8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(D) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): November 14, 2008 (November 10, 2008)

MASSEY ENERGY COMPANY

(Exact name of registrant as specified in its charter)

Delaware	1-7775	95-0740960
(State or other jurisdiction of incorporation )	(Commission File Number)	(IRS Employer Identification No.)

4 North 4th Street, Richmond, Virginia	23219
(Address of principal executive offices)	(Zip Code)

Registrant’s telephone number, including area code: (804) 788-1800

N/A

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement.

Non-Employee Director Compensation Summary

On November 9, 2008, pursuant to its Committee Charter, the Compensation Committee of the Board of Directors of Massey Energy Company (the “Company”) conducted its annual review of the Company’s Non-Employee Director Compensation Summary that summarizes the compensation payable to the non-employee directors and recommended to the Governance and Nominating Committee changes to the compensation payable to non-employee directors set forth in the Non-Employee Director Compensation Summary.

On November 10, 2008, upon the recommendation of the Governance and Nominating Committee, the Board of Directors approved changes to the Non-Employee Director Compensation Summary applicable to non-employee directors after November 10, 2008. Non-employee directors may choose to receive their annual equity grant in any proportion of restricted stock and/or stock options, as elected in the sole discretion of the director. Previously, the annual grant was given in the form of restricted stock only. In addition, non-employee directors will be entitled to an annual physical, at the election of the director. Finally, the Company will make available, at the election of the director, secondary supplemental health insurance. The Massey Energy Company Non-Employee Director Compensation Summary, as amended and restated, is effective as of November 10, 2008 and is attached hereto as Exhibit 10.1 and is hereby incorporated into this Item 1.01.

Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers; Compensatory Arrangements of Certain Officers.

Appointment of Principal Officer

On November 10, 2008, the Board of Directors promoted Baxter F. Phillips, Jr., 62, from the office of Executive Vice President and Chief Administrative Officer to the office of President.

Prior to his promotion to President, Mr. Phillips was the Company’s Executive Vice President and Chief Administrative Officer since November 2004. He previously served as Senior Vice President and Chief Financial Officer from September 2003 to November 2004, and as Vice President and Treasurer from October 2000 to August 2003. Mr. Phillips joined the Company in 1981 and has also served in the roles of Corporate Treasurer, Manager of Export Sales and Corporate Human Resources Manager, among others.

In conjunction with the promotion of Mr. Phillips, Don L. Blankenship’s title was changed from Chairman, Chief Executive Officer and President, to Chairman and Chief Executive Officer.

Mr. Phillips’ Employment and Change in Control Agreement

On November 10, 2008, Mr. Phillips entered into an Employment and Change in Control Agreement with the Company, effective November 1, 2008 (the “Agreement”). The Agreement provides for an initial three-year term, during which Mr. Phillips will be entitled to:

• a minimum base salary of $650,000, subject to increase by the Board of Directors, as its deems appropriate;

• an annual cash bonus award with a target amount equal to no less than 60%, 70% and 80% of his base salary for the Company’s 2009, 2010 and 2011 fiscal years, respectively;

• a one-time award of 18,000 shares of restricted stock, 11,340 restricted units and 75,000 non-qualified stock options, vesting in equal installments over three (3) years;

• an annual retention cash award of $200,000 to be paid on each of July 31, 2009, July 31, 2010, and July 31, 2011, provided Mr. Phillips remains continuously employed by the Company through each of the respective payment dates; and

• life insurance, D&O insurance, medical and other standard benefits and perquisites provided to senior executives from time to time.

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In the event Mr. Phillips’ employment with the Company ceases at any time during the term of the Agreement but he remains a member of the Board, Mr. Phillips’ vesting under all restricted stock and restricted unit awards then outstanding will thereafter include in the basis for vesting any continuous service as a member of the Board (whether or not Mr. Phillips remains an employee of the Company) and no forfeiture of the awards shall occur by reason of his cessation of employment so long as he remains a member of the Board.

The Agreement also sets forth various rules applying to the determination of creditable service and compensation taken into account in determining covered compensation and average compensation for benefit accrual purposes for Mr. Phillips under the defined benefit provisions of the Company’s non-qualified supplemental benefit plan.

In the event that Mr. Phillips’ employment with the Company is terminated: (i) involuntarily within two (2) years after a Change in Control (as defined in the Agreement), (ii) for any reason other than for Cause (as defined and determined pursuant to the Agreement) within three (3) months prior to a Change in Control, (iii) at the request of a third party who effects a Change in Control within 12 months following Mr. Phillips’ termination, (iv) by Mr. Phillips 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 (as defined in the Agreement), or (v) for any reason other than for Cause, Mr. Phillips’ death, Disability (as defined in the Agreement) or Mr. Phillips’ voluntary termination of employment under circumstances other than termination associated with a Change in Control, then Mr. Phillips will be entitled to:

• a lump sum cash payment equal to 2.5 times Mr. Phillips’ Base Salary;

• a lump sum cash payment equal to 2.5 times Mr. Phillips annual cash bonus target;

• a pro rated payment of Mr. Phillips’s annual cash bonus target for the year in which he is terminated;

• any award under the Company’s long-term cash and equity incentive program, which by its terms vests in connection with a Change in Control; and

• medical and dental coverage for a period of 24 months following his termination, or a cash payment in lieu thereof.

Notwithstanding the foregoing, the sum of the maximum amount payable to Mr. Phillips in connection with a Change in Control is limited to 2.99 times the sum of Mr. Phillips Base Salary and his Bonus (as defined in the Agreement).

The Agreement further provides that if Mr. Phillips’ employment with the Company ceases on account of Disability, Mr. Phillips will be entitled to receive disability benefits under the Company’s disability benefit program(s) and any payment or benefit otherwise expressly provided under the Agreement.

If Mr. Phillips’ employment with the Company ceases on account of his death, Mr. Phillips’ estate will be entitled to receive the benefits under the Company’s death benefit program(s) and any benefit otherwise expressly provided to him under the Agreement. In addition, the Company would pay to Mr. Phillips’ estate 2.5 times the sum of Mr. Phillips’ base salary of $650,000 and his annual cash bonus target amount, with such payments made in six (6) equal monthly payments beginning the month after the month in which Mr. Phillips dies.

Any payment or benefit that is provided pursuant to or in connection with the Agreement that is considered to be nonqualified deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended, will be provided and paid in a manner as complies with the applicable requirements of Section 409A.

Subject to certain exceptions, the Company will also pay Mr. Phillips a gross-up payment, in the event any payment or benefit becomes subject to excise tax under Internal Revenue Code Section 4999, such that after payment of all taxes, including on the gross-up payment, Mr. Phillips retains an amount of the gross-up payment equal to such aggregate excise taxes.

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The Agreement also provides for confidentiality obligations during and following Mr. Phillips’ employment and includes non-competition and non-solicitation provisions that are effective during, and for one year following, his employment. If Mr. Phillips’ employment with the Company has been terminated in relation to a Change in Control, and if Mr. Phillips’ breaches any of his confidentiality, non-competition or non-solicitation provisions, he forfeits all amounts or benefits due or already paid to him in connection with a Change in Control.

The foregoing is a summary of the material terms of the Agreement and does not purport to be complete, and is qualified in its entirety by the Agreement, a copy of which is attached as Exhibit 10.2 to this Current Report on Form 8-K and is hereby incorporated by reference into this Item 5.02.

Salary Changes of Named Executive Officers

In conjunction with its review of the 2009 LTI Program, the Compensation Committee conducted its annual salary review of the executive officers who were named in the Company’s 2008 Proxy Statement, other than Mr. Blankenship whose annual salary is set forth in a the letter agreement dated November 13, 2007 between the Company and Mr. Blankenship (the “Letter Agreement”), (the “Named Executive Officers”), and other key employees and recommended to the Board of Directors that certain changes be made. On November 10, 2008, the Board of Directors approved the recommendations of the Compensation Committee. The salaries of the Named Executive Officers whose salaries will be adjusted are as follows:

Name	Title	Annual Salary(1)
Baxter F. Phillips, Jr.	President	$	650,000
John C. Adkins	Senior Vice President and Chief Operating Officer	$	450,000
Michael K. Snelling	Vice President – Surface Operations / Massey Coal Services, Inc.	$	340,000

(1) Salaries are effective January 1, 2009, with the exception of Mr. Phillips’ salary, which was effective November 1, 2008.

2009 Long Term Incentive Award Program

On November 9, 2008, the Compensation Committee of the Company’s Board of Directors approved, and on November 10, 2008, the Board of Directors ratified, the terms and conditions of the Company’s 2009 Long Term Incentive Award Program (the “2009 LTI Program”) and the participants included in such program. The 2009 LTI Program grants varying amounts of stock options, restricted stock, restricted units and cash incentive awards to the Named Executive Officers and other key employees of the Company. Stock options, restricted stock, restricted units and cash incentive awards are granted under the Company’s 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “2006 Plan”).

Pursuant to the terms of the 2009 LTI Program, one-third of the grant of stock options shall vest and become exercisable annually on each November 10 beginning in 2009. Any unvested amounts shall vest and become immediately exercisable upon (i) termination by reason of retirement, death or permanent and total disability, as determined in accordance with the Company’s applicable personnel policies or (ii) if any participant’s employment is terminated by the Company or an affiliate of the Company without Cause (as defined in the form of stock option agreement) within two years following a Change in Control of the Company (as defined in the 2006 Plan). A form of stock option agreement for the Named Executive Officers is attached hereto as Exhibit 10.3 and is hereby incorporated into this Item 5.02.

One-third of the grants of restricted stock shall vest and become free of restrictions annually on each November 10 beginning in 2009. One-third of the grants of restricted units shall vest and become payable in cash annually on each November 10 beginning in 2009. Any unvested amounts of restricted stock and restricted units shall vest and become immediately transferable upon (i) termination by reason of death or permanent and total disability, as determined in accordance with the Company’s applicable personnel policies or (ii) if any participant’s employment is terminated by the Company or an affiliate of the Company without Cause

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(as defined in the form of restricted stock agreement) within two years following a Change in Control of the Company (as defined in the 2006 Plan). A form of restricted stock agreement and a form of restricted unit agreement for the Named Executive Officers are attached hereto as Exhibits 10.4 and 10.5, respectively, and are hereby incorporated into this Item 5.02.

The grants of cash incentive awards shall be paid on or about March 31, 2012 if certain performance targets are met for fiscal years 2009, 2010 and 2011 (the “Earnout Period”), based on earnings before taxes (EBT) or earnings before interest, taxes, depreciation and amortization (EBITDA), depending upon the category in which an executive officer is placed. The cash incentive awards for all of the Named Executive Officers, except for Mr. Phillips, as well as for certain other executive officers are based upon EBT and the cash incentive awards for all other recipients are based upon EBITDA. In lieu of being granted a cash incentive award if certain performance targets are met, Mr. Phillips requested and the Board of Directors approved that the value of Mr. Phillips’ cash incentive award target be made in restricted stock. A form of cash incentive award agreement based on EBT and a form of cash incentive award agreement based on EBITDA are attached hereto as Exhibits 10.6 and 10.7, respectively, and are hereby incorporated into this Item 5.02. The target amounts shall be payable if the participant’s employment is terminated without Cause (as defined in the cash incentive award agreements) on or after November 10, 2008 through the Earnout Period by the Company or an affiliate of the Company within two years after a Change in Control of the Company (as defined in the 2006 Plan) that occurs on or after November 10, 2008 through the Earnout Period. If participant’s employment is terminated during the Earnout Period as a result of death or permanent and total disability, then the participant will be entitled to a pro rata portion of the incentive cash award which ultimately becomes payable based upon the period of the participant’s employment during the Earnout Period. The Compensation Committee will determine whether the financial targets have been achieved for such period.

