exhibit2.htm


    
      

      

    

     

    EXHIBIT
      10.7

    


    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 2.5 times Executive’s Base Pay (as defined in
      Section 23);

    


    (ii)
      a
      lump sum cash payment equal to 2.5 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 any Gross-Up Payment provided
      pursuant to Section 6(a), next all other 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 Company shall pay
      Executive an additional amount (the “Gross-Up Payment”) such that the net amount
      retained by the Executive after deduction of any excise tax imposed under
      Section 4999 of the Code, and any federal, state and local income tax,
      employment tax, excise tax and other tax imposed upon the Gross-Up Payment,
      shall be equal to the Payment.  Notwithstanding the foregoing, if the
      Net After-tax Benefit to the Executive of receiving the Gross-Up Payment does
      not exceed the Reduced Amount (as defined below) by more than the lesser of
      $50,000 or 10% (as compared to the Net After-tax Benefit to Executive resulting
      from elimination of the Gross-Up Payment and reduction of the Payments
      under Section 2 of this Agreement (“Change in Control Payments”) to the Reduced
      Amount), then the Company shall not pay Executive the Gross-Up Payment and
      the
      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, but no
      Gross-Up Payment shall be made, if the Net After-tax Benefit to Executive of
      receiving all of the Payments exceeds by more than the lesser of $50,000 or
      10%
      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 the 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 the third
      anniversary thereof; provided, however, that commencing on the third
      anniversary, 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
                   ,
  , (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: