exhibit1.htm


    
      

      

    

     

    EXHIBIT
      10.2

     

    MASSEY
      ENERGY COMPANY

     

    Non-Qualified
      Stock Option Agreement

     

     [Number]
      Non-Qualified Stock Options

     

    THIS
      AGREEMENT dated as of November 12, 2007, between MASSEY ENERGY COMPANY, a
      Delaware Corporation (the “Company”) and [________] (“Participant”) is made
      pursuant and subject to the provisions of the Massey Energy Company 2006 Stock
      and Incentive Compensation Plan, as amended from time to time (the “Plan”), a
      copy of which is attached. All terms used herein that are defined in the Plan
      have the same meaning given them in the Plan.

     

    1.           Award
      of Non-Qualified
      Stock
      Options.  Pursuant to the Plan, the
      Company, on November 12, 2007 (the “Grant Date”), granted to Participant,
      subject to the terms and conditions of the Plan and subject further to the
      terms
      and conditions herein set forth, an award of [________] Non-Qualified Stock
      Options, hereinafter described as “Options” or “Option,” at the option price of
      $________ per share, being not less than the Fair Market Value of such shares
      on
      the Grant Date, or on the next preceding trading date if no Company shares
      traded on the New York Stock Exchange on the Grant Date.  This Option
      is exercisable as hereinafter provided.

     

    2.           Nontransferability.  This
      Option may not be transferred except by will or by the laws of descent and
      distribution. During Participant’s lifetime, this Option may be exercised only
      by Participant.

     

    3.           Expiration
      Date.  This Option shall expire ten
      years from the Grant Date (the “Expiration Date”).

     

    4.           Exercisability.  Subject
      to Paragraph 7 and except as provided in Paragraph 8 below,
      Participant’s interest in the Options shall become exercisable (“Vested”) with
      respect to one-third of the Options on each of November 12, 2008, November
      12,
      2009, and November 12, 2010.  Once this Option, or any portions
      thereof, has become exercisable in accordance with the preceding sentence it
      shall continue to be exercisable until the termination of Participant’s rights
      hereunder pursuant to Paragraph 5, 6, 7, or 8 or until the Option has
      expired pursuant to Paragraph 3. A partial exercise of this Option shall
      not affect Participant’s right to exercise this Option with respect to the
      remaining shares, subject to the conditions of the Plan and this
      Agreement.

     

    5.           Death,
      Retirement or Disability.  If
      Participant dies, Retires, or becomes permanently and totally disabled within
      the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended
      (the “Code”) (“Permanently and Totally Disabled”) while in the employ or service
      of the Company or a Subsidiary and prior to the forfeiture of the Options under
      Paragraph 7, Participant shall thereupon become entitled to exercise such
      Options in full to the extent not vested or exercised as of the date of
      Participant’s death, Retirement or becoming Permanently and Totally Disabled,
      and all such Options shall be exercisable by Participant (or if Participant
      is
      deceased, his estate or other successor in interest following Participant’s
      death) during the remainder of the period preceding the Expiration Date or
      until
      the date that is three years after the date of Participant’s death, Retirement
      or Total and Permanent Disability, whichever is shorter.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
      
        For
          purposes of this Agreement, “Retire” or “Retirement” means retiring directly
          from active service under one of the Company’s qualified pension plans with a
          vested benefit on or after the attainment of age 55.

      


     

    6.           Exercise
      after Termination of Employment or
      Service.  If Participant ceases to be
      employed by or in the service of the Company and its Subsidiaries prior to
      the
      Expiration Date for reasons other than death, Retirement or Permanent and Total
      Disability, this Option shall be exercisable to the extent exercisable under
      Paragraph 4, during the remainder of the period preceding the Expiration
      Date or until the date that is three months after the date Participant ceases
      to
      be employed by or in the service of the Company and its Subsidiaries for reasons
      other than death, Retirement or Permanent and Total Disability, whichever is
      shorter.

     

    7.           Forfeiture.  Subject
      to the preceding Paragraph and Paragraph 8 below, all Options that are
      not then Vested shall be forfeited if Participant’s employment or service with
      the Company and its Subsidiaries terminates for any reason other than on account
      of Participant’s death, Retirement, or Permanent and Total
      Disability.

     

    8.           Change
      in Control.  Notwithstanding any other
      provision of this Agreement, Participant's right to receive the Options shall
      be
      Vested if Participant's employment is terminated by the Company or an Affiliate
      without Cause within two years following a Change in Control.  For purposes
      of this Agreement, Cause shall occur upon:

     

           
      (i)     the willful and continued failure by Participant
      substantially to perform Participant's duties with the Company or an Affiliate
      (other than any such failure resulting from Participant's incapacity due to
      physical or mental illness) after written demand for substantial performance
      is
      delivered to Participant by the Company or an Affiliate which specifically
      identifies the manner in which the Company or Affiliate believes that
      Participant has not substantially performed Participant's duties,

     

           
      (ii)    Participant’s willful breach of fiduciary duty, willful
      violation of any law, rule, or regulation (other than traffic violations or
      similar offenses), willful violation of a final cease and desist order or
      willfully engaging in any other gross misconduct which is materially and
      demonstrably injurious to the Company or any Affiliate, or

     

           
      (iii)    Participant’s conviction of, or pleading guilty
      or nolo condentere to, the commission of a felony involving fraud,
      embezzlement, theft or moral turpitude. 

     

    For
      purposes hereof, no act, or failure to act, on Participant’s part described in
      clause (i) or (ii) above shall be considered “willful” unless done, or omitted
      to be done, by Participant not in good faith and without reasonable belief
      that
      Participant's action or omission was in the best interest of the Company and
      its
      Affiliates.  The fact that Participant is or shortly may be “retirement
      eligible” and thus eligible for or entitled to post-retirement benefits from any
      plan, arrangement or program sponsored, participated in or contributed to by
      the
      Company or an Affiliate shall not prevent Participant’s termination from being
      considered for Cause.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    9.           Notice.  Any
      notice or other communications given pursuant to this Agreement shall be in
      writing and shall be personally delivered or mailed by United States registered
      or certified mail, postage prepaid, return receipt requested, to the following
      addresses:

     

    
      
        
          	
                  If
                    to the Company:

                	 
	 	 
	
                  By
                    hand-delivery:

                	
                  By
                    mail:

                
	
                  Massey
                    Energy Company

                	
                  Massey
                    Energy Company

                
	
                  Attention:
                    Corporate Secretary

                	
                  Attention:
                    Corporate Secretary

                
	
                  4
                    North Fourth Street

                	
                  P.O.
                    Box 26765

                
	
                  Richmond,
                    Virginia 23219

                	
                  Richmond,
                    Virginia 23261

                
	 	 
	
                  If
                    to Participant:

                	 
	 	 
	
                  [Name]

                	 
	
                  [Address]

                	 
	
                  [Address]

                	 


        

      

    

    


     

    10.           Confidentiality.  Participant
      agrees that this Agreement and the receipt of Options subject to this award
      are
      conditioned upon Participant not disclosing the terms of this Agreement or
      the
      receipt of the Options to anyone other than Participant’s spouse, confidential
      financial advisor, or senior management of the Company prior to the date
      Participant is Vested in the Options.  If Participant discloses such
      information to any person other than those named in the prior sentence, except
      as may be required by law, Participant agrees that this award will be
      forfeited.

     

    11.           Fractional
      Shares.  Fractional shares shall not be
      issuable hereunder, and when any provision hereof may entitle Participant to
      a
      fractional share such fraction shall be disregarded.

     

    12.           No
      Right to Continued Employment or
      Service.  This Agreement does not confer
      upon Participant any right to continue in the employ or service of the Company
      or a Subsidiary, nor shall it interfere in any way with the right of the Company
      or a Subsidiary to terminate such employment or service at any
      time.

     

    13.           Change
      due to Capital Adjustments.  The terms
      of this Award shall be adjusted as the Committee determines and as provided
      in
      the Plan for events which, in the judgment of the Committee, necessitates such
      action.

     

    14.           Governing
      Law.  This Agreement shall be governed
      by the laws of the State of Delaware.

     

    15.           Conflicts.  In
      the event of any conflict between the provisions of the Plan as in effect on
      the
      date hereof and the provisions of this Agreement, the provisions of the Plan
      shall govern.  All references herein to the Plan shall mean the Plan
      as in effect on the date hereof or as duly amended.

     

    16.           Participant
      Bound by Plan.  Participant hereby
      acknowledges receipt of a copy of the Plan and agrees to be bound by all the
      terms and provisions thereof which are incorporated by reference into this
      Agreement.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    17.           Binding
      Effect.  Subject to the limitations
      stated above and in the Plan, this Agreement shall be binding upon and inure
      to
      the benefit of the legatees, distributees, and personal representatives of
      Participant and the successors of the Company.

     

    18.           Taxes.  Participant
      shall make arrangements acceptable to the Company for the satisfaction of income
      and employment tax withholding requirements attributable to the exercise of
      any
      Option.

     

    19.           Employment
      and Service.  In determining cessation
      of employment or service, transfers between the Company and/or any Subsidiary
      shall be disregarded, and changes in status between that of a Member, a
      Non-Employee Service Provider and a Non-Employee Director shall be
      disregarded.

     

    IN
      WITNESS WHEREOF, the Company has caused this Agreement to be signed by a duly
      authorized officer, and Participant has affixed his signature
      hereto.

     

                         MASSEY
      ENERGY COMPANY

    


    


                          By:
      __________________________

                          Name:
      Baxter F. Phillips, Jr.

                          Its:
      Executive Vice President and Chief Administrative Officer

    


                         _____________________________

                        [Participant]