exhibit7.htm


    


      
        

        

      

       

      EXHIBIT
        10.4

       

      MASSEY
        ENERGY COMPANY

       

      Restricted
        Unit Agreement

       

      [Number]
        Restricted Units

       

      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 Restricted Units.  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 [________] Restricted
        Units. The Restricted Units shall become earned and payable only in cash
        as more
        fully set forth herein.

       

      2.  Restrictions.  Except
        as provided in this Agreement, the Restricted Units are nontransferable and
        are
        subject to a substantial risk of forfeiture during the Period of
        Restriction.  The Period of Restriction starts on the Grant Date and
        ends when the Restricted Units vest or are forfeited.

       

      3.  Vesting.  Subject
        to Paragraph 5 and except as provided in Paragraph 6 below,
        Participant’s interest in the Restricted Units shall become transferable and
        nonforfeitable (“Vested”) with respect to one-third of the Restricted Units on
        each of November 12, 2008, November 12, 2009, and November 12,
        2010.

       

      4.  Death
        or Disability.  If Participant dies or
        becomes permanently and totally disabled within the meaning of Section 22(e)(3)
        of 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 Restricted
        Units under Paragraph 5, Participant’s right to receive the Restricted
        Units shall be fully “Vested” (i.e., the restrictions on transfer and risk of
        forfeiture in Paragraph 2 above shall lapse).

       

      5.  Forfeiture.  Subject
        to Paragraph 6 below, all Restricted Units 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 or becoming Permanently and Totally Disabled.

       

      6.  Change
        in Control.  Notwithstanding any other
        provision of this Agreement, Participant's right to receive the Restricted
        Units
        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.

      


      7.  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]

                	 


        

      

      


       

      8.  Confidentiality.  Participant
        agrees that this Agreement and the receipt of this award are conditioned
        upon
        Participant not disclosing the terms of this Agreement or the receipt of
        the
        Restricted Units 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 Restricted Units. 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.

       

      9.  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.

       

      10.  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.

       

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

       

      12.  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.

       

      13.  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.

       

      14.  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.

       

      15.  Taxes.  Participant
        shall make arrangements acceptable to the Company for the satisfaction of
        income
        and employment tax withholding requirements attributable to the Vesting or
        payment of this Award.

       

      16.  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]