exhibit8.htm


    

      
        

        

      

       

      EXHIBIT
        10.8

      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.

      


      (B)
        If
        Executive would have been eligible for post-retirement medical and dental
        coverage had he retired from employment during the period of 24 months following
        his Termination Date, but is not so eligible as the result of his Involuntary
        Termination Associated With a Change in Control, then at the conclusion of
        the
        benefit continuation period described in (A) above, the Company shall take
        all
        commercially reasonable efforts to provide Executive on a monthly basis with
        additional continued group medical and dental coverage comparable to that
        which
        would have been available to him from time to time under the Company’s
        post-retirement medical and dental program, for as long as such coverage
        would
        have been available under such program, 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.

      


      (c)
        Limitation on Payments and Benefits. Notwithstanding anything in this
        Agreement to the contrary, the sum of the maximum amount payable and the
        value
        of the benefits provided to Executive pursuant to this Section 2 and Section
        6(a) shall be limited to 2.99 times the sum of Executive’s Base Pay and Bonus
        (as defined in Section 23). In the event a reduction is required pursuant
        hereto, unless Executive is permitted by the Company to choose the order
        of
        reduction, the order of reduction shall be first all cash payments on a pro
        rata
        basis, then any equity compensation on a pro rata basis, and lastly medical
        and
        dental coverage.

      


      (d)
        Cessation of Employment on Account of Disability, Cause or Death.
        Notwithstanding anything in this Agreement to the contrary, if Executive’s
        employment terminates on account of Disability, Executive shall be entitled
        to
        receive disability benefits under any disability program maintained by the
        Company that covers Executive, and Executive shall not be considered to have
        terminated employment under this Agreement and shall not receive payments
        and
        benefits pursuant to this Section 2. If Executive’s employment is terminated by
        the Company on account of Cause or because of his death, Executive shall
        not be
        considered to have terminated employment under this Agreement and shall not
        receive payments and benefits pursuant to this Section 2.

      


      (e)
Beneficiaries.
Executive
        shall be entitled to select (and change, to the extent permitted under any
        applicable law) a beneficiary or beneficiaries to receive any compensation
        or
        benefit payable hereunder following Executive’s death, and may change such
        election, in either case by giving the


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        Company
          written notice thereof. In the event of Executive’s death or a judicial
          determination of his incompetence, reference in this Agreement to Executive
          shall be deemed, where appropriate, to refer to his beneficiary, estate
          or other
          legal representative. If Executive dies without having designated a beneficiary,
          or if the beneficiary so designated has predeceased Executive or cannot
          be
          located by the Company within one year after the date when the Company
          commenced
          making a reasonable effort to locate such beneficiary, then Executive's
          surviving spouse, or if none, then Executive's estate shall be deemed to
          be his
          beneficiary.



      3.
        Nonqualified Deferred Compensation Plan Omnibus Provisions.
        Notwithstanding any other provision of this Agreement, it is intended that
        any
        payment or benefit which is provided pursuant to or in connection with this
        Agreement which is considered to be nonqualified deferred compensation subject
        to Section 409A of the Code shall be provided and paid in a manner, and at
        such
        time and in such form, as complies with the applicable requirements of Section
        409A of the Code to avoid the unfavorable tax consequences provided therein
        for
        non-compliance.  Notwithstanding any other provision of this
        Agreement, the Board is authorized to amend this Agreement, to amend any
        election made by Executive under this Agreement and/or to delay the payment
        of
        any monies and/or provision of any benefits in such manner as may be determined
        by it to be necessary or appropriate to comply, or to evidence or further
        evidence required compliance, with Section 409A of the Code (including any
        transition or grandfather rules thereunder).  For purposes of this
        Agreement, all rights to payments and benefits hereunder shall be treated
        as
        rights to a series of separate payments and benefits to the fullest extent
        allowable by Section 409A of the Code.  Payments or provision of
        benefits in connection with a separation from service payment event will
        be
        delayed, to the extent applicable, until six months after the separation
        from
        service or, if earlier, the Executive’s death, if the Executive is a key
        employee of a publicly traded corporation under Section 409A(a)(2)(B)(i)
        of the
        Code (the “409A
        Deferral Period”).  In
        the event such
        payments are otherwise due to be made in installments or periodically during
        the
        409A Deferral Period, the payments which would otherwise have been made in
        the
        409A Deferral Period shall be accumulated and paid in a lump sum as soon
        as the
        409A Deferral Period ends, and the balance of the payments shall be made
        as
        otherwise scheduled.  In the event benefits are required to be
        deferred, any such benefit may be provided during the 409A Deferral Period
        at
        Executive’s expense, with Executive having a right to reimbursement from the
        Company once the 409A Deferral Period ends, and the balance of the benefits
        shall be provided as otherwise scheduled.  For purposes of this
        Agreement, termination of employment will be read to mean a “separation from
        service” within the meaning of Section 409A of the Code where
        it is reasonably
        anticipated that no further services would be performed after that date or
        that
        the level of bona fide services Executive would perform after that date (whether
        as an employee
or
        independent
        contractor) would permanently decrease to no more than 20 percent of the
        average
        level of bona fide services performed over the immediately preceding thirty-six
        (36)-month period.

      


      4.
        Release. Notwithstanding the foregoing, no payments shall be made or
        benefits provided under Section 2(b) unless Executive executes, and does
        not
        revoke, the Company’s standard written release, substantially in the form as
        attached hereto as Appendix A (the “Release”), of any and all claims against the
        Company and all related parties with respect to all matters arising out of
        Executive’s employment by the Company (other than any claim or entitlement under
        an employee benefit, long term cash or equity compensation plan, program,
        arrangement or agreement which is due pursuant to the terms of such plan,
        program, arrangement or agreement) or a termination thereof. Such Release
        must
        be provided within sixty (60) days after Executive’s 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 before the date an actual Change
        in
        Control occurs or within sixty (60) days after the Executive’s Termination
        Date.

      


      5.
        Enforcement. Without limiting the rights of Executive at law or in
        equity, except as provided in Section 6, if the Company fails to make any
        payment or provide any benefit required to be made or provided hereunder
        on a
        timely basis, the Company will pay interest on the amount or value thereof
        at an
        annualized rate of interest equal to the so-called composite “prime rate” as
        quoted from time to time during the relevant period in the Eastern Edition
        of
The Wall Street Journal. Such interest will be payable as it accrues
        consistent


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        with
          the
          timing of the related payments or benefits to be provided. Any change in
          such
          prime rate will be effective on and as of the date of such
          change.



      6.
Tax
        Limitation on Payments by the Company. The provisions of this Section 6
        shall apply notwithstanding anything in this Agreement to the
        contrary.

      


      (a)
        Subject to the limitation in Section 2(c), in the event that it shall be
        determined that any Payment would constitute an “excess parachute payment”
within the meaning of Section 280G of the Code, then the Payments under Section
        2 of this Agreement (“Change in Control Payments”) shall be reduced (but not
        below zero) so that the Present Value of the aggregate of all Payments does
        not
        exceed the Reduced Amount; provided, however, that no such reduction shall
        be
        effected if the Net After-tax Benefit to Executive of receiving all of the
        Payments exceeds by more than the lesser of $25,000 or 5% of the Net After-tax
        Benefit to Executive resulting from having such Change in Control Payments
        so
        reduced. In the event a reduction is required pursuant hereto, the order
        of
        reduction shall be first all cash payments on a pro rata basis, then any
        equity
        compensation on a pro rata basis, and lastly medical and dental coverage.
        For
        purposes of this Section 6, the following terms have the following
        meanings:

      


      (i)
“Net
        After-tax Benefit” shall mean the Present Value of a Payment net of all federal
        state and local income, employment and excise taxes imposed on Executive
        with
        respect thereto, determined by applying the highest marginal rate(s) applicable
        to an individual for Executive’s taxable year in which the Change in Control
        occurs.

      


      (ii)
        “Payment” means any payment or distribution or provision of benefits by the
        Company to or for the benefit of Executive, whether paid or payable or
        distributed or distributable pursuant to the terms of this Agreement or
        otherwise, but
        determined without regard to any reductions required by this Section
        6.

      


      (iii)
        “Present Value” shall mean such value determined in accordance with Section
        280G(d)(4) of the Code.

      


      (iv)
        “Reduced Amount” shall be an amount expressed in Present Value which maximizes
        the aggregate Present Value of Payments without causing any Payment to be
        subject to excise tax under Section 4999 of the Code or the deduction limitation
        of Section 280G of the Code.

      


      (b)
        Except as set forth in the next sentence, all determinations to be made under
        this Section 6 shall be made by the nationally recognized independent public
        accounting firm used by the Company immediately prior to the Change in Control
        (“Accounting Firm”), which Accounting Firm shall provide its determinations and
        any supporting calculations to the Company and Executive within ten days
        of
        Executive’s Termination Date. If determined by the Accounting Firm to be
        excludible from parachute payments under Section 280G of the Code, the value
        of
        Executive’s non-competition covenant under Section 10(a) of this Agreement shall
        be determined by independent appraisal by a nationally-recognized business
        valuation firm acceptable to both Executive and the Company, and a portion
        of
        the Change in Control Payments shall, to the extent of that appraised value,
        be
        specifically allocated as reasonable compensation for such non-competition
        covenant and shall not be treated as a parachute payment. Any such determination
        by the Accounting Firm shall be binding upon the Company and
        Executive.

      


      (c)  If
        the Accounting Firm determines that Change in Control Payments should be
        reduced, the Company shall promptly give Executive notice to that effect
        and a
        copy of the detailed calculation thereof.  All determinations made by
        the Accounting Firm under this Section 6 shall be binding upon the Company
        and
        Executive and shall be made within twenty (20) business days of Executive’s
        Termination Date.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (d)  While
        it is the intention of the Company and Executive to reduce the amounts payable
        or distributable to Executive hereunder only if the aggregate Net After-tax
        Benefit to Executive would thereby be increased in the manner provided for
        herein, as a result of the uncertainty in the application of Section 4999
        of the
        Code at the time of the initial determination by the Accounting Firm hereunder,
        it is possible that amounts will have been paid or distributed by the Company
        to
        or for the benefit of Executive pursuant to this Agreement which should not
        have
        been so paid or distributed (“Overpayment”) or that additional amounts which
        will have not been paid or distributed by the Company to or for the benefit of
        Executive pursuant to this Agreement could have been so paid or distributed
        (“Underpayment”), in each case, consistent with the calculation of the Reduced
        Amount hereunder.  In the event that the Accounting Firm, based either
        upon the assertion of a deficiency by the Internal Revenue Service against
        the
        Company or Executive which the Accounting Firm believes has a high probability
        of success determines that an Overpayment has been made, any such Overpayment
        paid or distributed by the Company to or for the benefit of Executive shall
        be
        treated for all purposes as a loan to Executive which Executive shall repay
        to
        the Company together with interest at the applicable federal rate provided
        for
        in Section 7872(f)(2) of the Code; provided, however, that no such loan shall
        be
        deemed to have been made and no amount shall be payable by Executive to the
        Company if and to the extent such deemed loan and payment would not either
        reduce the amount on which Executive is subject to tax under Sections 1 and
        4999
        of the Code or generate a refund of such taxes. In the event that the Accounting
        Firm, based upon controlling precedent or substantial authority, determines
        that
        an Underpayment has occurred, any such Underpayment shall be promptly paid
        by
        the Company to or for the benefit of Executive together with interest at
        the
        applicable federal rate provided for in Section 7872(f)(2) of the
        Code.


              


      (e)
        All
        of the fees and expenses of the Accounting Firm in performing the determinations
        referred to in this Section 6 shall be borne solely by the Company.

      


      (f)
        All
        payments to be made under this Section 6 (other than any Underpayment described
        in Section 6(d)) must be made by the end of the Executive’s taxable year next
        following the Company’s taxable year in which the Company remits the related
        taxes.  Any right to reimbursement incurred due to a tax audit or
        litigation addressing the existence or amount of a tax liability must be
        made by
        the end of the Executive’s taxable year following the Executive’s taxable year
        in which the taxes that are the subject of the audit or litigation are remitted
        to the taxing authorities or, where no such taxes are remitted, the end of
        the
        Executive’s taxable year following the year in which the audit is completed or
        there is a final and non-appealable settlement or the resolution of the
        litigation.

      


      7.
        Duties upon Termination; Mitigation Obligation. Upon
        termination of
        employment for any reason, Executive or his estate shall surrender to the
        Company all correspondence, letters, files, contracts, mailing lists, customer
        lists, advertising materials, ledgers, supplies, equipment, checks, and all
        other materials and records of any kind that are the property of the Company
        or
        any of its subsidiaries or affiliates, that may be in Executive’s possession or
        under his control, including all copies of any of the foregoing. The
        Company hereby acknowledges that it will be difficult and may be impossible
        for
        Executive to find reasonably comparable employment following the Termination
        Date. Accordingly, the payment and provision of the severance compensation
        by
        the Company to Executive in accordance with the terms of this Agreement is
        hereby acknowledged by the Company to be reasonable, and Executive will not
        be
        required to mitigate the amount of any payment or benefit provided for in
        this
        Agreement by seeking other employment or otherwise, nor will any profits,
        income, earnings or other benefits from any source whatsoever create any
        mitigation, offset, reduction or any other obligation on the part of Executive
        hereunder or otherwise.

