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): December 7, 2010 (December 3, 2010)

MASSEY ENERGY COMPANY

(Exact Name of Registrant as Specified in Its Charter)

Delaware	001-07775	95-0740960
(State of Incorporation)	(Commission File Number)	(I.R.S. 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, former address and former fiscal year, if changed since last report date)

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

Retirement of Chairman and Chief Executive Officer

On December 3, 2010, Massey Energy Company (the “Company”) announced that Don L. Blankenship resigned from the Board of Directors of the Company (the “Board”) and as the Company’s Chairman and Chief Executive Officer, effective as of December 3, 2010. Mr. Blankenship continues to be employed by the Company until his retirement, effective as of December 31, 2010 (the “Retirement Date”).

In connection with Mr. Blankenship’s retirement, Mr. Blankenship and the Company entered into a Retirement Agreement (the “Retirement Agreement”). The material terms and conditions of the Retirement Agreement are as follows:

• two cash payments aggregating $12,000,000, the first in the amount of $2,000,000 will be paid on December 31, 2010, and the second in the amount of $10,000,000 will be paid on July 1, 2011;

• cash payments on December 31, 2010, based upon reasonable estimates of actual performance to be agreed upon, for those portions of the 2008-2010 long-term incentive award, the 2010 cash incentive bonus award, the 2010 performance-based restricted unit awards, the 2010 performance-based cash incentive awards and the 2010 performance-based restricted stock award that would otherwise be payable to Mr. Blankenship for the performance periods ending 2010;

• continued healthcare coverage for a period of two years;

• any and all awards relating to fiscal year 2011 otherwise to be made under Mr. Blankenship’s Letter Agreement, dated December 30, 2009 (the “Letter Agreement”) will not be made and Mr. Blankenship will have no rights thereto;

• except as otherwise provided in the Retirement Agreement, the Retirement Agreement does not affect Mr. Blankenship’s rights and entitlements under the Company’s other compensatory plans and programs; and

• secretarial assistance in the form of a single secretary, who will be available to perform reasonable administrative and clerical tasks (but will not be permitted to perform any services related to any business or activities that are competitive with the Company or its subsidiaries or affiliates) and continued use of Mr. Blankenship’s office and standard office equipment at Lauren Land Company during the Consulting Period (as defined below), and, in the Company’s sole discretion, during the three subsequent calendar years.

Mr. Blankenship has covenanted in the Retirement Agreement with the Company that:

• for a period of two (2) years after the Retirement Date, subject to certain exceptions, Mr. Blankenship will not, directly or indirectly, without the prior written consent of the Company (not to be unreasonably withheld), provide services to or engage in any other activities (whether as an owner, principal, agent, employer, director, officer, employee, partner, consultant or otherwise) for any company, business or other person engaged in operations or businesses that are the same as or substantially similar to, or are otherwise competitive with, those engaged in by the Company, its subsidiaries, or affiliates as of the Retirement Date;

• for a period of two years after the Retirement Date, subject to certain limited exceptions, Mr. Blankenship will not, directly or indirectly, (1) offer employment to, recruit, hire or cause to be hired any officer or supervisory personnel of the Company or any of its affiliates or subsidiaries (or any individual who ceased to be such an officer or supervisor as a result of Mr. Blankenship’s violation of this provision) or (2) solicit, induce or encourage any such individual to terminate his or her employment with the Company or any of its subsidiaries or affiliates (whether or not for purposes of obtaining such individual’s services);

• for a period of two years after the Retirement Date (the “Consulting Period”), Mr. Blankenship will provide consulting services as reasonably requested by the Company, for a $5,000 monthly retainer and reasonable expense reimbursement, to aid the Company in its business (including, without limitation, assistance with respect to the transition of Mr. Blankenship’s responsibilities to his successor, advising Company personnel on industry matters);

• Mr. Blankenship will provide cooperation and assistance with litigation and similar proceedings as reasonably requested by the Company;

• Mr. Blankenship will not make any statement, subject to certain exceptions, that criticizes or disparages the Company or its subsidiaries or affiliates, their past or present employees, officers, directors, representatives and agents, their respective operations or businesses or otherwise make any such statements that tend to portray any of the foregoing in an unfavorable light; and

• Mr. Blankenship will not disclose to any person, or use for any purpose, any confidential or proprietary information of the Company.

In addition, in connection with the Retirement Agreement and subject to certain exceptions, Mr. Blankenship has released the Company and all its past and present subsidiaries, affiliates, owners, shareholders, officers, directors and employees, and all successors and assigns thereof (each a “Released Party”), from any and all claims which Mr. Blankenship now has, had, or may have against the Company or any other Released Party of any kind or nature whatsoever, arising from any act, omission, transaction, matter, or event (whether presently known or unknown) which occurred or is alleged to have occurred up to the date of the Retirement Agreement.

The above description of the Retirement Agreement is a summary and is qualified in its entirety by reference to the Retirement Agreement filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Appointment of Chief Executive Officer

On December 3, 2010 and in connection with Mr. Blankenship’s resignation, the Company’s Board of Directors appointed Baxter F. Phillips Jr., 64, to serve as Chief Executive Officer as of December 3, 2010. Mr. Phillips has been a director of the Company since May 22, 2007, and serves as a member of the Finance Committee. Mr. Phillips was elected President effective November 10, 2008. Prior to that time he served as Executive Vice President and Chief Administrative Officer from November 2004 to November 2008, 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.

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Pursuant to his appointment as Chief Executive Officer, Mr. Phillips and the Company entered into an amendment (the “Amendment”), effective as of December 3, 2010, to the Employment and Change of Control Agreement, dated as of November 10, 2008, as amended (as amended, the “Employment Agreement”). The Amendment provides the following material changes to Mr. Phillips’ Employment Agreement: (i) the term of the Employment Agreement is extended from November 1, 2011 to December 31, 2011; (ii) Mr. Phillips’ annualized contractual base salary is increased as of December 3, 2010, from $650,000 to $1,100,000; (iii) an annual cash bonus award is awarded with a target amount no less than $1,800,000 for the Company’s 2011 fiscal year; (iv) Mr. Phillips is eligible for an annual special performance award for 2011 in the form of performance-based restricted stock and/or units of not less than $770,000; (v) Mr. Phillips is entitled to reimbursement up to $10,000 per year during the term of the Employment Agreement for reasonable and customary accounting, financial and tax planning and advice; (vi) Mr. Philips is entitled to participate in the Company’s long-term cash and equity incentive program with a target award of not less than $1,430,000 (exclusive of any awards made prior to December 3, 2010); (vii) each of Mr. Phillips’ outstanding restricted stock and restricted unit awards granted prior to 2010 and outstanding on December 3, 2010 are subject to immediate vesting as of December 3, 2010; and (viii) the lump sum cash payment that would be paid to Mr. Phillips upon a covered termination before or after a change in control is increased to $8,000,000.

The above description of the Amendment to the Employment Agreement is a summary and is qualified in its entirety by reference to the Amendment to the Employment Agreement filed herewith as Exhibit 10.2 and incorporated herein by reference.

Appointment of Non-Executive Chairman of the Board of Directors

On December 3, 2010 and in connection with Mr. Blankenship’s resignation, the Company’s Board of Directors appointed Admiral Bobby R. Inman to serve as non-executive Chairman of the Board of Directors, effective as of December 3, 2010. Admiral Inman currently also serves as the Company’s Lead Independent Director. As compensation for his service as the non-executive Chairman of the Board, Admiral Inman will receive annual cash compensation in the amount of $100,000. This compensation will be paid in addition to the annual compensation currently being paid to Admiral Inman for his service as the Lead Independent Director, a member of the Board of Directors and for serving as the Chairman of the Governance and Nominating and Public Policy Committees and as a member of the Compensation and Executive Committees and an ex officio member of the Audit, Finance and Safety and Environmental Committees.

The press release issued on December 3, 2010, by the Company announcing Mr. Blankenship’s retirement, the appointment of Mr. Phillips as Chief Executive Officer and Admiral Inman as non-executive Chairman of the Board of Directors is attached hereto as Exhibit 99.1 and incorporated herein by reference.

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

Bylaw Amendments Regarding Reduction in Size of Board and Chairman Position

In connection with Mr. Blankenship’s resignation, the Board of Directors approved amendments to the Amended and Restated Bylaws of the Company (as amended and restated, the “Bylaws”), effective December 3, 2010, to modify the language in (i) Section 3.02 to decrease the number of authorized board members from ten to nine and (ii) Section 4.01 to remove the position of Chairman as an officer of the Company. The full text of the Bylaws, as amended and restated as of December 3, 2010, is attached hereto as Exhibit 3.2 and incorporated herein by reference.

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Item 9.01 Financial Statements and Exhibits

(d) Exhibits

3.2	Amended and Restated Bylaws of the Company, effective as of December 3, 2010.
10.1	Retirement Agreement with Don L. Blankenship, effective December 3, 2010.
10.2	Amendment to Employment and Change in Control Agreement between Massey Energy Company and Baxter F. Phillips, Jr., effective December 3, 2010.
99.1	Press Release issued by the Company on December 3, 2010.

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SIGNATURE

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

	MASSEY ENERGY COMPANY
Date: December 7, 2010	By:	/s/ Richard R. Grinnan
		Richard R. Grinnan
		Vice President and Corporate Secretary

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Exhibit Index

Exhibit No.	Description
3.2	Amended and Restated Bylaws of the Company, effective as of December 3, 2010.
10.1	Retirement Agreement with Don L. Blankenship, effective December 3, 2010.
10.2	Amendment to Employment and Change in Control Agreement between Massey Energy Company and Baxter F. Phillips, Jr., effective December 3, 2010.
99.1	Press Release issued by the Company on December 3, 2010.

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EX-3.2

Exhibit 3.2

RESTATED BYLAWS

(as amended as of December 3, 2010)

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 160 Greentree Drive, Suite 101, 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 (the “Stockholders”) 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.

(a) General. Special meetings of the Stockholders 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 these Amended and Restated Bylaws (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 the 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.

(b) Stockholder Requested Special Meeting. (1) A special meeting of the Stockholders shall be called by the Board upon written request to the Secretary of the Corporation (the “Secretary”) (a “Special Meeting Request”) of one or more Stockholders of record at the time of delivery of the written request representing in the aggregate not less than twenty-five percent (25%) of the total number of shares of stock entitled to vote on the matter or matters to be brought before the proposed special meeting of the Stockholders. A Special

Meeting Request shall be signed by each Stockholder, or a duly authorized agent of such Stockholder, requesting the special meeting and shall set forth: (i) a brief description of each matter of business desired to be brought before the special meeting and the reasons for conducting such business at the special meeting, (ii) the name and address, as they appear on the Corporation’s books, of each Stockholder requesting the special meeting, (iii) the class and number of shares of the Corporation which are owned by each Stockholder requesting the special meeting, including shares beneficially owned and shares held of record, (iv) any material interest of each Stockholder in the business desired to be brought before the special meeting, and (v) any other information, documents and representations that is required under Section 2.04(a)(ii) herein. The Board shall determine whether all such requirements have been satisfied and such determination shall be binding on the Corporation and the Stockholders.

(2) A special meeting requested by the Stockholders shall be held at such date, time and place within or without the state of Delaware as may be fixed by the Board; provided, however, the Board may (in lieu of calling the special meeting requested in such Special Meeting Request) present an identical or substantially similar item (a “Similar Item,” and the election of directors shall be deemed a “Similar Item” with respect to all items of business involving the election or removal of directors) for Stockholder approval at any other meeting of the Stockholders that is held not less than one hundred twenty (120) calendar days after the Secretary receives such Special Meeting Request. A Stockholder may revoke a Special Meeting Request at any time by written revocation delivered to the Secretary; provided, however, the Board shall have the discretion to determine whether or not to proceed with the special meeting. If, following a revocation of a Special Meeting Request, there are un-revoked requests from the Stockholders holding in the aggregate less than the requisite number of shares entitling the Stockholders to request the calling of a special meeting, the Board, in its discretion, may cancel the special meeting.

(3) A Special Meeting Request shall not be valid if (i) the Special Meeting Request relates to an item of business that is not a proper subject for Stockholder action under applicable law, (ii) a Similar Item was presented at any meeting of the Stockholders held within one hundred twenty (120) calendar days prior to receipt by the Corporation of such Special Meeting Request, (iii) a Similar Item is included in the Corporation’s notice as an item of business to be brought before a Stockholder meeting that has been called but not yet held or (iv) the Special Meeting Request is received by the Corporation during the period commencing ninety (90) calendar days prior to the first anniversary of the preceding year’s annual meeting and ending on the date of that year’s annual meeting of the Stockholders.

