SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 28, 2013
CONSOL Energy Inc.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction
1000 CONSOL Energy Drive
Canonsburg, Pennsylvania 15317
(Address of principal executive offices)
Registrants telephone number, including area code:
(Former name or former address, if changed since last
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 (see General Instruction A.2. below):
||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.
Adoption of the CONSOL Stock Unit Program.
On January 28, 2013, the Company adopted the CONSOL Stock Unit program (the Stock Unit Program) to advance the interests
of the Company and its stockholders by providing incentives to certain eligible persons who contribute significantly to the strategic and long-term performance objectives and growth of the Company.
Pursuant to the terms of the Stock Unit Program, the Committee granted CONSOL stock unit awards (the Awards) under the
Companys Equity Incentive Plan (as amended, the Plan) to executive officers and other key employees of the Company. Messrs. J. Brett Harvey, Nicholas J. DeIuliis, William J. Lyons, P. Jerome Richey, and Robert F. Pusateri, among
other employees (collectively, the Participants), each will receive an Award of CONSOL Stock Units (including associated dividend equivalent rights that are subject to the same terms as the CONSOL Stock Units, (the Units)) on
January 31, 2013 based on the following dollar amounts (at target): $9,125,000; $3,250,000; $1,619,000; $848,000; and $825,000, respectively. The Units will be determined by dividing foregoing dollar amounts by the closing stock price on
January 31, 2013. In the case of Mr. Harvey, the Board ratified his Award.
The Award agreements (the Award
Agreements) provide that the Awards will be earned if, after the three year performance period of January 1, 2013 through December 31, 2015 (the Performance Period), the following performance goals (the Performance
Goals) are achieved during the Performance Period, subject to the terms and conditions of the Award Agreements:
Companys average closing stock price as reported in The Wall Street Journal for the twenty (20) trading days immediately preceding and including the last day of the Performance Period (Ending Stock Price) equals or
exceeds fifty percent (50%) of the Companys average closing stock price as reported in The Wall Street Journal for the twenty (20) trading days commencing on the first day of the Performance Period (Beginning Stock
(2) The Companys return on average capital employed (ROCE), calculated based on the three
(3) year average ROCE for the Performance Period, and subject to certain adjustments, must be at least eighty percent (80%) of the target ROCE for the Performance Period. The Company has determined that the ROCE performance goal
constitutes confidential information and will disclose it in the 2016 proxy once the Performance Period has been completed.
If both Performance Goals are achieved as determined by the Committee after the end of the Performance Period, the number of Units earned
by the Participants (not to exceed 150% of the target Units of such Participants Award) will be determined as follows:
|Stock Units (Target)
||Ending Stock Price|
||Beginning Stock Price|
The Award Agreements also provide for the treatment of the Awards in connection with certain
events, as follows - (i) if a Change in Control (as defined in the Plan) occurs, the Performance Goals will be deemed to have been achieved at a target award level of 100% and the value of the Units will be settled on the closing date of the
Change in Control transaction, (ii) if a Participants employment is terminated by reason of an Early Retirement (after attaining the age of 55), Incapacity Retirement or Normal Retirement (after attaining the age of 62), each as defined
in the CONSOL Energy Inc. Employee Retirement Plan (except as otherwise provided in the Award Agreement), death, or in connection with a reduction in force, the Participant will be entitled to retain the Units and receive payment therefore to the
extent they are deemed earned and payable by the Committee after the end of the Performance Period, or (iii) if a Participants employment is terminated due to Disability (other than an Incapacity Retirement), the Participant will be
entitled to retain a prorated portion of the Units, to the extent determined to be earned after the end of the Performance Period by the Committee, based on the ratio of the number of complete months the Participant is employed during the
Performance Period to the total number of months in the Performance Period. If a Participants employment is terminated for any other reason, including, but not limited to, by the Participant voluntarily, or by the Company with or without Cause
(as defined in the Plan) (other than in connection with a reduction in force), the Units awarded to the Participant will be cancelled and forfeited.
The Awards are subject to a retention requirement that provides that fifty percent (50%) of all shares, net of withholding taxes, acquired by a Participant under the Award must be held until the
earlier of (i) 10 years from settlement of the Awards or (ii) normal retirement (age 62). The Award Agreements also include confidentiality obligations and non-compete and non-solicitation covenants, which apply during the term of the
Participants employment and for two years thereafter, the violation of which may result in the cancellation and forfeiture of the Units.
The foregoing summary of the Awards granted under the Stock Unit Program and Plan is not complete and is qualified in its entirety by reference to the full text of the form of CONSOL Stock Unit Award
Agreement under the Plan, a copy of which is attached hereto as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
P. Jerome Richey
P. Jerome Richey, Executive Vice President
Corporate Affairs, who earlier notified CONSOL Energy Inc. (the Company) of his intention to retire on March 2, 2014 (as reported on a Form 8-K filed with the Securities and Exchange Commission on November 19, 2012), has
notified the Company that he will instead retire from his position with the Company on March 1, 2013.
January 29, 2013, the Company and Mr. Richey entered into a Retirement Letter (the Retirement Letter). Pursuant to the terms of the Retirement Letter, the Company will pay Mr. Richey a separation payment of $772,000,
Mr. Richeys outstanding equity awards will continue to vest in accordance with their terms and Mr. Richey will release any claims he has against the Company, including any claims under his Offer Letter, dated February 11, 2005,
which will be terminated.
||Financial Statements and Exhibits. |
||Form of CONSOL Stock Unit Award Agreement under the Equity Incentive Plan.|
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.
CONSOL ENERGY INC.
/s/ Stephen W. Johnson
||Stephen W. Johnson|
||Executive Vice President and Chief Legal and Corporate Affairs Officer|
Dated: January 30, 2013
Form of CONSOL Stock Unit Award Agreement
||Form of CONSOL Stock Unit Award Agreement under the Equity Incentive Plan.|
CONSOL ENERGY INC.
EQUITY INCENTIVE PLAN
CONSOL STOCK UNIT AWARD AGREEMENT
This CONSOL Stock Unit Award Agreement set forth below (this Agreement) is dated as of the grant date (the Grant Date) set forth on Exhibit A and is between CONSOL
Energy Inc., a Delaware corporation (the Company), and the individual to whom the Compensation Committee of the Board of Directors (the Committee) of the Company has made this Performance Award and whose name is
set forth on Exhibit A (the Participant).
The Company has established the CONSOL Energy Inc. Equity
Incentive Plan, as amended (the Plan), to advance the interests of the Company and its stockholders by providing incentives to certain eligible persons who contribute significantly to the strategic and long-term performance
objectives and growth of the Company. Unless the context otherwise requires, all capitalized terms not otherwise defined in this Agreement have the same meaning given such capitalized terms in the Plan.
Pursuant to the provisions of the Plan, the Committee has full power and authority to direct the execution and delivery of this Agreement
name and on behalf of the Company, and has authorized the execution and delivery of this Agreement.
1. CONSOL Stock Unit Award. Subject to and pursuant to all terms and conditions stated in this Agreement and in
the Plan, as of the Grant Date, the Company hereby grants a Performance Award to the Participant in the form of CONSOL stock units (the Stock Units) with the target number set forth on Exhibit A. Each Stock Unit awarded under this
Agreement shall represent a contingent right to receive one share of the Companys common stock as described more fully herein, to the extent such Stock Unit is earned and becomes payable pursuant to the terms of this Agreement.
Notwithstanding, Stock Units as initially awarded have no independent economic value, but rather are mere units of measurement used for purposes of calculating the value of benefits, if any, to be paid under this Agreement.
2. Performance Period. The Performance Period means the performance period as set forth on Exhibit A.
3. Performance Goals of the Stock Units. Subject to the provisions of this Agreement, the total number of Stock Units awarded to
Participant will be earned (at a maximum award level of 150% of the target number of Stock Units awarded), if the performance measures set by and on file with the Committee are satisfied (each, a Performance Goal); provided,
however, that the Committee has sole discretion to determine whether the Performance Goals are met and the date of such determination shall be the vesting date of the Award (the Vesting Date) and provided, further, that the Award
will only become payable, except as otherwise provided herein, if the Participant remains an employee of the Company and its subsidiaries through the Vesting Date. As a condition to receiving this Award, Participant agrees that all determinations
made by the Committee are final and conclusive.
4. Issuance and Distribution.
4.1 After the end of the Performance Period and prior to the commencement of the payment of Shares relating to the Award, the Committee
shall certify in writing the extent to which the Performance Goals and any other material terms of this Agreement have been achieved. For purposes of
this provision, and for so long as the Code permits, the approved minutes of the Committee meeting in which the certification is made may be treated as written certification.
4.2 Subject to the terms and conditions of this Agreement, Stock Units earned by the Participant will be settled and paid in Shares in
the first calendar year immediately following the end of the Performance Period on a date determined in the Committees discretion, but in no event later than March 15th of such year, subject to Participants satisfaction of all
applicable income and employment withholding taxes (the Payment Date).
4.3 Notwithstanding any other
provision of this Agreement, in the event of a Change in Control, the Performance Goals will be deemed to have been achieved (at a target award level of 100% of Stock Units awarded) and the value of such units will be settled on the closing date of
the Change in Control transaction (the CiC Payment Date); provided, further, in the event of a Change in Control, Stock Units may, in the Committees discretion, be settled in cash and/or securities or other property.
5. Dividends. Each Stock Unit will be cumulatively credited with dividends that are paid on the Companys common
stock in the form of additional units. These additional units shall be deemed to have been purchased on the record date for the dividend using the closing stock price of the Companys common stock as reported in The Wall Street Journal and
shall be subject to all the same conditions and restrictions as provided in this Agreement applicable to Stock Units.
Change in Participants Status.
6.1 In the event the Participant Separates from Service (i) on or after the
date the Participant has reached the age of 55 by reason of an Early Retirement, or is eligible for an Incapacity Retirement or has reached the age of 62 by reason of a Normal Retirement, (ii) on account of
death or Disability (other than an Incapacity Retirement), or (iii) by reason of a reduction in force as specified and implemented by the Company, prior to any Payment Date or the CiC Payment Date, as applicable, the Participant shall be
entitled to retain the Stock Units and receive payment therefore to the extent earned and payable pursuant to the provisions of this Agreement; provided, however, that in the case of a Separation from Service on account of Disability, the
Participant shall only be entitled to retain a prorated portion of the Stock Units determined at the end of the Performance Period and based on the ratio of the number of complete months the Participant is employed or serves during the Performance
Period to the total number of months in the Performance Period. In the event the Participant Separates from Service for any other reason, including, but not limited to, by the Participant voluntarily, or by the Company with Cause or without Cause
(other than in connection with a reduction in force as specified above), prior to any Payment Date or the CiC Payment Date, as applicable, the Stock Units awarded to the Participant shall be cancelled and forfeited, whether payable or not, without
payment by the Company or any Affiliate. Any payments due a deceased Participant shall be paid to his estate as provided herein after the end of the Performance Period.
6.2 For purposes of the Agreement, and except as provided above regarding age, the terms Early Retirement, Incapacity Retirement and Normal Retirement, shall have the
meanings ascribed thereto under the CONSOL Energy Inc. Employee Retirement Plan, as amended, or any successor thereto applicable to the Participant; provided, however, for purposes of the Agreement the Participant shall not be considered to have
Separated from Service on account of Early Retirement unless the Participant shall also have completed at least one year of continuous service with the Company after the Grant Date.
7. Tax Consequences/Withholding.
7.1 It is intended that: (i) the Participants Stock Units shall be considered to be subject to a substantial risk of
forfeiture in accordance with those terms as defined in Sections 409A and 3121(v)(2) of the Code; and (ii) the Participant shall have merely an unfunded, unsecured promise to be paid a benefit, and such unfunded promise shall not consist of a
transfer of property within the meaning of Code Section 83.
7.2 Participant acknowledges that any income for
federal, state or local income tax purposes, including payroll taxes, that the Participant is required to recognize on account of the vesting of the Stock Units and/or issuance of the Shares under this Award to Participant shall be subject to
withholding of tax by the Company. In accordance with administrative procedures established by the Company, Participant may elect to satisfy Participants minimum statutory withholding tax obligations, if any, on account of the vesting of the
Stock Units and/or issuance of Shares under this Award, in one or a combination of the following methods: in cash or by separate check made payable to the Company and/or by authorizing the Company to withhold from the Shares to be issued to the
Participant a sufficient number of whole Shares distributable in connection with this Award equal to the applicable minimum statutory withholding tax obligation.
7.3 This Agreement is intended to comply with, or be excepted from coverage under, Section 409A of the Code and the regulations promulgated thereunder and shall be administered, interpreted and
construed accordingly. Notwithstanding any provision of this Agreement to the contrary, if any benefit provided under this Agreement is subject to the provisions of Section 409A of the Code and the regulations issued thereunder (and not
excepted therefrom), the provisions of the Agreement shall be administered, interpreted and construed in a manner necessary to comply with Section 409A (or disregarded to the extent such provision cannot be so administered, interpreted, or
construed). Notwithstanding, Section 409A may impose upon the Participant certain taxes or other charges for which the Participant is and shall remain solely responsible, and nothing contained in this Agreement or the Plan shall be construed to
obligate any member of the Committee or Board, the Company or any Affiliate (or its employees, officers or directors) for any such taxes or other charges.
7.4 Notwithstanding any provision of this Agreement to the contrary, if the Award of Stock Units under this Agreement is intended to qualify as performance-based compensation under Section 162(m) of
the Code and the regulations issued thereunder and a provision of this Agreement would prevent such Award from so qualifying, such provision shall be administered, interpreted and construed to carry out such intention (or disregarded to the extent
such provision cannot be so administered, interpreted or construed).
8.1 The Participant hereby agrees that this Section 8 is reasonable and necessary in order to protect the legitimate business
interests and goodwill of the Company, including the Companys trade secrets, valuable confidential business and professional information, substantial relationships with prospective and existing customers and clients, and specialized training
provided to the Participant and other employees of the Company. The Participant acknowledges and recognizes the highly competitive nature of the business of the Company and its Affiliates and accordingly agrees that during the term of
Participants employment and for a period of two (2) years after the termination thereof:
(a) The Participant will not directly or indirectly engage in any business substantially
similar to any line of business conducted by the Company or any of its Affiliates, including, but not limited to, where such engagement is as an officer, director, proprietor, employee, partner, investor (other than as a holder of less than 1% of
the outstanding capital stock of a publicly traded corporation), consultant, advisor, agent or sales representative, in any geographic region in which the Company or any of its Affiliates conducted business;
(b) The Participant will not contact, solicit, perform services for, or accept business from any customer or prospective customer of the
Company or any of its Affiliates;
(c) The Participant will not directly or indirectly induce any employee of the Company or
any of its Affiliates to: (1) engage in any activity or conduct which is prohibited pursuant to subparagraph 8.1(a); or (2) terminate such employees employment with the Company or any of its Affiliates. Moreover, the Participant will
not directly or indirectly employ or offer employment (in connection with any business substantially similar to any line of business conducted by the Company or any of its Affiliates) to any person who was employed by the Company or any of its
Affiliates unless such person shall have ceased to be employed by the Company or any of its Affiliates for a period of at least 12 months; and
(d) The Participant will not directly or indirectly assist others in engaging in any of the activities, which are prohibited under subparagraphs (a) (c) above.
8.2 It is expressly understood and agreed that although the Participant and the Company consider the restrictions contained in this
Section 8 to be reasonable, if a final judicial determination is made by a court of competent jurisdiction that the time or territory or any other restriction contained in this Agreement is an unenforceable restriction against the Participant,
the provisions of this Agreement shall not be rendered void but shall be deemed amended to apply as to such maximum time and territory and to such maximum extent as such court may judicially determine or indicate to be enforceable against such
Participant. Alternatively, if any court of competent jurisdiction finds that any restriction contained in this Agreement is unenforceable, and such restriction cannot be amended so as to make it enforceable, such finding shall not affect the
enforceability of any of the other restrictions contained herein. The restrictive covenants set forth in this Section 8 shall be extended by any amount of time that the Participant is in breach of such covenants, such that the Company receives
the full benefit of the time duration set forth above.
9. Confidential Information and Trade Secrets. The Participant
and the Company agree that certain materials, including, but not limited to, information, data and other materials relating to customers, development programs, costs, marketing, trading, investment, sales activities, promotion, credit and financial
data, manufacturing processes, financing methods, plans or the business and affairs of the Company and its Affiliates, constitute proprietary confidential information and trade secrets. Accordingly, the Participant will not at any time during or
after the Participants employment with the Company (including any Affiliate) disclose or use for such Participants own benefit or purposes or the benefit or purposes of any other person, firm, partnership, joint venture, association,
corporation or other business organization, entity or enterprise other than the Company and any of its Affiliates, any proprietary confidential information or trade secrets, provided that the foregoing shall not apply to information which is not
unique to the Company or any of its Affiliates or which is generally known to the industry or the public other than as a result of such Participants breach of this covenant. The Participant agrees that upon termination of employment with the
Company (including any Affiliate) for any reason, the Participant will immediately return to the Company all memoranda, books, papers, plans, information, letters and other data, and all copies thereof or therefrom, which in any way relate to the
business of the Company and its Affiliates, except that the Participant may retain personal notes,
notebooks and diaries. The Participant further agrees that the Participant will not retain or use for the Participants own account at any time any trade names, trademark or other
proprietary business designation used or owned in connection with the business of the Company or any of its Affiliates.
10.1 The Participant acknowledges that a violation or attempted violation on the
Participants part of Sections 8 and/or 9 will cause irreparable damage to the Company and its Affiliates, and the Participant therefore agrees that the Company and its Affiliates shall be entitled as a matter of right to an injunction, out of
any court of competent jurisdiction, restraining any violation or further violation of such promises by the Participant or the Participants employees, partners or agents. The Participant agrees that such right to an injunction is cumulative,
in addition to whatever other remedies the Company (including any Affiliate) may have under law or equity and to the Participants obligations to make timely payment to the Company as set forth in Section 10.2 of this Agreement. The
Participant further acknowledges and agrees that the Participants Stock Units shall be cancelled and forfeited without payment by the Company if the Participant breaches any of his obligations set forth in Sections 8 and 9 herein.
10.2 At any point after becoming aware of a breach of any obligation set forth in Sections 8 and 9 of this Agreement, the Company shall
provide notice of such breach to the Participant. By agreeing to receive the Stock Units pursuant to this Agreement, the Participant agrees that within ten (10) days after the date the Company provides such notice, the Participant shall pay to
the Company in cash an amount equal to any and all distributions paid to or on behalf of such Participant under this Agreement within the six (6) months prior to the date of the earliest breach. The Participant agrees that failure to make such
timely payment to the Company constitutes an independent and material breach of the terms and conditions of this Agreement, for which the Company may seek recovery of the unpaid amount as liquidated damages, in addition to all other rights and
remedies the Company may have resulting from the Participants breach of the obligations set forth in Sections 8 and/or 9. The Participant agrees that timely payment to the Company as set forth in this provision of this Agreement is reasonable
and necessary because the compensatory damages that will result from breaches of Sections 8 and/or 9 cannot readily be ascertained. Further, the Participant agrees that timely payment to the Company as set forth in this provision of this Agreement
is not a penalty, and it does not preclude the Company from seeking all other remedies that may be available to the Company, including without limitation those set forth in this Section 10.
11.1 The Company shall have the right to assign this Agreement, including without limitation Sections 8 and/or 9, and the Participant agrees to remain obligated by all provisions of this Agreement that
are assigned to any successor, assign or surviving entity. Any successor to the Company is an intended third party beneficiary of this Agreement.
11.2 The Stock Units shall not be sold, pledged, assigned, hypothecated, transferred or disposed of (a Transfer) in any manner, other than by will or the laws of descent and
distribution. Any attempt by the Participant to Transfer the Stock Units in violation of the terms of this Agreement shall render the Stock Units null and void, and result in the immediate forfeiture of such Stock Units, without payment by the
12. Impact on Benefit Plans. Payments under this Agreement shall not be considered as earnings for purposes
of the Companys and/or Affiliates qualified retirement plans or any such retirement or benefit plan unless specifically provided for therein. Nothing herein shall prevent the
Company or any Affiliate from maintaining additional compensation plans and arrangements for its employees.
13. Successors; Changes in Stock. The obligation of the Company under this Agreement shall be binding upon the successors and assigns of the Company. If a dividend or other distribution shall be
declared upon the Companys common stock payable in Shares, the Stock Units and the Shares on which the Performance Goals are based shall be adjusted by adding thereto the number of Shares which would have been distributable thereon if such
shares and Stock Units had been actual Shares and outstanding on the date fixed for determining the stockholders entitled to receive such stock dividend or distribution. In the event of any spin-off, split-off or split-up, dividend in property other
than cash, recapitalization or other change in the capital structure of the Company, or any merger, consolidation, reorganization, partial or complete liquidation or other distribution of assets (other than a normal cash dividend), or any other
corporate transaction or event having an effect similar to any of the foregoing, or extraordinary distribution to stockholders of the Companys common stock, the Stock Units, the Shares relating to the Stock Units, and the Performance Goals
shall be appropriately adjusted to prevent dilution or enlargement of the rights of Participants which would otherwise result from any such transaction, provided such adjustment shall be consistent with Code Section 162(m) and
Section 409A, as applicable.
In the case of a Change in Control, any obligation under this Agreement shall be handled in
accordance with the terms of Section 4 hereof. In any case not constituting a Change in Control in which the Companys common stock is changed into or becomes exchangeable for a different number or kind of shares of stock or other
securities of the Company or another corporation, or cash or other property, whether through reorganization, reclassification, recapitalization, stock split-up, combination of shares, merger or consolidation, then (i) the value of the Stock
Units constituting the Award shall be calculated based on the closing price of such common stock on the closing date of the transaction on the principal market on which such common stock is traded, (ii) there shall be substituted for each Stock
Unit constituting the Award, the number and kind of shares of stock or other securities (or cash or other property) into which each outstanding Share shall be so changed or for which each such Share shall be exchangeable, and (iii) the Share on
which the Performance Goals are based shall be appropriately and equitably adjusted, provided any such adjustments shall be consistent with Code Section 162(m) and Section 409A, as applicable. In the case of any such adjustment, the Stock
Units shall remain subject to the terms of the Agreement.
14. Governing Law, Jurisdiction, and Venue.
14.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law.
14.2 The Participant hereby irrevocably submits to the personal and exclusive jurisdiction of
the United States District Court for the Western District of Pennsylvania or the Court of Common Pleas of Allegheny County, Pennsylvania in any action or proceeding arising out of, or relating to, this Agreement (whether such action or proceeding
arises under contract, tort, equity or otherwise). The Participant hereby irrevocably waives any objection which the Participant now or hereafter may have to the laying of venue or personal jurisdiction of any such action or proceeding brought in
14.3 Jurisdiction over, and venue of, any such action or proceeding shall be exclusively vested in the United
States District Court for the Western District of Pennsylvania or the Court of Common Pleas of Allegheny County, Pennsylvania.
14.4 Provided that the Company commences any such action or proceeding in the courts identified in Section 14.3, the Participant
irrevocably waives the Participants right to object to or
challenge the above selected forum on the basis of inconvenience or unfairness under 28 U.S.C. § 1404, 42 Pa. C.S. § 5322 or similar state or federal statutes. The Participant agrees to
reimburse the Company for all of the attorneys fees and costs it incurs to oppose the Participants efforts to challenge or object to litigation proceeding in the courts identified in Section 14.3 with respect to actions arising out
of or relating to this Agreement (whether such actions arise under contract, tort, equity or otherwise).
15. Failure to
Enforce Not a Waiver. The failure of the Company to enforce at any time any provision of this Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
16. Severability. In the event that any one or more of the provisions of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
17. Funding. This Agreement is not funded and all amounts payable hereunder, if any, shall be paid from the general assets of the Company or its Affiliate, as applicable. No provision contained in
this Agreement or the Plan and no action taken pursuant to the provisions of this Agreement or the Plan shall create a trust of any kind or require the Company to maintain or set aside any specific funds to pay benefits hereunder. To the extent the
Participant acquires a right to receive payments from the Company under this Agreement, such right shall be no greater than the right of any unsecured general creditor of the Company.
18. Headings. The descriptive headings of the Sections of this Agreement are inserted for convenience of reference only and shall
not constitute a part of this Agreement.
19. Amendment or Termination of this Agreement. This Agreement may be
modified, amended, suspended or terminated by the Committee at any time; provided, however, that no modification, amendment, suspension or termination of the Plan or this Agreement shall adversely affect the rights of the Participant under this
Agreement without the consent of such Participant. Notwithstanding the foregoing or any provision of this Agreement to the contrary, the Company may, in its sole discretion and without the Participants consent, modify or amend the terms of the
Agreement or a Stock Unit award, or take any other action it deems necessary or advisable, to cause the Agreement to comply with Section 409A or Section 162(m) (or an exception thereto). Any modification, amendment, suspension or
termination shall only be effective upon a writing issued by the Company, and the Participant shall not offer evidence of any purported oral modifications or amendments to vary or contradict the terms of this Agreement document.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the day and year
indicated below. This Agreement may be executed in more than one counterpart, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.
|Dated: , 2013
||CONSOL ENERGY INC.|
|Dated: , 2013
||William Powell, on behalf of the Compensation Committee|
Stock Units (Target):
Period: [3 years]