      


      8.
Legal
        Fees and
        Expenses.
If
        litigation or arbitration is commenced by either party to enforce or interpret
        any provision contained in this Agreement, the Company will undertake to
        indemnify Executive for his reasonable attorneys' fees
        and expenses
        associated with such litigation or arbitration if Executive substantially
        prevails in such litigation or arbitration or any settlement
        thereof.  Notwithstanding the foregoing, if it
        should
        appear to Executive that the Company has failed to comply with any of its
        obligations under this Agreement or in the event that the Company or any
        other
        person takes or threatens to take any action to


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        declare
          this Agreement void or unenforceable, or institutes any litigation or other
          action or proceeding designed to deny, or to recover from, Executive the
          benefits provided or intended to be provided to Executive under Section
          2 of
          this Agreement, the Company will
          in any event
          reimburse Executive for his reasonable attorneys'
          fees and expenses
          incurred
          in connection therewith up to $10,000 without regard to the commencement
          or
          outcome of any litigation or arbitration in order for Executive to retain
          counsel to
          advise and represent Executive in connection with any such interpretation,
          enforcement or defense, including without limitation the initiation or
          defense
          of any litigation or other legal action, whether by or against the Company
          or
          any director, officer or employee of the Company, in any jurisdiction.
          Notwithstanding any existing or prior attorney-client relationship between
          the
          Company and such counsel, the Company irrevocably consents to Executive’s
          entering into an attorney-client relationship with such counsel, and in
          that
          connection, the Company and Executive agree that a confidential relationship
          will exist between Executive and such counsel. The first $10,000 of such
          expenses will be paid by the Company as they are incurred by Executive, and
          any balance
          thereof due to Executive shall be paid within thirty (30) days after any
          final
          judgment or decision or settlement in which Executive substantially
          prevails.  Any
          reimbursements to
          be paid by the Company to the Executive under this Section 8 for the first
          $10,000 of such expenses must be paid as soon as administratively feasible
          after
          the Executive incurs the expense and the Executive will be entitled to
          receive
          any balance thereof as soon as administratively feasible after the termination
          of such litigation or arbitration or any settlement thereof under terms
          on which
          the Executive substantially prevails.

      

       

      9.
        Confidentiality. Executive hereby covenants and agrees that, except as
        specifically requested or directed by the Company, he will not disclose to
        any
        person not employed by the Company, or use in connection with engaging in
        competition with the Company, any confidential or proprietary information
        (as
        provided below) of the Company. For purposes of this Agreement, the term
        “confidential or proprietary information” will include all information of any
        nature and in any form that is owned by the Company and that is not publicly
        available (other than by Executive’s breach of this Section 9) or generally
        known to persons engaged in businesses similar or related to those of the
        Company. Confidential or proprietary information will include, without
        limitation, the Company’s financial matters, customers, employees, industry
        contracts, strategic business plans, product development (or other proprietary
        product data), marketing plans, consulting solutions and processes, and all
        other secrets and all other information of a confidential or proprietary
        nature
        which is protected by the Uniform Trade Secrets Act. For purposes of the
        preceding two sentences, the term “Company” will also include any Subsidiary (as
        defined in Section 23; collectively, the “Restricted Group”). The foregoing
        obligations imposed by this Section 9 will not apply (i) in the course of
        the
        business of and for the benefit of the Company, (ii) if such confidential
        or
        proprietary information has become, through no fault of Executive, generally
        known to the public, or (iii) if Executive is required by law to make disclosure
        (after giving the Company notice and an opportunity to contest such
        requirement). In addition, if not otherwise filed by the Company with the
        U.S.
        Securities and Exchange Commission (“SEC”) and available through public
        disclosure from the SEC, Executive agrees not to disclose the terms of this
        Agreement to anyone, except Executive’s spouse, attorney and, as necessary,
        tax/financial advisor, except as may be required by law. Likewise, the Company
        agrees that the terms of this Agreement will not be disclosed except as may
        be
        necessary to obtain approval or authorization to fulfill its obligations
        hereunder or as required by law. It is expressly understood that any violation
        of the confidentiality obligation imposed hereunder constitutes a material
        breach of this Agreement.

      


      10.
        Covenants Not to Compete and Not to Solicit; Breach of Agreement Obligations
        by Executive.

      


      (a)
        Covenant Not to Compete. In the event Executive breaches his obligations
        to the Company to remain employed as provided in Section 1 above or if Executive
        is entitled to receive payments and benefits under Section 2 above other
        than
        pursuant to clause (ii) or (iii) of Section 2(a) above, then, for a period
        of
        one (1) year following Executive’s Termination Date, Executive shall not
        directly or indirectly engage in (whether as an employee, consultant,
        proprietor, partner, director or otherwise), or have any ownership interest
        in,
        or participate in a financing, operation, management or control of, any
        person,


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
        firm,
          corporation or business that is a Restricted Business in a Restricted Territory
          without the prior written consent of the Board. For this purpose, ownership,
          whether direct or beneficial, of no more than 5% of the outstanding securities
          entitled to vote generally in the election of directors of a publicly traded
          corporation shall not constitute a violation of this provision.

        


            (b)
          Covenant Not to Solicit. In the event Executive breaches his obligations
          to the Company to remain employed as provided in Section 1 above or if
          Executive
          is entitled to receive payments and benefits under Section 2 above other
          than
          pursuant to clause (ii) or (iii) of Section 2(a) above, then, for a period
          of
          one (1) year following Executive’s Termination Date, Executive shall not: (i)
          solicit, encourage or take any other action which is intended to induce
          any
          other employee, any supplier or any customer, of the Company or any Subsidiary
          to terminate his employment or relationship with the Company or any Subsidiary;
          or (ii) interfere in any manner with the contractual or employment relationship
          between the Company and any such employee, supplier or customer of the
          Company
          or any Subsidiary. The foregoing shall not prohibit Executive or any entity
          with
          which Executive may be affiliated from hiring a former employee of the
          Company
          or any Subsidiary; provided, that such hiring results exclusively from
          such
          former employee’s affirmative response to a general recruitment
          effort.

      

       

      (c)
        Interpretation. The covenants contained herein are intended to be
        construed as a series of separate covenants, one for each of the counties,
        parishes, towns, cities or states or similar local governmental or political
        subdivisions of the Restricted Territory. Except for geographic coverage,
        each
        such separate covenant shall be deemed identical in terms to the covenant
        contained in the preceding subsections. If, in any judicial proceeding, the
        court shall refuse to enforce any of the separate covenants (or any part
        thereof) deemed included in such subsections, then such unenforceable covenant
        (or such part) shall be deemed to be eliminated from this Agreement for the
        purpose of those proceedings to the extent necessary to permit the remaining
        separate covenants (or portions thereof) to be enforced. 

      


      (d)
        Remedies for Breach.  In the event of Executive’s termination
        of employment, the Company’s obligations to provide the payments and benefits
        set forth in Section 2 shall be and are expressly conditioned upon Executive’s
        covenants not to compete and not to solicit as provided herein. In the event
        Executive breaches his obligations to the Company as provided herein, the
        Company’s obligations to provide the payments and benefits set forth in Section
        2 shall cease, and Executive shall be obligated to return to the Company
        any
        payments and the value of any benefits previously received by him pursuant
        to
        Section 2. In addition, it is recognized that damages in the event of breach
        of
        this Section 10 by Executive would be difficult, if not impossible, to
        ascertain, and it is therefore specifically agreed that the Company, in addition
        to and without limiting any other remedy or right it may have, shall have
        the
        right to an injunction or other equitable relief in any court of competent
        jurisdiction, enjoining any such breach.  The existence of the express
        rights to cease or recover payment and the value of benefits otherwise provided
        for in Section 2 and to obtain an injunction or other equitable relief shall
        not
        preclude the Company from pursuing any other rights and remedies at law or
        in
        equity which it may have.

      


      (e)
        Definitions. For proposes of this Section 10, the following terms have
        the following meanings:

      


      (i)
        “Restricted Business” means any business function with a direct competitor of
        the Company or any Subsidiary that is substantially similar to the business
        function performed by Executive with the Company or any Subsidiary immediately
        prior to his Termination Date.

      


      (ii)
        “Restricted Territory” means the counties, parishes, towns, cities, or states or
        similar governmental or political subdivisions of any country in which the
        Company or any Subsidiary operates or does business, inclusive of markets
        in
        which the Company competes with the Restricted Business to sell its
        products.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      (f)
        Reasonableness. In the event that the provisions of this Section 10 shall
        ever be deemed to exceed the time, scope or geographic limitations permitted
        by
        applicable laws, then such provisions shall be reformed to the maximum time,
        scope or geographic limitations, as the case may be, permitted by applicable
        laws.

             

      11.
        Employment Rights. Executive and the Company acknowledge that, except as
        may otherwise be provided under any other written agreement between Executive
        and the Company or a Subsidiary, the employment of Executive by the Company
        is
“at will.”  Nothing expressed or implied in this Agreement will create
        any right or duty on the part of the Company or Executive, except as provided
        in
        Section 1 above, to have Executive remain in the employment of the Company
        or
        any Subsidiary prior to or following any Change in Control.

      


      12.
        Withholding of Taxes. The Company may withhold from any amounts payable
        under this Agreement all federal, state, city or other taxes as the Company
        is
        required to withhold pursuant to any applicable law, regulation or
        ruling.

      


      13.
        Term of Agreement.

      


      (a)
        Regular Term and Extensions.  The term of this Agreement shall
        commence on the Effective Date hereof and shall continue until December 31,
        _____; provided, however, that commencing on December 31, ______, and each
        anniversary thereafter, the term of this Agreement shall automatically be
        extended for one year unless the Company gives notice not later than thirty
        (30)
        days preceding any such anniversary year that it does not wish to extend
        this
        Agreement; and provided, further, that regardless of any such notice by the
        Company, this Agreement shall continue in effect for a period of 24 months
        beyond the term provided herein if a Change in Control of the Company occurs
        during the period that this Agreement is in effect.

      


      (b)
        Early Termination by the Board.  Notwithstanding the foregoing,
        this Agreement shall be subject to unilateral termination by the Company
        if the
        Board determines in good faith that Executive is no longer a key management
        employee to be provided the rights contained herein and so notifies Executive
        in
        writing; provided, however, that such determination may not be made, and
        if made
        shall have no effect, if a Change in Control shall have occurred or during
        any
        period of time when the Company has knowledge that any person or group has
        taken
        steps reasonably calculated to effect a Change in Control until, in the opinion
        of the Board, the third person has abandoned or terminated his or its efforts
        to
        effect a Change in Control.  

      


      14.
        Successors and Binding Agreement.

      


      (a)
        The
        Company will require any successor (whether direct or indirect, by purchase,
        merger, consolidation, reorganization or otherwise) to all or substantially
        all
        of the business or assets of the Company, by agreement in form and substance
        reasonably satisfactory to Executive, expressly to assume and agree to perform
        this Agreement in the same manner and to the same extent the Company would
        be
        required to perform if no such succession had taken place. This Agreement
        will
        be binding upon and inure to the benefit of the Company and any successor
        to the
        Company, including without limitation any persons acquiring directly or
        indirectly all or substantially all of the business or assets of the Company
        whether by purchase, merger, consolidation, reorganization or otherwise (and
        such successor will thereafter be deemed “Company” for the purposes of this
        Agreement), but will not otherwise be assignable, transferable or delegable
        by
        the Company.

      


      (b)
        This
        Agreement will inure to the benefit of and be enforceable by Executive’s
        personal or legal representatives, executors, administrators, successors,
        heirs,
        distributees and legatees. This Agreement will supersede the provisions of
        any
        employment agreement between Executive and the Company that relate to any
        matter
        that is also the subject of this Agreement, and such provisions in such
        employment


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        agreement
          will be
          null and void. The foregoing sentence shall have no impact on any
          outstanding agreement made with Executive under the Company’s long-term
          incentive program, including, stock option, restricted stock, restricted
          unit,
          other equity- or cash-based incentive awards or other equity- or cash-based
          agreements at any time in effect.



      (c)
        This
        Agreement is personal in nature and neither of the parties hereto will, without
        the consent of the other, assign, transfer or delegate this Agreement or
        any
        rights or obligations hereunder except as expressly provided in Sections
        14(a)
        and (b). Without limiting the generality or effect of the foregoing, Executive’s
        right to receive payments and benefits hereunder will not be assignable,
        transferable or delegable, whether by pledge, creation of a security interest,
        or otherwise, other than by a transfer by Executive’s will or by the laws of
        descent and distribution and, in the event of any attempted assignment or
        transfer contrary to this Section 14(c), the Company will have no liability
        to
        pay any amount so attempted to be assigned, transferred or
        delegated.