(4) Business transacted at a special meeting requested by the Stockholders shall be limited to the purposes stated in the request for the special meeting; provided, however, that nothing herein shall prohibit the Board from submitting additional matters to the Stockholders at any such special meeting.

(5) If none of the Stockholders who submitted the Special Meeting Request for a special meeting of the Stockholders appears or sends a representative to present the proposal(s) or business submitted by the Stockholders for consideration at the special meeting, the Corporation need not present such proposal(s) or business for a vote at such meeting.

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.

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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 may be made at an annual meeting of the 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 Bylaws and (2) the date of the immediately preceding annual meeting of the 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).

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

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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 (as defined in Section 2.10(b)) or owned of record by each Covered Person, together with documentary evidence of such record or Beneficial Ownership (as defined in Section 2.10(b)), (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 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

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Stockholder Nominee and/or (b) otherwise to solicit or participate in the solicitation of proxies from the 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 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 the 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 the 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 the Stockholders pursuant to Section 2.02(b) hereof) or (B) provided that the Board (or the Stockholders pursuant to Section 2.02(b) hereof) has determined that directors shall be elected at such meeting, 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

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such notice. In the event the Corporation calls a special meeting of the 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 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 the Stockholders and only such business shall be conducted at a meeting of the 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 the 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 the 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 Certificate of Incorporation 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

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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 the 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 the 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 the 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) the 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 Certificate of Incorporation.

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 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 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

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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 the 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 the 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.

(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

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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 shall prepare and make, at least 10 days before every meeting of the 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.

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. 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

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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 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 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 nine 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

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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 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. The election of directors is subject to any provisions contained in the Certificate of Incorporation relating thereto, including any provisions for cumulative voting. A nominee for director shall be elected to the Board if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election; provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of the Stockholders for which (i) the Secretary receives a notice that a Stockholder has nominated a person for election to the Board in compliance with the advance notice requirements for Stockholder Nominees for director set forth in Article II, Section 2.04 of these Bylaws and (ii) such nomination has not been withdrawn by such Stockholder on or prior to the tenth day preceding the date the Corporation first mails its notice of meeting for such meeting to the Stockholders (a “contested election”). If directors are to be elected by a plurality of the votes cast, the Stockholders shall not be permitted to vote against a nominee. The Board has established procedures set forth in the Corporate Governance Guidelines under which in any non-contested election of directors, any incumbent director nominee who receives a greater number of votes cast against his or her election than in favor of his or her election shall tender his or her resignation, and the Board shall decide, through a process managed by the Committee (as defined in the Corporate Governance Guidelines) whether to accept or reject the resignation, or whether other action should be taken. Any vacancy resulting from the non-election of a director under this Section 3.03 may be filled by the Board as provided in Section 3.06.

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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. 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.

Section 3.06 Vacancies. Except as otherwise provided in the Certificate of Incorporation, any vacancy in the Board, whether because of death, resignation, disqualification, non-election pursuant to Section 3.03, 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 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.

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

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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 therefor. 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.

Section 3.15 Officers of the Board. The Board shall have a Chairman 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 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 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.

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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.

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.

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 the 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

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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 the Stockholders for any purpose other than notice of or voting at a meeting of the Stockholders, the Board shall not fix such a record date, the record date for determining the 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 the Stockholders entitled to notice of or to vote at a meeting of the 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 a majority of the total voting power of all outstanding shares of voting stock of the Corporation, at any annual meeting or special meeting of the 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

EXECUTION COPY

December 3, 2010

Don L. Blankenship

Re: Retirement Agreement

Dear Don:

This letter agreement (“Agreement”) sets forth the complete terms under which you will retire as a director, officer and employee of Massey Energy Company (the “Company”) and any and all of its subsidiaries or affiliates for whom you are a director, officer or employee as of the date hereof.

1. Retirement Date. Your letter agreement dated as of December 30, 2009, and Appendix A attached thereto (the “Employment Agreement”), provide for an employment term through December 31, 2011. Nevertheless, the Company and you agree that you hereby resign as a member of the board of directors of the Company (the “Board”) and as the Chairman of the Board and Chief Executive Officer of the Company, and as a director and officer of any and all subsidiaries or affiliates of the Company, effective as of December 3, 2010, and that your retirement as an employee of the Company and its subsidiaries and affiliates will be effective as of December 31, 2010. Accordingly, your last day of employment with the Company will be December 31, 2010 (your “Retirement Date”). After your Retirement Date, you will no longer be a director, officer or employee of the Company or any subsidiary or affiliate of the Company. Between December 3, 2010 and your Retirement Date, you will perform such duties as are required by the Company that are commensurate with your experience, qualifications and stature.

2. Severance Benefits. In consideration for your resignation, the early termination of the Employment Agreement, the convenants described in sections 5 and 6 of this Agreement, the general release described in section 7 of this Agreement, the consulting services described in section 9 of this Agreement and the other consideration described herein, the receipt and adequacy of which are hereby acknowledged, the Company agrees to the following payments and benefits contained in this Agreement. In this regard, you acknowledge and agree that your voluntary decision to retire as of December 31, 2010, does not entitle you to any severance payments or benefits under the Employment Agreement. In addition, you acknowledge and agree that there are no current facts and circumstances that would entitle you to severance payments or benefits under your Change in Control Severance Agreement, as amended and restated, dated October 22, 2010 (your “Change in Control Agreement”). From and after the Retirement Date, the Employment Agreement and Change in Control Agreement shall cease to have any force or effect.

a. Severance Payments. The Company will make two payments in cash or cash equivalent to you aggregating Twelve Million Dollars ($12,000,000), the first in the amount of Two Million Dollars ($2,000,000), which the Company views as not being deferred compensation subject to Section 409A of the Code (as defined in section 14 of this Agreement), and shall be paid on December 31, 2010 and the second in the amount of Ten Million Dollars ($10,000,000), which the Company views as being deferred compensation subject to Section 409A of the Code and shall be paid on July 1, 2011 or, if sooner, within five (5) days of your death, less any applicable federal, state and local income or employment taxes required to be withheld. These are payments to which you would not otherwise be entitled in the absence of this Agreement. The Company agrees at your written request to place any amount to be paid to you pursuant to this section 2.a. after December 31, 2010 in a “rabbi trust” of which the trustee is a bank selected by the Company, which trust shall be a grantor trust of the Company for federal income tax purposes and shall be based on the model “rabbi trust” described in Rev. Proc. 92-64, 1992-2 CB 422.

b. Performance Award Settlement. The Company agrees to pay you on December 31, 2010, based on reasonable estimates of actual performance to be agreed, those portions of the 2008-2010 long term incentive award, the 2010 cash incentive bonus award, the 2010 performance-based restricted unit awards, the 2010 performance-based cash incentive awards and the 2010 performance-based restricted stock award that would otherwise be payable to you on or before March 15, 2011 for the performance periods ending 2010. This settlement will be subject to applicable federal, state and local income or employment taxes required to be withheld. If we are unable to reach an agreed settlement, any unsettled awards will be determined by the Company in accordance with the terms of the applicable plans and agreements and paid in the normal course of business. These are payments which you would otherwise receive after December 31, 2010 and on or before March 15, 2011, in the absence of this Agreement, based on your Retirement Date.

c. Property Adjacent to Sprigg, West Virginia Residence. The Company hereby grants you the option to purchase for cash at its appraised fair market value the real property owned by the Company that is currently not a part of the parcel of real estate that is included as part of the residence currently being occupied by you as your principal residence in Sprigg, West Virginia (your “Sprigg residence”) but is otherwise on and inside the fenced-in area surrounding your Sprigg residence. The Company agrees to obtain the appraisal and provide a copy to you no later than February 28, 2011. You will then have the right during the period between July 1, 2011 until December 31, 2011 to purchase the property.

d. Right of Way. The Company hereby agrees to provide you by March 15, 2011 with a non-exclusive personal access easement through the property owned by the Company’s subsidiaries, Road Fork Development Company, Inc. and Lauren Land Company, or their successors or assigns (collectively, the “Specified Subsidiaries”). Such access easement shall be for ingress and egress over the road beginning at the end of the state and/or county road maintenance on Kentucky Route 292 and extending along the river to the bridge that crosses over to Sprigg, West Virginia, then extending to the intersection with West Virginia State Route 49, as such easement area is generally depicted and shaded in green on Exhibit A, attached hereto and incorporated herein. The access easement agreement shall be personal to you, shall not benefit your successors or assigns, shall not attach to any property owned by you, including

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without limitation, the Sprigg property, and shall terminate upon your death or when you no longer own the Sprigg property. In the access easement agreement, you shall waive any claim relating to such easement against the Company and its affiliates and subsidiaries, including without limitation, the Specified Subsidiaries. Further, in the access easement agreement you shall indemnify the Company and its affiliates and subsidiaries, including without limitation, the Specified Subsidiaries from and against any and all liabilities, claims, damages, and expenses whatsoever arising from or associated with your use of the access easement. The access easement agreement shall also provide that the Company and the Specified Subsidiaries shall have no obligation to maintain or improve the access easement area, including, without limitation, the roads or the bridge located therein.

e. Vehicle. The Company hereby agrees to provide you by March 15, 2011 with title to the 1965 Blue Chevrolet Truck (VIN xxxxxxxxx555) that you previously transferred to the Company.

f. Continued Health Care Coverage. For a period of 24 months following your Retirement Date, you will be entitled to receive, at the Company’s election, either (i) the medical and dental coverage in effect for you on your Retirement Date (or generally comparable coverage), as the same may be changed from time to time for Company employees generally, as if you had continued in employment during such period, or (ii) cash payments in an amount equal to your reasonable after-tax cost of comparable continuing coverage, 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.

g. Access to Documents. The Company agrees that you and your attorneys shall have access to documents in possession of the Company necessary to defend yourself in litigation or investigations arising out of your employment by the Company; provided that such access shall be conditioned on your and your attorneys entering into a customary confidentiality agreement.

3. Employee and Other Benefits and Rights.

a. You agree that any and all awards relating to fiscal year 2011 otherwise to be made under your Employment Agreement (including the cash incentive bonus award in section 1.2 thereof, the restricted stock and restricted units in section 1.3 thereof, the performance-based restricted unit awards in section 1.4 thereof, the performance-based cash incentive awards in section 1.5 thereof and performance-based restricted stock award in section 1.6 thereof) shall not be made and that you have no rights thereto since you will not be employed by the Company in 2011.

b. It is agreed that, except as otherwise provided in this Agreement, this Agreement does not affect your rights and entitlements under the following plans and programs:

• Massey Energy Retirement Plan.

• Coal Company Salary Deferral and Profit Sharing Plan.

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• A.T. Massey Coal Company, Inc. Executive Deferred Compensation Plan.

• Massey Executive Deferred Compensation Program (including stock appreciation rights) under the Company 1997 Stock Appreciation Rights Plan and by prior agreement (in the form of that certain Amendment No. 1 dated February 22, 2005 to the Amended and Restated Employment Agreement entered into as of November 1, 2001, as amended and restated on July 16, 2002, by and between the Company, A. T. Massey Coal Company, Inc. and you) pursuant to which the value thereof on exercise is to be transferred to the Massey Executive Deferred Compensation Plan).

• Special Successorship and Development Retention Program (with Massey Energy Company, formerly named Fluor Corporation).

• Massey Executives’ Supplemental Benefit Plan.

• A. T. Massey Coal Company, Inc. Supplemental Benefit Plan.

• Retiree Medical Benefits Program.

• All other granted and outstanding awards under the Company’s equity program(s), including stock option, restricted stock, restricted unit, stock appreciation rights and other equity-based incentive awards.

4. Standard Payments. You also will receive payments for earned and unpaid base salary accrued through your Retirement Date and unreimbursed business related expenses incurred through your Retirement Date, as are reimbursable under the Company’s normal policies. Payment of these items will be made consistent with normal check processing schedules but in no event later than two and a half months after your Retirement Date.

5. Non-Competition. You acknowledge that you have received from the Company valuable information, and that your services were of a special character which had unique value to the Company, the loss of which will not be readily calculable. Given the unique value of your services, and in light of the consideration provided pursuant to this Agreement, you covenant and agree as follows:

a. For a period of two (2) years after your Retirement Date, you shall not, directly or indirectly, without the prior written consent of the Company (not to be unreasonably withheld), provide services to or engage in any other activities (whether as an owner, principal, agent, employer, director, officer, employee, partner, consultant or otherwise) for any company, business or other person engaged in operations or businesses that are the same as or substantially similar to, or are otherwise competitive with, those engaged in by the Company, its subsidiaries, or affiliates as of the Retirement Date; provided that the foregoing shall not prohibit (i) your passive ownership of no more than 5% of any class of securities of a publicly traded company, (ii) your providing such services to or engaging in such activities for any such company, business or other person to the extent such company, business or other person has annual coal production

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of less than five million tons or (iii) your providing such services to or engaging in such activities for any such company, business or other person in any State in which the Company and its subsidiaries and affiliates do not conduct business as of your Retirement Date.

b. For a period of two (2) years after your Retirement Date, you shall not, directly or indirectly, (1) offer employment to, recruit, hire or cause to be hired any officer or supervisory personnel of the Company or any of its affiliates or subsidiaries (or any individual who ceased to be such an officer or supervisor as a result of your violation of this paragraph) or (2) solicit, induce or encourage any such individual to terminate his or her employment with the Company or any of its subsidiaries or affiliates (whether or not for purposes of obtaining such individual’s services); provided that it shall not be a violation of the foregoing for (i) you or your subsequent employers to make general advertisements that are not targeted at such individuals or (ii) you to serve, upon request, as an employment reference for any such individual with regard to a entity or person with which you are not affiliated.

c. You shall not make any statement, whether written or oral, that criticizes or disparages the Company or its subsidiaries or affiliates, their past or present employees, officers, directors, representatives and agents, their respective operations or businesses or otherwise make any such statements that tend to portray any of the foregoing in an unfavorable light; provided that the foregoing shall not be violated by (i) your rebutting factually inaccurate statements made about you or (ii) your making statements regarding actions or events that occurred more than five years prior to the date hereof. Notwithstanding the foregoing, nothing in this Agreement shall be interpreted to limit your rights to confer with counsel or to provide truthful testimony pursuant to subpoena, notice of deposition or as otherwise required by law. This provision is in addition to, and not in lieu of, the substantive protections under applicable law relating to defamation, libel, slander, interference with contractual or business relationships, or other statutory, contractual, or tort theories.

d. You agree that a breach of any of the covenants set forth in sections 5 and 6 of this Agreement, or their subparts, would result in irreparable injury and damage to the Company, for which it would have no adequate remedy at law. Additionally, you agree that in the event of such a breach, the Company shall be entitled to injunctive relief without waiver of or prejudice to any other legal or equitable remedies that may be available to the Company.

e. You have read and considered the provisions of sections 5 and 6 hereof, and their subparts, and agree that the restrictions set forth are fair and reasonable and are reasonably required for the protection of the interests of the Company, its officers, directors, and other employees. You agree to comply with each such provision in accordance with its terms, and you agree that you shall not, and hereby agree to waive and release any right or claim to, challenge the reasonableness, validity or enforceability of any of such provision.

f. If any of the provisions of sections 5 and 6 hereof, or their subparts, shall be held by a court to be invalid or unenforceable in regard to geography, time period or scope of activity prohibited, the parties agree that the restrictions on geography, time period, or scope of activities shall be modified to become the maximum restriction on geography, time period or scope of activities that such court deems reasonable and enforceable.

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g. You agree that any action brought to enforce or to test the enforceability of any provision of this Agreement shall be brought in either the United States District Court for the Eastern District of Virginia, Richmond Division, or the Circuit Court of Henrico County, Virginia. You hereby voluntarily consent to personal jurisdiction in the Commonwealth of Virginia and waive any right you may otherwise have to contest the assertion of jurisdiction over you in Virginia.

6. Non-Disclosure of Confidential Information. You hereby covenant and agree that, except as specifically requested or directed by the Company, you shall not disclose to any person, or use for any purpose, any confidential or proprietary information (as provided below) of the Company. For purposes of this Agreement, the term “confidential or proprietary information” shall mean all information of any nature and in any form that is owned by the Company and that is not publicly available (other than by your breach of this section or any similar confidentiality obligation) or generally known to persons engaged in businesses similar or related to those of the Company. For purposes of this section, the term “Company” shall also include any subsidiary or affiliate of the Company. The foregoing obligations imposed by this section shall 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 yours, generally known to the public, or (iii) if you are required by law to make disclosure (after giving the Company notice and an opportunity to contest such requirement).

7. General Release.

a. For and in consideration of the payments and promises set forth in this Agreement, and other good and valuable consideration to which you would not have been otherwise entitled in the absence of this Agreement, the sufficiency of which is hereby acknowledged, and except as otherwise provided in this Agreement, you hereby release, acquit, and forever discharge the Company and all its past and present subsidiaries, affiliates, owners, shareholders, officers, directors and employees, and all successors and assigns thereof (each a “Released Party”), from any and all claims, charges, complaints, demands, liabilities, obligations, promises, agreements, controversies, damages, actions, causes of action and suits (including claims for attorneys’ fees and legal expenses), of any nature whatsoever, known or unknown, which you now have, had, or may have against the Company or any other Released Party of any kind or nature whatsoever, arising from any act, omission, transaction, matter, or event (whether presently known or unknown) which occurred or is alleged to have occurred up to the date of this Agreement.

b. Except as provided in section 7.c. below, the claims knowingly and voluntarily released herein include, but are not limited to, all claims relating in any way to your employment with the Company or the conclusion of that employment, whether such claims are now known or are later discovered, such as claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act or other federal or state wage and hour laws, the Employee Retirement Income Security Act, claims for breach of contract, infliction of emotional distress, claims under any other federal or state law pertaining to employment or employment benefits, and any other claims of any kind based on any contract, tort, ordinance, regulation, statute, or constitution. You acknowledge that this Agreement may be pled as a complete defense and shall constitute a

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full and final bar to any claim based on any act, omission, transaction, matter, or event which has occurred or is alleged to have occurred up to the date you execute this Agreement. You agree not to sue the Company or any other Released Party, at law or in equity, in any forum for any claims, counterclaims, actions, complaints or causes of action released pursuant to this section.

c. Notwithstanding anything in this section 7 to the contrary, the claims knowingly and voluntarily released herein shall exclude (i) any claim that may not be waived or released by this Agreement under applicable law (including your right to file a claim with the Equal Employment Opportunity Commission), (ii) your rights to indemnification and advancement of legal fees as described in section 12 or (iii) your right to enforce this Agreement.

8. Secretarial Assistance and Office. The Company agrees to provide you, during the Consulting Period (as defined below), and, in the Company’s sole discretion, during the three subsequent calendar years, with secretarial assistance in the form of a single secretary, who shall be available to perform reasonable administrative and clerical tasks (but shall not be permitted to perform any services related to any business or activities of yours that are competitive with the Company or its subsidiaries or affiliates) for a number of hours per work week no greater than the hours worked by your secretary in 2010. The Company shall be responsible for the compensation, employee benefits and other related costs of providing such assistance to you. Further, you agree that, if you become aware that, any correspondence or communication received by you or such secretary is intended for the Company, its subsidiaries or affiliates or their respective directors, officers or employees, you shall (and shall instruct such secretary to) promptly return such property to the Company. The Company further agrees to provide you, during the Consulting Period, and, in the Company’s sole discretion, during the three subsequent calendar years, with the continued use of your office and standard office equipment at Lauren Land Company in 24406 U.S. Route 119, Belfry, KY.

9. Consulting Services. You agree that, although you shall not be an employee of the Company, its subsidiaries or affiliates after your Retirement Date, you shall provide (i) for a period of two (2) years after your Retirement Date (the “Consulting Period”), consulting services as reasonably requested by the Company to aid it in its business (including, without limitation, assistance with respect to the transition of your responsibilities to your successor, advising company personnel on industry matters and providing assistance with litigation and regulatory matters) and (ii) following the Consulting Period, cooperation and assistance with litigation and similar proceedings as reasonably requested by the Company; provided that, in each case, (i) the Company shall provide you with reasonable advanced written notice when requesting such services or assistance, (ii) any services or assistance requested shall be scheduled so as to not unreasonably disrupt your business and personal affairs and (iii) you shall not be required to provide more than 32 hours of such services or assistance in any month. During the Consulting Period, the Company shall pay you a monthly retainer of $5,000 in exchange for your providing (and being available to provide) consulting services. The Company shall promptly reimburse you, upon receipt of reasonable documentation, for all out-of-pocket expenses reasonably incurred by you for the purpose of providing any consulting services or assistance required under this section.

10. No Assistance in Actions against the Company. You agree that you will not voluntarily participate, directly or indirectly, as a witness, consultant, expert or otherwise, in any

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action at law, proceeding in equity or any administrative proceeding against the Company, its affiliates, subsidiaries, officers or directors, unless requested to do so by the Company or compelled to do so by law. In the event that you believe you are compelled by law to testify or otherwise participate in any action or proceeding against the Company, its affiliates, subsidiaries, officers or directors, you agree to provide the Company with reasonable advance notice of the subpoena or other judicial notice that you believe compels your participation. Nothing in this Agreement shall prohibit or restrict you from: (i) making any disclosure of information required by law; or (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by any regulatory or law enforcement agency or legislative body.

11. Obligations Upon Retirement. Upon your Retirement Date, you shall return to the Company, unless otherwise agreed with the Company, all computers, computer data storage devices, files, contracts, customer lists, 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 your possession or under your control, including all copies of any of the foregoing; provided that you shall be allowed to retain a copy of your personal correspondence to the extent that (i) you notify the Company in advance of your retention of such documents and provide the Company with an opportunity to obtain a copy thereof and (ii) you comply with all your obligations regarding the confidentiality of the information contained therein (including section 6 hereof).

12. Indemnity Obligations. The Company agrees to maintain and adhere to all its obligations to indemnify you and advance your legal fees in accordance with the terms and conditions set forth in the Company’s Certificate of Incorporation and any written indemnity agreements existing and in force as of your Retirement Date, or as otherwise imposed by law, for so long as those agreements or legal obligations require.

13. Severability. The terms, conditions, covenants, restrictions, and other provisions contained in this Agreement are separate, severable, and divisible. If any term, provision, covenant, restriction, or condition of this Agreement or part thereof, or the application thereof to any person, place, or circumstance, shall be held to be invalid, unenforceable, or void, the remainder of this Agreement and such term, provision, covenant, or condition shall remain in full force and effect to the greatest extent practicable and permissible by law, and any such invalid, unenforceable, or void term, provision, covenant, or condition shall be modified, amended, limited, or deleted to the extent necessary to render the same and the remainder of this Agreement valid, enforceable, and lawful.

14. Taxes.

a. Except as provided in section 14.c. hereof, you shall be responsible for any tax consequences of any payments made pursuant to this Agreement, except for any applicable taxes that the Company withholds. You acknowledge and agree that the Company is not undertaking to advise you with respect to any tax consequences of this Agreement, and that you are solely responsible for determining those consequences and satisfying all of your applicable tax obligations resulting from any payments described herein.

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b. For purposes of this Agreement, all rights to payments 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 Internal Revenue Code of 1986, as amended (the “Code”). For purposes of this Agreement, your Retirement Date will constitute a “separation from service” within the meaning of Section 409A of the Code. Because you are a “specified employee” under Section 409A of the Code, the amounts that you are to receive under this Agreement that are not otherwise exempt from Section 409A of the Code will not be paid until after the date which is six (6) months after your Retirement Date or, if earlier, your date of death. Any remaining amounts shall be paid as otherwise scheduled in this Agreement, except that all reimbursements and in-kind benefits provided under this Agreement shall be provided in accordance with the requirements of Section 409A of the Code, including where applicable the requirement that (1) any reimbursement shall be for expenses incurred during your lifetime, (2) the amount of expenses eligible for reimbursement, or provision in-kind, during any calendar year may not affect the eligible expenses during any other calendar year, (3) such reimbursements shall be made (or in-kind benefits provided) in no event later than the last day of the calendar year following the year in which incurred and (4) the right to reimbursement or in-kind benefit is not subject to liquidation or exchange. This Agreement is intended to comply with the applicable requirements of Section 409A of the Code and shall be construed and interpreted in accordance therewith. The Company may at any time amend or suspend this Agreement, or any payments to be made hereunder, as necessary to be in compliance with Section 409A of the Code to avoid the imposition of any potential taxes, penalties or interest as a result of failing to comply with Section 409A of the Code.

c. Notwithstanding any of the provisions of this Agreement or any other agreement pertaining to you, the Company shall hold you harmless on an after-tax basis from any additional income tax, interest or penalties imposed under Section 409A of the Code if any payment or benefit which is to be provided pursuant to this Agreement fails to comply with, or be exempt from, the requirements of Section 409A of the Code.

d. Notwithstanding any of the provisions of this Agreement or any other agreement pertaining to you, the Company shall not be obligated to hold you harmless from, or make any gross up payment to you for, any additional income tax, excise tax, interest or penalties imposed under Section 4999 of the Code if any payment or benefit which is to be provided pursuant to this Agreement or otherwise is considered to be an excess parachute payment under Section 280G of the Code.

