Table of Contents

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K

 

(Mark One)

 

þ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934.

 

For the fiscal year ended December 31, 2008;

 

OR

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from                      to                     

 

Commission file number: 001-32723

 

CNX GAS CORPORATION

(Exact name of registrant as specified in its charter)

 

Delaware   20-3170639

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

5 Penn Center West, Suite 401

Pittsburgh, PA 15276-0102

(412) 200-6700

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

 

Name of each exchange on which registered

Common Stock ($.01 par value)

  New York Stock Exchange

 

No securities are registered pursuant to Section 12(g) of the Act.

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   þ     No   ¨

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.    Yes   ¨     No   þ

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   þ     No   ¨

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (Section 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.     þ

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer, or a smaller reporting company. See definition of “large accelerated filer,” “accelerated filer” and “small reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   þ        Accelerated filer   ¨        Non-accelerated filer   ¨        Smaller reporting company   ¨
          (Do not check if a smaller
    reporting company)
  

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act).    Yes   ¨     No   þ

 

The aggregate market value of voting stock held by nonaffiliates of the registrant as of June 30, 2008, based on the closing price of the common stock on the New York Stock Exchange on such date ($42.04 per share), was $1,163,307,506. For purposes of determining this amount, affiliates include directors and executive officers, who, as of June 30, 2008, in the aggregate held 88,820 shares (including shares held in 401(k) plans, shares held by trusts with respect to which the director or executive officer was trustee, and shares held jointly with a spouse, but not including shares underlying vested options or vested restricted stock units), and CONSOL Energy Inc., which held 123,268,667 shares.

 

The number of shares outstanding of the registrant’s common stock as of January 29, 2009 is 150,971,636 shares.

 

DOCUMENTS INCORPORATED BY REFERENCE:

 

Portions of CNX Gas Corporation’s Proxy Statement for the Annual Meeting of Stockholders to be held on April 28, 2009,

are incorporated by reference in Items 10, 11, 12, 13 and 14 of Part III

 

 

 


Table of Contents

TABLE OF CONTENTS

 

          Page
PART I     
Item 1.   

Business

   4
Item 1A.   

Risk Factors

   22
Item 1B.   

Unresolved Staff Comments

   33
Item 2.   

Properties

   33
Item 3.   

Legal Proceedings

   33
Item 4.   

Submission of Matters to a Vote of Security Holders

   33
PART II     
Item 5.    Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities    34
Item 6.   

Selected Financial Data

   36
Item 7.   

Management’s Discussion and Analysis of Financial Condition and Results of Operations

   40
Item 7A.   

Quantitative and Qualitative Disclosures About Market Risk

   58
Item 8.   

Financial Statements and Supplementary Data

   60
Item 9.   

Changes in and Disagreements with Accountants on Accounting and Financial Disclosures

   102
Item 9A.   

Controls and Procedures

   102
Item 9B.   

Other Information

   104
PART III   
Item 10.   

Directors and Executive Officers of the Registrant

   105
Item 11.   

Executive Compensation

   106
Item 12.   

Security Ownership of Certain Beneficial Owners and Management

   106
Item 13.   

Certain Relationships and Related Transactions

   106
Item 14.   

Principal Accounting Fees and Services

   106
PART IV   
Item 15.   

Exhibits and Financial Statement Schedules

   107

SIGNATURES

   108

 

2


Table of Contents

FORWARD-LOOKING STATEMENTS

 

We are including the following cautionary statement in this Annual Report on Form 10-K to make applicable and take advantage of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 for any forward-looking statements made by, or on behalf of us. With the exception of historical matters, the matters discussed in this Annual Report on Form 10-K are forward-looking statements (as defined in Section 21E of the Exchange Act) that involve risks and uncertainties that could cause actual results to differ materially from projected results. Accordingly, investors should not place undue reliance on forward-looking statements as a prediction of actual results. The forward-looking statements may include projections and estimates concerning the timing and success of specific projects and our future production, revenues, income and capital spending. When we use the words “believe,” “intend,” “expect,” “may,” “should,” “anticipate,” “could,” “estimate,” “plan,” “predict,” “project,” or their negatives, or other similar expressions, the statements which include those words are usually forward-looking statements. When we describe strategy that involves risks or uncertainties, we are making forward-looking statements. The forward-looking statements in this Annual Report on Form 10-K speak only as of the date of this Annual Report on Form 10-K; we disclaim any obligation to update these statements unless required by securities law, and we caution you not to rely on them unduly. We have based these forward-looking statements on our current expectations and assumptions about future events. While our management considers these expectations and assumptions to be reasonable, they are inherently subject to significant business, economic, competitive, regulatory and other risks, contingencies and uncertainties, most of which are difficult to predict and many of which are beyond our control. These risks, contingencies and uncertainties relate to, among other matters, the following:

 

   

our business strategy;

 

   

our financial position, cash flow and liquidity;

 

   

the deteriorating economic conditions in the United States and globally;

 

   

declines in the prices we receive for our gas affecting our operating results and cash flow;

 

   

uncertainties in estimating our gas reserves and replacing our gas reserves;

 

   

uncertainties in exploring for and producing gas;

 

   

our inability to obtain additional financing necessary in order to fund our operations, capital expenditures and to meet our other obligations;

 

   

disruptions to, capacity constraints in or other limitations on the pipeline systems which deliver our gas;

 

   

our ability to remove and dispose of water from the coal from which we produce gas;

 

   

the cost of removing impurities from the gas we produce may outweigh the economic benefit of selling the gas;

 

   

the availability of personnel and equipment, including our inability to retain and attract key personnel;

 

   

increased costs;

 

   

the effects of government regulation, permitting and other legal requirements;

 

   

legal uncertainties regarding the ownership of the coalbed methane estate, and costs associated with perfecting title for gas rights in some of our properties;

 

   

litigation concerning real property rights, intellectual property rights, royalty calculations and other matters;

 

   

our relationships and arrangements with CONSOL Energy; and

 

   

other factors discussed under “Risk Factors.”

 

3


Table of Contents

PART I

 

Item 1. Business

 

Except as otherwise noted or unless the context otherwise requires, (i) the information in this Annual Report on Form 10-K gives effect to the contribution to CNX Gas of the CONSOL Energy gas business effective as of August 8, 2005, (ii) CNX Gas refers, with respect to any date prior to the effective date of that contribution, to the CONSOL Energy gas business and, with respect to any date on or subsequent to the effective date of the contribution, to CNX Gas and our subsidiaries, (iii) “CONSOL Energy” refers to CONSOL Energy Inc. and its subsidiaries other than CNX Gas and the companies which conducted CONSOL Energy’s gas business, and (iv) reserve and operating data are as of December 31, 2008 unless otherwise indicated. The estimates of our proved reserves as of December 31, 2008, 2007, 2006 and 2005 included in this Annual Report are based on reserve reports prepared by Schlumberger Data and Consulting Services. The estimates of our proved reserves as of December 31, 2004 (set forth in Item 6, “Selected Financial Data—Other Financial Data”) are based on reserve reports prepared by Ralph E. Davis Associates, Inc. and Schlumberger Data and Consulting Services. Unless otherwise noted, we discuss production, per unit revenue and per unit costs net of any royalty owners’ interest. With respect to production and reserves, we use the word “net” to indicate when a number does not include the royalty owners’ interest. With respect to acres, we use the word “net” to describe our aggregate fractional interest in property that we control by deed or lease. With the exception of earnings per share data, we discuss dollars in millions throughout this Form 10-K. Financial information concerning industry segments, as defined by accounting principles generally accepted in the United States of America, for the year ended December 31, 2008, 2007 and 2006 is included in Note 20 to the Consolidated Financial Statements included as Item 8 in Part II of this Annual Report on Form 10-K.

 

General

 

We are engaged in the exploration, development, production and gathering of natural gas primarily in the Appalachian and Illinois Basins. In particular, we are a leading developer of coalbed methane (CBM) and we have a growing conventional and shale exploration program. CONSOL Energy Inc. (CONSOL Energy) owns 83.3% of our outstanding common stock. In August 2005, we acquired all of CONSOL Energy’s rights associated with CBM from 4.5 billion tons of proved coal reserves owned or controlled by CONSOL Energy in Northern Appalachia, Central Appalachia, the Illinois Basin and other western basins. CONSOL Energy also transferred ownership or rights to natural gas, oil and certain related surface properties. As of December 31, 2008, we had 1.422 Tcfe of net proved reserves, with a PV-10 value of $2.0 billion and a standardized measure of discounted after tax future net cash flows attributable to our proved reserves of $1.2 billion. Our proved reserves are approximately 97% CBM and 55% proved developed. We are one of the largest gas producers in the Appalachian Basin with net sales of 76.6 Bcf for the year ended December 31, 2008. Our proved reserves are long-lived with a reserve life index of 18.6 years.

 

History of CNX Gas

 

We began extracting CBM in the early 1980s from coal seams in Virginia in order to reduce the gas content in the coal being mined by CONSOL Energy. We developed techniques to extract CBM from coal seams prior to mining in order to enhance the safety and efficiency of CONSOL Energy’s mining operations. Typically, the gas was vented to the atmosphere. As a result of our more than 20 years of experience with CBM extraction, we believe our management has developed industry-leading expertise in this type of gas production.

 

In 1990, CONSOL Energy created a joint venture with Conoco Inc. (“Conoco”) to produce CBM that qualified for certain preferential tax treatment. Under an operating arrangement, CONSOL Energy operated gas wells and gathering facilities in which Conoco had an ownership interest. In 1993, CONSOL Energy acquired the assets of Island Creek Coal Company in Virginia, including an interest in CBM and gathering assets, from Occidental Petroleum (“Occidental”). The related gas assets acquired from Occidental were sold to MCN Energy Group Inc. (“MCN”) in 1995, although CONSOL Energy continued to operate gas wells in the area for MCN under an operating agreement.

 

4


Table of Contents

Between 2000 and 2001, CONSOL Energy reacquired the assets of MCN and acquired the interests of our joint venture partner, Conoco, to consolidate our interest in Central Appalachia. This created the core of our business.

 

CNX Gas Corporation (CNX Gas) was formed on June 30, 2005. CONSOL Energy contributed its gas assets to CNX Gas effective August 8, 2005.

 

We conduct business through various subsidiaries and affiliates including CNX Gas LLC, Cardinal States Gathering Company (GSGC), Coalfield Pipeline Company, Knox Energy Company, LLC, a 50% interest in Buchanan Generation, LLC, and various other joint ventures. These are the companies primary responsible for the exploration, production, gathering and sale of our gas, with the exception of Buchanan Generating LLC, which uses our gas to generate electricity from a generating facility located near our Virginia gas field.

 

Our common stock commenced trading on the New York Stock Exchange (“NYSE”) under the symbol “CXG” on January 19, 2006.

 

Our Relationship with CONSOL Energy

 

Prior to August 2005 we conducted business through various companies that were subsidiaries or joint ventures of CONSOL Energy, a public company traded on the NYSE under the symbol “CNX.”

 

The success of our operations substantially depends upon rights we received from CONSOL Energy. As a part of our separation from CONSOL Energy, CONSOL Energy transferred to CNX Gas various subsidiaries and joint venture interests, as well as all of CONSOL Energy’s ownership or rights to CBM, natural gas, oil, and certain related surface rights. In addition, CONSOL Energy has given us significant rights to conduct gas production operations associated with its coal mining activity. These rights are not dependent upon any continuing ownership in us by CONSOL Energy. We also have established other agreements under which CONSOL Energy will provide us certain corporate staff services and coordinate our tax filings.

 

We have made every effort to preserve the synergies that exist between CONSOL Energy’s mining activities and our gas production activities. Additionally, the master cooperation and safety agreement between us and CONSOL Energy will ensure that we continue to have access to gob gas and gas produced from horizontal wells drilled from inside CONSOL Energy’s mines. These additional sources of gas enhance our overall recovery rates for CBM.

 

CONSOL Energy owned 83.3% of the outstanding common stock of CNX Gas as of December 31, 2008.

 

Coordination with Mining Activities

 

Approximately 24% of our 2008 gas production is produced in connection with coal extraction by CONSOL Energy. It is essential that gas liberated by the mining process be removed from the mine in order to maintain a safe working environment in the mine. As a result, a portion of our gas extraction activity is determined based upon the needs of the related mining activity.

 

Through close cooperation and coordination between CNX Gas and CONSOL Energy, we prepare an annual drilling program that meets the needs of both companies. The master cooperation and safety agreement provides that each year, in consultation with CONSOL Energy, CNX Gas will outline its drilling plans to show: (i) the general area of development and exploration drilling and the number of wells proposed to be drilled in the following calendar year, and (ii) the approximate location of all production, treatment and gathering related systems proposed to be installed by CNX Gas.

 

5


Table of Contents

Management Reorganization

 

On January 16, 2009, our Board of Directors implemented a reorganization of the management of CNX Gas in conjunction with a reorganization of the management of CONSOL Energy. The changes effected by this management reorganization are as follows:

 

   

J. Brett Harvey, President and Chief Executive Officer of CONSOL Energy, was appointed to the additional position of Chairman and Chief Executive Officer of CNX Gas.

 

   

Nicholas J. DeIuliius, President and Chief Executive Officer of the Company, was appointed Executive Vice President and Chief Operating Officer for CONSOL Energy. He also will serve as President and Chief Operating Officer of the Company.

 

   

Robert F. Pusateri was appointed Executive Vice President—Energy Sales and Transportation Services, for both CONSOL Energy and CNX Gas.

 

   

William J. Lyons, Executive Vice President and Chief Financial Officer of CONSOL Energy, and Chief Financial Officer of CNX Gas, is now also an Executive Vice President of CNX Gas.

 

   

P. Jerome Richey, Senior Vice President and General Counsel of CONSOL Energy was appointed Executive Vice President—Corporate Affairs and Chief Legal Officer CONSOL Energy and CNX Gas and also will serve as Secretary to each company.

 

   

Robert P. King was appointed Executive Vice President—Business Advancement and Support Services for CONSOL Energy and CNX Gas.

 

Effective January 16, 2009, these persons are the executive officers of CNX Gas. The purpose of this management consolidation is to improve performance and profitability of both CONSOL Energy and CNX Gas, as well as to increase efficiency and reduce costs across all business areas by creating a more unified organizational structure that will have functional, operational, and financial responsibility for all coal, gas, and related assets, while still recognizing the separate status of CNX Gas as a public company with shareholders in addition to CONSOL Energy.

 

Gas Operations

 

We primarily produce CBM, which is gas that resides in coal seams. In the eastern United States, conventional natural gas fields typically are located in various types of sedimentary formations at depths ranging from 2,000 to 15,000 feet. Exploration companies often put their capital at risk by searching for gas in commercially exploitable quantities at these depths. By contrast, gas in the coal seams that we drill or anticipate drilling is typically in formations less than 2,500 feet deep which are usually better defined than deeper formations. We believe that this contributes to lower exploration costs for CNX Gas than those incurred by producers that operate in deeper, less defined formations. However, we have continued to increase our exploration efforts in the shale and deeper formations.

 

Areas of Operation

 

In the Appalachian Basin we operate principally in Central Appalachia and Northern Appalachia, which represent our two reportable segments. We also operate in the Illinois Basin. Our primary operating areas are:

 

   

Central Appalachia Virginia Operations CBM, in Southwest Virginia, our traditional and largest area of operation, where we have typically produced CBM from vertical wells which we drill ahead of mining and gob gas wells;

 

   

Northern Appalachia Mountaineer CBM in northwestern West Virginia and southwestern Pennsylvania where we drill vertical-to-horizontal CBM wells;

 

   

Northern Appalachia Nittany CBM in central Pennsylvania, where we drill vertical CBM wells;

 

6


Table of Contents
   

Northern Appalachia, Mountaineer-Conventional, in northwest West Virginia and southwest Pennsylvania, where we began development in 2008 in the Marcellus Shale and shallow conventional zones, and we expect additional growth in the future;

 

   

Tennessee, Knox-Chattanooga Shale, in eastern Tennessee, where we intend to convert our horizontal exploration program in the Chattanooga Shale into a full scale development program;

 

   

Illinois Basin, Cardinal, in western Kentucky, Indiana and Illinois, where we are conducting an exploration program in the New Albany Shale and shallow oil zones;

 

In addition to the above areas, we believe we have Appalachian shale potential in the Marcellus, Huron, and Chattanooga shales. Additional potential exists in the Trenton Black River formation which is thought to underlie nearly all of the Appalachian shales. We will continue to evaluate our acreage position in these areas with the continuation of our exploration program.

 

Central Appalachia

 

Virginia Operations CBM

 

We have the right to extract CBM in this region from approximately 418,000 net CBM acres, which cover a portion of coal reserves owned or controlled by CONSOL Energy in Central Appalachia. We acquired CONSOL Energy’s rights associated with CBM in this region upon inception. We produce gas primarily from the Pocahontas #3 seam which is the main coal seam mined by CONSOL Energy in this region. This seam is generally found at depths of 2,000 feet and generally ranges from 3 to 6 feet thick. The gas content of this seam is typically between 400 and 600 cubic feet of gas per ton of coal in place. In addition, there are as many as 50 thinner seams present in the several hundred feet above the main Pocahontas #3 seam. Collectively, this series of coal seams represents a total thickness ranging from 15 to 40 feet. We have access to over 1,300 core holes that allow us to determine the amount of coal present, the geologic structure of the coal seam and the gas content of the coal.

 

We coordinate some of our CBM extraction with the subsurface coal mining of CONSOL Energy. The initial phase of CBM extraction involves drilling a traditional vertical wellbore into the coal seam in advance of future mining activities. In general, we drill these wells into the coal seam ahead of the planned mining recovery in an area. To stimulate the flow of CBM to the wellbore, we fracture the coal seam by pumping water or inert gases into the coal seam. Once established, these fractures are maintained by further forcing sand into the fractures to keep them from closing, allowing CBM to desorb from the coal and migrate along the series of fractures into the wellbore. We refer to this type of well as a “frac well.” In 2008, frac wells account for approximately 74% of our Virginia production.

 

Because some of our gas is produced in association with subsurface mining, we have a unique opportunity to evaluate the effectiveness of our fracture techniques. We can enter the coal mine and inspect the fracture pattern created in the seam as the mining process exposes more of the coal. As a result, we have had the opportunity to gain insight into the efficiency of our fracturing techniques that is not available in a conventional production scenario. We have used this knowledge to modify and improve the effectiveness of our fracturing techniques.

 

Eventually, subsurface mining activities will mine through the frac wells that are drilled in advance of the mine development plan. As the main coal seam is removed from an area (called a “panel”), a rubble zone (called “gob”) is formed in the cavity created by the extraction of the coal. When the coal is removed, the rock above collapses into the void. These upper seams become extensively fractured and release substantial volumes of gas. We drill vertical wells (called “gob wells”) into the gob to extract the additional gas that is released. The extraction of gas from active gob areas generally is completed within twelve months of the start of production. Approximately 12% of our Virginia gas production comes in the form of gob gas from active coal operations.

 

7


Table of Contents

We also drill long horizontal wellbores into the coal seam from within active mines. We strategically locate these horizontal wells within the pattern of existing frac wells to further accelerate the desorption of CBM from the coal seam. Over the past several years, we have drilled 15 of these “in-mine” horizontal wells, some of which have been extended to lengths of 5,000 feet. These wells show that a more efficient recovery of gas in place is possible ahead of mining operations. The production rates from frac wells have not been adversely impacted by the introduction of nearby horizontal wellbores in the coal seam. In fact, we believe production at offsetting frac wells has actually increased due to the further reductions in pressure within the coal seam caused by the horizontal wells. We intend to increase our use of the horizontal wells drilled within an active mine in our future development plans. In-mine horizontal wells accounted for approximately 1% of Virginia production in 2008.

 

Virginia Operations Shale and Tight Sands

 

We have 238,000 net acres of Huron shale potential in Kentucky and Virginia; a portion of this acreage has tight sands potential.

 

Tennessee

 

The Chattanooga Shale in Tennessee is a Devonian-age shale found at a depth of approximately 3,500 feet. Shale thickness is between 40-80 feet, but CNX Gas has found it to be rich in total organic content. CNX Gas substantially increased its Chattanooga Shale Acreage position from 132,000 net acres to 259,000 net acres. This was accomplished primarily by buying the remaining 50% interest in Knox Energy and several additional leasehold acquisitions. CNX Gas now has a leading acreage position in the Chattanooga Shale. Furthermore, this largely contiguous acreage is composed of only a small number of leases, a rarity in Appalachia. CNX Gas is the operator of all of its Chattanooga Shale wells. CNX Gas believes that we drilled the first successful horizontal Chattanooga Shale well and that we have currently drilled more horizontal wells than any other operator in this play.

 

Northern Appalachia

 

Mountaineer CBM

 

We have the right to extract CBM in this region from approximately 783,000 net CBM acres, which contain most of the recoverable coal reserves owned or controlled by CONSOL Energy in Northern Appalachia. We have acquired all of CONSOL Energy’s rights associated with CBM in this region. We produce gas primarily from the Pittsburgh #8 coal seam. This seam is generally found at depths of less than 1,000 feet and generally ranges from 4 to 7 feet thick. The gas content of this seam is typically between 100 and 250 cubic feet of gas per ton of coal in place. There are additional coal seams above and below the Pittsburgh #8 seam. Collectively, this series of coal seams represents a total thickness ranging from 10 to 30 feet. We have access to over 7,000 data points that allow us to determine the amount of coal present, the geologic structure of the coal seam and the gas content of the coal.

