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Title: |
Change in Control Severance Agreement |
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Date: |
2005 |
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Preview shows 9KB of 71KB total |
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Price: |
$43 |
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ID: |
#808900 |
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CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this Agreement), dated as of December 21, 2005 (the Effective Date), is made between Massey Energy Company, a Delaware corporation (the Company), and H. Drexel Short, Jr. (the Executive).
WITNESSETH:
WHEREAS, Executive is a senior executive of the Company or one of its Subsidiaries (as defined below) and has made and is expected to continue to make major contributions to the short-term and long-term profitability, growth and financial strength of the Company; and
WHEREAS, the Board of Directors of the Company (the Board, as defined in Section 23) recognizes that, as is the case with many publicly held corporations, the possibility of a Change in Control (as defined in Section 23) exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of key management personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of, and to contract for the continued rendering of services by, members of the Companys management, including Executive, in connection with their assigned duties without distraction in the face of potentially disturbing circumstances, and without the Companys loss of needed personnel, arising from the possibility of a Change in Control; and
WHEREAS, in consideration of Executives continued employment with the Company, the Company desires to provide Executive with certain compensation and benefits set forth in this Agreement in order to ameliorate the financial and career impact on Executive in the event Executives employment with the Company is terminated for a reason related to a Change in Control.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth (including definitions of capitalized terms which are set forth in Section 23 and throughout this Agreement) and intending to be legally bound hereby, the Company and Executive agree as follows:
1. Obligations of Executive to Remain Employed. Executive agrees that in the event any person or group attempts a Change in Control and he is either notified by the Board or aware of an attempted Change in Control, he shall not, without the written agreement of the Board, voluntarily leave the employ of the Company other than by reason of a Constructive Termination Associated With a Change in Control (as defined in Section 23) (i) until such attempted Change in Control terminates or (ii) if a Change in Control shall occur, until the occurrence of such Change in Control. For purposes of the foregoing clause (i) and this Agreement, Constructive Termination Associated With a Change in Control shall be determined, except as expressly provided in the definition of the term, as if a Change in Control had occurred when such attempted Change in Control (which is sometimes referred to herein as a potential, as opposed to an actual, Change in Control) became known to the Board. For purposes of this Agreement, any decision by the Board that the person or group has abandoned or terminated his or its efforts to effect a Change in Control shall be conclusive and binding on Executive.
2. Termination Associated With a Change in Control.
(a) Involuntary Termination Associated With a Change in Control. Executive shall be entitled to the payments and benefits provided in Section 2(b) in the event Executives employment is terminated after, or in connection with, a Change in Control, on account of:
(i) an Involuntary Termination Associated With a Change in Control (as defined in Section 23) within the two year period after an actual Change in Control,
(ii) a termination by the Company, other than for Cause (as defined in Section 23) or other than due to Executives death or Disability (as defined in Section 23), that (A) occurs not more than three (3) months prior to the date on which an actual Change in Control occurs or (B) is requested by a third party who initiates and effects an actual Change in Control, or
(iii) a termination by Executive that occurs after a potential Change in Control but before an actual Change in Control and is considered a Constructive Termination Associated With a Change in Control.
For purposes of clause (ii)(B) in the preceding sentence, to be eligible to receive amounts described in Section 2(b) below, a Change in Control must be consummated within the twelve (12) month period following Executives Termination Date (as defined in Section 23), except in circumstances pursuant to which the consummation of the Change in Control is delayed, through no failure of the Company or the third person, by a governmental or regulatory authority or agency with jurisdiction over the matter, or as a result of other similar circumstances. In such a circumstance, the remainder of the twelve (12) month period shall be tolled and shall recommence upon termination of the delaying event.
(b) Payments Upon Involuntary Termination Associated With a Change in Control. Subject to the provisions of Section 2(c) or Sections 3 and 6 hereof, in the event a termination described in Section 2(a) occurs, the Company shall pay and provide to Executive within thirty (30) days after his Termination Date or, where Executive is entitled to benefits under this Agreement by reason of clause (ii) or (iii) of Section 2(a) above, after the date the Change in Control occurs (or in any case, the end of the revocation period for the Release contemplated in Section 4 hereof, if later):
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