      


      15.
        Notices. For all purposes of this Agreement, all communications,
        including without limitation, notices, consents, requests or approvals, required
        or permitted to be given hereunder will be in writing and will be deemed
        to have
        been duly given when hand delivered or dispatched by electronic facsimile
        transmission (with receipt thereof confirmed electronically), or five (5)
        business days after having been mailed by United States registered or certified
        mail, return receipt requested, postage prepaid, or three (3) business days
        after having been sent by a nationally recognized courier service for
        overnight/next-day delivery, such as FedEx, UPS, or the United States Postal
        Service, addressed to the Company (to the attention of the Secretary of the
        Company) at its principal executive office and to Executive at his principal
        residence, or to such other address as any party may have furnished to the
        other
        in writing and in accordance herewith, except that notices of changes of
        address
        will be effective only upon receipt.

      


      16.
Governing
        Law;
        Dispute Resolution.
        The validity,
        interpretation, construction and performance of this Agreement will be governed
        by and construed in accordance with the substantive laws of the State of
        Delaware, without giving effect to the principles of conflict of laws of
        such
        State. Any dispute or controversy arising under or in connection with
        this Agreement (other than an action to enforce the covenants in Section 10
        hereof) shall be resolved by arbitration in either Richmond, Virginia or
        Charleston, West Virginia as so determined by Executive. Three arbitrators
        shall
        be selected, and arbitration shall be conducted, in accordance with the rules
        of
        the American Arbitration Association. Subject to Section 8 hereof, the
        arbitrators shall have the discretion to award the cost of arbitration,
        arbitrators’ fees and the respective attorneys’ fees of each party between the
        parties as they see fit.

      


      17.
        Validity. If any provision of this Agreement or the application of any
        provision hereof to any person or circumstances is held invalid, unenforceable
        or otherwise illegal, the remainder of this Agreement and the application
        of
        such provision to any other person or circumstances will not be affected,
        and
        the provision so held to be invalid, unenforceable or otherwise illegal will
        be
        reformed to the extent (and only to the extent) necessary to make it
        enforceable, valid or legal.

      


      18.
        Amendment; Modification. This Agreement may only be amended by
        written agreement of the parties hereto. No provision of this Agreement may
        be
        modified, waived or discharged unless such waiver, modification or discharge
        is
        agreed to in a writing signed by Executive and the Company. No waiver by
        either
        party hereto at any time of any breach by the other party hereto or compliance
        with any condition or provision of this Agreement to be performed by such
        other
        party will be deemed a waiver of similar or dissimilar provisions or conditions
        at the same or at any prior or subsequent time. No agreements or
        representations, oral or otherwise, expressed or implied with respect to
        the
        subject matter hereof have been made by either party that are not set forth
        expressly in this Agreement. 

      


      19.
        Acknowledgement. Executive acknowledges that he has signed this Agreement
        voluntarily and knowingly in exchange for the consideration described herein,
        which Executive acknowledges is adequate and


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        satisfactory
          to him and which Executive acknowledges is in addition to any other benefits
          to
          which Executive is otherwise entitled and that Executive has been and is
          hereby
          advised in writing to consult with an attorney prior to signing this
          Agreement.



      20.
        Miscellaneous. References to Sections are to references to Sections of
        this Agreement. Any reference in this Agreement to a provision of a statute,
        rule or regulation will also include any successor provision thereto. Whenever
        used herein, the masculine includes the feminine.

      


      21.
        Survival. Notwithstanding any provision of this Agreement to the
        contrary, the parties’ respective rights and obligations under Sections 2, 3, 4,
        5, 6, 7, 8, 9, 10, 14 and 16 will survive any termination or expiration of
        this
        Agreement or the termination of Executive’s employment for any reason
        whatsoever.

      


      22.
        Counterparts. This Agreement may be executed in one or more counterparts,
        each of which will be deemed to be an original but all of which together
        will
        constitute one and the same agreement.

      


      23.
        Certain Defined Terms. In addition to terms defined elsewhere herein, the
        following terms have the following meanings when used in this Agreement with
        initial capital letters:

      


      (a)
“Base
        Pay” means the greater of (i) Executive’s annual base salary rate, exclusive of
        Bonus, as in effect immediately preceding Executive’s Termination Date, and (ii)
        Executive’s highest annual base salary rate, exclusive of Bonus, in effect at
        any time during the three years immediately preceding the Change in
        Control.

      


      (b)
        “Board” means the Board of Directors of the Company. If Executive is also a
        member of the Board, then in the case of any provision hereof that requires
        action by, or a determination of, the Board in connection with this Agreement,
        it is understood that such provision refers to the members of the Board other
        than Executive. Unless otherwise provided by the Board and except in determining
        Cause, the Compensation Committee of the Board shall have full authority
        to act
        on behalf of the Board in connection with any duty or action expressly assigned
        under, or implicitly to be acted on in connection with, this Agreement to
        or by
        the Board.

      


      (c)
“Bonus”
means
        the highest amounts payable under Executive’s annual cash bonus award
        plus the highest amounts payable under all Executive’s outstanding long-term
        cash incentive bonus awards that contain as a year of measurement, the year
        in
        which Executive is terminated. Bonus does not include any stock option, stock
        appreciation, stock purchase, restricted stock, restricted unit, performance
        stock, performance unit, shadow stock or similar equity incentive plan, program,
        arrangement or grant, one time bonus or payment, any amounts contributed
        by the
        Company or any Subsidiary for the benefit of Executive to any qualified or
        nonqualified deferred compensation plan, or any amounts designated by the
        parties as amounts other than Bonus.

      


      (d)
        “Cause” shall occur hereunder only upon:

      


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

      


      (ii)
        Executive’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 willful engaging in other
        gross
        misconduct which is materially and demonstrably injurious to the Company
        or any
        Subsidiary, or


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      


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

      


      For
        purposes of this Section 23(d), no act, or failure to act, on Executive’s part
        described in clause (i) or (ii) above shall be considered “willful” unless done,
        or omitted to be done, by him not in good faith and without reasonable belief
        that his action or omission was in the best interest of the Company and its
        Subsidiaries. Notwithstanding the foregoing, Executive shall not be deemed
        to
        have been terminated for Cause unless and until there shall have been delivered
        to him a copy of a resolution duly adopted by the affirmative vote of not
        less
        than two-thirds of the entire membership of the Board at a meeting of the
        Board
        called and held for the purpose, among others (after at least 20 days prior
        notice to Executive and an opportunity for Executive, together with his counsel,
        to be heard before the Board), of finding that (x) in the good faith opinion
        of
        the Board Executive failed to perform his duties or engaged in misconduct
        as set
        forth above in clause (i) or (ii) of this paragraph, and, if applicable,
        that
        Executive did not correct such failure or cease such misconduct after being
        requested to do so by the Board, or (y) as set forth in clause (iii) of this
        paragraph, Executive has been convicted of or has entered a plea of nolo
        contendere to the commission of a felony. The fact
        that
        Executive 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 any Subsidiary
        shall not prevent Executive’s termination from being considered termination for
        Cause.

      


      (e)
        “Change in Control” means the occurrence of any of the following
        events:

      


      (i)
        a third
        person, including a “group” as defined in Section 13(d)(3) of the Securities
        Exchange
        Act of 1934, as amended, acquires (or has acquired during the twelve
        (12)-month period ending on the date of the most recent acquisition) shares
        of
        the Company having thirty (30) percent or more of the total number of votes
        that
        may be cast for the election of directors of the Company;
        or

      


      (ii)
as
        the
        result of any cash tender or exchange offer, merger or other business
        combination, or any combination of the foregoing transactions, (a
“Transaction”), the persons who were directors of the Company before the
        Transaction shall cease to constitute a majority of the Board of the Company
        or
        any successor to the Company and be replaced by persons whose appointment
        or
        election is not endorsed by the majority of directors before the
        Transaction.

      


      For
        purposes
        hereof, a “potential” Change in Control is considered to occur and remain
        present commencing upon the date that any person or group attempts a Change
        in
        Control and the Executive is either notified by the Board or aware of an
        attempted Change in Control.  All decisions regarding the time
        of the commencement, the pendancy and the abandonment or termination of a
        potential Change in Control shall be made by the Board in good faith and
        shall
        be conclusive and binding on the Executive.  An “actual” Change in
        Control means that one of the two events described in (i) or (ii) above has
        occurred.

      


      (f)
“COBRA”
        means the Consolidated Omnibus Budget Reconciliation Act of 1986, as
        amended.

      


      (g)
        “Code” means the Internal Revenue Code of 1986, as amended.

      


      (h)
        “Constructive Termination Associated With a Change in Control” means the
        termination of Executive’s employment with the Company by Executive as a result
        of the occurrence, without Executive’s written consent, of one of the following
        events:


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      
        (i)
          following the
          occurrence of an actual, but not a potential, Change in Control, the
          assignment to Executive of any duties inconsistent in any respect with
          Executive’s position (including status, offices, titles and reporting
          requirements), authority, duties or responsibilities in effect immediately
          prior
          to the Change in Control, or any other action by the Company or any Subsidiary
          which results in a diminution in such position, authority, duties or
          responsibilities, other than an isolated, insubstantial and inadvertent
          action
          not taken in bad faith and which is remedied by the Company or Subsidiary
          promptly after receipt of notice thereof given by Executive;

      

      


      (ii)
        following the
        occurrence of an actual or potential Change in Control, any failure by
        the Company or any Subsidiary to continue Executive’s employment upon the terms
        and conditions as existed immediately prior to the Change in Control (other
        than
        any term or condition covered in clause (i) above), including but not limited
        to
        compensation level and annual and long-term cash and equity incentive
        opportunity, other than an isolated, insubstantial and inadvertent failure
        not
        occurring in bad faith and which is remedied by the Company or Subsidiary
        promptly after receipt of notice thereof given by Executive;

      


      (iii)
        following the occurrence of an actual or potential Change in Control, a
        material
        reduction in the level of Employee Benefits provided to Executive immediately
        prior to the Change in Control; or

      


      (iv)
        following the occurrence of an actual or potential Change in Control, the
        relocation of Executive’s principal work location (other than in connection with
        a relocation contemplated by the Company as of the date hereof or pursuant
        to
        organizational changes in accordance with past practice) to a location that
        increases Executive’s normal work commute by fifty (50) miles or more as
        compared to Executive’s normal work commute immediately prior to the Change in
        Control or that Executive’s required travel away from his office in the course
        of discharging his responsibilities or duties of his job is increased by
        an
        unreasonable amount as compared to that which was required of Executive in
        any
        of the three (3) full years immediately prior to the Change in
        Control.

      


      For
        purposes hereof, “Employee Benefits” means the perquisites, benefits and service
        credit for benefits as provided under any and all employee retirement income
        and
        welfare benefit policies, plans, programs or arrangements in which Executive
        is
        entitled to participate, including, without limitation, any stock option,
        stock
        appreciation, stock purchase, restricted stock, restricted unit, performance
        stock, performance unit, shadow stock or similar equity incentive plan, program,
        arrangement, savings, pension, supplemental executive retirement, or other
        retirement income or welfare benefit, deferred compensation, incentive
        compensation, group or other life, health, medical/hospital or other insurance
        (whether funded by actual insurance or self-insured by the Company or a
        Subsidiary), disability, salary continuation, expense reimbursement and other
        employee benefit policies that may exist as of a Change in Control or any
        successor policies, plans or arrangements that provide substantially similar
        perquisites or benefits.

      


      Without
        limiting the generality or effect of the foregoing, Executive shall have
        no
        right to terminate employment in a Constructive Termination Associated With
        a
        Change in Control in connection with an event described above unless (x)
        Executive provides written notice to the Company within thirty (30) days
        of the
        occurrence of such event that identifies such event with particularity, and
        (y)
        the Company fails to correct such event within ten (10) business days after
        receipt of such notice from Executive.

      


      In
        no
        event shall the termination of Executive’s employment with the Company on
        account of Executive’s death or Disability or because Executive engaged in
        conduct constituting Cause be deemed to be a Constructive Termination Associated
        With a Change in Control.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
         

        (i)
          “Disability” means Executive becomes permanently disabled within the meaning of,
          and begins actually to receive long-term disability benefits pursuant to,
          the
          long-term disability plan of the Company or any Subsidiary in effect for,
          or
          applicable to, Executive, or if none, then Executive is determined by the
          Social
          Security Administration to be totally and permanently disabled for purposes
          of
          entitlement to Social Security disability benefits.



      (j)
        “Involuntary Termination Associated With a Change in Control” means the
        termination of Executive’s employment related to a Change in Control: (i) by the
        Company for any reason other than Cause, Executive’s death or Executive’s
        Disability, or (ii) on account of a Constructive Termination Associated With
        a
        Change in Control. The fact that Executive 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 any Subsidiary shall not prevent Executive’s termination from being a
        Involuntary Termination Associated With a Change in Control.

      


      (k)
“Subsidiary”
        means any Company affiliate, whether or not incorporated, the majority of
        the outstanding capital stock or other ownership interests of which is owned,
        directly or indirectly, by the Company.

      


      (l)
        “Target Bonus” means Executive’s annual cash bonus award target.

      


      (m)
        “Termination Date” means the last day of Executive’s employment with the Company
        or any Subsidiary.

      


      



      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      IN
        WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
        and
        delivered as of the date first above written.