 

Due to the significant geological differences between the Pittsburgh #8 seam in Mountaineer and the Pocahontas #3 seam in Virginia, we have found that alternative extraction techniques are more effective than vertical frac wells in this area. Instead of using frac wells, we utilize well designs that rely on the application of vertical-to-horizontal drilling techniques. This well design includes a vertical wellbore that is intersected by a second well that has up to four horizontal lateral sections in the coal. Together, this well system facilitates extraction of CBM and water from the coal seam. The horizontal wellbores, extending up to 5,000 feet from the point of intersection with the vertical wellbore, expose large amounts of coal surface area allowing for the migration of water and CBM from the coal seam. The wells are spaced on approximately 480 acre sections. The vertical well, equipped with a mechanical pump, provides a sump for water produced by the coal seam to collect and enables the collected water to be lifted to the surface for disposal. In addition to our vertical-to-horizontal drilling, we also develop gob wells in this region associated with CONSOL Energy’s mines.

 

8


Table of Contents

Nittany CBM

 

We have the right to extract CBM in this region of Pennsylvania from approximately 256,000 net CBM acres. We have acquired all of CONSOL Energy’s rights associated with CBM in this region as well as significant leased coal reserves from Rosebud Mining Company and a number of smaller coal owners.

 

Marcellus Shale

 

We have 186,000 net acres of Marcellus shale and 161,000 net acres of shallow conventional potential in Ohio, Pennsylvania, West Virginia, and New York. In 2008, CNX Gas drilled and completed seven wells in the Marcellus Shale in southwestern Pennsylvania. Four wells were completed as vertical completions and three wells were drilled and completed as horizontal wells. Two wells, one vertical and one horizontal, were turned into production as of December 31, 2008. The remaining five Marcellus wells will be turned in-line in 2009.

 

Shallow Oil and Gas

 

In 2008, CNX Gas drilled and completed two shallow conventional wells in southwestern Pennsylvania, four shallow conventional wells in south central Pennsylvania and two shallow conventional wells in eastern Ohio. Four of these wells were completed as natural flowing wells of which two are in production. The remaining six wells are awaiting gathering pipelines and should be turned in-line early in 2009.

 

Others

 

Cardinal Shale

 

As of December 31, 2008, we controlled approximately 338,000 net acres of rights to gas in the New Albany shale in Kentucky, Illinois, and Indiana. The New Albany shale is a formation containing gaseous hydrocarbons, and our acreage position has thickness of 50-300 feet at an average depth of 2,500-4000 feet. As of December 31, 2008, we have identified test well locations and we have drilled several exploratory wells. We are using a standard drilling rig to drill up to 4,000 vertical feet. We also have identified the potential for shallow oil in this area which we will continue to evaluate.

 

Illinois Basin CBM

 

We also control 537,000 net CBM acres in Illinois and Indiana, including 92,000 net CBM acres which contain most of the recoverable coal reserves owned or controlled by CONSOL Energy in Illinois.

 

Other Acreage

 

We have the right to extract CBM on 139,000 net acres in the San Juan Basin, 34,000 net acres in the Powder River Basin, 41,000 net acres in eastern Ohio, and 51,000 net acres in central West Virginia. We also have the right to extract oil and gas on 12,000 net acres in the San Juan Basin, 10,000 net acres in the Powder River Basin, and 40,000 net acres in various other areas.

 

9


Table of Contents

Summary of Properties as of December 31, 2008

 

     Central
Appalachia
    Northern
Appalachia
    Other     Total  

Estimated Net Proved Reserves (Bcfe)

   1,279     112     31     1,422  

Percent Developed

   53 %   72 %   78 %   55 %

Net Producing Wells (including gob wells)

   2,972     405     119     3,496  

Net Proved Developed CBM Acres

   143,657     84,013     —       227,670  

Net Proved Undeveloped CBM Acres

   31,322     14,621     —       45,943  

Net Unproved CBM Acres(1)

   559,139     1,032,866     710,545     2,302,550  
                        

Total Net CBM Acres

   734,118     1,131,500     710,545     2,576,163  
                        

Net Proved Developed Oil & Gas Acres

   6,500     1,807     213     8,520  

Net Proved Undeveloped Oil & Gas Acres

   1,864     902     60     2,826  

Net Unproved Oil & Gas Acres(1)

   492,589     188,407     398,952     1,079,948  
                        

Total Net Oil & Gas Acres

   500,953     191,116     399,225     1,091,294  
                        

 

(1) Includes areas leased to others or participation interests in third party wells as well as small acreage in other areas.

 

Drilling

 

During the year ended December 31, 2008, 2007 and 2006, we drilled 534, 370, and 272 net development wells, respectively. Gob wells and wells drilled by other operators that we participate in are excluded. As of December 31, 2008, 67 wells are still in process. The following table illustrates the wells referenced above by geographic region:

 

Development Wells (Net)

 

     For the Year
Ended December 31,
     2008 Wells    2007 Wells    2006 Wells

Central Appalachia

   321    294    253

Northern Appalachia

   213    76    19
              

Total

   534    370    272
              

 

During the year ended December 31, 2008, 2007 and 2006, we drilled in the aggregate 60, 9, and 4 net exploratory wells, respectively. The following table illustrates the exploratory wells by geographic region:

 

Exploratory Wells (Net)

 

     As of December 31,
     2008    2007    2006
     Producing    Dry    Still Eval.    Producing    Dry    Still Eval.    Producing    Dry    Still Eval.

Central Appalachia

   8    —      18    3    —      —      2    —      —  

Northern Appalachia

   6    —      20    —      —      —      —      —      2

Other

   1    3    4    1    —      5    —      —      —  
                                            

Total

   15    3    42    4    —      5    2    —      2
                                            

 

10


Table of Contents

Summary of Other Operating Data

 

Production

 

The following table sets forth net sales volume produced for the periods indicated. The year ended December 31, 2008 does not include any equity affiliates due to the proportional consolidation of Knox Energy, LLC as of December 31, 2007 and the subsequent purchase of the remaining interest in this entity. The years ended December 31, 2007 and 2006 include our portion of equity interests.

 

     For the Year
Ended December 31,
     2008    2007    2006

Total Produced (Mmcf)

   76,562    58,249    56,135

 

Average Sales Prices and Lifting Costs

 

The following table sets forth the average sales price and the average lifting cost (prior years include our portion of equity interests) for all of our gas production for the periods indicated. Lifting cost is the cost of raising gas to the gathering system and does not include depreciation, depletion or amortization.

 

     For the Year
Ended December 31,
     2008    2007    2006

Average Gas Sales Price Before Effects of Financial Settlements (per Mcf)

   $ 8.99    $ 6.87    $ 6.72

Average Effects of Financial Settlements (per Mcf)

   $ —      $ 0.33    $ 0.32

Average Gas Sales Price Including Effects of Financial Settlements (per Mcf)

   $ 8.99    $ 7.20    $ 7.04

Average Lifting Cost (per Mcf)

   $ 0.89    $ 0.68    $ 0.60

 

Productive Wells and Acreage

 

Most of our development wells and acreage are located in Central Appalachia. Some leases are beyond their primary term, but these leases are extended in accordance with their terms as long as certain drilling commitments are satisfied. The following table sets forth, at December 31, 2008, the number of CNX Gas producing wells, developed acreage and undeveloped acreage:

 

     Gross    Net(1)

Producing Wells (including gob wells)

   5,236    3,496

Proved Developed Acreage

   246,476    236,190

Proved Undeveloped Acreage

   50,671    48,769

Unproven Acreage

   3,936,252    3,382,498
         

Total Acreage

   4,233,399    3,667,457
         

 

(1) Net acres do not include acreage attributable to the working interests of our principal joint venture partners and the portions of certain proved developed acreage attributable to property we have leased to third-party producers. Additional adjustments (either increases or decreases) may be required as we further develop title to and further confirm our rights with respect to our various properties in anticipation of development. We believe that our assumptions and methodology in this regard are reasonable.

 

Sales

 

CNX Gas enters into physical gas sales transactions with various counterparties for terms varying in length. Reserves and production estimates are believed to be sufficient to satisfy these obligations. In the past, other than interstate pipeline outages related to maintenance issues, we have not failed to deliver quantities required under

 

11


Table of Contents

contract. CNX Gas has also entered into various gas swap transactions that qualify as financial cash flow hedges. These gas swap transactions exist parallel to the underlying physical transactions and represented approximately 43.4 Bcf of our produced gas sales volumes for the year ended December 31, 2008 at an average price of $9.25 per Mcf. As of December 31, 2008, we expect these transactions will cover approximately 41.9 Bcf of our estimated 2009 production at an average price of $9.74 per Mcf.

 

CNX Gas has purchased firm transportation capacity on various interstate pipelines to ensure gas production flows to market. As of December 31, 2008, CNX Gas has secured firm transportation capacity to cover more than our 2009 hedged production.

 

The hedging strategy and information regarding derivative instruments used are outlined in “Management’s Discussion and Analysis of Results of Operations and Financial Condition—Qualitative and Quantitative Disclosures About Market Risk,” and in Note 18 to the Consolidated Financial Statements.

 

Reserves

 

The following table shows our estimated proved developed and proved undeveloped reserves. Reserve information is net of royalty interest. Proved developed and proved undeveloped reserves are reserves that could be commercially recovered under current economic conditions, operating methods and government regulations. Proved developed and proved undeveloped reserves are defined by the SEC Rule 4.10(a) of Regulation S-X.

 

     Net Reserves (Mmcfe) as of December 31,
     2008    2007    2006
     Consolidated
Operations
   Affiliates    Consolidated
Operations
   Affiliates    Consolidated
Operations
   Affiliates

Estimated proved developed reserves

   783,290    —      667,726    3,584    609,700    2,200

Estimated proved undeveloped reserves

   638,756    —      672,183    —      653,593    —  
                             

Total estimated proved developed and undeveloped reserves

   1,422,046    —      1,339,909    3,584    1,263,293    2,200
                             

 

Discounted Future Net Cash Flows

 

The following table shows our estimated future net cash flows and total standardized measure of discounted future net cash flows at 10%:

 

     Discounted Future Net Cash Flows
(Dollars in millions)
     As of December 31,
         2008            2007            2006    

Future net cash flows

   $ 2,824    $ 3,609    $ 2,484

Total PV-10 measure of pre-tax discounted future net cash flows(1)

   $ 2,004    $ 2,288    $ 1,500

Total standardized measure of after tax discounted future net cash flows

   $ 1,218    $ 1,390    $ 935

 

(1) We calculate our PV-10 value in accordance with the following table. Management believes that the presentation of the non-GAAP financial measure of PV-10 provides useful information to investors because it is widely used by professional analysts and sophisticated investors in evaluating oil and gas companies. Because many factors that are unique to each individual company impact the amount of future income taxes estimated to be paid, the use of a pre-tax measure is valuable when comparing companies based on reserves. PV-10 is not a measure of financial or operating performance under GAAP. PV-10 should not be considered as an alternative to the standardized measure as defined under GAAP. We have included a reconciliation to the most directly comparable GAAP measure—after-tax discounted future net cash flows.

 

12


Table of Contents

Reconciliation of PV-10 to Standardized Measure

 

     As of
December 31,
 
     2008     2007     2006  
     (Dollars in millions)  

Future cash inflows

   $ 8,857     $ 9,509     $ 7,105  

Future Production Costs

     (3,526 )     (3,005 )     (2,569 )

Future Development Costs (including abandonments)

     (794 )     (636 )     (552 )
                        

Future net cash flows (pre-tax)

     4,537       5,868       3,984  

10% discount factor

     (2,533 )     (3,580 )     (2,484 )
                        

PV-10 (Non-GAAP measure)

     2,004       2,288       1,500  
                        

Undiscounted Income Taxes

     (1,714 )     (2,259 )     (1,500 )

10% discount factor

     928       1,361       935  
                        

Discounted Income Taxes

     (786 )     (898 )     (565 )
                        

Standardized GAAP measure

   $ 1,218     $ 1,390     $ 935  
                        

 

Competition

 

We operate primarily in the eastern United States. We believe that the gas market is highly fragmented and not dominated by any single producer. We believe that several of our competitors have devoted far greater resources than we have to gas exploration and development. We believe that competition within our market is based primarily on gas commodity trading fundamentals and pipeline transportation availability to the diverse market opportunities.

 

Employee and Labor Relations

 

As of December 31, 2008, CNX Gas had 373 employees. None of our employees are represented by a union.

 

Available Information

 

We file annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and proxy statements and other documents with the Securities and Exchange Commission (SEC) pursuant to the Securities Exchange Act of 1934. All documents that we file with the SEC are available for reading and copying in the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please contact the SEC at 1-800-SEC-0330 for further information regarding the operations of the public reference room. These SEC filings are also available over the Internet at the SEC’s website, www.sec.gov .

 

We make copies of these documents available on our own Internet website, www.cnxgas.com , as soon as reasonably possible after we have furnished such information to the SEC. Information contained on or connected to our website which is not directly incorporated by reference into this Form 10-K should not be considered part of this report or any other filing that we make with the SEC.

 

In addition, the charter for the audit committee of our Board of Directors and our Code of Ethics and Business Conduct, one for directors and the other for employees, can be found on our Internet website under the heading “Corporate Governance.” Stockholders may request copies of these documents by writing to the Investor Relations Department at 5 Penn Center West, Suite 401, Pittsburgh, Pennsylvania 15276-0102. Our Code of Employee Business Conduct and Ethics applies to CNX Gas’ Chief Executive Officer (Principal Executive Officer), Chief Financial Officer (Principal Financial Officer), principal accounting officer or controller and persons performing similar functions. If CNX Gas makes any amendments to the code other than technical, administrative, or other non-substantive amendments, or grants any waivers, including implicit waivers, from a

 

13


Table of Contents

provision of the code applicable to its principal executive officer, principal financial officer, principal accounting officer or controller or persons performing similar functions, CNX Gas will disclose the nature of the amendment or waiver, its effective date and to whom it applies on our website or in a report on Form 8-K filed with the Securities and Exchange Commission.

 

Regulations

 

The natural gas industry is subject to regulation by federal, state and local authorities on matters such as employee health and safety, permitting and licensing requirements, air quality standards, water pollution, the treatment, storage and disposal of wastes, plant and wildlife protection, storage tanks, the reclamation of properties and plugging of wells after gas operations are completed, the discharge or release of materials into the atmosphere and the environment, and the effects of gas well operations on groundwater and surface water quality and availability. Additional regulations, including regulations applicable to mine safety, may also be applicable to gas operations producing coalbed methane in relation to active mining. The possibility exists that new legislation or regulations may be adopted which would have a significant impact on our operations or our customers’ ability to use gas and may require us or our customers to change operations significantly or incur substantial costs.

 

Environmental Regulation of Gas Operations

 

Numerous governmental permits and approvals are required for gas operations. In order to obtain such permits and approvals, we are, or may be, required to prepare and present to federal, state or local authorities data pertaining to the effect or impact that any proposed exploration for or production of gas may have upon the environment and public and employee health and safety. Compliance with such permits and all other requirements imposed by such authorities may be costly and time-consuming and may delay the commencement or continuation of exploration or production operations. Moreover, failure to comply may result in the imposition of significant fines and penalties. Future legislation or regulations may increase and/or change the requirements for the protection of the environment, health and safety and, as a consequence, our activities may be more closely regulated. This type of legislation and regulation, as well as future interpretations of existing laws, may result in substantial increases in equipment and operating costs to CNX Gas and delays, interruptions or a termination of operations, the extent of which cannot be predicted. Further, the imposition of new environmental regulations could include restrictions on our ability to conduct certain operations such as hydraulic fracturing or disposal of waste, including, but not limited to, produced water, drilling fluids and other wastes associated with the exploration, development or production of natural gas. Furthermore, new environmental regulations governing the withdrawal, storage and use of surface water or groundwater necessary for hydraulic fracturing of wells may also increase operating costs and cause delays, interruptions or termination of operations, the extent of which cannot be predicted. It is not possible to quantify the costs of compliance with all applicable federal and state environmental laws. While those costs have not been significant in the past, they could be significant in the future. CNX Gas had no significant environmental control facility expenditures for the year ended 2008, 2007 and 2006 . Any environmental costs are in addition to well plugging costs; property restoration costs; and other, significant, non-capital environmental costs, including costs incurred to obtain and maintain permits and bonds, to gather and submit required data to regulatory authorities, to characterize and dispose of wastes and effluents, and to maintain management and operational practices with regard to potential environmental liabilities. Compliance with these federal and state environmental laws has increased the cost of gas production, but is, in general, a cost common to all domestic gas producers.

 

The magnitude of the liability and the cost of complying with environmental laws and regulations cannot be predicted with certainty due to: the lack of specific environmental, geologic, and hydrogeologic information available with respect to many sites; the potential for new or changed laws and regulations; the development of new drilling, remediation, and detection technologies and environmental controls; and the uncertainty regarding the timing of work with respect to particular sites. As a result, we may incur material liabilities or costs related to environmental matters in the future and such environmental liabilities or costs could adversely affect our results

 

14


Table of Contents

and financial condition. In addition, there can be no assurance that changes in laws or regulations would not affect the manner in which we are required to conduct our operations. Further, given the retroactive nature of certain environmental laws, CNX Gas has incurred, and may in the future incur, liabilities associated with: the investigation and remediation of the release of hazardous substances; environmental conditions; and natural resource damages related to properties and facilities currently or previously owned or operated as well as sites owned by third parties to which CNX Gas or our subsidiaries sent waste materials for treatment or disposal.

 

CNX Gas is subject to various generally-applicable federal environmental laws, including but not limited to the following:

 

   

the Clean Air Act;

 

   

the Clean Water Act;

 

   

the Toxic Substances Control Act;

 

   

the Endangered Species Act;

 

   

the Safe Drinking Water Act;

 

   

the Comprehensive Environmental Response, Compensation and Liability Act;

 

   

the Resource Conservation and Recovery Act;

 

   

the Oil Pollution Act; and

 

   

the Emergency Planning and Community Right-to-Know Act;

 

as well as state laws of similar scope and substance in each state in which we operate.

 

These environmental laws require monitoring, reporting, permitting and/or approval of many aspects of gas operations. Both federal and state inspectors regularly inspect facilities during construction and during operations after construction. We have ongoing environmental management, compliance and permitting programs designed to assist in compliance with such environmental laws. We believe that we have obtained all required permits under federal and state environmental laws for our current gas operations. Further, we believe that we are in substantial compliance with such permits. However, if violations of permits, failure to obtain permits or other violations of federal or state environmental laws are discovered, we could incur significant liabilities: to correct such violations; to provide additional environmental controls; to obtain required permits; and to pay fines or civil penalties which may be imposed by governmental agencies. New permit requirements and other requirements imposed under federal and state environmental laws may cause us to incur significant additional costs that could adversely affect our operating results.

 

Numerous proposals have been made at the international, national, regional and state levels that are intended to limit or capture emissions of greenhouse gases, such as methane and carbon dioxide. Several states have adopted measures intended to reduce greenhouse gas loading in the atmosphere. If comprehensive legislation focusing on greenhouse gas emissions is enacted by the United States or individual states, it may affect the use of fossil fuels, including natural gas, as an energy source.

 

From time to time, we have been the subject of investigations, administrative proceedings, and litigation, by government agencies and third parties, relating to environmental matters. We may become involved in future proceedings, litigation or investigations and incur liabilities that could be materially adverse to us.

 

Federal Regulation of the Sale and Transportation of Gas

 

Various aspects of CNX Gas’ operations are regulated by agencies of the federal government. The Federal Energy Regulatory Commission regulates the transportation and sale of natural gas in interstate commerce pursuant to the Natural Gas Act of 1938 and the Natural Gas Policy Act of 1978. While “first sales” by producers

 

15


Table of Contents

of natural gas, and all sales of condensate and natural gas liquids can be made currently at uncontrolled market prices, Congress could reenact price controls in the future. In 1989, Congress enacted the Natural Gas Wellhead Decontrol Act, which removed all Natural Gas Act and Natural Gas Policy Act price and non-price controls affecting wellhead sales of natural gas effective January 1, 1993.

 

Regulations and orders set forth by the Federal Energy Regulatory Commission also impact the business of CNX Gas to a certain degree. Although the Federal Energy Regulatory Commission does not directly regulate CNX Gas’ production activities, the Federal Energy Regulatory Commission has stated that it intends for certain of its orders to foster increased competition within all phases of the natural gas industry. Additionally, the Federal Energy Regulatory Commission continues to review its transportation regulations, including whether to allocate all short-term capacity on the basis of competitive auctions and whether changes to its long-term transportation policies may also be appropriate to avoid a market bias toward short-term contracts. Additional Federal Energy Regulatory Commission orders were adopted based on this review with the goal of increasing competition for natural gas markets and transportation.