2009 Bonus Program

On November 9, 2008 the Compensation Committee of the Company’s Board of Directors approved, and on November 10, 2008 the Board of Directors ratified, the terms of the 2009 Bonus Program (the “2009 Bonus Program”). The 2009 Bonus Program provides a cash target award to key employees of the Company and the Named Executive Officers, with the exception of Don L. Blankenship whose annual bonus is set forth in the Letter Agreement.

The cash target awards are based on Company performance, individual performance, and for selected participants, performance goals specifically tailored to a participant’s job function and oversight responsibilities. For participants without specifically tailored performance goals, 75% of the cash target award is based on the achievement of certain levels of earnings before interest and taxes (“EBIT”) for fiscal year 2009 and 25% of the cash target award is based on the discretion of the Compensation Committee. For participants with specific performance goals, 50% of the cash target award is tied to specific performance criteria set by the Compensation Committee, 25% is tied to the achievement of certain levels of EBIT set by the Compensation Committee, and 25% is based on the discretion of the Compensation Committee. Depending on whether the Company performance targets and, for those with specifically tailored performance goals, specific performance criteria targets, are met, or to what degree the targets are exceeded, and depending on whether the Compensation Committee makes a discretionary award to a participant, a participant may not receive a cash award at all or may receive up to a maximum of two times his or her cash target award.

The criteria selected for specific performance goals under the 2009 Bonus Program may include safety performance, earnings per share, net coal sales, tons acquired, tons shipped, reduction of cash costs per ton, reduction of produced labor cost per ton, productivity of continuous miners (in terms of feet per shift), productivity of longwalls (in terms of feet of retreat per longwall per day), surface mining productivity (in terms of produced tons released and tons per man hour), idled asset sales, financial liquidity, medical costs containment. The criteria selected for specific performance goals under the 2009 Bonus Program shall be set before the end of the fiscal year. The Compensation Committee shall set low, mid, and high targets for each of the foregoing criteria. Each of the Named Executive Officers shall be provided with specific performance goals once they have been set.

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The cash bonus target awards approved for the Named Executive Officers for 2009, other than Mr. Blankenship, whose annual bonus is set forth in the Letter Agreement, are as follows:

Name	Target Bonus Award
Baxter F. Phillips, Jr.	$	390,000
J. Christopher Adkins	$	390,000
Michael K. Snelling	$	210,000
Eric B. Tolbert	$	70,000

2009 Cash Incentive Awards for Mr. Blankenship

Mr. Blankenship’s 2009 cash incentive awards are made pursuant to the Letter Agreement. The performance objectives set by the Compensation Committee for Mr. Blankenship’s cash incentive bonus awards for 2009 include targeted levels of performance based on: earnings before interest and taxes, produced tons, productivity by mining type (e.g. continuous miners and surface), shipments, reduction in environmental violations, non-fatal days lost safety rate, successorship development for key executive positions, employee retention, and employee diversity. The target payout for Mr. Blankenship’s cash incentive bonus established in the Letter Agreement is $900,000. The performance objectives set by the Compensation Committee for Mr. Blankenship’s 2009 performance-based restricted units awards and the 2009 performance-based cash incentive awards include targeted levels of performance based on: earnings before interest and taxes, produced tons sold, non-fatal days lost safety rate, and productivity by mining type (e.g. continuous miners, longwalls and surface).

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On November 10, 2008, the Board of Directors, upon the recommendation of the Governance and Nominating Committee, approved amendments to the Company’s Bylaws. The amendments include modification of (i) the advance notice provisions (Sections 2.04 and 3.04), which require stockholders who wish to conduct business or nominate directors at the annual meeting or a special meeting to provide advance notice to the Company, to include enhanced documentary and other disclosure requirements and (ii) the provisions relating to the conduct of stockholders’ meetings, including determination of compliance with the advance notice requirements (Section 2.04).

The amendments also added a requirement (Section 3.02) for each director and nominee for election as a director to deliver to the Company’s Secretary a written questionnaire with respect to the director’s or nominee’s background and qualification and a representation and agreement (the “Director Agreement”). The Director Agreement requires directors and nominees to disclose certain types of voting commitments and compensation arrangements and a representation that the director or nominee, if elected, would be in compliance with all of the Company’s applicable corporate governance, conflict of interest, confidentiality, securities ownership and trading policies and guidelines, and also provides for the immediate resignation of a director if such person is found by a court of competent jurisdiction to have breached the Agreement in any material respect.

Furthermore, the amendments also add a new requirement (new Section 2.10) for stockholders and beneficial owners to disclose their beneficial ownership of the Company’s stock (including an expanded definition of beneficial ownership that includes total return swaps and other derivatives) whenever their beneficial ownership interest reaches or exceeds 7.5%. This requirement is in addition to any disclosure requirements under applicable securities laws. If a stockholder or beneficial owner (together with those acting in concert with or on behalf of any of them) does not comply with this new continuous beneficial ownership obligation during the applicable timeframe and the enhanced advance notice disclosure requirements, they will be ineligible to nominate directors or put any other proposal forward at the next annual stockholder meeting (or any special meeting occurring prior to the next annual meeting). The Restated Bylaws, as amended as of November 10, 2008 are attached hereto as Exhibit 3.2.

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Item 8.01. Other Events

Announcement of 2009 Annual Stockholders’ Meeting

The Company’s 2009 Annual Stockholders’ Meeting will be held on May 19, 2009, at 9:00 a.m. E.T. in Richmond, Virginia at the Jefferson Hotel.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description of Exhibit
3.2	Restated Bylaws, as amended as of November 10, 2008.
10.1	Massey Energy Company Non-Employee Director Compensation Summary (as Amended and Restated Effective November 10, 2008)
10.2	Employment and Change in Control Agreement between Massey Energy Company and Baxter F. Phillips, Jr., effective November 10, 2008.
10.3	Form of stock option agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.4	Form of restricted stock agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.5	Form of restricted unit agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.6	Form of cash incentive award agreement based on earnings before taxes under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.7	Form of cash incentive award agreement based on earnings before interest, taxes, deprecation and amortization under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	MASSEY ENERGY COMPANY
Date: November 14, 2008	By:	/s/    Richard R. Grinnan
	Name:	Richard R. Grinnan
	Title:	Vice President and Corporate Secretary

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Exhibit Index

Exhibit Number	Description of Exhibit
3.2	Restated Bylaws, as amended as of November 10, 2008.
10.1	Massey Energy Company Non-Employee Director Compensation Summary (as Amended and Restated Effective November 10, 2008)
10.2	Employment and Change in Control Agreement between Massey Energy Company and Baxter F. Phillips, Jr., effective November 10, 2008.
10.3	Form of stock option agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.4	Form of restricted stock agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.5	Form of restricted unit agreement under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.6	Form of cash incentive award agreement based on earnings before taxes under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.
10.7	Form of cash incentive award agreement based on earnings before interest, taxes, deprecation and amortization under the Massey Energy Company 2006 Stock and Incentive Compensation Plan.

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EX-3.2

EXHIBIT 3.2

RESTATED BYLAWS

(as amended as of November 10, 2008)

OF

MASSEY ENERGY COMPANY

(a Delaware corporation)

ARTICLE I

OFFICES

Section 1.01 Registered Office. The registered office of MASSEY ENERGY COMPANY (hereinafter called the “Corporation”) in the State of Delaware shall be at 9 East Loockerman Street, City of Dover, County of Kent, and the name of the registered agent at that address shall be National Registered Agents, Inc.

Section 1.02 Principal Office. The principal office for the transaction of the business of the Corporation shall be at Four North Fourth Street, Richmond, Virginia 23219. The Board of Directors (hereinafter called the “Board”) is hereby granted full power and authority to change said principal office from one location to another.

Section 1.03 Other Offices. The Corporation may also have an office or offices at such other place or places, either within or without the State of Delaware, as the Board may from time to time determine or as the business of the Corporation may require.

ARTICLE II

MEETINGS OF STOCKHOLDERS

Section 2.01 Annual Meetings. Annual meetings of the stockholders of the Corporation for the purpose of electing directors and for the transaction of such other proper business as may come before such meetings may be held at such time, date and place as the Board shall determine by resolution.

Section 2.02 Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time by the Board, or by a committee of the Board which has been duly designated by the Board and whose powers and authority, as provided in a resolution of the Board or in the Bylaws, include the power to call such meeting, but such special meetings may not be called by any other person or persons; provided, however, that if and to the extent that any special meetings of

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stockholders may be called by any other person or persons specified in any provisions of the Certificate of Incorporation or any amendment thereto or any certificate filed under Section 151(g) of the Delaware General Corporation Law (or its successor statute as in effect from time to time hereafter), then such special meeting may also be called by the person or persons, in the manner, at the times and for the purposes so specified.

Section 2.03 Place of Meetings. All meetings of the stockholders shall be held at such places, within or without the State of Delaware, as may from time to time be designated by the person or persons calling the respective meeting and specified in the respective notices or waivers of notice thereof.

Section 2.04 Notice of Stockholder Business.

(a) Annual Meetings of Stockholders. (i) Nominations of persons for election to the Board and the proposal of business to be considered by the stockholders of the Corporation (the “Stockholders”) may be made at an annual meeting of Stockholders (A) pursuant to the Corporation’s notice of meeting delivered pursuant to Section 2.05, (B) by or at the direction of the Chairman of the Board (the “Chairman”) or (C) by any Stockholder who is entitled to vote at the meeting, who complied with the notice procedures set forth in Section 2.04(a)(ii) and Section 2.04(a)(iii), who was a Stockholder of record at the time such notice is delivered to the Secretary and who, together with each Covered Person (as defined in Section 2.04(a)(ii)(E)(1)), if any, has complied with the notice requirements of Section 2.10 from and including the later of (1) the date falling 20 days after the date of the Public Announcement (as defined in Section 2.04(c)(ii)) of the adoption of these Amended and Restated Bylaws and (2) the date of the immediately preceding annual meeting of Stockholders (such later date, the “Notice Compliance Commencement Date”) to and including the date of delivery of such notice.

(ii) For nominations or other business to be properly brought before an annual meeting by a Stockholder pursuant to Section 2.04(a)(i)(C), the Stockholder must have given timely notice thereof in writing to the Secretary and, in the case of business other than nominations, such other business must otherwise be a proper matter for Stockholder action. To be timely, a Stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than 90 days nor more than 120 days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than 30 days, or delayed by more than 90 days, from such anniversary date, notice by the Stockholder to be timely must be so delivered not earlier than the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which the Public Announcement of the date of such meeting is first made by the Corporation. In no event shall the Public Announcement of an adjournment or postponement of an annual meeting commence a new time period for the giving of a Stockholder’s notice as described in this Section 2.04(a).

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Such Stockholder’s notice shall set forth and include the following information and/or documents, as applicable, (A) the name and address of the Stockholder giving the notice, as they appear on the Corporation’s books, and of the Beneficial Owner (as defined in Section 2.10(b)), if any, on whose behalf such nomination or proposal is made, (B) representations that, as of the date of delivery of such notice, (1) such Stockholder is a holder of record of stock of the Corporation and is entitled to vote at such meeting and intends to appear in person or by proxy at such meeting to propose such nomination or business and (2) such Stockholder and each Covered Person, if any, has complied with the notice requirements of Section 2.10 from and including the Notice Compliance Commencement Date to and including the date of delivery of such notice, (C) as to each person whom the Stockholder proposes to nominate for election or reelection as a Director (a “Stockholder Nominee”), (1) all information relating to such Stockholder Nominee that is required to be disclosed in solicitations of proxies for election of Directors in an election contest, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Rule 14a-11 thereunder (or any successor provisions thereto), including such Stockholder Nominee’s written consent to being named in the proxy statement as a nominee and to serving as a Director if elected and (2) such other information, completed questionnaire and the Agreement (as defined in Section 3.02), duly executed by such Stockholder Nominee, in each case, as required under Section 3.02; (D) as to any other business that the Stockholder proposes to bring before the meeting, (1) a brief description of the business proposed to be brought before the meeting, (2) the text of the proposal (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these Bylaws, the text of the proposed amendment) and (3) the reasons for conducting such business at the meeting; and (E) in all cases, (1) the name of each individual, firm, corporation, limited liability company, partnership, trust or other entity (including any successor thereto, a “Person”) with whom any Stockholder, Beneficial Owner, Stockholder Nominee, and their respective Affiliates and Associates (as defined under Regulation 12B under the Exchange Act or any successor provision thereto) (each of the foregoing, a “Stockholder Group Member”) and each other Person with whom such Stockholder Group Member is acting in concert with respect to the Corporation (each Person described in this clause (1), including each Stockholder Group Member, a “Covered Person”) has any agreement, arrangement or understanding (whether written or oral) for the purpose of acquiring, holding, voting (except pursuant to a revocable proxy given to such Person in response to a public proxy solicitation made generally by such Person to all holders of voting stock of the Corporation (“Voting Stock”)) or disposing of any Voting Stock or to cooperate in obtaining, changing or influencing the control of the Corporation (except independent financial, legal and other advisors acting in the ordinary course of their respective businesses), and a description of each such agreement, arrangement or understanding (whether written or oral), (2) a list of the class and number of shares of Voting Stock that are Beneficially Owned or owned of record by each Covered Person, together with documentary evidence of such record or Beneficial Ownership, (3) a list of (A) all of the derivative securities (as defined under Rule 16a-1 under the Exchange Act) and other derivatives or similar agreements or arrangements with an exercise or conversion privilege or a periodic or settlement payment or

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payments or mechanism at a price or in an amount or amounts related to any security of the Corporation or with a value derived or calculated in whole or in part from the value of any security of the Corporation, in each case, directly or indirectly owned of record or Beneficially Owned by any Covered Person and (B) each other direct or indirect opportunity of any Covered Person to profit or share in any profit derived from any increase or decrease in the value of any security of the Corporation, in each case, regardless of whether (x) such interest conveys any voting rights in such security to such Covered Person, (y) such interest is required to be, or is capable of being, settled through delivery of such security or (z) such Person may have entered into other transactions that hedge the economic effect of such interest (any such interest described in this clause (3) being a “Derivative Interest”), (4) a description of each agreement, arrangement or understanding (whether written or oral) with the effect or intent of increasing or decreasing the voting power of, or that contemplates any Person voting together with, any Covered Person with respect to any Voting Stock, Stockholder Nominee or other proposal (“Voting Arrangements”), (5) details of all other material interests of each Covered Person in such nomination or proposal or capital stock of the Corporation (including any rights to dividends or performance related fees based on any increase or decrease in the value of such capital stock or Derivative Interests) (collectively, “Other Interests”), (6) a description of all economic terms of all such Derivative Interests, Voting Arrangements and Other Interests and copies of all agreements and other documents (including but not limited to master agreements, confirmations and all ancillary documents and the names and details of the counterparties to, and brokers involved in, all such transactions) relating to each such Derivative Interest, Voting Arrangement and Other Interests, (7) a list of all transactions by each Covered Person involving any Voting Stock or any Derivative Interests, Voting Arrangements or Other Interests within 6 months prior to the date of the notice, and (8) a representation whether any Covered Person intends or is part of a group which intends (a) to deliver a proxy statement and/or form of proxy to holders of at least the percentage of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect any Stockholder Nominee and/or (b) otherwise to solicit or participate in the solicitation of proxies from Stockholders in support of such nomination or proposal and (9) all other information that, as of the date of delivery of such notice, would be required to be provided to the Corporation under Section 2.10 by any Covered Person, regardless of whether such Covered Person has previously provided such information to the Corporation. A notice delivered by or on behalf of any Stockholder under this Section 2.04(a) shall be deemed to be not in compliance with this Section 2.04(a) and not effective if (x) such notice does not include all of the information and documents required under this Section 2.04(a), (y) such Stockholder, together with each Covered Person, if any, fails to comply with the requirements of Section 2.10 from and including the date of delivery of such notice to and including the date of the meeting to which such notice relates or (z) or (y) after delivery of such notice, any information or document required to be included in such notice changes or is amended, modified or supplemented, as applicable, prior to the date of the relevant meeting and such information and/or document is not delivered to the Corporation by way of a further written notice as promptly as practicable following the event causing such change in information or amendment, modification or supplement, as applicable, and in any case where such event occurs

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within 45 days of the date of the relevant meeting, within five business days after such event; provided, however, that the Board shall have the authority to waive any such non-compliance if the Board determines that such action is appropriate in the exercise of its fiduciary duties. The foregoing notice requirements of this Section 2.04(a) shall be deemed satisfied by a Stockholder if the Stockholder has notified the Corporation of such Stockholder’s intention to present a proposal at an annual meeting in compliance with applicable rules and regulations promulgated under the Exchange Act and such Stockholder’s proposal has been included in a proxy statement that has been prepared by the Corporation to solicit proxies for such annual meeting. The Corporation may require any Stockholder Nominee to furnish such other information as it may reasonably require to determine the eligibility of such Stockholder Nominee to serve as a Director.

(iii) Notwithstanding anything in the second sentence of Section 2.04(a)(ii) to the contrary and subject to Section 3.03, in the event that the number of Directors to be elected to the Board is increased effective at the annual meeting and there is no Public Announcement naming all of the nominees for Director or specifying the size of the increased Board made by the Corporation at least 100 days prior to the first anniversary of the preceding year’s annual meeting, a Stockholder’s notice required by this Section 2.04(a) shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the day on which such Public Announcement is first made by the Corporation and such notice otherwise complies with the requirements of this Section 2.04(a).

(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of Stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting pursuant to Section 2.05. Nominations of persons for election to the Board may be made at a special meeting of Stockholders at which Directors are to be elected pursuant to the Corporation’s notice of meeting (A) by or at the direction of the Board or (B) by any Stockholder of the Corporation who is entitled to vote at the meeting, who complies with the notice procedures set forth in this Section 2.04(b), who is a Stockholder of record at the time such notice is delivered to the Secretary and who, together with each Covered Person, if any, has complied with the requirements of Section 2.10 from and including the Notice Compliance Commencement Date to and including the date of delivery of such notice. In the event the Corporation calls a special meeting of Stockholders for the purpose of electing one or more Directors to the Board, any such Stockholder may nominate such number of persons for election to such position(s) as are specified in the Corporation’s notice of meeting, if the Stockholder’s notice, containing all of the information, documents and representations required under Section 2.04(a)(ii), shall be delivered to the Secretary at the principal executive offices of the Corporation not earlier than the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the 10th day following the day on which Public Announcement of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting is first made by the Corporation. A notice delivered by or on behalf of

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any Stockholder under this Section 2.04(b) shall be deemed to be not in compliance with this Section 2.04(b) and not effective if (x) such notice does not include all of the information and documents required under this Section 2.04(b), (y) such Stockholder, together with each Covered Person, if any, fails to comply with the requirements of Section 2.10 from and including the date of delivery of such notice to and including the date of the meeting to which such notice relates or (z) or (y) after delivery of such notice, any information or document required to be included in such notice changes or is amended, modified or supplemented, as applicable, prior to the date of the relevant meeting and such information and/or document is not delivered to the Corporation by way of a further written notice as promptly as practicable following the event causing such change in information or amendment, modification or supplement, as applicable, and in any case where such event occurs within 45 days of the date of the relevant meeting, within five business days after such event; provided, however, that the Board shall have the authority to waive any such non-compliance if the Board determines that such action is appropriate in the exercise of its fiduciary duties. In no event shall the Public Announcement of an adjournment or postponement of a special meeting commence a new time period for the giving of a Stockholder’s notice as described above.

(c) General. (i) Only persons who are nominated in accordance with the procedures and other requirements set forth in Section 2.04(a) or 2.04(b) shall be eligible to be elected as Directors at a meeting of Stockholders and only such business shall be conducted at a meeting of Stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 2.04. The Board may adopt by resolution such rules and regulations for the conduct of meetings of Stockholders as it shall deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by the Board, the Chairman shall have the right and authority to convene and adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of the Chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the Chairman, may include the following: (i) the establishment of an agenda or order of business for the meeting; (ii) rules and procedures for maintaining order at the meeting and the safety of those present; (iii) limitations on attendance at or participation in the meeting to Stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the Board or the Chairman shall determine; (iv) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (v) limitations on the time allotted to questions or comments by participants. Except as otherwise provided by applicable law, the Charter or these Bylaws, the Board or the Chairman shall, if the facts warrant, determine and declare to the meeting that a matter or business was not properly brought before the meeting (including, but not limited to, whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures and other requirements set forth in these Bylaws (including Sections 2.04 and 2.10)) and if the Board or the Chairman should so determine, shall so declare to the meeting, and any such matter or business not properly brought before the meeting shall not be transacted or considered. Notwithstanding the foregoing provisions of this Section 2.04, unless otherwise required by applicable law, if the Stockholder (or a qualified representative of the Stockholder) does not appear at the annual or special meeting of

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Stockholders to present a nomination or proposed business previously put forward by or on behalf of such Stockholder or, immediately prior to the commencement of such meeting, such Stockholder does not provide a written certification to the Corporation on and as of the date of the applicable meeting that such Stockholder and each Covered Person, if any, is then in compliance with Section 2.04 and Section 2.10, then such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 2.04, to be considered a qualified representative of the Stockholder, a person must be a duly authorized officer, manager or partner of such Stockholder or must be authorized by a writing executed by such Stockholder and each Covered Person, if any, or an electronic transmission delivered by such Stockholder and each Covered Person, if any, to act for such Stockholder and each Covered Person, if any, as proxy at the meeting of Stockholders and to provide such certification on behalf of the Stockholder and each Person required pursuant to this Section 2.04(c) and such Person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Stockholders.

(ii) For purposes of these Bylaws, “Public Announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act or any document delivered to all Stockholders.

(iii) Notwithstanding the foregoing provisions of these Bylaws, a Stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations promulgated thereunder with respect to the matters set forth in this Section 2.04 and Section 2.10; provided, however, that any references in these Bylaws to the Exchange Act or the rules or regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to these Bylaws (including Sections 2.04(a)(i)(C) and (b) hereof), and compliance with Sections 2.04(a)(i)(C) and (b) of these Bylaws shall be the exclusive means for a Stockholder to make nominations or submit other business (other than, as provided in the penultimate sentence of (a)(ii), matters brought properly under and in compliance with Rule 14a-8 of the Exchange Act, as may be amended from time to time). Nothing in these Bylaws shall be deemed to affect any rights of (a) Stockholders to request inclusion of nominations or proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act or (b) holders of any series of Preferred Stock to elect Directors pursuant to any applicable provisions of the Charter.

Section 2.05 Notice of Meetings. Except as otherwise required by law, notice of each meeting of the stockholders, whether annual or special, shall be given not less than 10 nor more than 60 days before the date of the meeting to each stockholder of record entitled to vote at such meeting by delivering a typewritten or printed notice thereof to him or her personally, or by depositing

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such notice in the United States mail, in a postage prepaid envelope, directed to him or her at his or her post office address furnished by him or her to the Secretary of the Corporation for such purpose or, if he or she shall not have furnished to the Secretary his or her address for such purposes, then at his or her post office address last known to the Secretary, or by transmitting a notice thereof to him or her at such address by telegraph, cable or wireless. Except as otherwise expressly required by law, no publication of any notice of a meeting of the stockholders shall be required. Every notice of a meeting of the stockholders shall state the place, date and hour of the meeting, and, in the case of a special meeting, shall also state the purpose or purposes for which the meeting is called. Notice of any meeting of stockholders shall not be required to be given to any stockholder who shall have waived such notice and such notice shall be deemed waived by any stockholder who shall attend such meeting in person or by proxy, except a stockholder who shall attend such meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Except as otherwise expressly required by law, notice of any adjourned meeting of the stockholders need not be given if the time and place thereof are announced at the meeting at which the adjournment is taken.

Section 2.06 Quorum. Except in the case of any meeting for the election of directors summarily ordered as provided by law, the holders of record of a majority in voting interest of the shares of stock of the Corporation entitled to be voted thereat, present in person or by proxy, shall constitute a quorum for the transaction of business at any meeting of the stockholders of the Corporation or any adjournment thereof. In the absence of a quorum at any meeting or any adjournment thereof, a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat or, in the absence therefrom of all the stockholders, any officer entitled to preside at, or to act as secretary of, such meeting may adjourn such meeting from time to time. At any such adjourned meeting at which a quorum is present any business may be transacted which might have been transacted at the meeting as originally called.

Section 2.07 Voting.

(a) Each stockholder shall, at each meeting of the stockholders, be entitled to vote in person or by proxy each share or fractional share of the stock of the Corporation having voting rights on the matter in question and which shall have been held by him or her and registered in his or her name on the books of the Corporation:

(i) on the date fixed pursuant to Section 6.05 of the Bylaws as the record date for the determination of stockholders entitled to notice of and to vote at such meeting, or

(ii) if no such record date shall have been so fixed, then (a) at the close of business on the day next preceding the day on which notice of the meeting shall be given or (b) if notice of the meeting shall be waived, at the close of business on the day next preceding the day on which meeting shall be held.

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(b) Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the shares entitled to vote in the election of directors in such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes. Persons holding stock of the Corporation in a fiduciary capacity shall be entitled to vote such stock. Persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the Corporation he or she shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his or her proxy, may represent such stock and vote thereon. Stock having voting power standing of record in the names of two or more persons, whether fiduciaries, members of a partnership, joint tenants, tenants in common, tenants by the entirety or otherwise, or with respect to which two or more persons have the same fiduciary relationship, shall be voted in accordance with the provisions of the General Corporation Law of the State of Delaware.

(c) Any such voting rights may be exercised by the stockholder entitled thereto in person or by his or her proxy appointed by an instrument in writing, subscribed by such stockholder or by his or her attorney thereunto authorized and delivered to the secretary of the meeting; provided, however, that no proxy shall be voted or acted upon after three years from its date unless said proxy shall provide for a longer period. The attendance at any meeting of a stockholder who may theretofore have given a proxy shall not have the effect of revoking the same unless he or she shall in writing so notify the secretary of the meeting prior to the voting of the proxy. At any meeting of the stockholders all matters, except as otherwise provided in the Certificate of Incorporation, in the Bylaws or by law, shall be decided by the vote of a majority in voting interest of the stockholders present in person or by proxy and entitled to vote thereat and thereon, a quorum being present. The vote at any meeting of the stockholders on any question need not be by ballot, unless so directed by the chairman of the meeting. On a vote by ballot each ballot shall be signed by the stockholder voting, or by his or her proxy, if there be such proxy, and it shall state the number of shares voted.

Section 2.08 List of Stockholders. The Secretary of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the entire duration thereof, and may be inspected by any stockholder who is present.

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Section 2.09 Judges. If at any meeting of the stockholders a vote by written ballot shall be taken on any question, the chairman of such meeting may appoint a judge or judges to act with respect to such vote. Each judge so appointed shall first subscribe an oath faithfully to execute the duties of a judge at such meeting with strict impartiality and according to the best of his or her ability. Such judges shall decide upon the qualification of the voters and shall report the number of shares represented at the meeting and entitled to vote on such question, shall conduct and accept the votes, and, when the voting is completed shall ascertain and report the number of shares voted respectively for and against the question. Reports of the judges shall be in writing and subscribed and delivered by them to the Secretary of the Corporation. The judges need not be stockholders of the Corporation, and any officer of the Corporation may be a judge on any question other than a vote for or against a proposal in which he or she shall have a material interest.

Section 2.10. Disclosure of Certain Interests. (a) Any Person that, as of the date of the Public Announcement of the adoption of these Bylaws, is the Beneficial Owner of Voting Stock or, in connection with any acquisition or disposition of Beneficial Ownership of any Voting Stock of the Corporation on or after the date of the Public Announcement of the adoption of these Bylaws, (i) is required to file a Schedule 13D (or any successor form) or an amendment thereto with the Securities and Exchange Commission or (ii) would be required to file a Schedule 13D (or any successor form) or an amendment thereto with the Securities and Exchange Commission if (x) the definition of Beneficial Ownership herein was substituted for the determination of “beneficial ownership” set forth in Rule 13d-3 under the Exchange Act and (y) any reference to the phrase “more than five percent” set forth in Rule 13d under the Exchange Act was substituted and replaced with the phrase “more than seven and one-half percent”, shall, in either case, within 20 days after the date of the Public Announcement of the adoption of these Bylaws or, in all other cases, as promptly as practicable, but within 10 business days, after the date of any such acquisition or disposition or any change in a material fact set forth in a statement previously provided to the Corporation, as the case may be, deliver to the Corporation a statement containing (A) the information that would be required to be filed on such Schedule 13D (including the exhibits thereto) or such amendment, as the case may be, if (x) the definition of Beneficial Ownership herein was substituted for the determination of “beneficial ownership” set forth in Rule 13d-3 under the Exchange Act and (y) any reference to the phrase “more than five percent” set forth in Rule 13d under the Exchange Act was substituted and replaced with the phrase “more than seven and one-half percent”, (B) a list of all Derivative Interests of such Person and (C) a description of all economic terms of all such Derivative Interests and copies of all agreements and other documents (including but not limited to master agreements, confirmations and all ancillary documents and the names and details of all counterparties to, and brokers involved in, all such transactions) relating to each such Derivative Interest.

(b) A Person shall be deemed the “Beneficial Owner” of, shall be deemed to “Beneficially Own” and shall be deemed to have “Beneficial Ownership” of, any Voting Stock (i) that such Person or any of such Person’s Affiliates or Associates (as defined

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under Regulation 12B under the Exchange Act or any successor provision thereto) is deemed to “beneficially own” within the meaning of Section 13(d) of, and Regulation 13D under, the Exchange Act or any successor provision thereto, or (ii) that is the subject of, or the reference security for or that underlies any Derivative Interest of such Person or any of such Person’s Affiliates or Associates (as defined under Regulation 12B under the Exchange Act or any successor provision thereto), with the number of shares of Voting Stock deemed Beneficially Owned being the notional or other number of shares of Voting Stock specified in the documentation evidencing the Derivative Interest as being subject to be acquired upon the exercise or settlement of the Derivative Interest or as the basis upon which the value or settlement amount of such Derivative Interest is to be calculated in whole or in part or, if no such number of shares of Voting Stock is specified in such documentation, as determined by the Board of Directors in good faith to be the number of shares of Voting Stock to which the Derivative Interest relates. When two or more Persons act as a partnership, limited partnership, syndicate, or other group, or otherwise act in concert, in each case, for the purpose of acquiring, holding, or disposing of securities of the Corporation or for the purpose of proposing one or more Stockholder Nominees, putting forward any other proposal for consideration or voting together on any matter presented at a Stockholder meeting, such syndicate or group shall be deemed a “Person” for the purpose of this Section 2.10. In addition, any Person who, directly or indirectly, creates or uses a trust, proxy, power of attorney, pooling arrangement or any contract, arrangement, or device with the purpose or effect of divesting such Person of Beneficial Ownership of any Voting Stock or preventing the vesting of such Beneficial Ownership as part of a plan or scheme to evade the reporting requirements of Section 2.04 or this Section 2.10 shall be deemed for the purposes of these Bylaws to be the Beneficial Owner of such Voting Stock.

(c) The Board shall determine whether any Person has satisfied the requirements set forth in this Section 2.10 and such determination shall be binding on the Corporation and the Stockholders.

ARTICLE III

BOARD OF DIRECTORS

Section 3.01 General Powers. The property, business and affairs of the Corporation shall be managed by the Board.

Section 3.02 Number. The authorized number of directors of the Corporation shall be ten and such authorized number shall not be changed except by a Bylaw or amendment thereof duly adopted by the stockholders in accordance with the Certificate of Incorporation or by the Board amending this Section 3.02. However, no decrease in the number of Directors constituting the Board shall shorten the term of any incumbent Director. Each Director and nominee for election as a Director of the Corporation must, as a

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qualification to serve as a Director, deliver to the Secretary at the principal office of the Corporation a written questionnaire with respect to the background and qualifications of such person (which questionnaire shall be provided by the Secretary upon written request and approved from time to time by the Board or the Board’s nomination and corporate governance committee) and a written representation and agreement (in the form provided by the Secretary upon written request) (the “Agreement”), which Agreement (i) shall provide that such person (A) is not and will not become a party to (1) any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if such person is at the time a Director or is subsequently elected as a Director of the Corporation, will act or vote on any issue or question (a “Voting Commitment”) that has not been disclosed in writing to the Corporation or (2) any Voting Commitment that could limit or interfere with such person’s ability to comply, if such person is at the time a Director or is subsequently elected as a Director of the Corporation, with such person’s duties as a Director under applicable law, (B) is not and will not become a party to any agreement, arrangement or understanding (whether written or oral) with any person or entity other than the Corporation with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a Director that has not been disclosed in writing to the Corporation, and (C) would be in compliance, if elected as a Director of the Corporation, and will, if such person is at the time a Director or is subsequently elected as Director of the Corporation, comply with all applicable corporate governance, conflict of interest, confidentiality and securities ownership and trading policies and guidelines of the Corporation (copies of which shall be provided by the Secretary upon written request) (subject to any waivers or exemptions granted pursuant to a resolution of the majority of the disinterested members of the Board) and (ii) if such person is at the time a Director or is subsequently elected as a Director of the Corporation, shall include such person’s irrevocable resignation as a Director if such person is found by a court of competent jurisdiction to have breached the Agreement in any material respect.

Section 3.03 Election of Directors. The directors shall be elected by the stockholders of the Corporation, and at each election the persons receiving the greatest number of votes, up to the number of directors then to be elected, shall be the persons then elected. The election of directors is subject to any provisions contained in the Certificate of Incorporation relating thereto, including any provisions for a classified board and for cumulative voting.

Section 3.04 Mandatory Retirement. Each director of the Corporation serving at age 74 shall retire from the Board at the end of the calendar year in which his or her 74th birthday occurs, except for directors serving on the Board at January 1, 2006, and provided that the Board may approve one exemption at any time for directors who joined the Board after such date. For purposes of this Section, “end of the calendar year” shall include the period ending with the seventh day of January next following.

Section 3.05 Resignations. Any director of the Corporation may resign at any time by giving written notice to the Board or to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or, if the time be not specified, it shall take effect immediately upon its receipt; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.

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Section 3.06 Vacancies. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, an increase in the number of directors, or any other cause, may be filled by vote of the majority of the remaining directors, although less than a quorum. Each director so chosen to fill a vacancy shall hold office until his or her successor shall have been elected and shall qualify or until he or she shall resign or shall have been removed.

Section 3.07 Place of Meeting, etc. The Board may hold any of its meetings at such place or places within or without the State of Delaware as the Board may from time to time by resolution designate or as shall be designated by the person or persons calling the meeting or in the notice or a waiver of notice of any such meeting. Directors may participate in any regular or special meeting of the Board by means of conference telephone or similar communications equipment pursuant to which all persons participating in the meeting of the Board can hear each other, and such participation shall constitute presence in person at such meeting.

Section 3.08 First Meeting. The Board shall meet as soon as practicable after each annual election of directors and notice of such first meeting shall not be required.

Section 3.09 Regular Meetings. Regular meetings of the Board may be held at such times as the Board shall from time to time by resolution determine. If any day fixed for a meeting shall be a legal holiday at the place where the meeting is to be held, then the meeting shall be held at the same hour and place on the next succeeding business day not a legal holiday. Except as provided by law, notice of regular meetings need not be given.

Section 3.10 Special Meetings. Special meetings of the Board may be called at any time by the Chairman of the Board or the President or by any two directors, to be held at the principal office of the Corporation, or at such other place or places, within or without the State of Delaware, as the person or persons calling the meeting may designate.

Notice of all special meetings of the Board shall be given to each director by two days' service of the same by telegram, by letter, or personally. Such notice may be waived by any director and any meeting shall be a legal meeting without notice having been given if all the directors shall be present thereat or if those not present shall, either before or after the meeting, sign a written waiver of notice of, or a consent to, such meeting or shall after the meeting sign the approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or be made a part of the minutes of the meeting.

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Section 3.11 Quorum and Manner of Acting. Except as otherwise provided in the Bylaws or by law, the presence of a majority of the authorized number of directors shall be required to constitute a quorum for the transaction of business at any meeting of the Board, and all matters shall be decided at any such meeting, a quorum being present, by the affirmative votes of a majority of the directors present. In the absence of a quorum, a majority of directors present at any meeting may adjourn the same from time to time until a quorum shall be present. Notice of any adjourned meeting need not be given. The directors shall act only as a Board, and the individual directors shall have no power as such.

Section 3.12 Action by Consent. Any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if a written consent thereto is signed by all members of the Board or of such committee, as the case may be, and such written consent is filed with the minutes of proceedings of the Board or such committee.

Section 3.13 Compensation. No stated salary need be paid directors, as such, for their services, but, by resolution of the Board, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board or an annual directors' fee may be paid; provided that nothing herein contained shall be construed to preclude any director from serving the Corporation in any other capacity and receiving compensation therefore. Members of special or standing committees may be allowed like compensation for attending committee meetings.

Section 3.14 Committees. The Board may, by resolution passed by the Board, designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Except as otherwise provided in the Board resolution designating a committee, the presence of a majority of the authorized number of members of such committee shall be required to constitute a quorum for the transaction of business at any meeting of such committee. Any such committee, to the extent provided in the resolution of the Board, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers which may require it; but no such committee shall have any power or authority in reference to amending the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of the dissolution, or amending the Bylaws of the Corporation; and unless the resolution of the Board expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Any such committee shall keep written minutes of its meetings and report the same to the Board at the next regular meeting of the Board.

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Section 3.15 Officers of the Board. The Board shall have a Chairman of the Board and may, at the discretion of the Board, have a Vice Chairman and other officers. The Chairman of the Board and the Vice Chairman shall be appointed from time to time by the Board, unless such positions are elected offices of the Corporation, currently filled, and shall have such powers and duties as shall be designated by the Board.

ARTICLE IV

OFFICERS

Section 4.01 Officers. The officers of the Corporation shall be a Chairman of the Board, a Chief Executive Officer, a Secretary, a Treasurer and such other officers as may be appointed by the Board as the business of the Corporation may require. Officers shall have such powers and duties as are permitted or required by law or as may be specified by or in accordance with resolutions of the Board. Any number of offices may be held by the same person. Unless the Board shall otherwise determine, the Chairman of the Board shall be the Chief Executive Officer of the Corporation. In the absence of any contrary determination by the Board, the Chief Executive Officer shall, subject to the power and authority of the Board, have general supervision, direction and control of the officers, employees, business and affairs of the Corporation.

Section 4.02 Election and Term. The officers of the Corporation shall be elected annually by the Board. The Board may at any time and from time to time elect such additional officers as the business of the Corporation may require. Each officer shall hold his or her office until his or her successor is elected and qualified or until his or her earlier resignation or removal.

Section 4.03 Removal and Resignation. Any officer may be removed, either with or without cause, by a majority of the directors at the time in office, at any regular or special meeting of the Board. Any officer may resign at any time by giving notice to the Board. Such resignation shall take effect at the time specified in such notice or, in the absence of such specification, at the date of the receipt by the Board of such notice. Unless otherwise specified in such notice, the acceptance of such resignation shall not be necessary to make it effective.

Section 4.04 Vacancies. Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise, shall be filled in the manner prescribed in these Bylaws for the regular appointment to such office.

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ARTICLE V

CONTRACTS, CHECKS, DRAFTS, BANK ACCOUNTS, ETC.

Section 5.01 Execution of Contracts. The Board, except as in the Bylaws otherwise provided, may authorize any officer or officers, agent or agents, to enter into any contract or execute any instrument in the name and on behalf of the Corporation, and such authority may be general or confined to specific instances; and unless so authorized by the Board or by the Bylaws, no officer, agent or employee shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or in any amount.

Section 5.02 Checks, Drafts, etc. All checks, drafts or other orders for payment of money, notes or other evidence of indebtedness, issued in the name of or payable to the Corporation, shall be signed or endorsed by such person or persons and in such manner as, from time to time, shall be determined by resolution of the Board. Each such person shall give such bond, if any, as the Board may require.

Section 5.03 Deposit. All funds of the Corporation not otherwise employed shall be deposited from time to time to the credit of the Corporation in such banks, trust companies or other depositories as the Board may select, or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. For the purpose of deposit and for the purpose of collection for the account of the Corporation, the Chief Executive Officer, the President or the Treasurer (or any other officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation who shall from time to time be determined by the Board) may endorse, assign and deliver checks, drafts and other orders for the payment of money which are payable to the order of the Corporation.

Section 5.04 General and Special Bank Accounts. The Board may from time to time authorize the opening and keeping of general and special bank accounts with such banks, trust companies or other depositories as the Board may select or as may be selected by any officer or officers, assistant or assistants, agent or agents, or attorney or attorneys of the Corporation to whom such power shall have been delegated by the Board. The Board may make such special rules and regulations with respect to such bank accounts, not inconsistent with the provisions of the Bylaws, as it may deem expedient.

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ARTICLE VI

SHARES AND THEIR TRANSFER

Section 6.01 Certificates for Stock. Every owner of stock of the Corporation shall be entitled to have a certificate or certificates, to be in such form as the Board shall prescribe, certifying the number and class of shares of the stock of the Corporation owned by him or her. The certificates representing shares of such stock shall be numbered in the order in which they shall be issued and shall be signed in the name of the Corporation by the President and by the Secretary. Any or all of the signatures on the certificates may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon any such certificate shall thereafter have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may nevertheless be issued by the Corporation with the same effect as though the person who signed such certificate, or whose facsimile signature shall have been placed thereupon, were such officer, transfer agent or registrar at the date of issue. A record shall be kept of the respective names of the persons, firms or corporations owning the stock represented by such certificates, the number and class of shares represented by such certificates, respectively, and the respective dates thereof, and in case of cancellation the respective dates of cancellation. Every certificate surrendered to the Corporation for exchange or transfer shall be cancelled, and no new certificate or certificates shall be issued in exchange for any existing certificate until such existing certificate shall have been so cancelled, except in cases provided for in Section 6.04 of the Bylaws.

Section 6.02 Transfers of Stock. Transfers of shares of stock of the Corporation shall be made only on the books of the Corporation by the registered holder thereof, or by his or her attorney thereunto authorized by power of attorney duly executed and filed with the Secretary, or with a transfer clerk or a transfer agent appointed as provided in Section 6.03 of the Bylaws, and upon surrender of the certificate or certificates for such shares properly endorsed and the payment of all taxes thereon. The person in whose name shares of stock stand on the books of the Corporation shall be deemed the owner thereof for all purposes as regards the Corporation. Whenever any transfer of shares shall be made for collateral security, and not absolutely, such fact shall be stated expressly in the entry of transfer if, when the certificate or certificates shall be presented to the Corporation for transfer, both the transferor and the transferee request the Corporation to do so.

Section 6.03 Regulations. The Board may make such rules and regulations as it may deem expedient, not inconsistent with the Bylaws, concerning the issue, transfer and registration of certificates for shares of the stock of the Corporation. It may appoint, or authorize any officer or officers to appoint, one or more transfer clerks or one or more transfer agents and one or more registrars, and may require all certificates for stock to bear the signature or signatures of any of them.

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Section 6.04 Lost, Stolen, Destroyed, And Mutilated Certificates. In any case of loss, theft, destruction, or mutilation of any certificate of stock, another may be issued in its place upon proof of such loss, theft, destruction, or mutilation and upon the giving of a bond of indemnity to the Corporation in such form and in such sum as the Board may direct; provided, however, that a new certificate may be issued without requiring any bond when, in the judgment of the Board, it is proper so to do.

Section 6.05 Fixing Date for Determination of Stockholders of Record. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any other change, conversion or exchange of stock or for the purpose of any other lawful action, the Board may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. If, in any case involving the determination of stockholders for any purpose other than notice of or voting at a meeting of stockholders, the Board shall not fix such a record date, the record date for determining stockholders for such purpose shall be the close of business on the day on which the Board shall adopt the resolution relating thereto. A determination of stockholders entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of such meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

ARTICLE VII

MISCELLANEOUS

Section 7.01 Seal. The Board shall provide a corporate seal, which shall be in the form of a circle and shall bear the name of the Corporation and words and figures showing that the Corporation was incorporated in the State of Delaware and the year of incorporation.

Section 7.02 Waiver of Notices. Whenever notice is required to be given by the Bylaws or the Certificate of Incorporation or by law, the person entitled to said notice may waive such notice in writing, either before or after the time stated therein, and such waiver shall be deemed equivalent to notice.

Section 7.03 Fiscal Year. The fiscal year of the Corporation shall end on the 31st day of December of each year.

Section 7.04 Amendments. The Bylaws, or any of them, may be rescinded, altered, amended or repealed, and new Bylaws may be made, (i) by the Board, by vote of a majority of the number of directors then in office as directors, acting at any meeting of the Board, or (ii) by the vote of the holders of not less than 80% of the total voting power of all outstanding shares of voting stock of

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the Corporation, at any annual meeting or special meeting of stockholders, provided that notice of such proposed amendment, modification, repeal or adoption is given in accordance with the notice provisions set forth in Section 2.04 herein. Any Bylaws made or altered by the stockholders may be altered or repealed by the Board or may be altered or repealed by the stockholders.

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EX-10.1

EXHIBIT 10.1

MASSEY ENERGY COMPANY

NON-EMPLOYEE DIRECTORS – COMPENSATION SUMMARY

(Amended and Restated Effective January 1, 2009)

Annual Retainer	$44,000 annual retainer, plus
	$5,000 annual retainer, for Chairs of Board Committees ($15,000 for Chair of Audit Committee).
	$30,000 annual retainer for the Lead Director.
	Each annual retainer to be paid in four (4) equal installments payable as soon as administratively practicable following the end of the applicable calendar quarter.
Meeting Fees	$2,000 for each Board meeting attended, plus
	$2,000 for each Committee meeting attended
	($3,000 for each Audit Committee meeting).
	Meeting fees to be paid as soon as administratively practicable following the meeting attended for which the fees are due.
Deferred Compensation	Annually directors may defer all or a portion of their retainer and meeting fees and elect to have such deferred amounts invested in: (1) an interest-bearing account or (2) phantom stock units based on Massey Energy common stock.
	Payment of deferred retainer and meeting fees and related earnings to be paid consistent with the terms of the plan pursuant to which such amounts are deferred.
Initial Grant of Restricted Stock	$110,000 worth of restricted shares one-time grant.
	The shares may not be sold until they vest, but do receive dividends prior to vesting. One third of the shares vest per year, assuming continued service or upon the earlier occurrence of any of the following while serving as a director: (i) the applicable director attains the age for mandatory retirement from the Board (if applicable) in effect on the date of the award or retires upon Board approval, (ii) the applicable director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation.
Initial Grant of Restricted Units	$74,000 worth of restricted units one-time grant. Portions of the units become earned and payable at the same time as each portion of the Initial Grant of Restricted Stock to which such units relate vests.

