270 Legal [Sample Agreements]

CHANGE IN CONTROL SEVERANCE AGREEMENT

THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), originally dated as of [date] (the “Effective Date”), is made on ______ ___, 20__ between Massey Energy Company, a Delaware corporation (the “Company”), and [Executive] (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) recognized 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 Company’s management, including Executive, in connection with their assigned duties without distraction in the face of potentially disturbing circumstances, and without the Company’s loss of needed personnel, arising from the possibility of a Change in Control; and

WHEREAS, in consideration of Executive’s continued employment with the Company, the Company desired 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 Executive’s 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 actual 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 Executive’s 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 Executive’s 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 Executive’s 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 on or beginning, as applicable, the first business day that occurs following sixty (60) 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, the later of as soon as administratively feasible after the date an actual Change in Control occurs or the first business day that occurs following sixty (60) days after his Termination Date (contingent on the execution of the release without revocation as contemplated in Section 4 hereof):

(i) a lump sum cash payment equal to 2.0 times Executive’s Base Pay (as defined in Section 23);

(ii) a lump sum cash payment equal to 2.0 times Executive’s Target Bonus (as defined in Section 23);

(iii) a pro rated payment of his Target Bonus for the year in which Executive’s Termination Date occurs. The pro rated payment shall be based on Executive’s Target Bonus as of Executive’s Termination Date, multiplied by a fraction, the numerator of which is the number of days during which Executive was employed by the Company in the year of his termination and the denominator of which is 365;

(iv) any award under the Company’s long-term cash and equity incentive program, including stock option, restricted stock, restricted unit, other equity- or cash-based incentive awards or other equity- or cash-based incentive agreements, which by its terms vests in connection with the Change in Control, provided that payment of such award shall be determined solely by the terms of such award and any plan, program or arrangement which controls its determination and payment; and

(v) for a period of 24 months following his Termination Date, Executive shall continue to receive on a monthly basis the medical and dental coverage in effect on his Termination Date (or generally comparable coverage) for himself and, if applicable, his spouse and dependents, as the same may be changed from time to time for employees generally, as if Executive had continued in

employment during such period; or, as an alternative, the Company may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive’s reasonable after-tax cost of continuing comparable coverage, where such coverage may not be continued by the Company (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided), with any such cash payments to be made in accordance with the ordinary payroll practices of the Company (not less frequently than monthly) for employees generally for the period during which such cash payments are to be provided.

(A) If Executive does not receive the cash payment described in the preceding sentence, the Company shall take all commercially reasonable efforts to provide that the COBRA (as defined in Section 23) health care continuation coverage period under section 4980B of the Code (as defined in Section 23) shall commence immediately after the foregoing 24 month benefit period, with such continuation coverage continuing until the end of applicable COBRA health care continuation coverage period.

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