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massey2

massey2

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Published by MarkMemmott

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Published by: MarkMemmott on Dec 08, 2010
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Retirement Agreement with Don L. Blankenship, effective December 3, 2010.
EX-10.1 3 dex101.htm RETIREMENT AGREEMENT WITH DON L. BLANKENSHIP, EFFECTIVEDECEMBER 3, 2010.
Exhibit 10.1
EXECUTION COPYDecember 3, 2010Don L. BlankenshipRe:Retirement AgreementDear Don:This letter agreement (
Agreement
) sets forth the complete terms under which you will retire as a director, officerand employee of Massey Energy Company (the
Company
) and any and all of its subsidiaries or affiliates forwhom you are a director, officer or employee as of the date hereof.1. Retirement Date. Your letter agreement dated as of December 30, 2009, and Appendix A attached thereto (the
Employment Agreement
), provide for an employment term through December 31, 2011. Nevertheless, theCompany and you agree that you hereby resign as a member of the board of directors of the Company (the
Board
) and as the Chairman of the Board and Chief Executive Officer of the Company, and as a director andofficer of any and all subsidiaries or affiliates of the Company, effective as of December 3, 2010, and that yourretirement as an employee of the Company and its subsidiaries and affiliates will be effective as of December 31,2010. Accordingly, your last day of employment with the Company will be December 31, 2010 (your
RetirementDate
). After your Retirement Date, you will no longer be a director, officer or employee of the Company or anysubsidiary or affiliate of the Company. Between December 3, 2010 and your Retirement Date, you will performsuch duties as are required by the Company that are commensurate with your experience, qualifications andstature.2. Severance Benefits. In consideration for your resignation, the early termination of the EmploymentAgreement, the convenants described in sections 5 and 6 of this Agreement, the general release described insection 7 of this Agreement, the consulting services described in section 9 of this Agreement and the otherconsideration described herein, the receipt and adequacy of which are hereby acknowledged, the Company agreesto the following payments and benefits contained in this Agreement. In this regard, you acknowledge and agreethat your voluntary decision to retire as of December 31, 2010, does not entitle you to any severance payments orbenefits under the Employment Agreement. In addition, you acknowledge and agree that there are no currentfacts and circumstances that would entitle you to severance payments or benefits under your Change in ControlSeverance Agreement, as amended and restated, dated October 22, 2010 (your
Change in Control Agreement
).From and after the Retirement Date, the Employment Agreement and Change in Control Agreement shall ceaseto have any force or effect.
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Retirement Agreement with Don L. Blankenship, effective December 3, 2010.
a. Severance Payments. The Company will make two payments in cash or cash equivalent to you aggregatingTwelve Million Dollars ($12,000,000), the first in the amount of Two Million Dollars ($2,000,000), which theCompany views as not being deferred compensation subject to Section 409A of the Code (as defined in section14 of this Agreement), and shall be paid on December 31, 2010 and the second in the amount of Ten MillionDollars ($10,000,000), which the Company views as being deferred compensation subject to Section 409A of theCode and shall be paid on July 1, 2011 or, if sooner, within five (5) days of your death, less any applicablefederal, state and local income or employment taxes required to be withheld. These are payments to which youwould not otherwise be entitled in the absence of this Agreement. The Company agrees at your written request toplace any amount to be paid to you pursuant to this section 2.a. after December 31, 2010 in a
rabbi trust
of whichthe trustee is a bank selected by the Company, which trust shall be a grantor trust of the Company for federalincome tax purposes and shall be based on the model
rabbi trust
described in Rev. Proc. 92-64, 1992-2 CB 422.b. Performance Award Settlement. The Company agrees to pay you on December 31, 2010, based on reasonableestimates of actual performance to be agreed, those portions of the 2008-2010 long term incentive award, the2010 cash incentive bonus award, the 2010 performance-based restricted unit awards, the 2010 performance-based cash incentive awards and the 2010 performance-based restricted stock award that would otherwise bepayable to you on or before March 15, 2011 for the performance periods ending 2010. This settlement will besubject to applicable federal, state and local income or employment taxes required to be withheld. If we areunable to reach an agreed settlement, any unsettled awards will be determined by the Company in accordancewith the terms of the applicable plans and agreements and paid in the normal course of business. These arepayments which you would otherwise receive after December 31, 2010 and on or before March 15, 2011, in theabsence of this Agreement, based on your Retirement Date.c. Property Adjacent to Sprigg, West Virginia Residence. The Company hereby grants you the option to purchasefor cash at its appraised fair market value the real property owned by the Company that is currently not a part of the parcel of real estate that is included as part of the residence currently being occupied by you as your principalresidence in Sprigg, West Virginia (your
Sprigg residence
) but is otherwise on and inside the fenced-in areasurrounding your Sprigg residence. The Company agrees to obtain the appraisal and provide a copy to you nolater than February 28, 2011. You will then have the right during the period between July 1, 2011 untilDecember 31, 2011 to purchase the property.d. Right of Way. The Company hereby agrees to provide you by March 15, 2011 with a non-exclusive personalaccess easement through the property owned by the Company
s subsidiaries, Road Fork Development Company,Inc. and Lauren Land Company, or their successors or assigns (collectively, the
Specified Subsidiaries
). Suchaccess easement shall be for ingress and egress over the road beginning at the end of the state and/or county roadmaintenance on Kentucky Route 292 and extending along the river to the bridge that crosses over to Sprigg, WestVirginia, then extending to the intersection with West Virginia State Route 49, as such easement area is generallydepicted and shaded in green on Exhibit A, attached hereto and incorporated herein. The access easementagreement shall be personal to you, shall not benefit your successors or assigns, shall not attach to any propertyowned by you, includingPage 2
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Retirement Agreement with Don L. Blankenship, effective December 3, 2010.
without limitation, the Sprigg property, and shall terminate upon your death or when you no longer own theSprigg property. In the access easement agreement, you shall waive any claim relating to such easement againstthe Company and its affiliates and subsidiaries, including without limitation, the Specified Subsidiaries. Further,in the access easement agreement you shall indemnify the Company and its affiliates and subsidiaries, includingwithout limitation, the Specified Subsidiaries from and against any and all liabilities, claims, damages, andexpenses whatsoever arising from or associated with your use of the access easement. The access easementagreement shall also provide that the Company and the Specified Subsidiaries shall have no obligation tomaintain or improve the access easement area, including, without limitation, the roads or the bridge locatedtherein.e. Vehicle. The Company hereby agrees to provide you by March 15, 2011 with title to the 1965 Blue ChevroletTruck (VIN xxxxxxxxx555) that you previously transferred to the Company.f. Continued Health Care Coverage. For a period of 24 months following your Retirement Date, you will beentitled to receive, at the Company
s election, either (i) the medical and dental coverage in effect for you on yourRetirement Date (or generally comparable coverage), as the same may be changed from time to time forCompany employees generally, as if you had continued in employment during such period, or (ii) cash paymentsin an amount equal to your reasonable after-tax cost of comparable continuing coverage, with any such cashpayments to be made in accordance with the ordinary payroll practices of the Company (not less frequently thanmonthly) for employees generally for the period during which such cash payments are to be provided.g. Access to Documents. The Company agrees that you and your attorneys shall have access to documents inpossession of the Company necessary to defend yourself in litigation or investigations arising out of youremployment by the Company; provided that such access shall be conditioned on your and your attorneys enteringinto a customary confidentiality agreement.3. Employee and Other Benefits and Rights.a. You agree that any and all awards relating to fiscal year 2011 otherwise to be made under your EmploymentAgreement (including the cash incentive bonus award in section 1.2 thereof, the restricted stock and restrictedunits in section 1.3 thereof, the performance-based restricted unit awards in section 1.4 thereof, the performance-based cash incentive awards in section 1.5 thereof and performance-based restricted stock award in section 1.6thereof) shall not be made and that you have no rights thereto since you will not be employed by the Company in2011.b. It is agreed that, except as otherwise provided in this Agreement, this Agreement does not affect your rightsand entitlements under the following plans and programs:
 
Massey Energy Retirement Plan.
 
Coal Company Salary Deferral and Profit Sharing Plan.Page 3
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