Annual Grant	$80,000 worth of restricted shares and/or non-qualified stock options annual grant. The proportion of each annual grant made in restricted shares and/or non-qualified stock options will be at the sole discretion of the director. A pro rata portion of the annual grant is given to a new director whose term begins during a fiscal year. The shares may not be sold until they vest, but do receive dividends prior to vesting. One third of the shares vest per year, assuming continued service, or upon the earlier occurrence of any of the following while serving as a director: (i) the applicable director attains at the age for mandatory retirement from the Board (if applicable) in effect on the date of the award and retires upon Board approval, (ii) the applicable director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation. One third of the non-qualified stock options vest per year, assuming continued service, or upon the earlier occurrence of any of the following while serving as a director: (i) the applicable director attains at the age for mandatory retirement from the Board (if applicable) in effect on the date of the award and retires upon Board approval, (ii) the applicable director dies or becomes permanently and totally disabled, or (iii) the director’s service is terminated within two years after a change of control occurs other than on account of a voluntary resignation.
Insurance	$75,000 life insurance (may require medical examination).
	$250,000 travel accident insurance while traveling for Massey Energy Company.
	$75,000,000 Directors and Officers liability insurance.
Physicals	An annual physical, at the election of the director.
Supplemental Health Insurance	Secondary supplemental health insurance, at the election of the director.

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EX-10.2

EXHIBIT 10.2

EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT

THIS EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT (this “Agreement”), effective as of November 1, 2008 (the “Effective Date”), is made on November 10, 2008 between MASSEY ENERGY COMPANY, a Delaware corporation (the “Company”), and BAXTER F. PHILLIPS, JR. (the “Executive”).

WITNESSETH:

WHEREAS, Executive is a senior executive of the Company or one of its Subsidiaries (as defined in Section 19) 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 19) recognizes that, as is the case with many publicly held corporations, the possibility of a Change in Control (as defined in Section 19) 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 desires 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 19 and throughout this Agreement) and intending to be legally bound hereby, the Company and Executive agree as follows:

1. Employment.

1.1 Subject to the terms and conditions of this Agreement, the Company agrees to employ Executive during the term hereof in the executive position of President. In such capacity, Executive shall report to the Chief Executive Officer of the Company, and shall have the customary powers, responsibilities and authorities of executives holding such positions in corporations of the size, type and nature of the Company, as it exists from time to time, and as are assigned by the Chief Executive Officer.

1.2 Subject to the terms and conditions of this Agreement, Executive hereby accepts such employment commencing as of the Effective Date and agrees, subject to any period of vacation and sick leave, to devote his full business time and efforts to the performance of services, duties and responsibilities in connection therewith.

2. Term of Employment. Executive’s term of employment under this Agreement shall commence on the Effective Date and, subject to termination by the terms hereunder, shall have an initial term of three years, ending on November 1, 2011 (the “Term of Employment”).

3. Compensation.

3.1 Salary. During the Term of Employment, the Company shall pay Executive a base salary (“Base Salary”) at an annual rate of $650,000. Base Salary shall be payable in accordance with the ordinary payroll practices of the Company (but no less frequently than monthly). During the Term of Employment, the Board shall, in good faith, review, at least annually, Executive’s Base Salary in accordance with the Company’s customary procedures and practices regarding the salaries of senior executives and may, if determined by the Board to be appropriate, increase Executive’s Base Salary following such review. “Base Salary” for all purposes herein shall be deemed to be a reference to any such increased amount.

3.2 Annual Bonus. In addition to his Base Salary, during the Term of Employment, Executive shall be eligible to receive an annual cash bonus award (the “Annual Cash Bonus”) with a target amount no less than 60%, 70% and 80% of Executive’s Base Salary for the Company’s 2009, 2010 and 2011 fiscal years, respectively (the “Target Bonus”, as applicable for the year in question), subject to the terms and conditions set forth by the Compensation Committee of the Board for such fiscal year. With respect to the 2011 Annual Cash Bonus, Executive’s employment beyond the Term of Employment shall not be required in order for him to receive payment thereof and shall not affect the amount payable to Executive. The Annual Cash Bonus awards shall be payable to Executive at the time bonuses are paid to its executive officers in accordance with the Company’s policies and practices as set by the Board.

3.3 Restricted Stock and Unit Grants. Not later than November 10, 2008, the Company shall grant Executive, if employed on the date of grant, 18,000 shares of restricted stock and 11,340 restricted units. The restrictions on a third of each grant, 6,000 shares of restricted stock and 3,780 restricted units, shall lapse on November 10, 2009, a third shall lapse on November 10, 2010 and the remaining third shall lapse on November 10, 2011 provided that, with respect to each one-third, Executive remains continuously employed by the Company and/or, as provided in Section 3.6, provides service as a member of the Board through the respective vesting (lapse) date therefor, subject to the terms and conditions set forth in the equity plan from which they shall be granted. Notwithstanding the foregoing, any restrictions remaining on such restricted stock shall lapse no later than upon Executive’s death, disability or termination of employment by the Company for any reason other than cause within two years following a change in control (as defined in the applicable award agreement). Each share of restricted stock and each restricted unit, depending upon when the restrictions on such lapse, shall be awarded with a face value equal to the closing market price of the Company’s common stock as reported on the New York Stock Exchange on such date.

3.4 Non-Qualified Stock Options. Not later than November 10, 2008, the Company shall grant Executive, if employed on the date of grant, 75,000 non-qualified stock options, having an exercise price equal to the closing market price of the Company’s common stock as reported on the New York Stock Exchange on such date, one-third of which shall become fully vested and exercisable on November 10, 2009, another one-third of which shall become fully vested and exercisable on November 10, 2010, and the final one-third of which shall become fully vested and exercisable on November 10, 2011 provided Executive remains continuously employed by the Company through each of the respective vesting and exercisability dates. Notwithstanding the foregoing, upon Executive’s death, disability, retirement at or after age fifty-five (55) or termination of employment by the Company for any reason other than cause within two years following a change in control (all as defined in and determined pursuant to the applicable award agreement and governing plan), such stock options which are then outstanding shall immediately vest and become exercisable.

3.5 Long-term Cash Retention Bonus. The Company shall pay Executive (or, in the event of Executive’s death, Executive’s estate) $200,000 in a lump sum on each of July 31, 2009, July 31, 2010 and July 31, 2011 (each $200,000 being an “Retention Bonus Installments”) provided Executive remains continuously employed by the Company through each of the respective payment dates. Notwithstanding the foregoing, if Executive remains in the Company’s employ until his death, Disability (as defined in Section 19) or a Change in Control, the Company shall thereupon pay Executive (or, in the event of Executive’s death, Executive’s estate) the remaining unpaid and unearned Retention Bonus Installments, if any.

3.6 Board Service Credit for Vesting in Certain Equity Compensation. In the event Executive’s employment with the Company ceases at any time during the Term of Employment, Executive’s vesting under all restricted stock and restricted unit awards then outstanding shall thereafter include in the basis for vesting any continuous service as a member of the Board (whether or not Executive remains an employee of the Company) and no forfeiture shall occur by reason of his cessation of employment so long as he remains a member of the Board.

3.7 Pension Credit. The following rules shall apply in determining creditable service and compensation taken into account in determining covered compensation and average compensation for benefit accrual purposes under the defined benefit provisions of the Company’s non-qualified supplemental benefit plan (currently known as the A. T. Massey, Inc. Supplemental Benefit Plan). Multiple rules may apply depending on the circumstances, but no compensation shall be taken into account more than once. In each case, the annual salary paid pursuant to Section 3.1 (to the extent not otherwise taken into account) shall be considered compensation taken into account in determining covered compensation and average compensation when paid.

(a) Whether or not Executive’s employment by the Company continues through November 1, 2011, the annual bonus (if any) paid to Executive in 2009 for 2008, the annual bonus(es) paid (if any) in 2010 and 2011 under Section 3.2, and the long-term cash Retention Bonus Installment(s) paid under Section 3.5, shall be considered compensation taken into account in determining covered compensation and average compensation when paid.

(b) In the event either (i) Executive’s employment by the Company terminates prior to November 1, 2011 on account of death or Disability or (ii) an actual Change in Control occurs prior to November 1, 2011 during Executive’s continued employment by the Company, the long-term cash Retention Bonus Installment(s) paid under Section 3.5 shall be considered compensation taken into account in determining covered compensation and average compensation when paid.

(c) In the event Executive’s employment by the Company terminates during the Term of Employment under circumstances which constitute either an Involuntary Termination Associated With a Change in Control or an involuntary termination of employment by the Company for any reason other than for “Cause” (as defined in Section 19) or Disability, (i) the remaining period in the Term of Employment, if any, shall be considered to be creditable service for benefit accrual purposes, (ii) the amount of all unpaid salary amounts for the remaining period in the Term of Employment which would have been payable to Executive under Section 3.1 if he had continued employment shall be considered compensation taken into account, and (iii) the Target Bonus shall be considered compensation taken into account for any one or more of 2009, 2010 and 2011 for which no annual bonus (whether or not pursuant to Section 3.2) is paid in such year on account of Executive’s termination of employment. Such unpaid salary and any such Target Bonus shall be considered compensation taken into account in determining covered compensation and average compensation when such annual bonus would have otherwise have been payable had Executive’s employment continued.

4. Employee Benefits.

4.1 Equity- and Cash-Based Long-Term Incentive Compensation.

(a) Executive shall be entitled to participate in the Company’s long-term cash and equity incentive program at a level at least equivalent to Level 1.

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(b) Any outstanding agreement made with Executive 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 as of the Effective Date and the date hereof (the “Ancillary Documents”) shall remain in full force and effect and shall not be affected by this Agreement, except as set forth in Section 3.6 and Section 6.2(c).

4.2 Employee Benefit Programs, Plans and Practices; Perquisites. The Company shall provide Executive while employed hereunder with coverage under such employee benefit plans (commensurate with his position in the Company and to the extent permitted under any employee benefit plan) in accordance with the terms thereof, Directors and Officers insurance policy, which covers claims arising out of actions or inactions occurring during the Term of Employment, in accordance with the Directors and Officers insurance policy, and other employee benefits which the Company may make available to its senior executives from time to time in its discretion. The Company also shall provide Executive while employed hereunder with perquisites which the Company may make available to its senior executives from time to time in its discretion.

5. Expenses. Subject to prevailing Company policy or such guidelines as may be established by the Board, the Company will reimburse Executive for all reasonable expenses incurred by Executive in carrying out his duties no later than the last day of the year following the year in which the Executive incurs the reimbursable expense.

6. Termination of Employment; Change in Control.

6.1 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 or as set forth in Section 6.2, 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 to have Executive remain in the employment of the Company or any Subsidiary.

6.2 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 6.2(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 19) 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 19) or other than due to Executive’s death or Disability, 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 (as defined in Section 19).

For purposes of clause (ii)(B) in the preceding sentence, to be eligible to receive amounts described in Section 6.2(b) below, a Change in Control must be consummated within the twelve (12) month period following Executive’s Termination Date, 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.