       

      
        	 	 	 
	
                MASSEY
                  ENERGY COMPANY

              
	 	 
	
                By:

              	
                 

              	
                 

              
	
                Name:

              	
                 

              	 
	
                Title:

              	
                 

              	 
	
                 

                ________________

                [Executive]

              


      

      



      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      Appendix
        A

      


      SEPARATION
        OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE

      


      THIS
        SEPARATION OF EMPLOYMENT AGREEMENT AND GENERAL RELEASE (the “Agreement”) is made
        as of this      day of
                ,
            ,
        by and between Massey Energy Company, a Delaware corporation (the “Company”),
        and _______________________ (the “Executive”).

      


      WHEREAS,
        Executive formerly was employed by the Company as
            ;
        and

      


      WHEREAS,
        Executive and Company entered into a Change in Control Severance Agreement,
        originally dated
                   ,
  2005, (the “Severance Agreement”) which provides for certain
        payments and benefits in the event that Executive’s employment is terminated on
        account of a reason set forth in the Severance Agreement; and

      


      WHEREAS,
        an express condition of Executive’s entitlement to the payments and benefits
        under the Severance Agreement is the execution of a general release in the
        form
        set forth below; and

      


      WHEREAS,
        Executive and the Company mutually desire to terminate Executive’s employment on
        an amicable basis, such termination to be effective
                        ,
            
        (“Termination Date”).

      


      NOW,
        THEREFORE, IT IS HEREBY AGREED by and between Executive and the Company as
        follows:

      


      1.
        (a)
        Executive, for and in consideration of the commitments of the Company as
        set
        forth in paragraph 6 of this Agreement, and intending to be legally bound,
        does
        hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates,
        subsidiaries and parents, and its officers, directors, employees, and agents,
        and its and their respective successors and assigns, heirs, executors, and
        administrators (collectively, “Releasees”) from all causes of action, suits,
        debts, claims and demands whatsoever in law or in equity, which Executive
        ever
        had, now has, or hereafter may have, whether known or unknown, or which
        Executive’s heirs, executors, or administrators may have, by reason of any
        matter, cause or thing whatsoever, from the beginning of Executive’s employment
        to the date of this Agreement, and particularly, but without limitation of
        the
        foregoing general terms, any claims arising from or relating in any way to
        Executive’s employment relationship with the Company, the terms and conditions
        of that employment relationship, and the termination of that employment
        relationship, including, but not limited to, any claims arising under the
        Age
        Discrimination in Employment Act, the Older Workers Benefit Protection Act,
        Title VII of the Civil Rights Act of 1964, the Americans with Disabilities
        Act,
        the Family and Medical Leave Act of 1993, the Employee Retirement Income
        Security Act of 1974, and any other claims under any federal, state or local
        common law, statutory, or regulatory provision, now or hereafter recognized,
        and
        any claims for attorneys’ fees and costs. This Agreement is effective without
        regard to the legal nature of the claims raised and without regard to whether
        any such claims are based upon tort, equity, implied or express contract
        or
        discrimination of any sort.

      


      (b)
        To
        the fullest extent permitted by law, and subject to the provisions of paragraph
        11 below, Executive represents and affirms that (i) [other than
            ,]
        Executive has not filed or caused to be filed on Executive’s behalf any claim
        for relief against the Company or any Releasee and, to the best of Executive’s
        knowledge and belief, no outstanding claims for relief have been filed or
        asserted against the Company or any Releasee on Executive’s behalf; and (ii)
        [other than
            ,]
        Executive has not reported any improper, unethical or illegal conduct or
        activities to any supervisor, manager, department head, human resources
        representative, agent or other representative of the Company, to any member
        of
        the Company’s legal or compliance departments, or to the ethics hotline, and has
        no knowledge of any


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        such
          improper, unethical or illegal conduct or activities. Executive agrees
          to
          dismiss with prejudice all claims for relief filed before the date
          hereof.



      (c)
        Notwithstanding any other provision herein, the foregoing release does not
        apply
        to any claim or entitlement under an employee benefit or long term cash or
        equity incentive compensation plan, program, arrangement or agreement which
        is
        due pursuant to the terms of such plan, program, arrangement or
        agreement.

      


      2.
        The
        Company, for and in consideration of the commitments of Executive as set
        forth
        in this Agreement, and intending to be legally bound, does hereby REMISE,
        RELEASE AND FOREVER DISCHARGE Executive from all claims, demands or causes
        of
        action arising out of facts or occurrences prior to the date of this Agreement,
        but only to the extent the Company knows or reasonably should know of such
        facts
        or occurrence and only to the extent such claim, demand or cause of action
        relates to a violation of applicable law or the performance of Executive’s
        duties with the Company; provided, however, that this release of claims shall
        not in any case be effective with respect to any claim by the Company alleging
        a
        breach of Executive’s obligations under this Agreement. [Note: The
        Company and Executive may, but shall not be required to mutually agree on
        a
        case-by-case basis at the time of the signing of this release to include
        the
        foregoing provision, or a substantially similar provision, to this
        Agreement.]

      


      3.
        In
        consideration of the Company’s agreements as set forth in paragraph 6 herein,
        Executive agrees to comply with the limitations described in Sections 9 and
        10
        of the Severance Agreement.

      


      4.
        Executive further agrees and recognizes that Executive has permanently and
        irrevocably severed Executive’s employment relationship with the Company, that
        Executive shall not seek employment with the Company or any affiliated entity
        at
        any time within two (2) years after his Termination Date, and that the Company
        has no obligation to employ him in the future.

      


      5.
        Executive further agrees that Executive will not disparage or subvert the
        Company, or make any statement reflecting negatively on the Company, its
        affiliated corporations or entities, or any of their officers, directors,
        employees, agents or representatives, including, but not limited to, any
        matters
        relating to the operation or management of the Company, Executive’s employment
        and the termination of Executive’s employment, irrespective of the truthfulness
        or falsity of such statement.

      


      6.
        In
        consideration for Executive’s agreements as set forth herein, the Company agrees
        to pay or provide to or for Executive the payments and benefits described
        in
        Section 2(b) of the Severance Agreement, the provisions of which are
        incorporated herein by reference. Except as set forth in this Agreement,
        it is
        expressly agreed and understood that Releasees do not have, and will not
        have,
        any obligations to provide Executive at any time in the future with any
        payments, benefits or considerations other than those recited in this paragraph,
        those excluded from release in Section 1(c) of this Agreement or those required
        by law, other than under the terms of any benefit plans which provide benefits
        or payments to former employees according to their terms.

      


      7.
        Executive understands and agrees that the payments, benefits and agreements
        provided in this Agreement are being provided to him in consideration for
        Executive’s acceptance and execution of, and in reliance upon Executive’s
        representations in, this Agreement. Executive acknowledges that if Executive
        had
        not executed this Agreement containing a release of all claims against the
        Company, Executive would not have been entitled to the payments and benefits
        set
        forth in Section 2(b) of the Severance Agreement.

