Exhibit 10.1
Plan Document
of the
CONSOL Energy Inc.
Supplemental Retirement
Plan
Effective January 1,
2007
(As Amended and Restated
September 8, 2009)
CONSOL Energy Inc.
Supplemental Retirement
Plan
Article I. – General
Provisions
1.1 Establishment and
Purpose
Effective January 1, 2007,
CONSOL Energy Inc. established the CONSOL Energy Inc. Supplemental
Retirement Plan (the “Plan”) on the terms and
conditions hereinafter set forth. The Plan is designed primarily
for the purpose of providing benefits for a select group of
management and highly compensated employees of the Company and its
Subsidiaries and is intended to qualify as a “top hat”
plan under Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”). The Plan is intended to comply with the
provisions of Section 409A of the Internal Revenue
Code.
This Plan document reflects all
amendments made through September 8, 2009.
1.2 Definitions
“Actuarial
Equivalent” means
the actuarial present value of a specified benefit as determined on
an applicable date using the mortality, interest rate and other
assumptions as defined in the Qualified Plan.
“Annual
Compensation” means
annual base salary plus amounts received under the Company’s
Short Term Incentive Compensation Plan, the CNX Gas Corporation
Short-Term Incentive Compensation Plan or any executive Short Term
Incentive Plan (as and if applicable). All other forms of
remuneration are excluded, including but not limited to all
long-term incentive compensation, bonuses, fringe benefits and
stock-based awards.
“Beneficiary”
means the person or persons
designated by a Participant as his beneficiary hereunder in
accordance with the provisions of Article V.
“Board”
means the Board of Directors of the
Company.
“Cause”
means (i) a charge, indictment
or conviction of, or a plea of guilty or nolo contendere to,
a misdemeanor involving moral turpitude or a felony, whether or not
in connection with the performance by a Participant of his or her
duties or obligations to the Company or any Subsidiary;
(ii) theft relating to the business of the Company or any
Subsidiary or dishonesty with respect to a material aspect of the
business of the Company or any Subsidiary; (iii) gross
negligence or willful misconduct in the performance of the
Participant’s duties or obligations to the Company or any
Subsidiary, or engaging in illegal activity in connection
therewith, including, without limitation, a Participant’s
engagement in any act or course of conduct that would result in the
termination or revocation of, or jeopardize the renewal of, any
licenses, permits, consents, authorization, approvals or material
agreements necessary for the Company or any Subsidiary to conduct
its business or that would have an adverse effect on the Company or
any Subsidiary; (iv) violation of any provision of any
nonsolicitation, noncompetition or nondisclosure contained in any
agreement entered into by and between a Participant and the Company
and/or any Subsidiary; or (v) “cause” as defined
in the Participant’s employment and/or change of control
agreement, if any, with the Company or any Subsidiary. The
determination as to whether or not Cause exists will be made by the
Retirement Board and the CEO of the Company (“CEO”) in
accordance with its discretionary powers under Section 1.3;
provided, however, that the Board shall make the determination as
to whether or not Cause exists with respect to the CEO. The
Retirement Board and the CEO shall periodically report to the Board
as to its determinations, if any, with respect to determinations of
Cause.
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“Change in
Control” means the
occurrence of any of the following events:
(i) the acquisition after the date
hereof by any individual, entity or group (within the meaning of
section 13(d)(3) or
14(d)(2) of the Exchange Act) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of more than 35% of the combined voting
power of the then outstanding voting stock of the Company;
provided, however, that for purposes of this subsection (i), the
following acquisitions will not constitute a Change in Control:
(A) any issuance of voting stock of the Company directly from
the Company that is approved by the Incumbent Board (as defined in
subsection (ii), below), (B) any acquisition by the Company of
voting stock of the Company, (C) any acquisition of voting
stock of the Company by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Subsidiary,
(D) any acquisition of voting stock of the Company by an
underwriter holding securities of the Company in connection with a
public offering thereof, or (E) any acquisition of voting
stock of the Company by any Person pursuant to a Business
Combination that complies with clauses (A), (B) and
(C) of subsection (iii), below; or
(ii) individuals who constitute the
Board as of the Effective Date (the “Incumbent Board,”
as modified by this subsection (ii)), cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a Director subsequent to such date
whose election, or nomination for election by the Company’s
stockholders, was approved by a vote of at least two-thirds of the
Directors then comprising the Incumbent Board (either by a specific
vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without objection
to such nomination) will be deemed to have then been a member of
the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of
an actual or threatened election contest with respect to the
election or removal of Directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board; or
(iii) consummation of a
reorganization, merger or consolidation of the Company or a direct
or indirect wholly owned subsidiary thereof, a sale or other
disposition (whether by sale, taxable or nontaxable exchange,
formation of a joint venture or otherwise) of all or substantially
all of the assets of the Company, or other transaction involving
the Company (each, a “Business Combination”), unless,
in each case, immediately following such Business Combination,
(A) all or substantially all of the individuals and entities
who were the beneficial owners of voting stock of the Company
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 50% of the combined voting power
of the then outstanding shares of voting stock of the entity
resulting from such Business Combination or any direct or indirect
parent corporation thereof (including, without limitation, an
entity which as a result of such transaction owns the Company or
all or substantially all of the Company’s assets either
directly or through one or more subsidiaries), (B) no Person
other than the Company beneficially owns 25% or more of the
combined voting power of the then outstanding shares of voting
stock of the entity resulting from such Business Combination or any
direct or indirect parent corporation thereof (disregarding all
“acquisitions” described in clauses (A) - (C) of
subsection (i)), and (C) at least a majority of the members of
the Board of Directors of the entity resulting from such Business
Combination or any direct or indirect parent corporation thereof
were members of the Incumbent Board at the time of the execution of
the initial agreement or of the action of the Board providing for
such Business Combination; or (iv) approval by the
stockholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business
Combination that complies with clauses (A), (B) and
(C) of subsection (iii).
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Notwithstanding the foregoing or any
provision of this Agreement to the contrary, it is intended that
the forgoing definition of Change in Control qualify as a change in
the ownership or effective control of a corporation, or a change in
the ownership of a substantial portion of the assets of a
corporation, within the meaning of Treas. Reg. §
1.409A-3(i)(5), and this Agreement shall be interpreted and
construed to effectuate such intent.
“Code”
means the Internal Revenue Code of
1986, as amended, and any successor code or law.
“Committee” means the Compensation Committee of the Board,
or such other committee designated by the Board to discharge the
duties of the Committee hereunder.
“Company”
means CONSOL Energy Inc. or any
successor thereto.
“Disability” means a Participant: (1) is unable to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or to last for a continuous period of
not less than 12 months; or (2) is, by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or last for a continuous period of not less than 12
months, receiving income replacement benefits for a period of not
less than 3 months under an accident and health plan of the Company
or its Subsidiaries.
“Final Average
Compensation” means, subject to Section 1.4(c), the
average of a Participant’s five highest consecutive Annual
Compensation amounts while employed by the Company and its
Subsidiaries.
“Normal Retirement
Date” means the
date such Participant attains age sixty five (65).
“Participant”
means any employee who has satisfied
the eligibility requirements set forth in Section 1.4 of the
Plan.
“Person”
means any individual, corporation,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“Plan
Year” means the
twelve-month period beginning each January 1 and ending on the
following December 31.
“Qualified
Plan” means CONSOL
Energy Inc. Employee Retirement Plan, as amended, the CNX Gas
Corporation Employee Retirement Plan and/or such other plan(s) as
designated by the Retirement Board.
“Section
409A” shall mean
Section 409A of the Code, the regulations and other binding
guidance promulgated thereunder.
“Separation From
Service” shall mean
a Participant’s death, retirement or other termination of
employment with the Company and all of its controlled group members
within the meaning of Section 409A of the Code. For purposes
hereof, the determination of controlled group members shall be made
pursuant to the provisions of Section 414(b) and 414(c) of the
Code; provided that the language “at least 50 percent”
shall be used instead of “at least 80 percent” in each
place it appears in Section 1563(a)(1),(2) and (3) of the
Code and Treas. Reg. § 1.414(c)-2; provided, further, where
legitimate business reasons exist (within the meaning of Treas.
Reg. § 1.409A-1(h)(3)), the language “at least 20
percent” shall be used instead of “at least 80
percent” in each place it appears. Whether a Participant has
a Separation from Service will be determined based on all of the
facts and circumstances and in accordance with the guidance issued
under Section 409A.
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“Service
Fraction” means the
fraction determined hereunder with a numerator that is the
Participant’s number of full Years of Service and with a
denominator of 20. The Service Fraction can never exceed one
(1).
“Specified
Employee” means a
key employee (as defined in Section 416(i) of the Code without
regard to paragraph (5) thereof) of the Company and its
Subsidiaries, as defined in the regulations issued under Code
Section 409A, as determined in accordance with the procedures
established by the Company.
“Subsidiary” means, unless specifically excluded by the
Committee, any entity in which the Company owns or otherwise
controls, directly or indirectly, stock or other ownership
interests having the voting power to elect a majority of the board
of directors, or other governing group having functions similar to
a board of directors, as determined by the Committee. For purposes
of this Plan, CNX Gas Corporation or any of its subsidiaries shall
be considered to be a “Subsidiary” as follows:
(i) if a Participant is employed by the Company or CNX Gas
Corporation on or after September 8, 2009, CNX Gas Corporation
shall be a “Subsidiary” with respect to such
Participant for all purposes under this Plan, such that, for
example, the Participant’s Annual Compensation and Years of
Service will include service with CNX Gas Corporation
both before and after said September 8, 2009 date; and
(ii) if a Participant was not employed by the Company or CNX
Gas Corporation on or after September 8, 2009, CNX Gas
Corporation shall not be a “Subsidiary” with respect to
such Participant for all purposes under this Plan, such that, for
example, the Participant’s Annual Compensation and Years of
Service will exclude all service with CNX Gas
Corporation. An entity shall be considered to be a
“Subsidiary” only for the period of time in which the
ownership test and the Committee approval set forth above have been
met.
“Year of
Service” means,
subject to Section 1.4(c), each full twelve-month period of
active, full-time employment with the Company following the
Participant’s most recent hire date, as determined pursuant
to the Company’s regular personnel records and policies. The
Committee may, but is not required to, recognize employment with
prior employers for purposes of this Plan. Any such recognition
shall be in writing and shall state the purposes for which service
will be recognized under this Plan. In addition, the Plan will
(i) recognize service for periods of prior employment with the
Company; (ii) recognize periods of service with CNX Gas
Corporation in accordance with the rules set forth in the
definition of Subsidiary for CNX Gas Corporation; and
(iii) recognize periods of employment with any other
Subsidiary, but only for periods of time while that entity meets
the definition of Subsidiary (e.g. is owned by the
Company).
1.3
Administration.
(a) The Retirement Board as defined
in Section 1.17 of the Qualified Plan (the “Retirement
Board”) (and the Committee, where the Committee exercises
powers hereunder, or the CEO with respects to determinations of
Cause as specified herein) shall administer the Plan and have sole
and absolute authority and discretion to decide all matters
relating to the administration of the Plan, including, without
limitation: determining the rights and status of Participants or
their beneficiaries under the Plan; interpreting the Plan; adopting
administrative rules, regulations, and guidelines for the Plan;
making factual determinations (including determinations as to the
designation of beneficiaries); and correcting any defect, supplying
any omission or reconciling any inconsistency or conflict in the
Plan. In general, the Retirement Board will utilize and follow the
administrative rules and practices that are utilized under the
Qualified Plan. The Retirement Board’s determinations under
the Plan (and the Committee’s determinations under the Plan
where the Committee exercises powers hereunder) need not be uniform
among all Participants, or classes or categories of Participants,
and may be applied to such Participants, or classes or categories
of Participants, as the Retirement Board (or the Committee, where
applicable), in its sole and absolute discretion, considers
necessary, appropriate or desirable. All determinations by the
Retirement Board (and the Committee, where applicable) shall be
final, conclusive and binding on the Company, the Participant and
any and all interested parties.
4
(b) The Retirement Board (and the
Committee, where applicable) may delegate such of its powers and
authority under the Plan to the Company’s officers as it
deems necessary or appropriate. In the event of such delegation,
all references to the Retirement Board in this Plan (and the
Committee, where applicable) shall be deemed references to such
officers as it relates to those aspects of the Plan that have been
delegated.
(c) Any action taken by the
Retirement Board (and the Committee, where applicable) with respect
to the rights or benefits under the Plan of any Participant shall
be revocable by the Retirement Board (and the Committee, where
applicable) as to payments not yet made to such person, and
acceptance of any deferred compensation benefits under the Plan
constitutes acceptance of and agreement to the Retirement
Board’s (or the Committee, where applicable) or the
Company’s making any appropriate adjustments in future
payments to such person (or to recover from such person) any excess
payment or underpayment previously made to him.
(d) The provisions of the Plan shall
be administered, interpreted and construed in a manner intended to
comply with Section 409A or an exception thereto (or
disregarded to the extent such provision cannot be so administered,
interpreted or construed). It is intended that distribution events
authorized under the Plan qualify as permissible distribution
events for purposes of Section 409A of the Code, and the Plan
shall be interpreted and construed accordingly in order to comply
with Section 409A. The Company reserves the right to
accelerate, delay or modify distributions to the extent permitted
under Section 409A. Notwithstanding any provision of the Plan
to the contrary, in no event shall the Committee or Retirement
Board (or any member thereof), or the Company, its Subsidiaries or
affiliates (or the employees, officers or directors of the Company,
its Subsidiaries or affiliates) have any liability to any
Participant (or any other person) due to the failure of the Plan to
satisfy the requirements of Section 409A or any other
applicable law.
1.4 Eligibility and
Participation.
(a) Participation in the Plan is
limited to officers and key management employees of the Company and
its Subsidiaries who are designated by the Committee as eligible to
participate in the Plan and who are within the category of a select
group of management and highly compensated employees as referred to
in Sections 201(2), 301(a)(3) and 401(a)(1) of the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”). Until changed by the Committee, only
employees of the Company (and those Subsidiaries which are not
specifically excluded for participation in the Plan by the
Committee or the terms of the Plan) with a salary grade of 104 or
above are eligible to participate hereunder. The Plan is being
implemented in connection with the ceasing of accruals under prior
non-qualified plans.
(b) A Participant shall cease to be
a Participant upon receiving payment for the full amount of
benefits to which the Participant is entitled under the
Plan.
(c) Notwithstanding the foregoing,
the Committee may terminate a Participant’s participation in
the Plan at any time, in its sole and absolute discretion. A
termination of Participant’s employment with the Company and
any Subsidiary, or if the Participant no longer meets the basic
eligibility standards (such as salary grade) shall automatically,
with no further act on the part of the Committee, Company,
Retirement Board, or any Subsidiary, terminate any right of such
Participant to continue to participate in, and accrue benefits
under, this Plan. When the Participant terminat