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(b) Payments Upon Involuntary Termination Associated With a Change in Control. Subject to the provisions of Section 6.2(c) and Sections 7 and 10 hereof, in the event a termination described in Section 6.2(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 6.2(a) above, the later of or 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 8 hereof):

(i) a lump sum cash payment equal to 2.5 times Executive’s Base Salary;

(ii) a lump sum cash payment equal to 2.5 times Executive’s Target Bonus;

(iii) a pro rated payment of his Target Bonus for the year in which his Termination Date occurs. The pro rated payment shall be based on the 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. 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 19) health care continuation coverage period under section 4980B of the Code (as defined in Section 19) 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.

(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 6.2 and Section 10(a) shall be limited to 2.99 times the sum of Executive’s Base Salary and Bonus (as defined in Section 19). In the event a reduction is required pursuant hereto, the order of reduction shall be first any Gross-Up Payment provided pursuant to Section 10(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.

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6.3 Termination Not Associated with a Change in Control. In the event of the Executive’s cessation of employment with the Company during the period of this Agreement for any reason other than for “Cause” (as defined in Section 19), Executive’s death, Executive’s Disability or Executive’s voluntary election to terminate his employment under circumstances where such cessation of employment is not covered by Section 6.2, then the Company shall pay to the Executive or if the Executive is deceased to the Executive’s estate, the payments and benefits to which Executive would have been entitled under Section 6.2(b) (as the same may be limited or delayed as provided in Sections 6.2(b), 6.2(c), 7 and 10) as if his termination were covered by Section 6.2(a).

6.4 Cessation of Employment on Account of Disability or Cause. Notwithstanding anything in this Agreement to the contrary, if Executive’s employment terminates on account of Executive’s Disability, Executive shall be entitled to receive disability benefits under any disability benefit program maintained by the Company that covers Executive and any payment or benefit otherwise expressly provided to Executive under this Agreement in the case of Disability, but Executive shall not be considered to have terminated employment under Section 6.2 or 6.3 and consequently Executive shall not receive the payments and benefits provided for in Section 6.2 or 6.3. If Executive’s employment terminates on account of Cause, Executive shall not be considered to have terminated employment under Section 6.2 or 6.3 and shall not receive the payments and benefits provided for in Section 6.2 or 6.3.

6.5 Cessation of Employment on Account of Death. Notwithstanding anything in this Agreement to the contrary, if Executive’s employment terminates on account of Executive’s death, Executive shall be entitled to receive death benefits under any death benefit program maintained by the Company that covers Executive and any payment or benefit otherwise expressly provided to Executive under this Agreement in the case of death, but Executive shall not be considered to have terminated employment under Section 6.2 or 6.3 and consequently Executive shall not receive the payments and benefits provided for in Section 6.2 or 6.3. Notwithstanding the foregoing, in addition, if Executive’s employment terminates on account of Executive’s death, then the Company shall pay to the Executive’s estate 2.5 times the sum of (i) Executive’s Base Salary and (ii) Executive’s Target Bonus, with such payments made in six (6) equal monthly payments beginning the month after the month in which Executive dies.

7. 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 receive a series of separate payments and benefits to the fullest extent allowed 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

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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 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 (or, if lesser, the period of Executive’s service).

8. Release. Notwithstanding the foregoing, no payments shall be made or benefits provided under Section 6.2(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, with the period for revoking same having expired, 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 6.2(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.

9. Enforcement. Without limiting the rights of Executive at law or in equity, except as provided in Section 10, 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.

10. Tax Limitation on Payments by the Company. The provisions of this Section 10 shall apply notwithstanding anything in this Agreement to the contrary.

(a) Subject to the limitation in Section 6.2(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 6.2 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 10, 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.

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(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 10.

(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 10 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 14(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 10 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.

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(e) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 10 shall be borne solely by the Company.

(f) All payments to be made under this Section 10 (other than the Underpayment described in Section 10(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.

11. 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.

12. 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 Sections 3 and 6.2 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 12 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.

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13. 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 13) 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 (collectively, the “Restricted Group”). The foregoing obligations imposed by this Section 13 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).

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

(a) Covenant Not to Compete. In the event Executive’s employment is terminated and is entitled to receive payments and benefits under Section 6.2, other than pursuant to clause (ii) or (iii) of Section 6.2(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 (as defined below) in a Restricted Territory (as defined below) 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’s employment is terminated and is entitled to receive payments and benefits under Section 6.2, other than pursuant to clause (ii) or (iii) of Section 6.2(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.

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(d) Remedies for Breach. In the event of Executive’s termination of employment pursuant to Section 6.2, the Company’s obligations to provide the payments and benefits set forth in Section 6.2 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 6.2 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 6.2. In addition, it is recognized that damages in the event of breach of this Section 14 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 6.2 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 purposes of this Section 14, 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 14 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.

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. 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.

17. 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

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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 prior 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 agreements will be null and void. This foregoing sentence shall have no impact on Section 4.1 of this Agreement.

(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 17(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 17(c), the Company will have no liability to pay any amount so attempted to be assigned, transferred or delegated.

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. 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) “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.

(b) “Bonus” means the highest amount payable under Executive’s Annual Cash Bonus plus the highest amounts payable under all Executive’s outstanding and 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.

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(c) “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 Agreement, 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.

(d) “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 by such person) 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

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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.

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

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

(g) “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.

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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.

(h) “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.

(i) “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.

(j) “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.

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

20. 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.

21. Dispute Resolution. Any dispute or controversy arising under or in connection with this Agreement (other than an action to enforce the covenants in Section 14 hereof) or the Ancillary Documents 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 12 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.

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22. Governing Law. 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.

23. Entire Agreement. This Agreement and the Ancillary Documents contain the entire understanding between the parties hereto and supersedes in all respects any prior or other agreement or understanding, both written and oral, between the Company, any affiliate of the Company or any predecessor of the Company or affiliate of the Company and Executive.

24. 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.

25. 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.

26. Survival. Notwithstanding the expiration of the term of this Agreement, the provisions of Sections 3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 20, 21, 22 and 26 hereunder shall remain in effect as long as is reasonably necessary to give effect thereto in accordance with the terms hereof.

27. 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.

28. 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.

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of November 10, 2008.

MASSEY ENERGY COMPANY
By:	/s/    Don L. Blankenship
Name:	Don L. Blankenship
Title:	Chairman, Chief Executive Officer
/s/    Baxter F. Phillips, Jr.
Baxter F. Phillips, Jr.

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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 an Employment and Change in Control Agreement, effective as of November 1, 2008, (the “Retention 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 Retention Agreement; and

WHEREAS, an express condition of Executive’s entitlement to the payments and benefits under the Retention 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, 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 13 and 14 of the Retention 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 6.2(b) of the Retention 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 6.2(b) of the Retention 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 Retention Agreement.

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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 Retention 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.

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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:

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EX-10.3

Exhibit 10.3

MASSEY ENERGY COMPANY

Non-Qualified Stock Option Agreement

[Number] Non-Qualified Stock Options

THIS AGREEMENT dated as of November 10, 2008, between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [            ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.

1. Award of Non-Qualified Stock Options. Pursuant to the Plan, the Company, on November 10, 2008 (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [            ] Non-Qualified Stock Options, hereinafter described as “Options” or “Option,” at the option price of $             per share, being not less than the Fair Market Value of such shares on the Grant Date, or on the next preceding trading date if no Company shares traded on the New York Stock Exchange on the Grant Date. This Option is exercisable as hereinafter provided.

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

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

4. Exercisability. Subject to Paragraph 7 and except as provided in Paragraph 8 below, Participant’s interest in the Options shall become exercisable (“Vested”) with respect to one-third of the Options on each of November 10, 2009, November 10, 2010, and November 10, 2011. Once this Option, or any portions thereof, has become exercisable in accordance with the preceding sentence it shall continue to be exercisable until the termination of Participant’s rights hereunder pursuant to Paragraph 5, 6, 7, or 8 or until the Option has expired pursuant to Paragraph 3. A partial exercise of this Option shall not affect Participant’s right to exercise this Option with respect to the remaining shares, subject to the conditions of the Plan and this Agreement.

5. Death, Retirement or Disability. If Participant dies, Retires, or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) (“Permanently and Totally Disabled”) while in the employ or service of the Company or a Subsidiary and prior to the forfeiture of the Options under Paragraph 7, Participant shall thereupon become entitled to exercise such Options in full to the extent not vested or exercised as of the date of Participant’s death, Retirement or becoming Permanently and Totally Disabled, and all such Options shall be exercisable by Participant (or if Participant is deceased, his estate or other successor in interest following Participant’s death) during the remainder of the period preceding the Expiration Date or until the date that is three years after the date of Participant’s death, Retirement or Total and Permanent Disability, whichever is shorter. For purposes of this Agreement, “Retire” or “Retirement” means retiring directly from active service under one of the Company’s qualified pension plans with a vested benefit on or after the attainment of age 55.

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

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

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

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

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

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

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

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

If to the Company:
By hand-delivery:	By mail:
Massey Energy Company	Massey Energy Company
Attention: Corporate Secretary	Attention: Corporate Secretary
4 North Fourth Street	P.O. Box 26765
Richmond, Virginia 23219	Richmond, Virginia 23261
If to Participant:
[Name]
[Address]
[Address]

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

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

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

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

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

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

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

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

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

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

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

MASSEY ENERGY COMPANY
By:
Name:	Baxter F. Phillips, Jr.
Its:	Executive Vice President and Chief Administrative Officer
[Participant]

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EX-10.4

Exhibit 10.4

MASSEY ENERGY COMPANY

Restricted Stock Award Agreement

[Number] Restricted Shares

THIS AGREEMENT dated as of November 10, 2008, between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [            ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.

1. Award of Restricted Stock. Pursuant to the Plan, the Company, on November 10, 2008 (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [            ] shares of Stock which are designated as Restricted Stock.

2. Restrictions. Except as provided in this Agreement, the shares of Restricted Stock are nontransferable and are subject to a substantial risk of forfeiture during the Period of Restriction. The Period of Restriction starts on the Grant Date and ends when the shares of Restricted Stock vest or are forfeited. During the Period of Restriction, the shares of Restricted Stock shall be subject to and bear the following legend if certificated prior to vesting:

“The sale or other transfer of the shares of Massey Energy Company stock represented by this certificate, whether voluntary, involuntary, or by operation of law, is subject to certain restrictions on transfer set forth in the Massey Energy Company 2006 Stock and Incentive Compensation Plan, in the rules and administrative procedures adopted pursuant to such Plan, and in an associated Restricted Stock Agreement. A copy of the Plan, such rules and procedures, and the applicable Restricted Stock Agreement may be obtained from the Secretary of Massey Energy Company.”

3. Stock Power. With respect to shares of Restricted Stock forfeited under Paragraph 6, Participant does hereby irrevocably constitute and appoint the Secretary and the Assistant Secretary as his or her attorney to transfer the forfeited shares on the books of the Company with full power of substitution in the premises. The Secretary and/or the Assistant Secretary shall use the authority granted in this Paragraph 3 to cancel any shares of Restricted Stock that are forfeited under Paragraph 6.

4. Vesting. Subject to Paragraph 6 and except as provided in Paragraph 7 below, Participant’s interest in the shares of Restricted Stock shall become transferable and nonforfeitable (“Vested”) with respect to one-third of the shares of Restricted Stock on each of November 10, 2009, November 10, 2010, and November 10, 2011.

5. Death or Disability. If Participant dies or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Code (“Permanently and Totally Disabled”) while in the employ or service of the Company or a Subsidiary and prior to the forfeiture of the shares of Restricted Stock under Paragraph 6, Participant’s right to receive the Restricted Stock shall be fully “Vested” (i.e., the restrictions on transfer and risk of forfeiture in Paragraph 2 above shall lapse).