 

The Federal Energy Regulatory Commission has also issued numerous orders confirming the sale and abandonment of natural gas gathering facilities previously owned by interstate pipelines and acknowledging that if the Federal Energy Regulatory Commission does not have jurisdiction over services provided by these facilities, then such facilities and services may be subject to regulation by state authorities in accordance with state law. In addition, the Federal Energy Regulatory Commission’s approval of transfers of previously-regulated gathering systems to independent or pipeline affiliated gathering companies that are not subject to Federal Energy Regulatory Commission regulation may affect competition for gathering or natural gas marketing services in areas served by those systems and thus may affect both the costs and the nature of gathering services that will be available to interested producers or shippers in the future.

 

CNX Gas owns certain natural gas pipeline facilities that we believe meet the traditional tests which the Federal Energy Regulatory Commission has used to establish a pipeline’s status as a gatherer not subject to the Federal Energy Regulatory Commission jurisdiction.

 

Additional proposals and proceedings that might affect the gas industry may be pending before Congress, the Federal Energy Regulatory Commission, the Minerals Management Service, state commissions and the courts. CNX Gas cannot predict when or whether any such proposals may become effective. In the past, the natural gas industry has been heavily regulated. There is no assurance that the regulatory approach currently pursued by various agencies will continue indefinitely. Notwithstanding the foregoing, CNX Gas does not anticipate that compliance with existing federal, state and local laws, rules and regulations will have a material or significantly adverse effect upon the capital expenditures, earnings or competitive position of CNX Gas or its subsidiaries. No material portion of CNX Gas’ business is subject to renegotiation of profits or termination of contracts or subcontracts at the election of the federal government.

 

State Regulation of Gas Operations

 

CNX Gas operations are also subject to regulation at the state and in some cases, county, municipal and local governmental levels. Such regulation includes requiring permits for the drilling of wells, maintaining bonding requirements in order to drill or operate wells and regulating the location and spacing of wells, the method of drilling and casing wells, the surface use and restoration of properties upon which wells are drilled, the plugging and abandoning of wells, the disposal of fluids used in connection with operations, and gas operations producing coalbed methane in relation to active mining. CNX Gas’ operations are also subject to various conservation laws and regulations. These include regulations that affect the size of drilling and spacing units or proration units, the density of wells which may be drilled and the unitization or pooling of gas properties. In addition, state conservation laws establish maximum rates of production from gas wells, and generally prohibit the venting or flaring of gas and impose certain requirements regarding the ratability of production. A number of states have either enacted new laws or may be considering the adequacy of existing laws affecting gathering rates

 

16


Table of Contents

and/or services. Other state regulation of gathering facilities generally includes various safety, environmental, and in some circumstances, nondiscriminatory take requirements, but does not generally entail rate regulation. Thus, natural gas gathering may receive greater regulatory scrutiny of state agencies in the future. CNX Gas’ gathering operations could be adversely affected should they be subject in the future to increased state regulation of rates or services, although CNX Gas does not believe that we would be affected by such regulation any differently than other natural gas producers or gatherers. However, these regulatory burdens may affect profitability, and CNX Gas is unable to predict the future cost or impact of complying with such regulations.

 

Ownership of Mineral Rights

 

The majority of our drilling operations are conducted on properties related to CONSOL Energy’s coal holdings. Our existing rights are often dependent on CONSOL Energy having obtained valid title to its properties.

 

CONSOL Energy’s past practice has been to acquire ownership or leasehold rights to their coal properties prior to conducting their coal mining operations. Given CONSOL Energy’s long history as a coal producer we believe they have a well-developed ownership position relating to their coal holdings. Although CONSOL Energy generally attempts to obtain ownership or leasehold rights to CBM and/or conventional gas related to their coal holdings, their ownership position relating to these property estates is less developed. As is customary in the coal and gas industry, a summary review of the title to coal, CBM and other gas rights is made on properties at the time of the acquisition of the other rights in the properties. Prior to the commencement of gas drilling operations on those properties, we conduct a thorough title examination and perform curative work with respect to significant defects. To the extent title opinions or other investigations reflect title defects on those properties, we are typically responsible for curing any title defects at our expense. We generally will not commence our drilling operations on a property until we have cured any material title defects on such property. We completed title work on substantially all of our producing properties and believe that we have satisfactory title to our producing properties in accordance with standards generally accepted in the gas industry.

 

Our natural gas properties are subject to customary royalty and other interests and burdens which we believe do not materially interfere with the use of or affect our carrying value of the properties.

 

The following summary sets forth an analysis of provisions of Pennsylvania, Virginia and West Virginia law relating to the ownership of CBM. These summaries do not purport to be complete and are qualified in their entirety by reference to the provisions of applicable law and rights and the laws relating to traditional natural gas resources may differ materially from the rights related to CBM. These summaries are based on current law as of the date of this Annual Report.

 

Pennsylvania

 

In Pennsylvania, CBM that remains inside the coal seam is generally the property of the owner of that coal seam where the gas is located. CBM can be sold in place or leased by the coal owner to another party such as a producer who then would have the right to extract the gas from the coal seam under the terms of the agreement with the coal owner. Once the gas migrates from the coal into other strata, the coal owner no longer has clear title to that migrated gas. As a result, in certain circumstances in Pennsylvania ( e.g ., in a gob or mine void), we may be required to obtain other property interests (beyond ownership or leasehold interest in the coal rights or CBM) in order to extract gas that is no longer located in the coal seam.

 

Virginia

 

The vast majority of CBM we produce, as well as our proved reserves, are in Virginia. The Virginia Supreme Court has stated that the grant of coal rights only does not include rights to CBM absent an express grant of CBM, natural gases, or minerals in general. The situation may be different if there is any expression in

 

17


Table of Contents

the severance deed indicating more than mere coal is conveyed. Virginia courts have also found that the owner of the CBM did not have the right to fracture the coal in order to retrieve the CBM and that the coal operator had the right to ventilate the CBM in the course of mining. In Virginia, we believe that we control the relevant property rights in order to capture gas from the vast majority of our producing properties.

 

In addition, Virginia has established the Virginia Gas and Oil Board and a procedure for the development of CBM by an operator in those instances where the owner of the CBM has not leased it to the operator or in situations where there are conflicting claims of ownership of the CBM. The general practice is to force pool both the coal owner and the gas owner. In those instances, any royalties otherwise payable are paid into escrow and the burden then is upon the conflicting claimants to establish ownership by court action. The Virginia Gas and Oil Board does not make ownership decisions.

 

West Virginia

 

The West Virginia’s Supreme Court has held that, in a conventional oil and gas lease executed prior to the inception of widespread public knowledge regarding CBM operations, the oil and gas lessee did not acquire the right to produce CBM. As of December 31, 2008, the West Virginia courts have not clarified who owns CBM in West Virginia. Therefore, the ownership of CBM is an open question in West Virginia.

 

West Virginia has enacted a law, the Coalbed Methane Wells and Units Act (the “West Virginia Act”), regulating the commercial recovery and marketing of CBM. Although the West Virginia Act does not specify who owns, or has the right to exploit, CBM in West Virginia and instead refers ownership disputes to judicial resolution, it contains provisions similar to Virginia’s pooling law. Under the pooling provisions of the West Virginia Act, an applicant who proposes to drill can prosecute an administrative proceeding with the West Virginia Coalbed Methane Review Board to obtain authority to produce CBM from pooled acreage. Owners and claimants of CBM interests who have not consented to the drilling are afforded certain elective forms of participation in the drilling ( e.g. , royalty or owner) but their consent is not required to obtain a pooling order authorizing the production of CBM by the operator within the boundaries of the drilling unit. The West Virginia Act also provides that, where title to subsurface minerals has been severed in such a way that title to coal and title to natural gas are vested in different persons, the operator of a CBM well permitted, drilled and completed under color of title to the CBM from either the coal seam owner or the natural gas owner has an affirmative defense to an action for willful trespass relating to the drilling and commercial production of CBM from that well.

 

We anticipate in future years to more actively explore for and develop Northern Appalachian CBM in West Virginia. As indicated, we may need or desire to acquire additional rights from other holders of real estate interests, including acquiring rights from other real estate interest holders if the law at that time continues to lack clarity on ownership rights to CBM in West Virginia. As we explore and develop this other acreage where CONSOL Energy has coal rights and has leased/conveyed to us CONSOL Energy’s rights to CBM, we expect in accordance with our existing procedures to have a title examination performed of CONSOL Energy’s rights to CBM. If we believe we need to obtain additional rights from the holders of other real estate interests, we have developed a methodology as part of deciding the feasibility of developing a particular tract to evaluate the ability to locate and negotiate a royalty arrangement with those other holders or use pooling provisions under the West Virginia Act.

 

Other States

 

We have been transferred rights to extract CBM held by CONSOL Energy in other states where they have coal reserves, including the states which comprise the Illinois Basin and certain other western basins. The ownership of CBM in these other states may be uncertain or could belong to other holders of real estate interests and we may need to acquire additional rights from other holders of real estate interests to extract and produce CBM in these other states.

 

18


Table of Contents

GLOSSARY OF NATURAL GAS AND COAL TERMS

 

The following is a description of the meanings of some of the oil and gas industry terms used in this Annual Report.

 

Appalachian Basin. A mountainous region in the eastern United States, running from northern Alabama to New York, and including parts of Georgia, South Carolina, North Carolina, Tennessee, Kentucky, Pennsylvania, Virginia, and all of West Virginia.

 

Bcf . Billion cubic feet of natural gas.

 

Bcfe . Billion cubic feet equivalent, determined using the ratio of six Mcf of natural gas to one bbl of crude oil, condensate or natural gas liquids.

 

Btu or British Thermal Unit . The quantity of heat required to raise the temperature of one pound of water by one degree Fahrenheit.

 

CBM . Coalbed methane.

 

Central Appalachia. As used in this Annual Report, Central Appalachia includes Virginia, Tennessee, east Kentucky and southern West Virginia.

 

Coal Seam. A single layer or stratum of coal.

 

Completion . The installation of permanent equipment for the production of oil or natural gas, or in the case of a dry hole, the reporting of abandonment to the appropriate agency.

 

Developed acreage . The number of acres that are allocated or assignable to productive wells or wells capable of production.

 

Development well . A well drilled within the proved boundaries of an oil or natural gas reservoir with the intention of completing the stratigraphic horizon known to be productive.

 

Dry hole . A well found to be incapable of producing hydrocarbons in sufficient quantities such that proceeds from the sale of such production exceed production expenses and taxes.

 

Exploitation . Ordinarily considered to be a form of development within a known reservoir.

 

Exploratory well . A well drilled to find and produce oil or gas reserves not classified as proved, to find a new reservoir in a field previously found to be productive of oil or gas in another reservoir or to extend a known reservoir.

 

Farm-in or farm-out . An agreement under which the owner of a working interest in an oil or gas lease assigns the working interest or a portion of the working interest to another party who desires to drill on the leased acreage. Generally, the assignee is required to drill one or more wells in order to earn its interest in the acreage. The assignor usually retains a royalty or reversionary interest in the lease. The interest received by an assignee is a “farm-in” while the interest transferred by the assignor is a “farm-out.”

 

Field . An area consisting of either a single reservoir or multiple reservoirs, all grouped on or related to the same individual geological structural feature and/or stratigraphic condition.

 

Frac well . A vertical well drilled in advance of mining and producing from zones artificially fractured or stimulated and which is capable of producing natural gas.

 

19


Table of Contents

Gathering system. Pipelines and other equipment used to move natural gas from the wellhead to the trunk or the main transmission lines of a pipeline system.

 

Gob . The de-stressed zone associated with any full seam extraction of coal that extends above and below the mined out coal seam, and which may be sealed or unsealed.

 

Gob gas . Gas produced from (a) a well drilled in advance of mining or after mining for the purpose of extracting natural gas from the gob or (b) a frac well that is recompleted for the purpose of extracting natural gas from the gob.

 

Gross acres or gross wells . The total acres or wells, as the case may be, in which a working interest is owned.

 

Mcf . Thousand cubic feet of natural gas.

 

Mcfe . Thousand cubic feet equivalent, determined using the ratio of six Mcf of natural gas to one bbl of crude oil, condensate or natural gas liquids.

 

MMBtu . Million British thermal units.

 

Mmcf . Million cubic feet of natural gas.

 

Mmcfe . Million cubic feet equivalent, determined using the ratio of six Mcf of natural gas to one bbl of crude oil, condensate or natural gas liquids.

 

Net acres or net wells . The sum of the fractional working interests owned in gross acres or wells, as the case may be.

 

Northern Appalachia. As used in this Annual Report, Northern Appalachia includes Pennsylvania, northern West Virginia, and southern New York.

 

NYMEX. The New York Mercantile Exchange.

 

Panel. A contiguous block of coal that generally comprises one operating unit.

 

Pay zone. The section of rock, from which gas is expected to be produced in commercial quantities.

 

Pipeline imbalance (imbalance). We have an operational balancing agreement with Columbia Gas Transmission Corporation (“Columbia”). This agreement is in accordance with the Council of Petroleum Accountants Societies’ definition of producer imbalances, whereby the operator controls the physical production and delivery of gas to a transporter. Contracted quantities of gas rarely equal physical deliveries. As the operator, CNX Gas is responsible for monitoring this imbalance and making adjustments to sales volumes as circumstances warrant. The imbalance agreement is managed internally using the sales method of accounting. The sales method recognizes revenue when the gas is taken and paid for by the purchaser.

 

PV-10 or present value of estimated future net revenues . An estimate of the present value of the estimated future net revenues from proved gas reserves at a date indicated after deducting estimated production and ad valorem taxes, future capital costs and operating expenses, but before deducting any estimates of income taxes. The estimated future net revenues are discounted at an annual rate of 10% in accordance with the SEC’s practice, to determine their “present value.” The present value is shown to indicate the effect of time on the value of the revenue stream and should not be construed as being the fair market value of the properties. Estimates of future net revenues are made using oil and natural gas prices and operating costs at the date indicated and held constant for the life of the reserves.

 

20


Table of Contents

Productive well . A well that is found to be capable of producing hydrocarbons in sufficient quantities such that proceeds from the sale of such production exceed production expenses and taxes.

 

Proved developed reserves . Proved reserves that can be expected to be recovered from existing wells with existing equipment and operating methods.

 

Proved reserves . The estimated quantities of crude oil, natural gas and natural gas liquids that geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions.

 

Proved undeveloped reserves . Proved reserves that are expected to be recovered from new wells on undrilled acreage or from existing wells where a relatively major expenditure is required for recompletion.

 

Reserve life index. This index is calculated by dividing total proved reserves by the production from the previous year to estimate the number of years of remaining production.

 

Reservoir . A porous and permeable underground formation containing a natural accumulation of producible oil and/or gas that is confined by impermeable rock or water barriers and is individual and separate from other reservoirs.

 

Shut in . Stopping an oil or gas well from producing.

 

Tcfe . Trillion cubic feet equivalent, determined using the ratio of six Mcf of natural gas to one bbl of crude oil, condensate or natural gas liquids.

 

Undeveloped acreage . Acreage on which wells have not been drilled or completed to a point that would permit the production of commercial quantities of oil or gas regardless of whether or not such acreage contains proved reserves.

 

Vertical-to-horizontal well. A well in which the drilling from the surface initially proceeds vertically until reaching a particular depth, at which point, the drill bit is turned to proceed at up to 90 degrees from vertical in order to follow a particular stratum or pay zone.

 

Working interest . The operating interest that gives the owner the right to drill, produce and conduct operating activities on the property and receive a share of production.

 

Executive Officers Of The Company

 

Incorporated by reference into this Part I is the information set forth in Part III, Item 10 under the caption “Executive Officers of CNX Gas Corporation” (included herein pursuant to Item 401(b) of Regulation S-K).

 

21


Table of Contents
Item 1A. Risk Factors

 

In addition to the trends and uncertainties described in Item I of this Annual Report and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” CNX Gas is subject to the trends and uncertainties set forth below.

 

GENERAL RISK FACTORS

 

The current financial crisis and deteriorating economic conditions may have material adverse impacts on our business and financial condition that we currently cannot predict.

 

As widely reported, economic conditions in the United States and globally have been deteriorating. Financial markets in the United States, Europe and Asia have been experiencing a period of unprecedented turmoil and upheaval characterized by extreme volatility and declines in security prices, severely diminished liquidity and credit availability, inability to access capital markets, the bankruptcy, failure, collapse or sale of various financial institutions and an unprecedented level of intervention from the United States federal government and other governments. Unemployment has risen while business and consumer confidence have declined and there are fears of a prolonged recession. Although we cannot predict the impacts on us of the deteriorating economic conditions, they could materially adversely affect our business and financial condition. For example:

 

   

the demand for natural gas may decline due to the deteriorating economic conditions which could negatively impact the revenues, margins and profitability of our natural gas business;

 

   

the tightening of credit or lack of credit availability to our customers could adversely affect our ability to collect our trade receivables;

 

   

our ability to access the capital markets may be restricted at a time when we would like, or need, to raise capital for our business including for exploration and/or development of our reserves;

 

   

our commodity hedging arrangements could become ineffective if our counterparties are unable to perform their obligations or seek bankruptcy protection.

 

Natural gas prices are volatile, and a decline in natural gas prices would significantly affect our financial results and impede our growth.

 

Our revenue, profitability and cash flow depend upon the prices and demand for natural gas. The markets for these commodities are very volatile and even relatively modest drops in prices can significantly affect our financial results and impede our growth. Changes in natural gas prices have a significant impact on the value of our reserves and on our cash flow. In the past we have used hedging transactions to reduce our exposure to market price volatility when we deemed it appropriate. If we choose not to engage in, or reduce our use of hedging arrangements in the future, we may be more adversely affected by changes in natural gas and oil prices than our competitors who engage in hedging arrangements to a greater extent than we do.

 

Prices for natural gas may fluctuate widely in response to relatively minor changes in the supply of and demand for natural gas, market uncertainty and a variety of additional factors that are beyond our control, such as:

 

   

the domestic and foreign supply of natural gas;

 

   

the price of foreign imports;

 

   

overall domestic and global economic conditions;

 

   

the consumption pattern of industrial consumers, electricity generators and residential users;

 

   

weather conditions;

 

   

technological advances affecting energy consumption;

 

   

domestic and foreign governmental regulations;

 

22


Table of Contents
   

proximity and capacity of gas pipelines and other transportation facilities; and

 

   

the price and availability of alternative fuels.

 

Many of these factors may be beyond our control. Earlier in this decade, natural gas prices were lower than they are today. Lower natural gas prices may not only decrease our revenues on a per unit basis, but may also limit our access to capital. A significant decrease in price levels for an extended period would negatively affect us in several ways including:

 

   

our cash flow would be reduced, decreasing funds available for capital expenditures employed to replace reserves or increase production; and

 

   

access to other sources of capital, such as equity or long-term debt markets, could be severely limited or unavailable.

 

Additionally, lower natural gas prices may reduce the amount of natural gas that we can produce economically. This may result in our having to make substantial downward adjustments to our estimated proved reserves. If this occurs or if our estimates of development costs increase, production data factors change, or our exploration results deteriorate, accounting rules may require us to write down as a non-cash charge to earnings the carrying value of our natural gas properties. We are required to perform impairment tests on our assets whenever events or changes in circumstances lead to a reduction of the estimated useful life or estimated future cash flows that would indicate that the carrying amount may not be recoverable or whenever management’s plans change with respect to those assets. We may incur impairment charges in the future, which could have a material adverse effect on our results of operations in the period taken.

 

We face uncertainties in estimating proved recoverable gas reserves, and inaccuracies in our estimates could result in lower than expected reserve quantities and a lower present value of our reserves.

 

Natural gas reserve engineering requires subjective estimates of underground accumulations of natural gas and assumptions concerning future natural gas prices, production levels, and operating and development costs. As a result, estimated quantities of proved reserves and projections of future production rates and the timing of development expenditures may be incorrect. We have in the past retained the services of independent petroleum engineers to prepare reports of our proved reserves. Over time, material changes to reserve estimates may be made, taking into account the results of actual drilling, testing, and production. Also, we make certain assumptions regarding future natural gas prices, production levels, and operating and development costs that may prove incorrect. Any significant variance from these assumptions to actual figures could greatly affect our estimates of our reserves, the economically recoverable quantities of natural gas attributable to any particular group of properties, the classifications of reserves based on risk of recovery, and estimates of the future net cash flows. Numerous changes over time to the assumptions on which our reserve estimates are based, as described above, often result in the actual quantities of gas we ultimately recover being different from reserve estimates.

 

The present value of future net cash flows from our proved reserves is not necessarily the same as the current market value of our estimated natural gas reserves. We base the estimated discounted future net cash flows from our proved reserves on prices and costs. However, actual future net cash flows from our gas and oil properties also will be affected by factors such as:

 

   

geological conditions;

 

   

changes in governmental regulations and taxation;

 

   

assumptions governing future prices;

 

   

the amount and timing of actual production;

 

   

future operating costs; and

 

   

capital costs of drilling new wells.

 

23


Table of Contents

The timing of both our production and our incurrence of expenses in connection with the development and production of natural gas properties will affect the timing of actual future net cash flows from proved reserves, and thus their actual present value. In addition, the 10% discount factor we use when calculating discounted future net cash flows may not be the most appropriate discount factor based on interest rates in effect from time to time and risks associated with us or the natural gas and oil industry in general. In addition, if natural gas prices decline by $0.10 per Mcf, then the pre-tax PV-10 of our proved reserves as of December 31, 2008 would decrease from $2.0 billion to $1.9 billion. The standardized GAAP measure associated with this decline of $0.10 per Mcf, would be approximately $1.2 billion.

 

Unless we replace our natural gas reserves, our reserves and production will decline, which would adversely affect our business, financial condition, results of operations and cash flows.

 

Producing natural gas reservoirs generally are characterized by declining production rates that vary depending upon reservoir characteristics and other factors. Because total estimated proved reserves include our proved undeveloped reserves at December 31, 2008, production is expected to decline even if those proved undeveloped reserves are developed and the wells produce as expected. The rate of decline will change if production from our existing wells declines in a different manner than we have estimated and can change under other circumstances. Thus, our future natural gas reserves and production and, therefore, our cash flow and income are highly dependent on our success in efficiently developing and exploiting our current reserves and economically finding or acquiring additional recoverable reserves. We may not be able to develop, find or acquire additional reserves to replace our current and future production at acceptable costs.

 

Our exploration and development activities may not be commercially successful.

 

The exploration for and production of gas involves numerous risks. The cost of drilling, completing and operating wells for CBM or other gas is often uncertain, and a number of factors can delay or prevent drilling operations or production, including:

 

   

unexpected drilling conditions;

 

   

title problems;

 

   

pressure or irregularities in geologic formations;

 

   

equipment failures or repairs;

 

   

fires or other accidents;

 

   

adverse weather conditions;

 

   

reductions in natural gas prices;

 

   

pipeline ruptures; and

 

   

unavailability or high cost of drilling rigs, other field services and equipment.

 

Our future drilling activities may not be successful, and our drilling success rates could decline. Unsuccessful drilling activities could result in higher costs without any corresponding revenues.

 

We have a limited operating history in certain of our operating areas, and our increased focus on new development projects in these and other unexplored areas increases the risks inherent in our gas and oil activities.

 

In 2009 and beyond we plan to conduct testing and development activities in areas where we have little or no proved reserves, such as certain areas in Pennsylvania, Kentucky and Tennessee. These exploration, drilling and production activities will be subject to many risks, including the risk that CBM or other natural gas is not present in sufficient quantities in the coal seam or target strata, or that sufficient permeability does not exist for

 

24


Table of Contents

the gas to be produced economically. We have invested in property, and will continue to invest in property, including undeveloped leasehold acreage, that we believe will result in projects that will add value over time. Drilling for CBM, other natural gas and oil may involve unprofitable efforts, not only from dry wells but also from wells that are productive but do not produce sufficient net reserves to return a profit after deducting drilling, operating and other costs. We cannot be certain that the wells we drill in these new areas will be productive or that we will recover all or any portion of our investments.

 

Our business depends on transportation facilities owned by others. Disruption of, capacity constraints in, or proximity to pipeline systems could limit sales of our gas.

 

We transport our gas to market by utilizing pipelines owned by others. If pipelines do not exist near our producing wells, if pipeline capacity is limited or if pipeline capacity is unexpectedly disrupted, our gas sales could be limited, reducing our profitability. If we cannot access pipeline transportation, we may have to reduce our production of gas or vent our produced gas to the atmosphere because we do not have facilities to store excess inventory. If our sales are reduced because of transportation constraints, our revenues will be reduced, and our unit costs will also increase. If we cannot obtain transportation capacity and we do not have the ability to store gas, we may have to reduce production. If pipeline quality tariffs change, we might be required to install additional processing equipment which could increase our costs. The pipeline could curtail our flows until the gas delivered to their pipeline is in compliance.

 

Increased industry activity may create shortages of field services, equipment and personnel, which may increase our costs and may limit our ability to drill and produce from our natural gas properties.

 

The demand for well service providers, related equipment, and qualified and experienced field personnel to drill wells and conduct field operations, including geologists, geophysicists, engineers and other professionals in the natural gas and oil industry can fluctuate significantly, often in correlation with natural gas and oil prices, causing periodic shortages. These shortages may lead to escalating prices, the possibility of poor services, inefficient drilling operations, and personnel injuries. Such pressures will likely increase the actual cost of services, extend the time to secure such services and add costs for damages due to accidents sustained from the over use of equipment and inexperienced personnel. Higher oil and natural gas prices generally stimulate increased demand and result in increased prices for drilling equipment, crews and associated supplies, equipment and services. In addition, the costs and delivery times of equipment and supplies are substantially greater in periods of peak demand. Accordingly, we cannot assure that we will be able to obtain necessary drilling equipment and supplies in a timely manner or on satisfactory terms, and we may experience shortages of, or material increases in the cost of, drilling equipment, crews and associated supplies, equipment and services in the future. Any such delays and price increases could adversely affect our ability to pursue our drilling program and our results of operations.

 

We operate in a highly competitive environment and many of our competitors have greater resources than we do.

 

The gas industry is intensely competitive and we compete with companies from various regions of the United States and may compete with foreign companies for domestic sales, many of whom are larger and have greater financial, technological, human and other resources. If we are unable to compete, our company, our operating results and financial position may be adversely affected. For example, one of our competitive strengths is as a low-cost producer of gas. If our competitors can produce gas at a lower cost than us, it would effectively eliminate our competitive strength in that area.

 

In addition, larger companies may be able to pay more to acquire new properties for future exploration, limiting our ability to replace gas we produce or to grow our production. Our ability to acquire additional properties and to discover new resources also depends on our ability to evaluate and select suitable properties and to consummate these transactions in a highly competitive environment.

 

25


Table of Contents

Acquisitions are subject to the risks and uncertainties of evaluating reserves and potential liabilities and may be disruptive and difficult to integrate into our business.

 

From time to time we consider various acquisition opportunities. We could be subject to significant liabilities related to any completed acquisition. Generally, it is not feasible to review in detail every individual property included in an acquisition. Ordinarily, a review is focused on higher valued properties. However, even a detailed review of all properties and records may not reveal existing or potential problems in all of the properties, nor will it permit us to become sufficiently familiar with the properties to assess fully their deficiencies and capabilities prior to acquisition. We will not always inspect every well we acquire, and environmental problems, such as groundwater contamination, are not necessarily observable even when an inspection is performed.

 

In addition, there is intense competition for acquisition opportunities in our industry. Competition for acquisitions may increase the cost of, or cause us to refrain from, completing acquisitions. Our acquisition strategy is dependent upon, among other things, our ability to obtain debt and equity financing and, in some cases, regulatory approvals. Our ability to pursue our acquisition strategy may be hindered if we are not able to obtain financing on terms acceptable to us or regulatory approvals.

 

Acquisitions often pose integration risks and difficulties. In connection with future acquisitions, the process of integrating acquired operations into our existing operations may result in unforeseen operating difficulties and may require significant management attention and financial resources that would otherwise be available for the ongoing development or expansion of existing operations. Future acquisitions could result in our incurring additional debt, contingent liabilities, expenses and diversion of resources, all of which could have a material adverse effect on our financial condition and operating results.

 

Our drilling and production operations require the removal of water from the coal, shale and other strata from which we produce gas. In addition, we must find adequate sources of water to facilitate the drilling and fracturing process. If we are unable to acquire supplies of water for drilling or are unable to dispose of the water we use or remove from the strata at a reasonable cost and within applicable environmental rules, our ability to produce gas commercially and in commercial quantities could be impaired.

 

Coal, shale and other strata frequently contain water that must be removed in order for the gas to detach from the coal and flow to the wellbore. Our ability to remove and dispose of sufficient quantities of water from the coal seam will determine whether or not we can produce gas in commercial quantities. Also, the cost of water disposal may affect our profitability.

 

We use a substantial amount of water in our gas well drilling operations. Our inability to locate sufficient amounts of water, or dispose of water after drilling, could impact our operations. Moreover, the imposition of new environmental initiatives and regulations could include restrictions on our ability to conduct certain operations such as hydraulic fracturing or disposal of waste, including, but not limited to, produced water, drilling fluids and other wastes associated with the exploration, development or production of natural gas. Furthermore, new environmental regulations governing the withdrawal, storage and use of surface water or groundwater necessary for hydraulic fracturing of wells may also increase operating costs and cause delays, interruptions or termination of operations, the extent of which cannot be predicted, all of which could have an adverse affect on our operations and financial performance.

 

Coalbed methane and other gas that we produce often contain impurities that must be removed, and the gas must be processed before it can be sold, which can adversely affect our operations and financial performance.

 

A substantial amount of our gas needs to be processed in order to make it salable to our intended customers. At times, the cost of processing this gas relative to the quantity of gas produced from a particular well, or group of wells, may outweigh the economic benefit of selling that gas. Our profitability may decrease due to the reduced production and sale of gas.

 

26


Table of Contents

We may be unable to retain our existing senior management team and/or our key personnel who have expertise in coalbed methane and other natural gas extraction and our failure to continue to attract qualified new personnel could adversely affect our business.

 

Our business requires disciplined execution at all levels of our organization to ensure that we continually develop our reserves and produce gas at profitable levels. This execution requires an experienced and talented management and production team. If we were to lose the benefit of the experience, efforts and abilities of any of our key executives and/or the members of our team that have developed substantial expertise in coalbed methane and other natural gas extraction, our business could be materially adversely affected. No employment agreements have been or are expected to be executed with key executives. Furthermore, our ability to manage our growth, if any, will require us to continue to train, motivate and manage our employees and to attract, motivate and retain additional qualified managerial and production personnel. Competition for these types of personnel is intense, and we may not be successful in attracting, assimilating and retaining the personnel required to grow and operate our business profitably.

 

Government laws, regulations and other legal requirements relating to protection of the environment, health and safety matters and others that govern our and CONSOL Energy’s businesses increase our costs and may restrict our operations.

 

We and our principal stockholder, CONSOL Energy, are subject to laws, regulations and other legal requirements enacted or adopted by federal, state and local, as well as foreign authorities relating to protection of the environment, health and safety matters, including those legal requirements that govern discharges of substances into the air and water, the management and disposal of hazardous substances and wastes, the clean-up of contaminated sites, groundwater quality and availability, plant and wildlife protection, reclamation and restoration of mining or drilling properties after mining or drilling is completed, control of surface subsidence from underground mining and work practices related to employee health and safety. Complying with these requirements, including the terms of our and CONSOL Energy’s permits, has had, and will continue to have, a significant effect on our respective costs of operations and competitive position. In addition, we could incur substantial costs, including clean-up costs, fines and civil or criminal sanctions and third party damage claims for personal injury, property damage, wrongful death, or exposure to hazardous substances, as a result of violations of or liabilities under environmental and health and safety laws. Moreover, given our relationship with CONSOL Energy, its compliance with these laws and regulations could impact our ability to effectively produce gas from our wells.

 

Additionally, the gas industry is subject to extensive legislation and regulation, which is under constant review for amendment or expansion. Any changes may affect, among other things, the pricing or marketing of gas production. State and local authorities regulate various aspects of gas drilling and production activities, including the drilling of wells (through permit and bonding requirements), the spacing of wells, the unitization or pooling of gas properties, environmental matters, safety standards, market sharing and well site restoration. If we fail to comply with statutes and regulations, we may be subject to substantial penalties, which would decrease our profitability.

 

We must obtain governmental permits and approvals for drilling operations, which can be a costly and time consuming process and result in restrictions on our operations.

 

Regulatory authorities exercise considerable discretion in the timing and scope of permit issuance. Requirements imposed by these authorities may be costly and time consuming and may result in delays in the commencement or continuation of our exploration or production operations. For example, we are often required to prepare and present to federal, state or local authorities data pertaining to the effect or impact that proposed exploration for or production of gas may have on the environment. Further, the public may comment on and otherwise engage in the permitting process, including through intervention in the courts. Accordingly, the permits we need may not be issued, or if issued, may not be issued in a timely fashion, or may involve requirements that restrict our ability to conduct our operations or to do so profitably.

 

27


Table of Contents

Enactment of a Pennsylvania severance tax on natural gas could adversely impact our results of existing operations and the economic viability of exploiting new gas drilling and production opportunities in Pennsylvania.

 

As a result of a funding gap in the Pennsylvania state budget due to significant declines in anticipated tax revenues, the Pennsylvania governor has proposed to its legislature the adoption of a wellhead or severance tax on the production of natural gas in Pennsylvania. The amount of the proposed tax is 5 percent of the value of the natural gas at wellhead plus 4.7 cents per 1,000 cubic feet of natural gas severed. In Pennsylvania we have rights in significant acreage for coalbed methane and other natural gas extraction on which we have drilled and expect to continue to drill producing wells. In 2008, 12%, or 9.1 bcf, of our production was from PA. In addition, a significant amount of our Marcellus shale play acreage is in Pennsylvania. We cannot predict whether Pennsylvania will adopt any such tax, nor if adopted the rate of tax. If Pennsylvania adopts such a tax, it could adversely impact our results of existing operations and the economic viability of exploiting new gas drilling and production opportunities in Pennsylvania.

 

We may incur additional costs and delays to produce gas because we have to acquire additional property rights to perfect our title to the gas estate.

 

Some of the gas rights we believe we control are in areas where we have not yet done any exploratory or production drilling. Most of these properties were acquired by CONSOL Energy primarily for the coal rights, and, in many cases were acquired years ago. While chain of title work for the coal estate was generally fully developed, in many cases, the gas estate title work is less robust. Our practice is to perform a thorough title examination of the gas estate before we commence drilling activities and to acquire any additional rights needed to perfect our ownership of the gas estate for development and production purposes. We may incur substantial costs to acquire these additional property rights and the acquisition of the necessary rights may not be feasible in some cases. Our inability to obtain these rights may adversely impact our ability to develop those properties. Some states permit us to produce the gas without perfected ownership under an administrative process known as “pooling,” which require us to give notice to all potential claimants and pay royalties into escrow until the undetermined rights are resolved. As a result, we may have to pay royalties to produce gas on acreage that we control and these costs may be material. Further, the pooling process is time-consuming and may delay our drilling program in the affected areas.

 

In addition, although CONSOL Energy has conveyed to us all of their rights to extract and produce CBM gas from coal seams and from shale locations where they possess rights to coal, in some cases CONSOL Energy may not possess these rights. If we are unable in such cases to obtain those rights from their owners, we will not enjoy the rights to develop the CBM with CONSOL Energy’s mining of coal, as provided in the master cooperation and safety agreement. Our failure to obtain these rights may adversely impact our ability in the future to increase production and reserves. For example, we have substantial acreage in West Virginia for which we have not reviewed the title to determine what, if any, additional rights would be needed to produce CBM from those locations or the feasibility of obtaining those rights.

 

In addition to acquiring these property right assets on an “as is, where is basis”, we have assumed all of the liabilities related to these assets, even if those liabilities were as a result of activities occurring prior to CONSOL Energy’s transfer of those assets to us. Our assumption of these liabilities is subject to the following allocation: we will be responsible for the first $10 million of aggregate unknown liabilities; CONSOL Energy will be responsible for the next $40 million of aggregate unknown liabilities; and we will be responsible for any additional unknown liabilities over $50 million. We will also be responsible for any unknown liabilities which were not asserted in writing by August 7, 2010.

 

28


Table of Contents

We must coordinate some of our gas production activities with coal mining activities in the same area, which could adversely affect our operations and financial results.

 

In many places where we extract CBM the coal estate is dominant. In those cases, the coal operator, including, for example, CONSOL Energy and other entities, could exercise their rights to determine when and where certain drilling can take place in order to ensure the safety of the mine or to protect the mineability of the coal.

 

Currently the majority of our producing properties are located in three counties in southwestern Virginia, making us vulnerable to risks associated with having our production concentrated in one area.

 

The vast majority of our producing properties are geographically concentrated in three counties in Virginia. As a result of this concentration, we may be disproportionately exposed to the impact of delays or interruptions of production from these wells caused by significant governmental regulation, transportation capacity constraints, curtailment of production, natural disasters or interruption of transportation of natural gas produced from the wells in this basin or other events which impact this area.

 

Proposed legislation that seeks to regulate greenhouse gas emissions could increase our costs and reduce the value of our assets.

 

Methane, the primary gas which we produce, is a greenhouse gas which is approximately 20 times more potent than carbon dioxide. Most of the coalbed methane we produce would otherwise be vented into the atmosphere in connection with coal mining activities, so our business could be viewed as a significant contributor to the reduction of greenhouse gas emissions and we may get credit for those reductions. We have voluntarily reported those reductions of greenhouse gas emissions to the Environmental Protection Agency for several years. Pursuant to an amendment to the master cooperation and safety agreement, CONSOL Energy and CNX Gas each receive 50% ownership of any greenhouse gas reduction benefits of our production activities both prior to and subsequent to the 2005 separation.

 

The U.S. Congress is considering climate change legislation that proposes to restrict greenhouse gas emissions. Moreover, several states have already adopted, and other states are considering the adoption of, legislation or regulations to reduce emissions of greenhouse gases. If any Federal or state legislation or regulations that are ultimately adopted do not exempt coalbed methane from their coverage, we could have to curtail production, pay higher taxes or incur costs to purchase allowances that permit us to continue our operations. If any Federal or state legislation or regulations that are ultimately adopted do not give us credits for capturing methane that would otherwise be vented, thereby reducing greenhouse gas emissions, the value of our historical and future credits would be reduced or eliminated.

 

Our hedging activities may prevent us from benefiting from price increases and may expose us to other risks.

 

To manage our exposure to fluctuations in the price of natural gas, we enter into hedging arrangements with respect to a portion of our expected production. As of December 31, 2008, we had hedges on approximately 41.9 bcf of our targeted 2009 natural gas production. To the extent that we engage in hedging activities, we may be prevented from realizing the benefits of price increases above the levels of the hedges.

 

In addition, such transactions may expose us to the risk of financial loss in certain circumstances, including instances in which:

 

   

our production is less than expected;

 

   

the counterparties to our contracts fail to perform the contracts; or

 

   

the creditworthiness of our counterparties or their guarantors is substantially impaired.

 

If our gas hedges would no longer qualify for hedge accounting, we will be required to mark them to market and recognize the adjustments through current year earnings. This may result in more volatility in our income in future periods.

 

29


Table of Contents

Our future level of indebtedness and the terms of our financing arrangements may adversely affect operations and limit our growth.

 

At December 31, 2008, we had $72.7 million of borrowings under our revolving credit facility. We may incur additional indebtedness in the future.

 

Our level of indebtedness and the covenants contained in our financing agreements, could have important consequences for our operations, including:

 

   

requiring us to dedicate a portion of our cash flow from operations to required payments, thereby reducing the availability of cash flow for working capital, capital expenditures and other general business activities;

 

   

limiting our ability to obtain additional financing in the future for working capital, capital expenditures, acquisitions and general corporate and other activities;

 

   

making us vulnerable to increases in interest rates, because our revolving credit facility provides for variable rates of interest;

 

   

limiting our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; and

 

   

reducing our ability to successfully withstand a downturn in our business or the economy generally.

 

Our revolving credit facility contains numerous financial and other restrictive covenants. See Note 8 to the Consolidated Financial Statements for more detail. Our ability to comply with the covenants and other restrictions may be affected by events beyond our control, including prevailing economic and financial conditions. If we fail to comply with the covenants and other restrictions, it could lead to an event of default and the acceleration of our obligations under those agreements. We may not have sufficient funds to make such payments. If we are unable to satisfy our obligations with cash on hand, we could attempt to refinance such debt, sell assets or repay such debt with the proceeds from an equity offering. We cannot assure that we will be able to generate sufficient cash flow to pay the interest on our debt or that future borrowings, equity financings or proceeds from the sale of assets will be available to pay or refinance such debt. The terms of our financing agreements may also prohibit us from taking such actions. Factors that will affect our ability to raise cash through an offering of our capital stock, a refinancing of our debt or a sale of assets include financial market conditions and our market value and operating performance at the time of such offering or other financing. We cannot assure that any such proposed offering, refinancing or sale of assets can be successfully completed or, if completed, that the terms will be favorable to us.

 

RISKS RELATING TO OUR RELATIONSHIP WITH CONSOL ENERGY

 

Our principal stockholder, CONSOL Energy, is in a position to affect our ongoing operations, corporate transactions and other matters, and some of our directors also serve on their board of directors and/or are employees of CONSOL Energy, creating potential conflicts of interest.

 

Our principal stockholder, CONSOL Energy, owns 83.3% of our outstanding shares of common stock. As a result, CONSOL Energy will be able to determine the outcome of all corporate actions requiring stockholder approval. For example, CONSOL Energy will continue to control decisions with respect to:

 

   

the election and removal of directors;

 

   

mergers or other business combinations involving us;

 

   

future issuances of our common stock or other securities; and

 

   

amendments to our certificate of incorporation and bylaws.

 

30


Table of Contents

Any exercise by CONSOL Energy of their control rights may be in its own best interest which may not be in the best interest of our other stockholders and our company. CONSOL Energy’s ability to control our company may also make investing in our stock less attractive. These factors in turn may have an adverse effect on the price of our common stock.

 

In addition, some of our directors serve as directors or officers of CONSOL Energy, and/or own CONSOL Energy stock, stock units or options to purchase CONSOL Energy stock, or they may be entitled to participate in the CONSOL Energy compensation plans. CONSOL Energy provides, and may in the future provide additional, cash- and equity-based compensation to employees or others based on CONSOL Energy’s performance. These arrangements and ownership interests or cash- or equity-based awards could create, or appear to create, potential conflicts of interest when directors or executive officers who own CONSOL Energy stock or stock options or who participate in the CONSOL Energy equity plan arrangements are faced with decisions that could have different implications for CONSOL Energy than they do for us. These potential conflicts of interest may not be resolved in our favor.

 

Potential conflicts may arise between us and CONSOL Energy that may not be resolved in our favor.

 

The relationship between CONSOL Energy and us may give rise to conflicts of interest with respect to, among other things, transactions and agreements among CONSOL Energy and us, issuances of additional voting securities and the election of directors. When the interests of CONSOL Energy diverge from our interests, CONSOL Energy may exercise their substantial influence and control over us in favor of their own interests over our interests. Our certificate of incorporation and the master cooperation and safety agreement entitle CONSOL Energy to various corporate opportunities which might otherwise have belonged to us and relieve CONSOL Energy and their directors, officers and employees from owing us fiduciary duties with respect to such opportunities.

 

Our intercompany agreements with CONSOL Energy are not the result of arm’s-length negotiations.

 

We have entered into agreements with CONSOL Energy which govern various transactions between us and our ongoing relationship, including registration rights, tax sharing and indemnification. All of these agreements were entered into while we were a wholly-owned subsidiary of CONSOL Energy, and were negotiated in the overall context of CONSOL Energy creating CNX Gas. As a result, these agreements were not negotiated at arm’s-length. Accordingly, certain rights of CONSOL Energy, particularly the rights relating to the number of demand and piggy-back registration rights that CONSOL Energy will have, the assumption by us of the registration expenses related to the exercise of these rights, our indemnification of CONSOL Energy for certain liabilities under these agreements, our payment of taxes and the retention of tax attributes may be more favorable to CONSOL Energy than if the agreements had been the subject of independent negotiation. We and CONSOL Energy and their other affiliates may enter into other material transactions and agreements from time to time in the future which also may not be deemed to be independently negotiated.

 

Our agreements with CONSOL Energy may limit our ability to obtain capital, make acquisitions or effect other business combinations.

 

Our business strategy anticipates future acquisitions of natural gas and oil properties and companies. Any acquisition that we undertake would be subject to the limitations and restrictions set forth in our agreements with CONSOL Energy and could be subject to our ability to access capital from outside sources on acceptable terms through the issuance of our common stock or other securities.

 

A significant portion of our production is associated with the coal mining operations of CONSOL Energy and any disruption to those coal mining operations will adversely impact our production and results of operations.

 

In 2008, approximately 24% of our gas production was produced in connection with coal extraction by CONSOL Energy; 12% of our production was associated with CONSOL Energy’s active mining operations.

 

31


Table of Contents

CONSOL Energy’s coal mining operations can be impacted by many events, some of which are beyond CONSOL Energy’s control, including for example,

 

   

an extended decline in prices they receive for coal;

 

   

changes in the supply of and demand for coal;

 

   

the disruption of rail, barge and other systems that transport coal;

 

   

the availability of qualified personnel to work in coal operations;

 

   

work stoppages at union-represented mines;

 

   

legal proceedings brought by property owners, environmental groups, governmental authorities and others;

 

   

the risks inherent in coal mining, such as unforeseeable geological conditions, equipment failure, methane gas issues, fires, accidents and weather conditions; and

 

   

compliance with laws and government regulations, including the need to obtain government permits for mining operations, environmental laws and regulations and employee health and safety regulations.

 

If CONSOL Energy’s mining operations are idled or curtailed as a result of any of these factors at any coal mine where we have gas operations associated with mining operations, especially CONSOL Energy’s Buchanan Mine in southwest Virginia, our CBM production would be adversely affected and the impact could have a material adverse effect on our results of operations. For example, in 2005, 2007 and 2008, CONSOL Energy was forced to idle their Buchanan Mine due to various issues. As a result, we estimate that our total gas production was 4.0 Bcf, 3.7 Bcf and 1.3 Bcf less than it otherwise would have been in those years if the Buchanan Mine had operated at normal levels.

 

Further, CONSOL Energy’s coal mining activities at their Buchanan Mine require the removal of water from the mine and the ventilation of the mine. Several lawsuits and permit appeals have been filed that could affect the removal of water from the mine. Separately, a lawsuit has been filed with respect to a ventilation fan that could affect the ventilation of the mine. If operations at CONSOL Energy’s Buchanan Mine are adversely affected as a result of these legal proceedings, our gas production relating to mining activities would be adversely affected.

 

Our prior and continuing relationship with CONSOL Energy exposes us to risks attributable to CONSOL Energy’s businesses.

 

We and CONSOL Energy are obligated to indemnify each other for certain matters as set forth in our agreements with CONSOL Energy. As a result, any claims made against us that are properly attributable to CONSOL Energy (or conversely, claims against CONSOL Energy that are properly attributable to us) in accordance with these arrangements could require us or CONSOL Energy to exercise our respective rights under the master separation agreement and the master cooperation and safety agreement. In addition, we have an agreement with CONSOL Energy that we will refrain from taking certain actions that would result in CONSOL Energy being in default under its debt instruments. Those debt instruments currently contain covenants that would be breached if we borrow from a third party unless we contemporaneously guaranteed indebtedness of CONSOL Energy under those debt instruments. In addition, those debt instruments contain covenants that would be breached by our granting liens on certain assets unless we contemporaneously grant a pari passu lien securing the indebtedness of CONSOL Energy under those debt instruments. In connection with our obtaining an unsecured credit facility with a group of commercial lenders, we guaranteed CONSOL Energy’s $250 million 7.875% notes due March 1, 2012. We are exposed to the risk that, in these circumstances, CONSOL Energy cannot, or will not, make the required payment or in turn that we are required to make a required payment to CONSOL Energy. If this were to occur, our business and financial performance could be adversely affected.

 

32


Table of Contents

CONSOL Energy’s ownership permits them to acquire the minority interest in a transaction where the minority stockholders have no vote and they may be faced with either accepting the consideration offered by CONSOL Energy or pursuing appraisal rights.

 

CONSOL Energy announced in late January 2008 a proposal to acquire all of the minority interest in CNX Gas. Although CONSOL Energy withdrew that proposal, they could in the future determine to again pursue that proposal or a similar or a different transaction to acquire the minority interest. A merger or similar transaction involving CNX Gas normally requires a stockholders meeting and vote of the stockholders of CNX Gas. However, under Delaware law and CNX Gas’ Certificate of Incorporation, stockholder action may be taken if a consent is signed by CONSOL Energy as the majority stockholder of CNX Gas. In addition, were CONSOL Energy to acquire 90% or more of our common stock, CONSOL Energy could by itself effect a “short form” merger without any stockholder action or approval. Thus, the minority stockholders may not have any vote on a merger or other transaction involving us that results in our becoming a wholly owned subsidiary of CONSOL Energy and the minority stockholders may be faced with either accepting the consideration offered by CONSOL Energy or pursuing appraisal rights.

 

Item 1B. Unresolved Staff Comments

 

None.

 

Item 2. Properties

 

Our corporate headquarters are located at 5 Penn Center West, Suite 401, Pittsburgh, Pennsylvania 15276-0102. Our other properties are described under “Gas Operations—Areas of Operation” in Item 1.

 

Item 3. Legal Proceedings

 

The first through seventh paragraphs of Note 19—Commitments and Contingent Liabilities in the Notes to the Consolidated Financial Statements included in Part II of this Form 10-K are incorporated herein by reference.

 

Item 4. Submission of Matters to a Vote of Security Holders

 

None.

 

EXECUTIVE OFFICERS OF REGISTRANT

 

Incorporated by reference into this Part I is the information set forth in Part III, Item 10 of this Form 10-K under the caption “Executive Officers of CNX Gas Corporation.”

 

33


Table of Contents

PART II

 

Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

The shares of CNX Gas Corporation common stock are listed and traded on the New York Stock Exchange (“NYSE”), under the symbol “CXG”.

 

The quarterly high and low share price for CNX Gas stock was as follows for the 2008 and 2007 quarters ended:

 

     2008    2007
     High    Low    High    Low

March 31

   $ 39.53    $ 26.66    $ 28.69    $ 22.90

June 30

   $ 45.51    $ 31.82    $ 32.69    $ 27.14

September 30

   $ 42.07    $ 19.77    $ 32.24    $ 23.47

December 31

   $ 31.75    $ 14.08    $ 33.20    $ 28.50

 

As of December 31, 2008 there were 10 holders of record of the Company’s common stock; we believe that there are significantly more beneficial holders of our stock.

 

Stock Performance Graph

 

The following performance graph compares the cumulative shareholders’ return on the common stock of CNX Gas Corporation (CXG) to the cumulative return for the same period of the S&P Oil and Gas Exploration and Production index and the S&P MidCap 400 Index. The chart below was structured in a semi-annual format rather than yearly because CNX Gas has only been a public company since January 2006.

 

The graph assumes that the value of the investment in CNX Gas common stock and each index was $100 at January 19, 2006 (the date CNX Gas’ shares were listed on the NYSE). The graph also assumes that all dividends, if any, were reinvested and that investments were held through December 31, 2008.

 

     Base
Period

Jan-19-06
        Six Months Ending               

Company / Index

      Jun-06      Dec-06        Jun-07      Dec-07    Jun-08    Dec-08

CNX Gas Corporation

   100    133.33    113.33    136.00    142.00    186.84    121.33

S&P MidCap 400 Index

   100    99.66    105.47    118.10    113.88    109.44    72.62

S&P Oil & Gas Exploration & Production

   100    96.25    95.84    115.69    138.41    186.24    90.57

 

34


Table of Contents

LOGO

 

The foregoing graph shall not be deemed to be filed as part of the Form 10-K and does not constitute soliciting material and should not be deemed filed or incorporated by reference into any other filing of CNX Gas under the Securities Act of 1933 or the Securities Exchange Act of 1934, except to the extent CNX specifically incorporates the graph by reference.

 

We currently retain our earnings for the development of our business and do not expect to pay any cash dividends. Other than the special dividend of approximately $420,200 we paid to CONSOL Energy with the net proceeds from the private placement of the shares of CNX Gas described below, we have not paid any cash dividends from the date of our inception.

 

See Part III, Item 11, Executive Compensation for information relating to CNX Gas equity compensation plans.

 

Recent Sales of Unregistered Securities

 

During the past three years, we have issued and sold unregistered securities in the transactions described below:

 

(1) In July of 2005, we issued 100 shares of common stock to Consolidation Coal Company in exchange for one hundred dollars in connection with the incorporation of CNX Gas. We relied on the exemption under Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offer and sale of those shares.

 

(2) On August 1, 2005, we issued 122,896,567 shares of common stock to our then sole stockholder, Consolidation Coal Company, in exchange for the contribution to us of all of CONSOL Energy Inc.’s (Consolidation Coal Company’s sole stockholder) gas business. We relied on the exemption under Section 4(2) of the Securities Act in connection with the offer and sale of those shares.

 

(3) On August 8, 2005, we completed a private placement of 24,292,754 shares of common stock, 21,778,867 of which were offered and sold to qualified institutional buyers pursuant to Rule 144A under the Securities Act, 1,086,980 of which were offered and sold to foreign buyers pursuant to Regulation S promulgated under the Securities Act and 1,426,907 of which were offered and sold to accredited investors pursuant to Rule 506 under the Securities Act. Friedman, Billings, Ramsey & Co., Inc. (“FBR”) served as the initial purchaser under the Rule 144A and Regulation S offerings and served as our placement agent with respect to the Rule 506 offering. In the Rule 144A and Regulation S offerings, we sold the securities to FBR at a price of $15.04 per share, which was a $0.96 per share discount over the gross offering price to the

 

35


Table of Contents

investors of $16.00 per share. In the Rule 506 offering, we sold shares to the investors at $16.00 per share and paid FBR a $0.96 per share commission. Aggregate net proceeds to CNX Gas for the total offering, after deducting discounts and commissions of $23,321 was $365,363. CNX Gas relied on subscription agreements and associated questionnaires in order to satisfy itself that the requirements of Rule 144A, Regulation S and Rule 506, as applicable, were satisfied. All net proceeds of the above offering were paid to Consolidation Coal Company as a special dividend.

 

(4) On August 11, 2005, following the exercise by FBR of an over-allotment option in connection with the above referenced private placement, we completed the sale of 3,643,913 shares of common stock, 822,702 of which were offered and sold to qualified institutional buyers pursuant to Rule 144A under the Securities Act, 51,300 of which were offered and sold to foreign buyers pursuant to Regulation S promulgated under the Securities Act and 2,769,911 of which were offered and sold to accredited investors pursuant to Rule 506 under the Securities Act. FBR served as the initial purchaser under the Rule 144A and Regulation S offerings and served as our placement agent with respect to the Rule 506 offering. In the Rule 144A and Regulation S offerings, we sold the securities to FBR at a price of $15.04 per share, which was a $0.96 per share discount over the gross offering price to the investors of $16.00 per share. In the Rule 506 offering, we sold shares to the investors at $16.00 per share and paid FBR a $0.96 per share commission. Aggregate net proceeds to CNX Gas for the total offering, after deducting discounts and commissions of $3,498 was $54,804. CNX Gas relied on subscription agreements and associated questionnaires in order to satisfy itself that the requirements of Rule 144A, Regulation S and Rule 506, as applicable, were satisfied. All net proceeds of the above offering were paid to Consolidation Coal Company as a special dividend.

 

(5) In reliance on Rule 701 and Rule 506 of the Securities Act of 1933, during August 2005, CNX Gas issued options to purchase CNX Gas common stock to our employees and executive officers at an exercise price of $16.00 per share and restricted stock units to our non-employee and non-CONSOL Energy employee directors. We also granted a small number of options to new employees in September 2005 at an exercise price of $20.50 per share, and in November 2005, at an exercise price of $20.75 per share. A total of 358,370 options to purchase CNX Gas common stock were granted to CNX Gas employees, other than our executive officers. Messrs. DeIuliis, Smith, Johnson and Bench received stock options in the aggregate amount of 670,556 shares and Mr. Johnson received 2,969 restricted stock units. Similarly, we granted restricted stock units to each director of CNX Gas that is not an employee of CNX Gas or CONSOL Energy. Mr. Baxter, chairman of the board of directors, was granted 60,000 restricted stock units. Each other such director received 10,000 restricted stock units. The foregoing one-time grants were made in consideration for future service of the employees, executive officers and directors to CNX Gas.

 

Item 6. Selected Financial Data

 

The following table presents our selected consolidated financial and operating data for, and as of the end of, each of the periods indicated. The selected consolidated financial data for, and as of the end of, each of the years ended December 31, 2008, 2007, 2006 2005 and 2004 are derived from our audited consolidated financial statements, including the consolidated balance sheets at December 31, 2008, 2007, 2006, 2005 and 2004 and the related consolidated statements of income and cash flows for each of the years ended December 31, 2008, 2007, 2006, 2005 and 2004, and the related notes. The selected consolidated financial and operating data are not necessarily indicative of the results that may be expected for any future period. The selected consolidated financial and operating data should be read in conjunction with “Management’s Discussion and Analysis of Results of Operations and Financial Condition” and the financial statements and related notes included in this Annual Report.

 

36


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

CONSOLIDATED STATEMENTS OF INCOME

 

STATEMENTS OF INCOME DATA

 

    For the Year Ended December 31,
    2008   2007   2006   2005   2004
            (In thousands)        

RESULTS OF OPERATIONS

         

Outside Sales

  $ 678,793   $ 404,835   $ 385,056   $ 277,031   $ 214,721

Related Party Sales

    9,532     11,618     8,490     6,052     22,036

Royalty Interest Gas Sales

    79,302     46,586     51,054     45,351     41,858

Purchased Gas Sales

    8,464     7,628     43,973     275,148     112,005

Other Income

    13,330     8,815     26,264     9,710     4,493
                             

TOTAL REVENUE AND OTHER INCOME

    789,421     479,482     514,837     613,292     395,113
                             

Lifting Costs

    67,653     38,721     33,357     30,399     27,250

Gathering and Compression Costs

    83,752     61,798     58,102     43,903     40,422

Royalty Interest Gas Costs

    74,041     40,011     41,998     36,641     32,914

Purchased Gas Costs

    8,175     7,162     44,843     278,720     113,063

Other

    4,995     1,759     2,060     2,729     586

General and Administrative

    80,246     54,825     39,168     19,129     15,303

Depreciation, Depletion and Amortization

    70,010     48,961     37,999     35,039     32,889

Interest Expense

    7,820     5,606     870     14     —  
                             

TOTAL COSTS AND EXPENSES

    396,692     258,843     258,397     446,574     262,427
                             

Earnings Before Income Taxes

    392,729     220,639     256,440     166,718     132,686

Income Taxes

    153,656     84,961     96,573     64,550     51,898
                             

NET INCOME

  $ 239,073   $ 135,678   $ 159,867   $ 102,168   $ 80,788
                             

Earnings Per Share from Net Income:

         

Basic

  $ 1.58   $ 0.90   $ 1.06   $ 0.76   $ 0.66
                             

Diluted

  $ 1.58   $ 0.90   $ 1.06   $ 0.76   $ 0.66
                             

Weighted Average Number of Common Shares Outstanding:

         

Basic

    150,947,516     150,886,433     150,845,518     134,071,334     122,896,667
                             

Dilutive

    151,331,953     151,133,520     151,017,456     134,137,219     122,988,359
                             

 

BALANCE SHEETS DATA

(In thousands)

 

     As of December 31,  
     2008     2007    2006    2005    2004  

Working Capital (Deficiency) (Unaudited)

   $ (31,192 )   $ 25,303    $ 115,824    $ 3,720    $ (35,030 )

Total Assets

     2,124,973       1,380,703      1,155,001      859,167      718,859  

Long Term Debt (Including current portion)

     83,144       72,768      66,470      —        —    

Total Deferred Credits and Other Liabilities

     384,367       227,833      153,977      109,226      205,614  

Stockholders’ Equity

     1,384,874       1,023,237      880,215      679,472      462,556  

 

37


Table of Contents

CASH FLOW STATEMENTS DATA

(In thousands)

 

     For the
Year Ended December 31,
 
     2008     2007     2006     2005     2004  

Net Cash Provided by Operating Activities

   $ 447,375     $ 272,448     $ 243,569     $ 144,997     $ 175,350  

Net Cash Used in Investing Activities

     (559,132 )     (354,227 )     (156,020 )     (108,287 )     (93,114 )

Net Cash Provided by (Used in) Financing Activities

     81,635       6,654       (449 )     (16,640 )     (82,237 )

 

OTHER OPERATING DATA

(Unaudited)

 

     For the
Year Ended December 31,
     2008    2007    2006    2005    2004

Net Sales Volumes (Bcf)(1)

     76.56      58.25      56.14      48.39      48.56

Average Sales Price Including Effects of Financial Settlements ($ per Mcf)(1)(2)

   $ 8.99    $ 7.20    $ 7.04    $ 5.90    $ 4.90

Total Average Costs ($ Per Mcf)(1)

   $ 3.94    $ 3.55    $ 3.02    $ 2.72    $ 2.45

Net Estimated Proved Reserves (Bcfe)(1)(3)

     1,422      1,343      1,265      1,130      1,045

 

OTHER FINANCIAL DATA

(In thousands)

 

     For the
Year Ended December 31,
     2008    2007    2006    2005    2004

Capital Expenditures(4)

   $ 560,663    $ 357,199    $ 154,243    $ 110,752    $ 89,753

EBIT(5) (Unaudited)

     400,149      222,452      253,857      166,314      132,686

EBITDA(5) (Unaudited)

     470,159      271,413      291,856      201,353      165,575

 

(1) For entities that are not wholly owned but in which CNX Gas owns a working interest, includes a percentage of their net production, sales or reserves equal to the CNX Gas percentage equity ownership. There were no equity affiliates in the year ended December 31, 2008. Knox Energy is included in the equity earnings data in 2007, 2006, 2005 and 2004. Sales of gas produced by equity affiliates were 0.32 Bcf for the year ended December 31, 2007, 0.22 Bcf for the year ended December 2006, 0.23 Bcf for the year ended December 31, 2005 and 0.20 Bcf for the year ended December 31, 2004.
(2) Represents average net sales price including the effect of derivative transactions.
(3) Represents proved developed and proved undeveloped gas reserves at period end for total operations including equity affiliates our portion of Equity affiliates included were 3.6 Bcfe at December 31, 2007, 2.2 at December 31, 2006, 2.7 at December 31, 2005 and 2.4 at December 31, 2004. There were no equity in affiliates at December 31, 2008.
(4) Capital expenditures for 2008 include the acquisition of the remaining interest in Knox Energy which CNX Gas did not already own, and other acquisition transactions. Capital expenditures in 2007 include those related to Knox Energy and acquisition of mineral interests.
(5)

EBIT is defined as earnings before deducting net interest expense (interest expense less interest income) and income taxes. EBITDA is defined as earnings before deducting net interest expense (interest expense less interest income), income taxes and depreciation, depletion and amortization. Although EBIT and EBITDA are not measures of performance calculated in accordance with accounting principles generally accepted in the United States of America, management believes that they are useful to an investor in evaluating CNX Gas because they are used as measures to evaluate a company’s operating performance before debt expense

 

38


Table of Contents
 

and cash flow. EBIT and EBITDA do not purport to represent cash generated by operating activities and should not be considered in isolation or as substitute for measures of performance in accordance with accounting principles generally accepted in the United States of America. In addition, because EBIT and EBITDA are not calculated identically by all companies, the presentation here may not be comparable to other similarly titled measures of other companies. Management’s discretionary use of funds depicted by EBIT and EBITDA may be limited by working capital, debt service and capital expenditure requirements, and by restrictions related to legal requirements, commitments and uncertainties.

 

A reconciliation of EBIT and EBITDA to financial net income is as follows:

 

     For the Year
Ended December 31,
(In thousands)    2008    2007    2006    2005    2004

Net Income

   $ 239,073    $ 135,678    $ 159,867    $ 102,168    $ 80,788

Add: Interest Expense

     7,820      5,606      870      14      —  

Less: Interest Income

     400      3,793      3,453      418      —  

Add: Income Tax Expense

     153,656      84,961      96,573      64,550      51,898
                                  

Earnings Before Net Interest and Taxes (EBIT)

     400,149      222,452      253,857      166,314      132,686

Add: Depreciation, Depletion and Amortization

     70,010      48,961      37,999      35,039      32,889
                                  

Earnings Before Net Interest, Taxes and Depreciation, Depletion and Amortization (EBITDA)

   $ 470,159    $ 271,413    $ 291,856    $ 201,353    $ 165,575
                                  

 

39


Table of Contents
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

The following discussion and analysis should be read in conjunction with “Selected Consolidated Financial and Other Data” and our consolidated financial statements and related notes appearing elsewhere in this Annual Report. This Annual Report on Form 10-K contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. See “PART I—Forward Looking Statements” and PART I-Item 1A “Risk Factors.”

 

During 2008, we achieved the following:

 

   

completed another year with no employee-related lost time accidents. We have accumulated over 3.5 million man hours without a lost time accident;

 

   

drilled a record 327 vertical frac wells in our Virginia Operations;

 

   

drilled a record 129 wells in our Mountaineer Operations;

 

   

drilled a record 106 wells in our Nittany Operations;

 

   

achieved a 100% success rate in the Marcellus Shale play. The Company’s first vertical well came online in July with a peak production rate of 1.3 MMcf per day. The Company’s first horizontal well came online in October and achieved a peak production rate in December of 6.5 MMcf per day. This was, at that time, the largest reported daily production by any producer for any well in this multi-state play;

 

   

achieved exploration success in the Chattanooga Shale;

 

   

increased our 2008 production by over 30% to 76.6 Bcf;

 

   

we replaced approximately 240% of our production through the drill bit;

 

   

generated net income of $239 million;

 

   

maintained our low cost structure relative to our peer group; and

 

   

invested $561 million in order to continue growing.

 

CNX Gas has entered into precedent agreements with several interstate gas pipeline companies for the acquisition of approximately 114,000 dekatherms per day of firm transportation capacity at negotiated rates, to transport current and future forecasted production within the Appalachian Basin to market once agreed upon expansions are completed by the gas pipeline companies. We expect to enter into firm transportation contracts upon completion of the related expansion projects.

 

CNX Gas has completed the independent verification process for several Chicago Climate Exchange (CCX) approved projects relating to the capture of coal mine methane. In 2008, we verified and registered for trading on the CCX approximately 8.4 million metric tons of emission offsets. CCX is a rules-based Greenhouse Gas (GhG) allowance trading system. CCX emitting members make a voluntary but legally binding commitment to meet annual GhG emission reduction targets. Those emitting members who exceed their targets have surplus allowances to sell or bank; those who fall short of their targets comply by purchasing offsets which are called CCX Carbon Financial Instruments (CFI) contracts. As a CCX offset provider, CNX Gas is not bound to any emission reduction targets. An offset provider is an owner of an offset project that registers and sells offsets on its own behalf. Sales of these emission offsets will be reflected in income as they occur. To date, no offsets have been sold.

 

Our Board of Directors made several management changes which had the effect of consolidating the management of CNX Gas and its controlling stockholder, CONSOL Energy.

 

Effective January 16, 2009, the goal of the management consolidation is to improve performance and profitability of both companies as well as to increase efficiency and reduce costs across all business areas, by

 

40


Table of Contents

creating a more unified organizational structure that will have functional, operational, and financial responsibility for all coal, gas, and related assets, while still recognizing the separate status of CNX Gas as a public company with shareholders in addition to CONSOL Energy. The changes were as follows;

 

J. Brett Harvey, President and Chief Executive Officer—CONSOL Energy Inc. has been appointed to the additional position of Chairman and Chief Executive Officer CNX Gas Corporation.

 

Nicholas J. DeIuliis has been appointed Executive Vice President and Chief Operating Officer for CONSOL Energy. He also will serve as President and Chief Operating Officer of CNX Gas Company. DeIuliis will have overall responsibility for energy production (coal and gas), focusing particularly on production efficiency and production coordination between coal and gas.

 

Robert F. Pusateri has been appointed Executive Vice President—Energy Sales and Transportation Services for both companies. He will continue to serve as President of CONSOL Energy Sales Company. Pusateri will have overall responsibility for sales of coal and gas, as well as transportation services and the management of CO 2 credits generated by the two companies.

 

William J. Lyons was named Executive Vice President and remains Chief Financial Officer. He will have responsibility for the essential financial functions of the CONSOL Energy and CNX Gas.

 

P. Jerome Richey has been appointed Executive Vice President—Corporate Affairs and Chief Legal Officer for both companies and also will serve as Secretary to each company.

 

Robert P. King has been appointed Executive Vice President—Business Advancement and Support Services for both companies. He will be responsible for identifying and developing new business opportunities as well as managing critical, non-financial support services for both companies.

 

CONSOL Energy continues to beneficially own approximately 83.3% of our outstanding common stock as such, CNX Gas’ financial statements are consolidated into CONSOL Energy’s financial statements.

 

41


Table of Contents

Year Ended December 31, 2008 compared with Year Ended December 30, 2007

(Amounts reported in millions)

 

Net Income

 

Net income changed primarily due to the following items:

 

     2008    2007    Dollar
Variance
    Percentage
Change
 

Revenue and Other Income:

          

Outside Sales

   $ 679    $ 405    $ 274     67.7 %

Related Party Sales

     10      11      (1 )   (9.1 )%

Royalty Interest Gas Sales

     79      46      33     71.7 %

Purchased Gas Sales

     8      8      —       —    

Other Income

     13      9      4     44.4 %
                        

Total Revenue and Other Income

     789      479      310     64.7 %

Costs and Expenses:

          

Lifting Costs

     68      38      30     78.9 %

Gathering and Compression Costs

     84      62      22     35.5 %

Gas Royalty Interest Costs

     74      40      34     85.0 %

Purchased Gas Costs

     8      7      1     14.3 %

Other

     4      1      3     300.0 %

General and Administrative

     80      55      25     45.5 %

Depreciation, Depletion and Amortization

     70      49      21     42.9 %

Interest Expense

     8      6      2     33.3 %
                        

Total Costs and Expenses

     396      258      138     53.5 %
                        

Earnings Before Income Taxes

     393      221      172     77.8 %

Income Taxes

     154      85      69     81.2 %
                        

Net Income

   $ 239    $ 136    $ 103     75.7 %
                        

 

Net income for the year ended December 31, 2008 was higher than the year ended December 31, 2007 primarily due to higher production volumes and average sales prices, offset, in part, by increased costs as discussed below.

 

Revenue and Other Income

 

Revenue and other income increased due to the following items:

 

     2008    2007    Dollar
Variance
    Percentage
Change
 

Revenue and Other Income:

          

Outside Sales

   $ 679    $ 405    $ 274     67.7 %

Related Party Sales

     10      11      (1 )   (9.1 )%

Royalty Interest Gas Sales

     79      46      33     71.7 %

Purchased Gas Sales

     8      8      —       —    

Other Income

     13      9      4     44.4 %
                        

Total Revenue and Other Income

   $ 789    $ 479    $ 310     64.7 %
                        

 

Outside sales and related party sales, combined, increased due primarily to higher average sales prices received and higher volumes of gas sold.

 

     2008    2007    Variance    Percentage
Change
 

Produced Gas Sales Volumes (in billion cubic feet)

     76.6      57.9      18.7    32.3 %

Average Sales Price Per thousand cubic feet

   $ 8.99    $ 7.19    $ 1.80    25.0 %

 

42


Table of Contents

The increase in average sales price is the result of CNX Gas realizing general market price increases in the year-to-year comparison. CNX Gas periodically enters into various gas swap transactions that qualify as financial cash flow hedges. These gas swap transactions exist parallel to the underlying physical transactions. These financial hedges represented approximately 43.4 Bcf of our produced gas sales volumes for the year ended December 31, 2008 at an average price of $9.25 per Mcf. In the prior year, these financial hedges represented approximately 18.4 Bcf at an average price of $8.01 per Mcf. Sales volumes increased as a result of additional wells coming online from our on-going drilling program. Prior year sales volumes were impacted by the deferral of production related to the Buchanan Mine issue at CONSOL Energy which also impacted production by 1.2 Bcf during the first quarter of 2008.

 

     2008    2007    Variance    Percentage
Change
 

Gas Royalty Interest Sales Volumes (in billion cubic feet)

     8.5      7.2      1.3    18.1 %

Average Sales Price Per thousand cubic feet

   $ 9.32    $ 6.44    $ 2.88    44.7 %

 

Included in royalty interest gas sales are the revenues related to the portion of production belonging to royalty interest owners sold by CNX Gas on their behalf. The increase in market prices, contractual differences among leases and the mix of average and index prices used in calculating royalties contributed to the year-to-year change.

 

     2008    2007    Variance     Percentage
Change
 

Purchased Sales Volumes (in billion cubic feet)

     1.0      1.1      (0.1 )   (9.1 )%

Average Sales Price Per thousand cubic feet

   $ 8.76    $ 7.19    $ 1.57     21.8 %

 

Purchased gas sales volumes represent volumes of gas we sold at market prices that were purchased from third-party producers, less our gathering fees.

 

Other income consists of the following items:

 

     2008    2007    Dollar
Variance
    Percentage
Change
 

Insurance settlements

   $ 8    $ 2    $ 6     300.0 %

Timber income

     1      —        1     100.0 %

Legal settlements

     1      —        1     100.0 %

Third party gathering revenue

     2      1      1     100.0 %

Interest income

     —        4      (4 )   (100.0 )%

Equity in earnings of affiliates

     1      2      (1 )   (50.0 )%
                        

Total Other Income

   $ 13    $ 9    $ 4     44.4 %
                        

 

In 2008, CNX Gas received $8 million of proceeds from its insurance carrier as final settlement of the insurance claim related to the July 2007 Buchanan Mine event which idled the mine. The $8 million represents business interruption coverage. In 2007, CNX Gas received a $2 million advance on the settlement of claims of proceeds from its insurance carrier.

 

Timber income increased $1 million in 2008 due primarily to a sale which occurred in February 2008. No assurance can be given that another sale will occur in the future.

 

A litigation settlement in 2008 with a royalty holder resulted in approximately $1 million of income.

 

Third-party gathering revenue increased $1 million in the year-to-year comparison due to higher third party volumes being transported on CNX Gas gathering lines.

 

43


Table of Contents

Interest income decreased $4 million as a result of the lower average cash balance throughout 2008 compared to 2007. Lower cash balances are the result of the June 2007 acquisition of Peabody’s oil and gas interests, the acquisition of the remaining 50% of Knox Energy LLC, additional capital expenditures related to the expanded drilling program, as well as acquisition costs for additional gas acreage.

 

Equity in earnings of affiliates decreased $1 million due to the June 2008 acquisition of the remaining 50% interest in Knox Energy LLC.

 

Costs and Expenses

 

Costs and expenses increased due to the following items:

 

     2008    2007    Dollar
Variance
   Percentage
Change
 

Costs and Expenses:

           

Lifting Costs

   $ 68      38      30    78.9 %

Gathering and Compression

     84      62      22    35.5 %

Royalty Interest Gas Costs

     74      40      34    85.0 %

Purchased Gas

     8      7      1    14.3 %

Other

     4      1      3    300.0 %

General and Administrative

     80      55      25    45.5 %

Depreciation, Depletion and Amortization

     70      49      21    42.9 %

Interest Expense

     8      6      2    33.3 %
                       

Total Cost and Expense

   $ 396    $ 258    $ 138    53.5 %
                       

 

Lifting costs increased due to higher unit costs and higher volumes sold.

 

     2008    2007    Variance    Percentage
Change
 

Produced Gas Sales Volumes (in billion cubic feet)

     76.6      57.9    18.7    32.3 %

Average Lifting Costs Per thousand cubic feet

   $ 0.89    $ 0.67    0.22    32.8 %

 

Average lifting costs per unit sold increased in the current year as a result of the following items:

 

   

Well closing costs were impaired $0.05 per thousand cubic feet in the year-to-year comparison. Well closing liabilities were adjusted in 2007 to reflect longer well lives than were previously estimated. This adjustment resulted in a reduction to expense. The adjustments to well closing liabilities were insignificant in 2008.

 

   

Water disposal costs have increased $0.05 per thousand cubic feet due to additional volumes of water produced by CNX Gas wells in 2008.

 

   

Severance taxes per unit sold were $0.04 per thousand cubic feet sold higher in 2008. The increase in severance tax was attributable to the higher average sale prices for gas.

 

   

Repairs and maintenance costs have increased $0.04 per thousand cubic feet due to higher material costs and higher contract labor costs.

 

   

Fuel and chemical costs have increased $0.02 per thousand cubic feet due to higher costs of these commodities in the year-to-year comparison.

 

   

Various other costs have also increased by $0.02 per thousand cubic feet for various items which occurred throughout both years, none of which were individually material.

 

     2008    2007    Variance    Percentage
Change
 

Produced Gas Sales Volumes (in billion cubic feet)

     76.6      57.9    18.7    32.3 %

Average Gathering Costs Per thousand cubic feet

   $ 1.09    $ 1.07    0.02    1.9 %

 

44


Table of Contents

The increase in average gathering and transportation unit costs was attributable to the following items.

 

   

Fuel and power increased $.06 per thousand cubic feet due to additional compressors being placed in service in anticipation of higher production volumes in the future.

 

   

Compression expenses increased $0.02 per thousand cubic feet due to the additional compressors discussed above.

 

These increases in average gathering and transportation costs were offset, in part, by the following items:

 

   

Repair and maintenance expense decreased $0.05 per thousand cubic feet. Dollars spent for maintenance have remained fairly consistent in the year-to-year comparison; therefore, additional volumes gathered and transported have lowered the related unit costs for these components.

 

   

Various other costs have decreased $0.01 per thousand cubic feet due to various transactions that occurred throughout both years, none of which were individually material.

 

     2008    2007    Variance    Change  

Gas Royalty Interest Sales Volumes (in billion cubic feet)

     8.5      7.2      1.3    18.1 %

Average Costs Per thousand cubic feet

   $ 8.70    $ 5.53    $ 3.17    57.3 %

 

Included in royalty interest gas costs are the expenses related to the portion of production belonging to royalty interest owners sold by CNX Gas on their behalf. The increase in volumes and price relates to the volatility and contractual differences among leases, the mix of average and index prices used in calculating royalties, and the actualization of advanced royalty payments.

 

     2008    2007    Variance     Percentage
Change
 

Purchased Sales Volumes (in billion cubic feet)

     1.0      1.1      (0.1 )   (9.1 )%

Average Costs Per thousand cubic feet

   $ 8.13    $ 6.66    $ 1.47     22.1 %

 

Purchased gas sales volumes represent volumes of gas purchased from third-party producers, less our gathering fees, that we sell at market prices. Purchased gas volumes also include the impact of pipeline imbalances. The higher average cost per thousand cubic feet is due to overall price increases and contractual differences among customers in the year-to-year comparison.

 

Other costs and expenses increased $3 million primarily due additional exploration costs incurred in 2008 compared to 2007. Additional exploration costs are the results of the on-going ramp up of our exploration program. These costs have also increased due to the reversal of previously capitalized drilling costs related to unsuccessful wells. Capitalized costs for four wells were expensed in 2008. There were no unsuccessful wells in 2007. Under the successful efforts method of accounting, drilling costs are capitalized until it is determined that gas can not be economically produced from the well.

 

General and Administrative expenses increased due to the following items:

 

     2008    2007    Dollar
Variance
   Percentage
Change
 

Wages, salaries and related expenses

   $ 28    $ 18    $ 10    55.6 %

Stock-based compensation

     12      5      7    140.0 %

Professional services

     19      15      4    26.7 %

Short-term incentive compensation

     8      6      2    33.3 %

Other

     13      11      2    18.2 %
                       

Total General and Administrative

   $ 80    $ 55    $ 25    45.5 %
                       

 

45


Table of Contents

Employee wages, salaries and related expenses have increased $10 million primarily due to the additional staffing added as a result of the on-going growth of the company.

 

Stock-based compensation has increased $7 million primarily due to additional awards granted in 2008 and higher costs related to the performance share program. The performance share costs are related to additional units awarded and the increase in the market price of CNX Gas common stock in 2008.

 

Professional services have increased $4 million primarily due to fees related to completing the registration of emission offset credits on the Chicago Climate Exchange. Professional services also increased due to various administrative projects which have occurred throughout both years, none of which were individually significant.

 

The short-term incentive compensation program is designed to increase compensation to eligible employees when CNX Gas reaches predetermined targets for production, unit cost and safety. Incentive compensation expense increased $2 million when compared to the prior year due to improved performance relative to the targets.

 

The $2 million increase in other costs is related to various transactions that occurred throughout both years, none of which were individually material.

 

Depreciation, depletion and amortization have increased due to the following items:

 

     2008    2007    Dollar
Variance
   Percentage
Change
 

Production

   $ 50    $ 31    $ 19    61.3 %

Gathering

     19      17      2    11.8 %

Other

     1      1      —      —    
                       

Total Depreciation, Depletion and Amortization

   $ 70    $ 49    $ 21    42.9 %
                       

 

The $19 million increase in production-related depreciation, depletion and amortization was primarily due to higher volumes combined with an increase in the units of production rates in the year-to-year comparison. These rates increased due to the higher proportion of capital assets placed in service versus the proportion of proved developed reserve additions. These rates are generally calculated using the net book value of assets at the end of the previous year divided by either proved or proved developed reserves.

 

Gathering depreciation, depletion and amortization is recorded using the straight-line method and increased $2 million due to additional assets placed in service after December 31, 2007.

 

Other depreciation remained consistent in the year-to-year comparison.

 

Interest expense increased due to the following items:

 

     2008    2007    Dollar
Variance
   Percentage
Change
 

Revolver

   $ 1    $ —      $ 1    100.0 %

Capitalized lease

     5      5      —      —    

Miscellaneous

     2      1      1    100.0 %
                       

Total Interest Expense

   $ 8    $ 6    $ 2    33.3 %
                       

 

Interest expense increased $1 million in the year-to-year comparison due to outstanding principal on the revolving credit facility. There were no outstanding principal amounts on the facility in 2007.

 

Interest on capital leases remained consistent in the year-to-year comparison.

 

46


Table of Contents

Miscellaneous interest increased $1 million due to various transactions that occurred throughout both years, none of which were individually material.

 

Income Taxes

 

     2008     2007     Variance     Percentage
Change
 

Earnings Before Income Taxes

   $ 393     $ 221     $ 172     $ 77.8 %

Tax Expense

   $ 154     $ 85     $ 69     $ 81.2 %

Effective Income Tax Rate

     39.1 %     38.5 %     0.6 %  

 

CNX Gas’ effective tax rate increased in the year-to-year comparison primarily due to changes in the net effect of state income taxes. See Note 5– Income Taxes of the Consolidated Financial Statements for additional details.

 

Year Ended December 31, 2007 compared with Year Ended December 31, 2006

(Dollars reported in millions)

 

Net Income

 

Net income changed primarily due to the following items:

 

     2007    2006    Dollar
Variance
    Percentage
Change
 

Revenue and Other Income:

          

Outside Sales

   $ 405    $ 385    $ 20     5.2 %

Related Party Sales

     11      8      3     37.5 %

Royalty Interest Gas Sales

     46      51      (5 )   (9.8 )%

Purchased Gas Sales

     8      44      (36 )   (81.8 )%

Other Income

     9      27      (18 )   (66.7 )%
                        

Total Revenue and Other Income

     479      515      (36 )   (7.0 )%
                        

Costs and Expenses:

          

Lifting Costs

     38      33      5     15.2 %

Gathering and Compression Costs

     62      58      4     6.9 %

Royalty Interest Gas Costs

     40      42      (2 )   (4.8 )%

Purchased Gas Costs

     7      45      (38 )   (84.4 )%

Other

     1      2      (1 )   (50.0 )%

General and Administrative

     55      39      16     41.0 %

Depreciation, Depletion and Amortization

     49      38      11     28.9 %

Interest Expense

     6      1      5     500.0 %
                        

Total Costs and Expenses

     258      258      —       —    
                        

Earnings Before Income Taxes and Minority Interest

     221      257      (36 )   (14.0 )%

Income Taxes

     85      97      (12 )   (12.4 )%
                        

Net Income

   $ 136    $ 160    $ (24 )   (15.0 )%
                        

 

Net income for 2007 was lower primarily due to deferred production resulting from the July 2007 Buchanan mine incident, lower insurance proceeds in 2007 compared to 2006 and higher administrative and operating costs. The decreased net income was offset, in part, by additional sales revenue from new wells being brought on-line in 2007.

 

47


Table of Contents

Revenue and Other Income

 

Revenue and other income decreased due to the following items:

 

       2007    2006    Dollar
Variance
    Percentage
Change
 

Revenue and Other Income:

          

Outside Sales

   $ 405    $ 385    $ 20     5.2 %

Related Party Sales

     11      8      3     37.5 %

Royalty Interest Gas Sales

     46      51      (5 )   (9.8 )%

Purchased Gas Sales

     8      44      (36 )   (81.8 )%

Other Income

     9      27      (18 )   (66.7 )%
                        

Total Revenue and Other Income

   $ 479    $ 515    $ (36 )   (7.0 )%
                        

 

The decrease in total revenue and other income was primarily due to the accounting change related to purchased gas sales discussed below, as well as lower business interruption insurance in 2007 compared to 2006. This was offset by increases in outside sales and related party sales, which resulted from an increased average sales price in 2007 compared to 2006 and increased production related to additional wells being brought on-line in 2007.

 

     2007    2006    Variance    Percentage
Change
 

Sales Volumes (Bcf)

     57.9      55.9      2.0    3.6 %

Average Sales Price (per Mcf)

   $ 7.19    $ 7.04    $ 0.15    2.1 %

 

The increase in average sales price is the result of CNX Gas realizing general price increases and higher hedging gains in the current year. CNX Gas periodically enters into various gas swap transactions that qualify as financial cash flow hedges. These gas swap transactions exist parallel to the underlying physical transactions. These financial hedges represented approximately 18.4 Bcf of our produced gas sales volumes for the year ended December 31, 2007 at an average price of $8.01 per Mcf. In 2006, these financial hedges represented approximately 17.0 Bcf at an average price of $7.42 per Mcf. Sales volumes increased as a result of additional wells coming online from our on-going drilling program. Also included in 2007 are the non-operated net revenue interest volumes and revenues associated with royalty and working interests. These volumes were not available in 2006, and the associated revenues were included in other income. Partially offsetting these increases was the deferral of production related to the July 2007 Buchanan Mine issue at CONSOL Energy.

 

     2007    2006    Variance     Percentage
Change
 

Royalty Interest Gas Sales Volumes (Bcf)

     7.2      7.6      (0.4 )   (5.3 )%

Average Sales Price (per Mcf)

   $ 6.44    $ 6.76    $ (0.32 )   (4.7 )%

 

Included in royalty interest gas sales are the revenues related to the portion of production belonging to royalty interest owners sold by CNX Gas on their behalf. The decrease in average sales price relates primarily to reductions in a provision for royalty settlements. The volatility in the monthly volumes and contractual differences among leases, as well as the mix of average and index prices used in calculating royalties also contributes to the variance.

 

     2007    2006    Variance     Percentage
Change
 

Purchased Gas Sales Volumes (Bcf)

     1.1      6.1      (5.0 )   (82.0 )%

Average Sales Price (per Mcf)

   $ 7.19    $ 7.20    $ (0.01 )   (0.1 )%

 

Purchased gas sales volumes in 2007 represent volumes of gas we sell at market prices that were purchased from third party producers, less our gathering fees. In 2006, purchased gas sales and volumes represented

 

48


Table of Contents

volumes of gas we simultaneously purchased from and sold to the same counterparties under contracts that were committed prior to January 1, 2006. Accordingly, Emerging Issues Task Force Issue No. 04-13 (EITF 04-13), which we adopted on January 1, 2006, did not apply to these transactions. All contracts entered into prior to January 1, 2006 expired in 2006, while all activity related to 2007 is reflected in transportation expense on a net basis.

 

Other income consists of the following items:

 

     2007    2006    Dollar
Variance
    Percentage
Change
 

Royalty Income

   $ —      $ 10    $ (10 )   (100.0 )%

Business Interruption Insurance

     2      10      (8 )   (80.0 )%

Third Party Gathering Revenue

     1      1      —       —    

Interest Income

     4      4      —       —    

Equity in Earnings of Affiliates

     2      1      1     100.0 %

Miscellaneous Income

     —        1      (1 )   (100.0 )%
                        

Total Other Income

   $ 9    $ 27    $ (18 )   (66.7 )%
                        

 

Royalty income received from third parties, which is calculated as a percentage of the third parties’ sales price, is now classified in outside sales. In 2006, the volumes were not available nor were they considered in the 2006 reserve report. In 2007, these volumes are included in both sales production and reserves.

 

Insurance proceeds in 2007 related to an advance on the settlement of claims under our business interruption insurance policy for losses we sustained related to a CONSOL Energy mining incident at Buchanan Mine which adversely affected our gob gas production in 2007. Insurance proceeds in 2006 related to a CONSOL Energy mining incident in 2005 which negatively impacted our gas production in that year.

 

Third party gathering revenue was consistent in the year-to-year comparison.

 

Interest income remained consistent in the year-to-year comparison

 

Equity in earnings of affiliates increased $1 million related to activities at Knox Energy, LLC in which CNX Gas held an equity interest.

 

Miscellaneous income decreased $1 million due to various transactions that occurred throughout both years, none of which were individually material.

 

Costs and Expenses

 

Costs and expenses decreased due to the following items:

 

     2007    2006    Dollar
Variance
    Percentage
Change
 

Costs and Expenses:

          

Lifting Costs

   $ 38    $ 33    $ 5     15.2 %

Gathering and Compression Costs

     62      58      4     6.9 %

Royalty Interest Gas Costs

     40      42      (2 )   (4.8 )%

Purchased Gas Costs

     7      45      (38 )   (84.4 )%

Other

     1      2      (1 )   (50.0 )%

General and Administrative

     55      39      16     41.0 %

Depreciation, Depletion and Amortization

     49      38      11     28.9 %

Interest Expense

     6      1      5     500.0 %
                        

Total Costs and Expenses

   $ 258    $ 258    $ —       —    
                        

 

49


Table of Contents

Total costs and expenses remained consistent in the year-to-year comparison.

 

     2007    2006    Variance    Percentage
Change
 

Sales Volumes (Bcf)

     57.9      55.9      2.0    3.6 %

Average Lifting Costs (per Mcf)

   $ 0.67    $ 0.60    $ 0.07    11.7 %

 

Lifting costs per unit sold increased in 2007 due to additional staffing, increased service and maintenance costs due to the additional number of wells on-line, increased water disposal costs, higher road maintenance, and the deferral of low cost gob production related to the CONSOL Energy Buchanan Mine. These unit cost increases were partially offset by a decrease in unit costs due to an adjustment in the well plugging liability, as a result of the increase in the estimated average life of our wells.

 

     2007    2006    Variance    Percentage
Change
 

Sales Volumes (Bcf)

     57.9      55.9      2.0    3.6 %

Average Gathering and Compression Costs (per Mcf)

   $ 1.07    $ 1.04    $ 0.03    2.9 %

 

The increase in gathering and compression unit costs was attributable to additional treating expenses related to the start up of Mountaineer, compressor rentals related to the increased number of wells in the year, and higher power expenses related to increased megawatt hour rates charged by the power company. These increases were partially offset by lower firm transportation costs related to the in-service of the Jewell Ridge lateral in October 2006. These cost increases were proportionately higher than the increase in volumes, which increased our unit cost.

 

     2007    2006    Variance     Percentage
Change
 

Royalty Interest Gas Sales Volumes (Bcf)

     7.2      7.6      (0.4 )   (5.3 )%

Average Cost (per Mcf)

   $ 5.53    $ 5.56    $ (0.03 )   (0.5 )%

 

Included in royalty interest gas costs are the expenses related to the portion of production belonging to royalty interest owners sold by CNX Gas on their behalf. The decrease in volumes and price relates to the volatility and contractual differences among leases, as well as the mix of average and index prices used in calculating royalties.

 

     2007    2006    Variance     Percentage
Change
 

Purchased Gas Cost Volumes (Bcf)

     1.1      6.1      (5.0 )   (82.0 )%

Average Purchased Gas Costs (per Mcf)

   $ 6.66    $ 7.34    $ (0.68 )   (9.3 )%

 

Purchased gas cost volumes in 2007 represent volumes of gas we sold at market prices that were purchased from third party producers, less our gathering fees. In 2006, purchased gas costs and volumes represented volumes of gas we simultaneously purchased from and sold to the same counterparties under contracts that were committed prior to January 1, 2006. Accordingly, Emerging Issues Task Force Issue No. 04-13 (EITF 04-13), which we adopted on January 1, 2006, did not apply to these transactions. All contracts entered into prior to January 1, 2006 expired in 2006, while all activity related to 2007 is reflected in transportation expense on a net basis.

 

Other costs and expenses decreased $1 million due to various transactions that occurred throughout both years, none of which were individually material.

 

50


Table of Contents

General and Administrative expenses increased due to the following items:

 

     2007    2006    Dollar
Variance
   Percentage
Change
 

Professional Fees

   $ 16    $ 9    $ 7    77.8 %

Employee Wages and Related Costs

     19      17      2    11.8 %

Facilities

     5      3      2    66.7 %

Stock Based Compensation

     5      4      1    25.0 %

Short Term Incentive

     6      5      1    20.0 %

Other

     4      1      3    300.0 %
                       

Total

   $ 55    $ 39    $ 16    41.0 %
                       

 

Professional Fees have increased primarily related to additional legal fees associated with the CDX and GeoMet litigation. CNX Gas also incurred additional consulting expense related the information management software platform that was implemented in 2006. In 2006, these costs were capitalized as part of the implementation, however these costs are expensed in 2007.

 

Employee Wages and Related Costs have increased due to the continued increase in staffing as a result of the on-going growth of the company. CNX Gas went from 192 employees on December 31, 2006 to 281 employees on December 31, 2007.

 

The increase in Facilities in 2007 related to the establishment of a new company headquarters, various other offices associated with the continued growth of the company, and our entrance into other regions.

 

Short Term Incentive and Stock Based Compensation costs have increased also as a result of the on-going growth of the company.

 

The increase in Other costs was due primarily to increased insurance premiums as well as various other items that were not individually significant.

 

Depreciation, depletion and amortization increased due to the following items:

 

     2007    2006    Dollar
Variance
   Percentage
Change
 

Production

   $ 31    $ 25    $ 6    24.0 %

Gathering

     18      13      5    38.5 %
                       

Total Depreciation, Depletion and Amortization

   $ 49    $ 38    $ 11    28.9 %
                       

 

The increase in production related depreciation, depletion and amortization was primarily due to increased production combined with an increase in the units of production rates from year-to-year. These rates increased due to the higher proportion of capital assets placed in service versus the proportion of proved developed reserve additions. These rates are generally calculated using the net book value of assets at the end of the previous year divided by either proved or proved developed reserves.

 

Gathering depreciation, depletion and amortization is recorded using the straight-line method and increased primarily as a result of realizing a full year of the capital lease treatment of the Jewell Ridge lateral, which went into service on October 28, 2006.

 

Interest expense primarily increased as a result of our capital lease obligation on the Jewell Ridge lateral.

 

51


Table of Contents

Income Taxes

 

     2007     2006     Variance     Percentage
Change
 

Earnings Before Income Taxes

   $ 221     $ 257     $ (36 )   (14.0 )%

Tax Expense

   $ 85     $ 97     $ (12 )   (12.4 )%

Effective Income Tax Rate

     38.5 %     37.7 %     0.8 %  

 

CNX Gas’ effective tax rate increased in 2007 primarily due to an increase in state tax rates. See Note 5 of the Notes to the Consolidated Financial Statements for additional details.

 

Critical Accounting Policies

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make judgments, estimates and assumptions that affect reported amounts of assets and liabilities in the consolidated financial statements and at the date of the financial statements, as well as the reported amounts of income and expenses during the reporting period. Note 1 of the Notes to the Consolidated Annual Financial Statements included in this Annual Report describes the significant accounting policies and methods used in the preparation of the consolidated financial statements. Actual results could differ from those estimates upon subsequent resolution of identified matters. Management believes that the estimates utilized are reasonable. The following critical accounting policies are materially impacted by judgments, assumptions and estimates used in the preparation of the consolidated financial statements.

 

Derivative Instruments

 

CNX Gas enters into financial derivative instruments to manage our exposure to natural gas and oil price volatility. Our derivatives are accounted for under Statement of Financial Accounting Standards No. 133, “Accounting for Derivative Instruments and Hedging Activities” (SFAS 133), as amended. We measure every derivative instrument at fair value and record them on the balance sheet as either an asset or liability. Changes in fair value of derivatives are recorded currently in earnings unless special hedge accounting criteria are met. For derivatives designated as fair value hedges, the changes in fair value of both the derivative instrument and the hedged item are recorded in earnings. For derivatives designated as cash flow hedges, the effective portions of changes in fair value of the derivative are reported in other comprehensive income or loss and reclassified into earnings in the same period or periods which the forecasted transaction affects earnings. The ineffective portions of hedges are recognized in earnings in the current year. CNX Gas currently utilizes only cash flow hedges that are considered highly effective.

 

CNX Gas formally assesses, both at inception of the hedge and on an ongoing basis, whether each derivative is highly effective in offsetting changes in fair values or cash flows of the hedged item. If it is determined that a derivative is not highly effective as a hedge or if a derivative ceases to be a highly effective hedge, CNX Gas will discontinue hedge accounting prospectively.

 

Stock-Based Compensation

 

CNX Gas uses the provisions of Statement of Financial Accounting Standards No. 123R, “Share-Based Payments” (SFAS No. 123R). As of December 31, 2008, we have issued three types of share based payments awards: options, restricted stock units, and performance stock units. The Black-Scholes option pricing model is used to determine fair value of stock options at the grant date. Various inputs are utilized in the Black-Scholes pricing model, such as:

 

   

stock price on measurement date,

 

   

exercise price defined in the award,

 

52


Table of Contents
   

expected dividend yield based on historical trend of dividend payouts,

 

   

risk-free interest rate based on a zero-coupon treasury bond rate,

 

   

expected term based on historical grant and exercise behavior, and

 

   

expected volatility based on historic and implied stock price volatility of CONSOL Energy stock and public peer group stock.

 

These factors can significantly impact the value of stock options expense recognized over the requisite service period of option holders.

 

The fair value of each restricted stock unit awarded is equivalent to the closing market price of a share of our company’s stock. The fair value of each performance share unit is determined by the underlying share price of our company stock on the valuation date and management’s estimate of the probability that the performance conditions required for vesting well be achieved.

 

Successful Efforts Accounting

 

We use the “successful efforts” method to account for our gas exploration and production activities. Under this method, costs of property acquisitions, successful exploratory wells, development wells and related support equipment and facilities are capitalized. Costs of unsuccessful exploratory wells are expensed when such wells are determined to be non-productive, or if the determination cannot be made after finding sufficient quantities of reserves to continue evaluating the viability of the project. We use this accounting policy instead of the “full cost” method because it provides a more timely accounting of the success or failure of our gas exploration and production activities.

 

Estimated Net Recoverable Reserves

 

CNX Gas uses the “successful efforts” method to account for our exploration and production activities. Under this method, costs are accumulated on a field by field basis with certain exploratory expenditures and exploratory dry holes being expensed as incurred. Costs of productive wells are capitalized and amortized on the unit-of-production method. We use this accounting policy instead of the “full cost” method because it provides a more timely accounting of the success or failure of our exploration and production activities.

 

Proved oil and gas reserves are defined by SEC Regulation S-X Rule 4-10(a) 2(i), 2(ii), 2(iii), (3), and (4) as the estimated quantities of oil and natural gas that current geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions. These reserve estimates are disclosed in accordance with SFAS No. 69, “Disclosures about Oil and Gas Producing Activities.”

 

Our estimation of net recoverable reserves is a highly technical process performed by in-house teams of reservoir engineers and geoscience professionals. A third party consultant is also engaged to prepare an independent reserve estimate for 100% of our reserves. Our estimates of proved natural gas reserves and future net revenues from them are based upon reserve analyses that rely upon various assumptions, including those required by the SEC, as to natural gas prices, drilling and operating expenses, capital expenditures, taxes and availability of funds. As a result, our estimates of our proved natural gas reserves are inherently imprecise. Actual future production, natural gas prices, revenues, taxes, development expenditures, operating expenses and quantities of recoverable natural gas reserves may vary substantially from our estimates contained in the reserve reports. In addition, our proved reserves may be subject to downward or upward revision based upon production history, results of future exploration and development, prevailing natural gas prices, mechanical difficulties, governmental regulation and other factors, many of which are beyond our control.

 

Any significant variance in these assumptions could materially affect the estimated quantity of our reserves. Likewise, because estimates of reserves significantly impact the Company’s depreciation, depletion, and amortization (DD&A) expense, a change in such estimates could have an impact on net income.

 

53


Table of Contents

Contingencies

 

CNX Gas is currently involved in certain legal proceedings. We have accrued our estimate of the probable costs for the resolution of these claims. This estimate has been developed in consultation with legal counsel involved in the defense of these matters and is based upon an analysis of potential results, assuming a combination of litigation and settlement strategies. We do not believe these proceedings will have a material adverse effect on our consolidated financial position. It is possible, however, that future results of operations for any particular quarter or annual period could be materially affected by changes in our assumptions or the effectiveness of our strategies related to these proceedings.

 

Income Taxes

 

CNX Gas accounts for income taxes in accordance with Statement of Financial Accounting Standards No. 109, “Accounting for Income Taxes” (SFAS No. 109) which requires that deferred tax assets and liabilities be recognized using enacted tax rates for the effect of temporary differences between the book and tax basis of recorded assets and liabilities. SFAS No. 109 also requires that deferred tax assets be reduced by a valuation allowance if it is more likely than not that some portion of the deferred tax asset will not be realized. At December 31, 2008, CNX Gas had deferred tax liabilities in excess of deferred tax assets of approximately $386 million. The deferred tax asset components are evaluated periodically to determine if a valuation allowance is necessary. No valuation allowance has been recognized because CNX Gas has determined that it is more likely than not that all of these deferred tax assets will be realized.

 

CNX Gas adopted the provisions of FASB Interpretation (FIN) No. 48, “Accounting for Uncertainty in Income Taxes”, on January 1, 2007. The implementation of FIN No. 48, did not materially impact the financial position of CNX Gas. As of December 31, 2008, CNX Gas does not anticipate a significant change in our uncertain tax positions or unrecognized tax benefits.

 

Asset Retirement Obligations

 

We have significant obligations related to the closure of gas wells upon exhaustion of gas reserves. We are required to dismantle and remove equipment and restore land at the end of our oil and gas production activities. Statement of Financial Accounting Standards No. 143, “Accounting for Asset Retirement Obligations” (SFAS No. 143) requires that the fair value of an asset retirement obligation be recognized in the period in which it is incurred if a reasonable estimate of fair value can be made.

 

The fair value that is recorded is dependent upon a number of variables, including the estimated future retirement costs, estimated proved reserves, assumptions involving profit margins, inflation rates, and the assumed credit-adjusted risk-free interest rate. Changes in the variables used to calculate the liabilities can have a significant effect on the gas well closing liabilities.

 

The present value of the estimated asset retirement costs is capitalized as part of the carrying amount of the long-lived asset. SFAS No. 143 requires depreciation of the capitalized asset retirement cost and accretion of the asset retirement obligation over time. The depreciation will generally be determined on a units-of-production basis, whereas the accretion to be recognized will escalate over the life of the producing assets, typically as production declines.

 

Liquidity and Capital Resources

 

CNX Gas has satisfied our working capital requirements and funded our capital expenditures with cash from operations and our $200 million credit facility. Our credit agreement provides for a revolving credit facility with an initial aggregate outstanding principal amount of up to $200 million (with the ability to request an increase in the aggregate outstanding principal amount up to $300 million), including borrowings and letters of credit. We

 

54


Table of Contents

use the credit facility for general corporate purposes, including transaction fees, letters of credit, acquisitions, capital expenditures and working capital. Our obligations under our credit agreement are not secured by a lien on our assets, however the credit agreement does contain a negative pledge provision providing that our assets cannot be used to secure any other obligation. Fees and interest rate spreads are based on the percentage of facility utilization, measured quarterly. The facility includes a minimum interest coverage ratio of no less than 3.00 to 1.00, measured quarterly. The interest coverage ratio was 77.29 to 1.00 at December 31, 2008. The facility also includes a maximum leverage ratio of no more than 3.00 to 1.00, measured quarterly. The leverage ratio was 0.32 to 1.00 at December 31, 2008. Affirmative and negative covenants in the facility limit our ability to dispose of assets, make investments, purchase or redeem CNX Gas stock, pay dividends and merge with another corporation. At December 31, 2008, the facility had approximately $73 million of borrowings outstanding, and $15 million of letters of credit outstanding, leaving $112 million of unused capacity.

