Exhibit 10.1
EXECUTION COPY
SEPARATION AGREEMENT AND
GENERAL RELEASE
This Separation Agreement and
General Release (“ Agreement ”) is made as of
April 30, 2008 between Mark D. Gibbons (“
Employee ”) and CNX Gas Corporation, a Delaware
corporation (together with its subsidiaries, the “
Company ”).
WHEREAS, Employee’s employment
with the Company terminated effective February 19, 2008;
and
WHEREAS, Company desires to pay
Employee an additional payment at the time of his separation and to
set forth certain other terms relating to his Separation, all as
more fully set forth in this Agreement;
NOW, THEREFORE, in consideration of
the mutual undertakings set forth below, the receipt, adequacy and
legal sufficiency of which is hereby acknowledged, and intending to
be legally bound hereby, this Agreement will govern
Employee’s Separation from employment with the
Company.
1. Separation . Employee
terminated his employment as an employee of the Company effective
at the close of business on February 19, 2008 (the “
Separation Date ”). As a result of such Separation,
Employee’s status as an employee, officer, director and/or
committee member of (a) the Affiliated Companies (meaning the
Company and CONSOL Energy Inc. (“ CONSOL ”) and
any current direct or indirect subsidiary or affiliate of the
Company or CONSOL and any company in which the Company or CONSOL or
any such subsidiary or affiliate is a shareholder or investor), and
(b) any company or entity which Employee serves as an officer,
director, trustee, member or in any other capacity at the request
of an Affiliated Company shall terminate as of the Separation Date.
Employee covenants and agrees that he will execute any documents
necessary to formally effect the termination of his status in such
positions.
2. Payments to Employee . The
Company, on its behalf and on behalf of the Released Parties (as
defined below), agrees to provide to Employee, and Employee has
expressly agreed to accept, the following, in full settlement,
release and discharge of all possible claims, as further delineated
in Section 3 below, and as consideration for the other
covenants and agreements of Employee set forth in this
Agreement:
a. The Employee will receive, if he
has not already received it, his current base salary through the
Separation Date, in accordance with the Company’s regular
payroll practices.
b. Within fourteen (14) days
after the expiration of any period during which Employee may
legally revoke this Agreement, Employee shall receive a lump sum
payment in an amount equal to $187,500, less applicable
withholdings. The payment set forth in this subsection
(b) shall be made by check to Employee.
d. Employee shall be entitled to
payment for unused vacation in accordance with the Company’s
policies for such payments.
e. Employee hereby agrees that
certain of the above payments and benefits made and provided to
Employee hereunder exceed anything to which Employee is otherwise
entitled to receive from the Company or CONSOL.
3. Release . (a) In
consideration for the payments and benefits provided to Employee
under this Agreement, and for other good and valuable
consideration, the receipt, adequacy and legal sufficiency of which
are hereby acknowledged, Employee, on behalf of himself and his
dependents, heirs, administrators, representatives, trustees,
beneficiaries, executors, successors, assigns, hereby
unconditionally releases and forever discharges the Affiliated
Companies and their respective agents, servants, officers,
directors, shareholders, employees, parents, attorneys,
subsidiaries, divisions, affiliates, predecessors, successors and
assigns, all their respective employee benefit plans and their
administrators, trustees and other fiduciaries (severally and
collectively called the “ Company Released Parties
”) from any and all manner of injuries, causes of actions,
claims, including, without limitation, claims for back pay, front
pay or reinstatement, and demands of any kind whatsoever, in law or
in equity, and from all debts, counterclaims, cross-claims, rights,
disputes, controversies, judgments, agreements, contracts,
promises, representations, misrepresentations, allegations,
obligations, duties, suits, expenses, assessments, penalties,
charges, interest, losses, costs, damages, compensatory damages,
consequential damages, punitive damages, sanctions, and liabilities
whatsoever, in law or in equity, whether known or unknown, asserted
or unasserted, claimed or unclaimed, foreseen or unforeseen,
suspected or unsuspected, discovered or undiscovered, accrued or
unaccrued, anticipated or unanticipated, contingent or fixed, or
any that Employee or any person or entity acting for Employee now
has or hereafter may have against any of the Company Released
Parties for any acts, circumstances, conduct, commissions,
omissions, failure to act, practices or events up to and including
the effective date of this Agreement. This general release
includes, without limitation, all claims or causes of action based
upon torts (including, for example, negligence, fraud, defamation,
libel, slander, tortuous interference and/or wrongful discharge);
express and implied contracts (including, for example, prior
agreements between Employee and the Company); any claims for
attorneys’ fees; any claims arising out of or relating to
Employee’s employment or termination of employment with the
Company; and any claims arising from any alleged violation by any
of the Company Released Parties of any federal, state or local
statutes, ordinances, rules, Executive Orders or regulations,
including, without limitation, any of the following, as amended:
Title VII of the Civil Rights Act of 1964, the Rehabilitation Act
of 1973, the Americans with Disabilities Act, the Employee
Separation Income Security Act of 1974, the Pennsylvania Human
Relations Act, the Pittsburgh Human Relations Ordinance, the Civil
Rights Act of 1991, the Older Workers Benefit Protection Act and
the Age Discrimination in Employment Act, and every other federal,
state, local or court-created source of legal rights and
obligations which may be waived and/or released such as
whistleblower claims. This general release provided for in this
sub-section (a) (which is referred to as the
“Release”) shall not apply to any claims of Employee
arising under this Agreement.
This Release is intended to be a
general release, and excludes only those claims under any statute
or common law that Employee is legally barred from releasing.
Employee is advised to seek independent legal counsel if Employee
seeks clarification on the scope of this Release.
2
Nothing herein is intended to or
shall preclude Employee from filing a charge with any appropriate
federal, state, or local government agency and/or cooperating with
said agency in its investigation. Employee, however, explicitly
waives any right to file a personal lawsuit or receive monetary
damages that the agency may recover against Company Released
Parties, without regard as to who brought any such complaint or
charge.
Employee acknowledges that he has
been given the opportunity to consider this Agreement for at least
twenty-one (21) days, which is a reasonable period of time,
and that he is hereby advised to consult with an attorney in
relation thereto prior to executing this Agreement. Employee
understands that he may revoke this Agreement at any time prior to
the close of business on the seventh (7th) day following the
date that he signs this Agreement and deliver it to the Company.
Any revocation within this period must be submitted, in writing to
Kurt Salvatori, the Company’s Director of Human Resources,
and state, “I hereby revoke my acceptance of my
Agreement”. If Employee does not revoke the Agreement,
it shall, after the expiration of this 7-day period, become
irrevocable.
Employee represents and agrees by
signing below that Employee has not been denied any leave or
benefit requested, has received the appropriate pay for all hours
worked for Company and has no known workplace injuries or
occupational diseases. Other than the consideration set forth in
this Agreement, Employee further affirms that Employee has been
paid and/or has received all leave (paid or unpaid), compensation,
wages, bonuses and/or commissions to which Employee may be entitled
and that no other leave (paid or unpaid), compensation, wages,
bonuses and/or commissions are due to Employee, except as provided
in this Agreement.
(b) In consideration for the waiver
of rights and the covenants and agreements made by Employee under
this Agreement, and for other good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby
acknowledged, the Company, on behalf of itself and its affiliates,
successors, hereby unconditionally releases and forever discharges
Employee, his dependents, heirs, administrators, representatives,
trustees, beneficiaries executors, successors and assigns
(collectively, the “ Employee Release