6. Forfeiture. Subject to Paragraph 7 below, all shares of Restricted Stock that are not then Vested shall be forfeited if Participant’s employment or service with the Company and its Subsidiaries terminates for any reason other than on account of Participant’s death or becoming Permanently and Totally Disabled.

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

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

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

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

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

8. Voting Rights. During the Period of Restriction, Participant shall be entitled to exercise voting rights with respect to the shares of Restricted Stock.

9. Dividends and Other Distributions. During the Period of Restriction, Participant shall be entitled to receive all dividends and other distributions paid in cash or property other than Stock with respect to the shares of Restricted Stock at the same time as any holder of shares of Stock generally would receive such dividends and other distributions. If any dividends or distributions are paid in Stock, such Stock shall be subject to the same restrictions on transferability and the same rules for vesting, forfeiture and custody as the shares of Restricted Stock with respect to which they are distributed. No fractional shares of Restricted Stock shall accrue under this Paragraph, and if Participant would otherwise be entitled to a fractional share under this Paragraph, such fractional share shall be disregarded and forfeited.

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10. Issuance and Custody of Certificates. The Restricted Stock shall be issued in book entry form but may, on direction of the Committee, be issued in electronic form or in certificated form. Custody of stock certificates evidencing the shares of Restricted Stock shall be retained by the Company. The Company shall cause shares of Restricted Stock which are Vested to be issued in book entry or electronic form or in certificated form in the name of Participant without the restrictions referred to in Paragraph 2 above and shall deliver to Participant stock certificates evidencing such shares, or to Participant’s trading account in electronic form if so requested.

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

If to the Company:
By hand-delivery:	By mail:
Massey Energy Company	Massey Energy Company
Attention: Corporate Secretary	Attention: Corporate Secretary
4 North Fourth Street	P.O. Box 26765
Richmond, Virginia 23219	Richmond, Virginia 23261
If to Participant:
[Name]
[Address]
[Address]

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

13. Fractional Shares. A fractional share shall not Vest hereunder, and when any provision hereof may cause a fractional share to Vest, any Vesting in such fractional share shall be postponed until such fractional share and other fractional shares equal a Vested whole share.

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

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

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

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

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

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

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

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

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

MASSEY ENERGY COMPANY
By:
Name:	Baxter F. Phillips, Jr.
Its:	Executive Vice President and Chief Administrative Officer
[Participant]

4

EX-10.5

Exhibit 10.5

MASSEY ENERGY COMPANY

Restricted Unit Agreement

[Number] Restricted Units

THIS AGREEMENT dated as of November 10, 2008, between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [            ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.

1. Award of Restricted Units. Pursuant to the Plan, the Company, on November 10, 2008 (the “Grant Date”), granted to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, an award of [            ] Restricted Units. The Restricted Units shall become earned and payable only in cash on the date Restricted Units become Vested (as defined below). Payment of the value of the Restricted Units which become Vested (as defined below) shall be made on the date the Restricted Units become Vested.

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

3. Vesting. Subject to Paragraph 5 and except as provided in Paragraph 6 below, Participant’s interest in the Restricted Units shall become transferable and nonforfeitable (“Vested”) with respect to one-third of the Restricted Units on each of November 10, 2009, November 10, 2010, and November 10, 2011.

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

5. Forfeiture. Subject to Paragraph 6 below, all Restricted Units that are not then Vested shall be forfeited if Participant’s employment or service with the Company and its Subsidiaries terminates for any reason other than on account of Participant’s death or becoming Permanently and Totally Disabled.

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

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

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

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

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

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

If to the Company:
By hand-delivery:	By mail:
Massey Energy Company	Massey Energy Company
Attention: Corporate Secretary	Attention: Corporate Secretary
4 North Fourth Street	P.O. Box 26765
Richmond, Virginia 23219	Richmond, Virginia 23261
If to Participant:
[Name]
[Address]
[Address]

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

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

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

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

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

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

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

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

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

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

MASSEY ENERGY COMPANY
By:
Name:	Baxter F. Phillips, Jr.
Its:	Executive Vice President and Chief Administrative Officer
[Participant]

3

EX-10.6

Exhibit 10.6

MASSEY ENERGY COMPANY

Incentive Award Agreement

(Based on Cumulative Earnings Before Taxes)

THIS AGREEMENT dated as of November 10, 2008, between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [                    ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.

1. Incentive Award. Pursuant to the Plan, the Company, on November 10, 2008 (the “Grant Date”), awarded to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, the opportunity to earn a cash payment based on the satisfaction of the performance criteria set forth in Paragraph 3 below (the “Incentive Award”).

2. Definitions.

(a) Earnout Period means the three year period from January 1, 2009 through December 31, 2011 (“Earnout Period”).

(b) Performance Period EBT means the Company’s cumulative earnings before taxes, for the three fiscal years of the Company ending December 31, 2009, December 31, 2010, and December 31, 2011 (the “Performance Period EBT”), all as confirmed by the Company’s Chief Financial Officer and the Chairman of the Compensation Committee (“Committee”); provided, however, that extraordinary, unusual or infrequently occurring events and transactions, may, in the sole discretion of the Committee, be excluded pursuant to the Plan in such determination.

3. Amount of Award. Subject to Paragraph 5 and except as provided in Paragraphs 4 and 6 below, Participant’s Incentive Award will be calculated under the amount and formula shown in column (b) below, based on satisfaction of the criteria set forth in column (a) below:

	(a) Performance Period EBT			(b) Participant’s Incentive Award
High Target	$	[	]	$	[	]
Middle Target	$	[	]	$	[	]
Low Target	$	[	]	$	[	]

If the Performance Period EBT falls between any target amounts, the amount of Participant’s Incentive Award is calculated proportionately between the two nearest target levels. No Incentive Award will be paid if the Performance Period EBT is less than the low target of $[                    ] million and no increase to the Incentive Award will be made for cumulative earnings before taxes above the high target of $[                    ] million.

Participant’s Incentive Award for the Earnout Period, to the extent earned, will be paid in cash no later than the March 15 immediately following the calendar year in which the Earnout Period ends.

4. Death or Disability. If Participant dies or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) (“Permanently and Totally Disabled”) while in the employ or service of the Company or a Subsidiary within the Earnout Period, Participant or Participant’s estate will be entitled to receive a pro rata portion of Participant’s Incentive Award as calculated pursuant to Section 3, based on the portion of the Earnout Period elapsed prior to Participant’s death or becoming Permanently and Totally Disabled.

5. Forfeiture. Participant’s right to receive an Incentive Award is forfeited if Participant’s employment or service with the Company and its Subsidiaries terminates during the Earnout Period for any reason other than on account of Participant’s death or becoming Permanently and Totally Disabled or as set forth in Paragraph 6 below.

6. Change in Control. Notwithstanding any other provision of this Agreement, Participant’s right to receive the Incentive Award shall be vested if Participant’s employment is terminated during the Earnout Period by the Company or an Affiliate without Cause within two years following a Change in Control that occurs on or after the date of this Agreement through the Earnout Period. For purposes of this Agreement, Cause shall occur upon:

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

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

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

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

2

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

If to the Company:
By hand-delivery:	By mail:
Massey Energy Company	Massey Energy Company
Attention: Corporate Secretary	Attention: Corporate Secretary
4 North Fourth Street	P.O. Box 26765
Richmond, Virginia 23219	Richmond, Virginia 23261
If to Participant:
[Name]
[Address]
[Address]

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

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

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

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

12. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

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

3

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

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

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

MASSEY ENERGY COMPANY
By:
Name:	Baxter F. Phillips, Jr.
Its:	Executive Vice President and Chief Administrative Officer
[Participant]

4

EX-10.7

Exhibit 10.7

MASSEY ENERGY COMPANY

Incentive Award Agreement

(Based on Cumulative Earnings Before Interest, Taxes, Depreciation and Amortization)

THIS AGREEMENT dated as of November 10, 2008, between MASSEY ENERGY COMPANY, a Delaware Corporation (the “Company”) and [                    ] (“Participant”) is made pursuant and subject to the provisions of the Massey Energy Company 2006 Stock and Incentive Compensation Plan, as amended from time to time (the “Plan”), a copy of which is attached. All terms used herein that are defined in the Plan have the same meaning given them in the Plan.

1. Incentive Award. Pursuant to the Plan, the Company, on November 10, 2008 (the “Grant Date”), awarded to Participant, subject to the terms and conditions of the Plan and subject further to the terms and conditions herein set forth, the opportunity to earn a cash payment based on the satisfaction of the performance criteria set forth in Paragraph 3 below (the “Incentive Award”).

2. Definitions.

(a) Earnout Period means the three year period from January 1, 2009 through December 31, 2011 (“Earnout Period”).

(b) Performance Period EBITDA means the Company’s cumulative earnings before interest, taxes, depreciation and amortization, for the three fiscal years of the Company ending December 31, 2009, December 31, 2010, and December 31, 2011 (the “Performance Period EBITDA”), all as confirmed by the Company’s Chief Financial Officer and the Chairman of the Compensation Committee (“Committee”); provided, however, that extraordinary, unusual or infrequently occurring events and transactions, may, in the sole discretion of the Committee, be excluded pursuant to the Plan in such determination.

3. Amount of Award. Subject to Paragraph 5 and except as provided in Paragraphs 4 and 6 below, Participant’s Incentive Award will be calculated under the amount and formula shown in column (b) below, based on satisfaction of the criteria set forth in column (a) below:

	(a) Performance Period EBITDA			(b) Participant’s Incentive Award
High Target	$	[	]	$	[	]
Middle Target	$	[	]	$	[	]
Low Target	$	[	]	$	[	]

If the Performance Period EBITDA falls between any target amounts, the amount of Participant’s Incentive Award is calculated proportionately between the two nearest target levels. No Incentive Award will be paid if the Performance Period EBITDA is less than the low target of $[                    ] million and no increase to the Incentive Award will be made for cumulative earnings before interest, taxes, depreciation and amortization above the high target of $[                    ] million.

Participant’s Incentive Award for the Earnout Period, to the extent earned, will be paid in cash no later than the March 15 immediately following the calendar year in which the Earnout Period ends.

4. Death or Disability. If Participant dies or becomes permanently and totally disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the “Code”) (“Permanently and Totally Disabled”) while in the employ or service of the Company or a Subsidiary within the Earnout Period, Participant or Participant’s estate will be entitled to receive a pro rata portion of Participant’s Incentive Award as calculated pursuant to Section 3, based on the portion of the Earnout Period elapsed prior to Participant’s death or becoming Permanently and Totally Disabled.

5. Forfeiture. Participant’s right to receive an Incentive Award is forfeited if Participant’s employment or service with the Company and its Subsidiaries terminates during the Earnout Period for any reason other than on account of Participant’s death or becoming Permanently and Totally Disabled or as set forth in Paragraph 6 below.

6. Change in Control. Notwithstanding any other provision of this Agreement, Participant’s right to receive the Incentive Award shall be vested if Participant’s employment is terminated during the Earnout Period by the Company or an Affiliate without Cause within two years following a Change in Control that occurs on or after the date of this Agreement through the Earnout Period. For purposes of this Agreement, Cause shall occur upon:

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

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

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

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

2

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

If to the Company:
By hand-delivery:	By mail:
Massey Energy Company	Massey Energy Company
Attention: Corporate Secretary	Attention: Corporate Secretary
4 North Fourth Street	P.O. Box 26765
Richmond, Virginia 23219	Richmond, Virginia 23261
If to Participant:
[Name]
[Address]
[Address]

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

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

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

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

12. Participant Bound by Plan. Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof.

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

3

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

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

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

MASSEY ENERGY COMPANY
By:
Name:	Baxter F. Phillips, Jr.
Its:	Executive Vice President and Chief Administrative Officer
[Participant]

4