      


      8.
        Executive acknowledges and agrees that the Company previously has satisfied
        any
        and all obligations owed to him under any employment agreement or offer letter
        Executive has with the Company and, further, that this Agreement supersedes
        any
        employment agreement or offer letter Executive has with the Company, and
        any and
        all other prior agreements or understandings, whether written or oral, between
        the parties which are inconsistent with this Agreement, and further, that,
        except as set forth expressly herein, no promises or


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        representations
          have been made to him in connection with the termination of Executive’s
          employment agreement, if any, or offer letter, if any, with the Company,
          or the
          terms of this Agreement or the Severance Agreement.



      9.
        If not
        otherwise filed by the Company with the U.S. Securities and Exchange Commission
        (“SEC”) and available through public disclosure from the SEC, Executive agrees
        not to disclose the terms of this Agreement or the Severance Agreement to
        anyone, except Executive’s spouse, attorney and, as necessary, tax/financial
        advisor, except as may be required by law. Likewise, the Company agrees that
        the
        terms of this Agreement will not be disclosed except as may be necessary
        to
        obtain approval or authorization to fulfill its obligations hereunder or
        as
        required by law. It is expressly understood that any violation of the
        confidentiality obligation imposed hereunder constitutes a material breach
        of
        this Agreement.

      


      10.
        Executive represents that Executive does not presently have in Executive’s
        possession any records and business documents, whether on computer or hard
        copy,
        and other materials (including but not limited to computer disks and tapes,
        computer programs and software, office keys, correspondence, files, customer
        lists, technical information, customer information, pricing information,
        business strategies and plans, sales records and all copies thereof)
        (collectively, the “Corporate Records”) provided by the Company and/or its
        predecessors, subsidiaries or affiliates or obtained as a result of Executive’s
        prior employment with the Company and/or its predecessors, subsidiaries or
        affiliates, or created by Executive while employed by or rendering services
        to
        the Company and/or its predecessors, subsidiaries or affiliates. Executive
        acknowledges that all such Corporate Records are the property of the Company.
        In
        addition, Executive shall promptly return in good condition any and all Company
        owned equipment or property, including, but not limited to, automobiles,
        personal data assistants, facsimile machines, copy machines, pagers, credit
        cards, cellular telephone equipment, business cards, laptops and computers,
        unless mutually agreed upon in writing. As of the Termination Date, the Company
        will make arrangements to remove, terminate or transfer any and all business
        communication lines including network access, cellular phone, fax line and
        other
        business numbers.

      


      11.
        Nothing in this Agreement shall prohibit or restrict Executive from: (i)
        making
        any disclosure of information required by law; (ii) providing information
        to, or
        testifying or otherwise assisting in any investigation or proceeding brought
        by,
        any federal regulatory or law enforcement agency or legislative body, any
        self-regulatory organization, or the Company’s designated legal, compliance or
        human resources officers; or (iii) filing, testifying, participating in or
        otherwise assisting in a proceeding relating to an alleged violation of any
        federal, state or municipal law relating to fraud, or any rule or regulation
        of
        the Securities and Exchange Commission or any self-regulatory
        organization.

      


      12.
        The
        parties agree and acknowledge that the agreement by the Company described
        herein, and the settlement and termination of any asserted or unasserted
        claims
        against the Releasees, are not and shall not be construed to be an admission
        of
        any violation of any federal, state or local statute or regulation, or of
        any
        duty owed by any of the Releasees to Executive.

      


      13.
        Executive agrees and recognizes that should Executive breach any of the
        obligations or covenants set forth in this Agreement, the Company will have
        no
        further obligation to provide Executive with the consideration set forth
        herein,
        and will have the right to seek repayment of all consideration paid up to
        the
        time of any such breach. Further, Executive acknowledges in the event of
        a
        breach of this Agreement, Releasees may seek any and all appropriate relief
        for
        any such breach, including equitable relief and/or money damages, attorneys’
fees and costs.

      


      14.
        Executive further agrees that the Company shall be entitled to preliminary
        and
        permanent injunctive relief, without the necessity of proving actual damages,
        as
        well as to an equitable accounting of all earnings, profits and other benefits
        arising from any violations of this Agreement, which rights shall be cumulative
        and in addition to any other rights or remedies to which the Company may
        be
        entitled.


      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      


      
        15.
          This
          Agreement and the obligations of the parties hereunder shall be construed,
          interpreted and enforced in accordance with the laws of the State of Delaware,
          without giving effect to the principles of conflict of laws of such
          State.



      16.
        Executive certifies and acknowledges as follows:

      


      (a)
        That
        Executive has read the terms of this Agreement, and that Executive understands
        its terms and effects, including the fact that, other than as excepted in
        paragraph 1 hereof, Executive has agreed to RELEASE AND FOREVER DISCHARGE
        the
        Company and each and every one of its affiliated entities from any legal
        action
        arising out of Executive’s employment relationship with the Company and the
        termination of that employment relationship; and

      


      (b)
        That
        Executive has signed this Agreement voluntarily and knowingly in exchange
        for
        the consideration described herein, which Executive acknowledges is adequate
        and
        satisfactory to him and which Executive acknowledges is in addition to any
        other
        benefits to which Executive is otherwise entitled; and

      


      (c)
        That
        Executive has been and is hereby advised in writing to consult with an attorney
        prior to signing this Agreement; and

      


      (d)
        That
        Executive does not waive rights or claims that may arise after the date this
        Agreement is executed; and

      


      (e)
        That
        the Company has provided him with a period of [twenty-one (21) -
        generally applicable for an individual termination] or
        [forty-five (45) - generally applicable for a group
        termination] days within which to consider this Agreement, and that
        Executive has signed on the date indicated below after concluding that this
        Separation of Employment Agreement and General Release is satisfactory to
        him;
        and

      


      (f)
        Executive acknowledges that this Agreement may be revoked by him within seven
        (7) days after execution, and it shall not become effective until the expiration
        of such seven (7) day revocation period. In the event of a timely revocation
        by
        Executive, this Agreement will be deemed null and void and the Company will
        have
        no obligations hereunder.

      


      Intending
        to be legally bound hereby, Executive and the Company executed the foregoing
        Separation of Employment Agreement and General Release this
            
        day of
            ,
            .

       

      
        	 	 	
                Witness:

              
	
                Executive

              	 	 
	 	 	 
	
                MASSEY
                  ENERGY COMPANY

              	 	 
	 	 	 
	
                By:

              	 	
                Witness:

              
	
                Name:

              	 	 
	
                Title: