating Affiliates and its successors and assigns, subject to the provisions set forth in Article X, and upon a Participant, his or her Beneficiary, and either of their assigns, heirs, executors and administrators.
14.02. Governing Law.
To the extent not preempted by federal law, the Plan shall be governed and construed under the laws of the Commonwealth of Virginia (including its choice of law rules, except to the extent those rules would require the application of the law of a state other than Virginia) as in effect at the time of their adoption and execution, respectively.
14.03. Use of Masculine and Feminine; Singular and Plural
Masculine pronouns wherever used shall include feminine pronouns and the use of the singular shall include the plural.
14.04. No Guarantee of Employment
The Plan does not in any way limit the right of the Company or an Affiliate at any time and for any reason to terminate the Participant’s employment or such Participant’s status as an Eligible Employee. In no event shall the Plan, by its terms or by implication, constitute an employment contract of any nature whatsoever between the Company or an Affiliate and a Participant.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
14.05. Electronic Administration
Notwithstanding anything to the contrary in the Plan, the Committee may provide from time to time that Participant elections, and any other aspect of Plan administration may be made by telephonic or other electronic means rather than in paper form.
14.06. Nonqualified Deferred Compensation Plan Omnibus Provision
It is intended that any compensation, benefits or other remuneration which is provided pursuant to or in connection with the Plan which is considered to be nonqualified deferred compensation subject to Code Section 409A shall be provided and paid in a manner, and at such time and in such form, as complies with the applicable requirements of Code Section 409A to avoid the unfavorable tax consequences provided therein for non-compliance. The Committee is authorized to amend the Plan or any election under the Plan as may be determined by it to be necessary or appropriate to evidence or further evidence required compliance with Code Section 409A.
It is specifically intended that all elections, consents and modifications thereto under the Plan will comply with the requirements of Code Section 409A (including any transition or grandfather rules thereunder). The Committee is authorized to adopt rules or regulations deemed necessary or appropriate in connection therewith to anticipate and/or comply the requirements of Code Section 409A (including any transition or grandfather rules thereunder).
It is also intended that if any compensation, benefits or other remuneration which is provided pursuant to or in connection with the Plan is considered to be nonqualified deferred compensation subject to Code Section 409A but for being earned and vested as of December 31, 2004 (i.e., Non-409A Funds), then no material modification of the Plan after October 3, 2004 shall apply to such Plan benefits which are earned and vested as of December 31, 2004 unless such modification expressly so provides.
ARTICLE XV
ADOPTION
The Company has adopted this restatement of the Plan pursuant to action taken by the Board.
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
As evidence of its adoption of this restatement of the Plan, A.T. Massey Coal Company, Inc. has caused this document to be signed by its undersigned officer, this 22nd day of February, 2005, effective January 1, 2005.
| A.T. MASSEY COAL COMPANY, INC. | ||||
| /s/ Don L. Blankenship | ||||
| By: | Don L. Blankenship | |||
| Its: | Chairman, Chief Executive Officer and President | |||
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A.T. MASSEY COAL COMPANY, INC.
Executive Deferred Compensation Plan
(Amended and Restated as of January 1, 2005)
EXHIBIT I
PLAN INVESTMENT OPTIONS
Unless otherwise provided by the Committee, the Investment Options under the Plan are the available investment options under the Profit Sharing Plan (excluding the Massey Energy Stock Fund) as in effect from time to time. As of January 1, 2005, the following Investment Options are available under the Plan:
| • | INVESCO Stable Value Trust (managed by INVESCO Institutional (N.A.), Inc.). |
| • | INVESCO Core Fixed Income Trust (managed by INVESCO Institutional (N.A.), Inc.). |
| • | American Balanced Fund (managed by The American Funds Group). |
| • | American Fundamental Investors (managed by The American Funds Group). |
| • | Vanguard 500 Index (managed by The Vanguard Group, Inc.). |
| • | AIM Constellation Fund (managed by AIM Investors, Inc.). |
| • | PIMCO Renaissance Fund (managed by PIMCO Funds). |
Unless otherwise provided by the Committee, the Default Investment Option under the Plan is the default investment fund under the Profit Sharing Plan. As of January 1, 2005, the Default Investment Option under the Plan is the INVESCO Stable Value Trust.
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