15. Accord and Satisfaction. Subject to the obligations of the Company set forth herein (including section 14.c. hereof), by signing this Agreement, you accept the payments and other benefits described herein as a final accord and satisfaction of all payments and benefits due you from the Company or subsidiary or affiliate, including, without limitation, any amounts that may be otherwise due you under the terms of any agreement, including the Employment Agreement and the Change in Control Agreement, or any other document, minutes or resolutions, and you hereby waive any rights to receive any other payments or benefits from the Company or any subsidiary or affiliate of the Company other than as described in this Agreement. You also acknowledge that you are not entitled to receive any payments or benefits under any other severance plan, arrangement, program or policy of the Company or any subsidiary or affiliate of the Company (including the Change in Control Agreement). This

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Agreement constitutes the final and entire agreement between you and the Company on the subject matter herein, and no other representation, promise, or agreement has been made to cause you to sign this Agreement. All other agreements regarding your employment or the subject matter therein shall be superseded by this Agreement, except as expressly set forth herein.

16. Assignment. Your rights and obligations under this Agreement are personal to you and may not be transferred by you by assignment or otherwise.

17. Non-Waiver. Neither any course of dealing nor any failure or neglect of either party hereto in any instance to exercise any right, power, or privilege hereunder or under law shall constitute a waiver of that right, power, or privilege or of the same right, power, or privilege in any other instance. Any waiver by either party hereto must be contained in a written instrument signed by the party to be charged with such waiver.

18. Acknowledgements. You acknowledge that you have read this Agreement and understand its terms. You have been provided with a full and fair opportunity to consult with an attorney and tax advisor of your choosing and to obtain any and all advice you deem appropriate with respect to this Agreement. In light of the foregoing, you are satisfied with the terms of this Agreement and agree that its terms are binding upon you. Nothing in this Agreement shall be deemed an admission by the Company or any subsidiary or affiliate of the Company, or by you, of any violation of any agreement, statute, law, or right or of any wrongdoing of any kind. The Company shall promptly reimburse you for the reasonable legal and tax advisory expenses incurred by you in connection with the negotiation and execution of this Agreement.

19. Previous Agreements. You agree and specifically acknowledge that the Company and you are entering into this Agreement for the purpose of amicably resolving any and all issues relating to your employment with the Company and its cessation.

20. Governing Law and Interpretation. This Agreement shall be deemed to be made in, and in all respects shall be interpreted, construed, and governed by and in accordance with the laws of the State of Delaware, notwithstanding any choice of law provisions otherwise requiring application of other laws. It shall be interpreted according to the fair meaning of the terms herein and not strictly in favor of, or against, either party.

21. Amendments. No amendment or modification of this Agreement shall be binding or effective for any purpose unless made in a writing signed by the party against whom enforcement of such amendment or modification is sought.

22. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties thereto and their respective heirs, representatives, successors, transferees and permitted assigns. This Agreement shall not be assignable by you but shall be freely assignable by the Company.

23. Counterparts. To facilitate execution, this Agreement may be executed in as many counterparts as may be required. All counterparts shall collectively constitute a single agreement.

Page 10

24. Deadline for Execution. This Agreement shall only be effective to the extent you have signed and executed it and delivered your signature page to the Lead Independent Director of the Board on or before 10:00 pm Eastern Standard Time on December 3, 2010. To the extent you do not execute and deliver this Agreement on or before such time, the Company’s offer to enter into this Agreement with you shall expire and be null and void ab initio and you shall have no rights or entitlements, and the Company shall have no obligations to you, with respect to such offer, this Agreement or the terms and conditions contained herein.

Please sign and date in the space below to accept the terms of this Agreement and return the executed letter to me for the Company’s files. If you have any questions, please let me know.

Sincerely,
MASSEY ENERGY COMPANY
By:	/s/ ADM Bobby R. Inman
Name:	ADM Bobby R. Inman
Title:	Lead Independent Director

IN WITNESS WHEREOF, the undersigned have signed and executed this Agreement on the dates set forth below as an expression of their intent to be bound by the foregoing terms of this Agreement.

By:	/s/ Don L. Blankenship
	Don L. Blankenship	Date: 12/03/2010

Page 11

EX-10.2

Exhibit 10.2

AMENDMENT TO

EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT

THIS AMENDMENT TO EMPLOYMENT AND CHANGE IN CONTROL AGREEMENT (this “Amendment”), effective as of December 3, 2010, is made between MASSEY ENERGY COMPANY, a Delaware corporation (the “Company”), and BAXTER F. PHILLIPS, JR. (the “Executive”).

WITNESSETH:

WHEREAS, the Company and Executive previously entered into an Employment and Change in Control Agreement on November 10, 2008, which agreement has thereafter been amended (the “Employment Agreement”); and

WHEREAS, the Company and Executive desire to amend the Employment Agreement in order to provide additional compensation and to extend the term in connection with Executive’s election as Chief Executive Officer of the Company.

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 the Employment Agreement) and intending to be legally bound hereby, the Company and Executive agree as follows:

1. Section 1.1 of the Employment Agreement is amended to read as follows:

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 prior to December 3, 2010 and in the executive position of Chief Executive Officer and President commencing December 3, 2010. In such capacity commencing December 3, 2010, Executive shall report to the Board 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 Board of the Company.

2. Section 2 of the Employment Agreement is amended to read as follows:

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 ending on December 31, 2011 (the “Term of Employment”).

3. Section 3.1 of the Employment Agreement is amended to read as follows:

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 until December 3, 2010 and at an annual rate of $1,100,000 thereafter. 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.

4. Section 3.2 of the Employment Agreement is amended to read as follows:

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% of Executive’s Base Salary for the Company’s 2009 fiscal year, 70% of Executive’s Base Salary for the Company’s 2010 fiscal year and $1,800,000 for the Company’s 2011 fiscal year (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 bonus award 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 but in no event later than March 15^th following the year in which the Annual Bonus is earned.

4. Section 3.7(b) of the Employment Agreement is amended to read as follows:

(b) In the event either (i) Executive’s employment by the Company terminates prior to December 31, 2011 on account of death or Disability or (ii) an actual Change in Control occurs prior to December 31, 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.

5. The following new Section 3.8 is added to the Employment Agreement:

3.8 Special Performance Award. The Executive shall be eligible for an annual special performance award for 2011 in the form of performance based restricted stock and/or units of not less than $770,000 valued on the date of grant, which shall occur no later than December 31, 2010. The award shall be subject to all the terms, conditions and performance requirements established by the Compensation Committee of the Board and shall be governed by and subject to the terms of the award agreements and the Massey Energy 2006 Stock and Incentive Plan (or any successor plan).

6. The following new Section 3.9 is added to the Employment Agreement:

3.9 Financial Advisor Perquisite. For 2011, the Company shall reimburse Executive up to $10,000 per year during the term of this Agreement for reasonable and customary accounting, financial and tax planning and advice pertaining to Executive incurred during the year, upon submission of satisfactory documentation evidencing such expenditures by Executive. Such reimbursement shall be made no later than the last day of the year following the year in which Executive incurs the reimbursable expense(s).

7. Section 4.1(a) of the Employment Agreement is amended to read as follows:

(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 for awards granted prior to December 3, 2010. Commencing December 3, 2010, Executive additionally shall be entitled to participate in the Company’s long-term equity incentive program with a target award of not less than $1,430,000 (exclusive of any awards made prior to December 3, 2010).

8. The following new Section 4.1(c) is added to the Employment Agreement:

(c) Each of Executive’s outstanding restricted stock and restricted unit awards granted prior to 2010 and outstanding on December 3, 2010 under the Company’s long-term cash and equity incentive program shall be immediately vested on December 3, 2010.

9. Clause (i) of Section 6.2(b) of the Employment Agreement is amended to read as follows:

(i) a lump sum cash payment equal to $8,000,000;

10. In all other respects, the Employment Agreement is unchanged.

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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed and delivered on December 3, 2010.

MASSEY ENERGY COMPANY

By:	/s/ Adm. Bobby R. Inman
Name:	Adm. Bobby R. Inman
Title:	Chairman of the
	Board of Directors
	/s/ Baxter F. Phillips, Jr.
Name:	Baxter F. Phillips, Jr.
	Chief Executive Officer
	and President

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EX-99.1

Exhibit 99.1

PRESS RELEASE Massey Energy Company 4 North Fourth Street, Richmond, VA

COMPANY CONTACT:	Roger Hendriksen	FOR IMMEDIATE RELEASE
	Vice President, Investor Relations	December 3, 2010
	(804) 788-1824

Don Blankenship To Retire; Baxter F. Phillips Jr. To Succeed as Massey CEO

Richmond, Virginia, December 3, 2010 – The Board of Directors of Massey Energy Company (NYSE: MEE) today announced that its Chairman and Chief Executive Officer, Mr. Don Blankenship, will retire from the company effective December 31, 2010. Mr. Blankenship has led Massey Energy as Chairman and CEO since 2000, and he’s been with the company since 1982.

Effective today, Baxter F. Phillips Jr., President of Massey Energy, will succeed Mr. Blankenship as Chief Executive Officer. Mr. Phillips has been with Massey Energy since 1981. Admiral Bobby Inman, Lead Independent Director on the Massey Board, will succeed Mr. Blankenship as Non-Executive Chairman. He has been a Director since 1985.

In a statement, Mr. Blankenship said: “After almost three decades at Massey it is time for me to move on. Baxter and I have worked together for 28 years and he will provide the company great executive leadership. Most of all, I want to thank the Members of Massey Energy whose hard work supports not only their own families, but also contributes greatly to the entire community of Central Appalachia.”

Mr. Phillips said: “I want to thank Don for all he has done to build Massey Energy. I also want to thank the Board for giving me the opportunity to succeed him as CEO. This is a strong and successful coal company, and I will work hard to match and surpass its record of success.”

Admiral Inman said: “I am deeply grateful to Don for the decisive leadership he has provided to Massey and we appreciate his success in building this company. We all wish him even greater success in the future.”

Mr. Blankenship served as Chairman and Chief Executive Officer since November 30, 2000. He also concurrently held the title of President from November 30, 2000 until November 10, 2008. He has been Chairman, Chief Executive Officer and President of A.T. Massey Coal Company, Inc., our wholly owned and sole, direct operating subsidiary, since 1992. Mr. Blankenship was formerly President and Chief Operating Officer from 1990 to 1991 and President of our subsidiary, Massey Coal Services, Inc., from 1989 to 1991. He joined our subsidiary, Rawl Sales & Processing Co., in 1982.

Over the past 10 years since Massey became a public company, Mr. Blankenship has driven the growth of what is now Massey Energy from 3,662 Members (employees) in 2000 to over 7,300 today. In addition, the market capitalization of the company has risen from about $758 million in 2000 to about $5 billion today, while annual revenue has risen from about $1.08 billion in 2000 to $2.7 billion in 2009.

Mr. Phillips was elected President of Massey Energy Company effective November 10, 2008. He previously served as Executive Vice President and Chief Administrative Officer from November 2004 to November 2008, as Senior Vice President and Chief Financial Officer from September 2003 to November 2004 and as Vice President and Treasurer from 2000 to August 2003. Mr. Phillips joined Massey in 1981 and has also served as Corporate Treasurer, Manager of Export Sales and Corporate Human Resources Manager, as well as other roles.

Admiral Inman has been a director since 1985 and served as Lead Independent Director since 2007. Admiral Inman has been a tenured professor at the LBJ School of Public Affairs at the University of Texas in Austin since August 2001, holding the Lyndon Johnson Centennial Chair in National Policy. He is a managing director of Gefinor Ventures, Inc. and Limestone Ventures, Inc., both early stage venture capital firms, and has over 20 years of experience in venture capital investments. Admiral Inman previously served on numerous publicly traded companies and other boards of directors.

Company Description

Massey Energy Company, headquartered in Richmond, Virginia, with operations in West Virginia, Kentucky and Virginia, is the largest coal producer in Central Appalachia and is included in the S&P 500 Index.