 

As a result of our status as a majority-owned subsidiary of CONSOL Energy and having entered into a credit agreement with third party commercial lenders, CNX Gas and its subsidiaries are guarantors of CONSOL Energy’s 7.875% notes due March 1, 2012 in the principal amount of $250 million. In addition, if CNX Gas were to grant liens to a lender as part of a future borrowing, the indenture governing the 7.875% notes requires CNX Gas to ratably secure the notes.

 

We believe that cash generated from operations and borrowings under our credit facility will be sufficient to meet our working capital requirements, anticipated capital expenditures (other than major acquisitions), and to provide required financial resources. Nevertheless, our ability to satisfy our working capital requirements or fund planned capital expenditures will depend upon our future operating performance, which will be affected by prevailing economic conditions in the gas industry and other financial and business factors, some of which are beyond our control.

 

Currently, there is an unprecedented uncertainty in the financial markets. The uncertainty in the market brings additional potential risks to CNX Gas. The risks include additional declines in our stock price, less availability and higher costs of additional credit, potential counterparty defaults, and further commercial bank failures. Although the majority of the financial institutions in our bank group appear to be strong, there are some that have been and could be considered take-over candidates. Although we have no indication that any such transactions would impact our current credit facility, the possibility does exist. Financial market disruptions may impact our ability to collect trade receivables. The credit worthiness of our customers is constantly monitored by CNX Gas. We believe that our current group of customers are sound and represent no abnormal business risk.

 

We have also entered into various gas swap transactions that qualify as financial cash flow hedges, which exist parallel to the underlying physical transactions. The fair value of these contracts was a net asset of $207 million at December 31, 2008. The ineffective portion of the changes in the fair value of these contracts was insignificant for the years ended December 31, 2008, 2007 and 2006.

 

Cash Flows (in millions)

 

     2008     2007     Change  

Cash provided by operating activities

   $ 447     $ 272     $ 175  

Cash used in investing activities

   $ (559 )   $ (354 )   $ (205 )

Cash provided by (used in) financing activities

   $ 82     $ 7     $ 75  

 

Our principal source of cash is our operating cash flow. Because our operating cash flow is highly dependent on oil and gas prices, as of December 31, 2008, we entered into hedging agreements covering 41.9 Bcf and 23.3 Bcf for 2009 and 2010, respectively.

 

   

Cash provided by operating activities increased primarily due to increased production and higher realized prices. These increases are partially offset by increased operating costs and various other working capital requirements.

 

55


Table of Contents
   

Cash used in investing activities increased primarily due to higher capital expenditures, which is a result of our expanded drilling program. Current year expenditures also included $36 million for the acquisition of the remaining interest in Knox Energy that CNX Gas did not previously own and $19 million for the acquisition of several leases on gas wells from KIS Oil & Gas Inc., as detailed further in Note 2 of the Notes to the Consolidated Financial Statements.

 

   

Cash provided by financing activities increased primarily due to proceeds of approximately $73 million from the credit facility during the year ended December 31, 2008. There were no borrowings under the facility in the year ended December 31, 2007.

 

Contractual Commitments

 

The following is a summary of our significant contractual obligations at December 31, 2008 (in millions). We estimate payments related to these items, net of any applicable reimbursements, at December 31, 2008 to be as follows:

 

(In thousands)    Within
1 Year
   1-3 Years    3-5 Years    More than 5
Years
   Total

Short Term Debt Obligations—Revolver

   $ 72,700    $ —      $ —      $ —      $ 72,700

Long Term Debt Obligations

     5,558      15,815      —        621      21,994

Capital Lease Obligation

     9,191      16,134      14,928      57,754      98,007

Operating Lease Obligations

     2,443      3,931      2,786      2,208      11,368

Other Long-term Liabilities:

              

Gas Firm Transportation Obligations

     19,449      36,494      32,235      239,196      327,374

Other Long-term Liabilities(a)

     7,847      3,933      —        22,642      34,422

Well Plugging Liabilities

     —        104      419      6,878      7,401

Post Retirement Benefits Other than Pension

     154      332      324      2,072      2,882

Purchase Obligations

     2,728      4,769      —        —        7,497
                                  

Total Contractual Obligations(b)

   $ 120,070    $ 81,512    $ 50,692    $ 331,371    $ 583,645
                                  

 

(a) This item includes legal contingencies and other liabilities.
(b) The significant obligation table does not include obligations to taxing authorities due to the uncertainty surrounding the ultimate settlement of amounts and timing of these obligations.

 

As discussed in “Critical Accounting Policies” and in the Notes to our Consolidated Financial Statements included in this Annual Report, our determination of these long-term liabilities is calculated annually and is based on several assumptions, including then prevailing conditions, which may change from year to year. In any year, if our assumptions are inaccurate, we could be required to expend greater amounts than anticipated.

 

$200 million Credit Facility

 

As described above, we and our wholly-owned subsidiaries are party to a credit agreement dated as of October 7, 2005 with a group of commercial lenders. This credit agreement provides for a revolving credit facility in an initial aggregate outstanding principal amount of up to $200 million with the ability to request an increase in the aggregate outstanding principal amount up to $300 million, including borrowings and letters of credit. We may use borrowings under the new credit agreement for general corporate purposes, including transaction fees, letters of credit, acquisitions, capital expenditures and working capital. At December 31, 2008, there was approximately $73 million of outstanding borrowings and $15 million related to outstanding letters of credit, leaving $112 million of unused capacity.

 

Our ability to borrow and obtain letters of credit under the credit agreement is limited to a borrowing base. The required number of lenders determine this borrowing base by calculating a loan value of CNX Gas’ proved reserves and reducing that number by an equity cushion. The current borrowing base is in excess of $200 million.

 

56


Table of Contents

Stockholders’ Equity

 

CNX Gas had stockholders’ equity of $1,385 million at December 31, 2008 and $1,023 million at December 31, 2007. The increase was primarily attributable to net income for the year ended December 31, 2008 and unrealized hedging gains. See Consolidated Statements of Stockholders’ Equity in the Audited Consolidated Financial Statements in Item 8 of this Form 10-K.

 

Off-Balance Sheet Arrangements

 

We do not maintain any off-balance sheet transactions, arrangements, obligations or other relationships with unconsolidated entities or others that are likely to have a material current or future effect on our condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources which are not disclosed in the notes to the consolidated financial statements.

 

Recent Accounting Pronouncements

 

In May 2008, The Financial Accounting Standards Board (FASB) issued Statement No. 162, “The Hierarchy of Generally Accepted Accounting Principles.” The new standard is intended to improve financial reporting by identifying a consistent framework, or hierarchy, for selecting accounting principles to be used in preparing financial statements that are presented in conformity with U.S. generally accepted accounting principles (GAAP) for nongovernmental entities. Statement 162 establishes that the GAAP hierarchy should be directed to entities because it is the entity (not its auditor) that is responsible for selecting accounting principles for financial statements that are presented in conformity with GAAP. Statement 162 is effective 60 days following the SEC’s approval of the Public Company Accounting Oversight Board Auditing amendments to AU Section 411, “The Meaning of Present Fairly in Conformity with Generally Accepted Accounting Principles.” We do not expect this guidance to have a significant impact on CNX Gas.

 

In March 2008, The Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 161, “Disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement 133” (SFAS 161). The new standard is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity’s financial positions, results of operations and cash flows. The new standard also improves transparency about how and why a company uses derivative instruments and how derivative instruments and related hedged items are accounted for under Statement 133. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008, with early application encouraged. CNX Gas’ management is currently assessing the new disclosure requirements required by SFAS 161.

 

In December 2007, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 141(R), “Business Combinations” (SFAS 141R), and Statement of Financial Accounting Standards No. 160, “Accounting and Reporting of Noncontrolling Interest in Consolidated Financial Statements, an amendment of ARB No. 51” (SFAS 160). SFAS 141R and SFAS 160 will significantly change the accounting for and reporting of business combination transactions and noncontrolling (minority) interests in consolidated financial statements. SFAS 141R retains the fundamental requirements in Statement 141 “Business Combinations” while providing additional definitions, such as the definition of the acquirer in a purchase and improvements in the application of how the acquisition method is applied. SFAS 160 will change the accounting and reporting for minority interests, which will be recharacterized as noncontrolling interests, and classified as a component of equity. These Statements become simultaneously effective January 1, 2009. Early adoption is not permitted. We are currently evaluating the impact this guidance will have on our consolidated financial statements.

 

57


Table of Contents
Item 7A. Quantitative and Qualitative Disclosure About Market Risk

 

In addition to the risks inherent in our operations, CNX Gas is exposed to financial, market, political and economic risks. The following discussion provides additional detail regarding CNX Gas’ exposure to the risks of changing natural gas prices.

 

CNX Gas uses fixed-price contracts and derivative commodity instruments that qualify as cash-flow hedges under Statement of Financial Accounting Standards No. 133, as amended, to minimize exposure to market price volatility in the sale of natural gas. Our risk management policy strictly prohibits the use of derivatives for speculative purposes.

 

CNX Gas has established risk management policies and procedures to strengthen the internal control environment of the marketing of commodities produced from our asset base. All of the derivative instruments are held for purposes other than trading. They are used primarily to reduce uncertainty and volatility and cover underlying exposures. CNX Gas’ market risk strategy incorporates fundamental risk management tools to assess market price risk and establish a framework in which management can maintain a portfolio of transactions within pre-defined risk parameters.

 

CNX Gas believes that the use of derivative instruments along with the risk assessment procedures and internal controls mitigates CNX Gas’s exposure to material risk. However, the use of derivative instruments without other risk assessment procedures could materially affect CNX Gas’ results of operations depending on interest rates, or market prices. Nevertheless, we believe that use of these instruments will not have a material adverse effect on our financial position or liquidity.

 

For a summary of accounting policies related to derivative instruments, see Note 1 of the Notes to the Consolidated Financial Statements.

 

Sensitivity analyses of the incremental effects on pre-tax income for the year ended December 31, 2008 of a hypothetical 10% and 25% change in natural gas prices for open derivative instruments as of December 31, 2008 are provided in the following table:

 

     Incremental Decrease
Assuming a
Hypothetical Price
Increase of:
         10%            25%    
     (Dollars in millions)

Pre-Tax Income(1)

   $ 40.3    $ 102.6

 

(1) CNX Gas remains at risk for possible changes in the market value of these derivative instruments; however, such risk should be reduced by price changes in the underlying hedged item. CNX Gas entered into derivative instruments to convert the market prices related to portions of the 2009 through 2010 anticipated sales of natural gas to fixed prices. The sensitivity analyses reflect an inverse relationship between increases in commodity prices and a benefit to earnings. As of December 31, 2008, the fair value of these contracts was a net gain of $119 million (net of $77 million deferred tax). We will continually evaluate the portfolio of derivative commodity instruments and adjust the strategy to anticipated market conditions and risks accordingly.

 

58


Table of Contents

Hedging Volumes

 

As of December 31, 2008, our hedged volumes for the periods indicated are as follows:

 

     Three Months
Ended
March 31,
   Three Months
Ended
June 30,
   Three Months
Ended
September 30,
   Three Months
Ended
December 31,
   Total Year

2009 Fixed Price Volumes

              

Hedged Mcf

     10,670,103      10,631,443      10,670,103      9,884,021      41,855,670

Weighted Average Hedge Price/Mcf

   $ 9.85    $ 9.73    $ 9.74    $ 9.64    $ 9.74

2010 Fixed Price Volumes

              

Hedged Mcf

     9,278,351      7,974,227      5,082,474      943,299      23,278,351

Weighted Average Hedge Price/Mcf

   $ 9.70    $ 9.54    $ 9.70    $ 8.28    $ 9.59

 

CNX Gas is exposed to credit risk in the event of nonperformance by counterparties. The creditworthiness of counterparties is subject to continuing review. All of the counterparties to CNX Gas’ natural gas derivative instruments also participate in CNX Gas’ revolving credit facility. The Company has not experienced any issues of non performance by derivative counterparties. See the Liquidity and Capital Resources section of this Annual Report for further discussion of current capital markets.

 

CNX Gas’ interest expense is sensitive to changes in the general level of interest rates in the United States. At December 31, 2008, CNX Gas had $83.1 million aggregate principal amount of debt outstanding under fixed-rate instruments and $72.7 million aggregate principal amount of debt outstanding under variable-rate instruments. CNX Gas’ primary exposure to market risk is for changes in interest rates related to the revolving credit facility, under which there were $72.7 million of borrowings outstanding at December 31, 2008. CNX Gas’ revolving credit facility bore interest at a weighted average rate of 3.51% per annum during the year ended December 31, 2008. Due to the level of borrowings against this facility and the low weighted average interest rate in the year ended December 31, 2008, a 100 basis-point increase in the average rate for CNX Gas’ revolving credit facility would not have significantly decreased net income for the period.

 

All CNX Gas transactions are denominated in U.S. dollars, and as a result, we do not have any exposure to currency exchange-rate risks.

 

59


Table of Contents
Item 8. Financial Statements and Supplementary Data

 

     Page

Financial Statements

  

Reports of Independent Registered Public Accounting Firms

   61

Consolidated Statements of Income for the years ended December 31, 2008, 2007 and 2006

   63

Consolidated Balance Sheets as of December 31, 2008 and 2007

   64

Consolidated Statements of Stockholders’ Equity for the years ended December 31, 2008, 2007 and 2006

   65

Consolidated Statements of Cash Flows for the years ended December 31, 2008, 2007 and 2006

   66

Notes to Audited Financial Statements

   67

 

60


Table of Contents

Report of Independent Registered Public Accounting Firm

 

To the Board of Directors and Stockholders of CNX Gas Corporation

 

We have audited the accompanying consolidated balance sheet of CNX Gas Corporation (and Subsidiaries) as of December 31, 2008, and the related consolidated statements of income, stockholders’ equity, and cash flows for the year then ended. These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these financial statements based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audit provides a reasonable basis for our opinion.

 

In our opinion, the financial statements referred to above present fairly, in all material respects, the consolidated financial position of CNX Gas Corporation (and Subsidiaries) at December 31, 2008, and the consolidated results of their operations and their cash flows for the year then ended, in conformity with U.S. generally accepted accounting principles.

 

As discussed in Note 12 to the consolidated financial statements, during the year ended December 31, 2008, the Company adopted the measurement provisions of Statement of Financial Accounting Standards No. 158, Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans—an amendment of FASB Statements No. 87, 88, 106, and 132(R) .

 

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), CNX Gas Corporation’s internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 17, 2009 expressed an unqualified opinion thereon.

 

/s/    Ernst & Young LLP

 

Pittsburgh, PA

February 17, 2009

 

61


Table of Contents

Report of Independent Registered Public Accounting Firm

 

To the Board of Directors and Stockholders of CNX Gas Corporation:

 

In our opinion, the consolidated balance sheet as of December 31, 2007 and the related consolidated statements of income, stockholders’ equity and cash flows for each of two years in the period ended December 31, 2007 present fairly, in all material respects, the financial position of CNX Gas Corporation and its subsidiaries (“CNX Gas”) at December 31, 2007, and the results of their operations and their cash flows for each of the two years in the period ended December 31, 2007, in conformity with accounting principles generally accepted in the United States of America. In addition, in our opinion, the financial statement schedule included in Item 15(a)(2) presents fairly, in all material respects, the information set forth therein when read in conjunction with the related consolidated financial statements. These financial statements and financial statement schedule are the responsibility of CNX Gas’ management. Our responsibility is to express an opinion on these financial statements and financial statement schedule based on our audits. We conducted our audits of these statements in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, and evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.

 

As discussed in Note 1 to the consolidated financial statements, CNX Gas changed the manner in which it accounts for stock based compensation; defined benefit pension, other postretirement benefit plans, and other employee benefits; and purchases and sales of gas with the same counterparty in 2006.

 

/s/ PricewaterhouseCoopers LLP

 

Pittsburgh, Pennsylvania

February 15, 2008

 

62


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

CONSOLIDATED STATEMENTS OF INCOME

(Dollars in thousands, except per share data)

 

     For the Years Ended December 31,
     2008    2007    2006

Revenue and Other Income:

        

Outside Sales

   $ 678,793    $ 404,835    $ 385,056

Related Party Sales

     9,532      11,618      8,490

Royalty Interest Gas Sales

     79,302      46,586      51,054

Purchased Gas Sales

     8,464      7,628      43,973

Other Income

     13,330      8,815      26,264
                    

Total Revenue and Other Income

     789,421      479,482      514,837
                    

Costs and Expenses:

        

Lifting Costs

     67,653      38,721      33,357

Gathering and Compression Costs

     83,752      61,798      58,102

Royalty Interest Gas Costs

     74,041      40,011      41,998

Purchased Gas Costs

     8,175      7,162      44,843

Other

     4,995      1,759      2,060

General and Administrative

     80,246      54,825      39,168

Depreciation, Depletion and Amortization

     70,010      48,961      37,999

Interest Expense

     7,820      5,606      870
                    

Total Costs and Expenses

     396,692      258,843      258,397
                    

Earnings Before Income Taxes

     392,729      220,639      256,440

Income Taxes

     153,656      84,961      96,573
                    

Net Income

   $ 239,073    $ 135,678    $ 159,867
                    

Earnings per share:

        

Basic

   $ 1.58    $ 0.90    $ 1.06
                    

Diluted

   $ 1.58    $ 0.90    $ 1.06
                    

Weighted Average Number of Common Shares Outstanding:

        

Basic

     150,947,516      150,886,433      150,845,518
                    

Dilutive

     151,331,953      151,133,520      151,017,456
                    

 

The accompanying notes are an integral part of these consolidated financial statements.

 

63


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

CONSOLIDATED BALANCE SHEETS

(Dollars in thousands, except per share data)

 

     December 31,
     2008    2007
ASSETS      

Current Assets:

     

Cash and Cash Equivalents

   $ 1,926    $ 32,048

Accounts and Notes Receivable:

     

Trade

     61,764      38,680

Related Parties

     —        1,022

Other Receivables

     3,080      1,406

Recoverable Income Taxes

     30,302      972

Derivatives

     150,564      10,711

Other

     2,222      3,148
             

Total Current Assets

     249,858      87,987

Property, Plant and Equipment:

     

Property, Plant and Equipment

     2,111,383      1,509,060

Less—Accumulated Depreciation, Depletion and Amortization

     322,470      254,154
             

Total Property, Plant and Equipment—Net

     1,788,913      1,254,906

Other Assets:

     

Investment in Affiliates

     25,204      28,284

Derivatives

     55,945      —  

Other

     5,053      9,526
             

Total Other Assets

     86,202      37,810
             

TOTAL ASSETS

   $ 2,124,973    $ 1,380,703
             
LIABILITIES AND STOCKHOLDERS’ EQUITY      

Current Liabilities:

     

Accounts Payable

   $ 100,565    $ 30,263

Accrued Royalties

     20,301      12,896

Accrued Severance Taxes

     3,672      2,620

Related Parties

     2,234      —  

Short-Term Notes Payable

     72,700      —  

Deferred Income Taxes

     55,000      1,269

Current Portion of Long-Term Debt

     8,462      5,819

Other Current Liabilities

     18,116      9,817
             

Total Current Liabilities

     281,050      62,684

Long-Term Debt:

     

Long-Term Debt

     15,386      5,799

Capital Lease Obligations

     59,296      61,150
             

Total Long-Term Debt

     74,682      66,949

Deferred Credits and Other Liabilities:

     

Derivatives

     —        1,092

Deferred Income Taxes

     331,338      188,415

Asset Retirement Obligations

     7,401      3,981

Postretirement Benefits Other Than Pensions

     2,728      2,700

Other

     42,900      31,645
             

Total Deferred Credits and Other Liabilities

     384,367      227,833
             

Total Liabilities

     740,099      357,466
             

Stockholders’ Equity:

     

Common Stock, $.01 par value; 200,000,000 Shares Authorized, 150,971,636 Issued and Outstanding at December 31, 2008 and 150,915,198 Issued and Outstanding at December 31, 2007

     1,510      1,509

Capital in Excess of Par Value

     789,625      785,575

Preferred Stock, 5,000,000 Shares Authorized; None Issued and Outstanding

     —        —  

Retained Earnings

     468,955      229,962

Other Comprehensive Income

     124,784      6,191
             

Total Stockholders’ Equity

     1,384,874      1,023,237
             

TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY

   $ 2,124,973    $ 1,380,703
             

 

The accompanying notes are an integral part of these consolidated financial statements.

 

64


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ EQUITY

(Dollars in thousands except in per share data)

 

    Common
Stock
  Capital In
Excess
of Par
Value
    Retained
Earnings
(Deficit)
    Accumulated
Other
Comprehensive
Income (Loss)
    Unearned
Compensation
on Restricted
Stock Units
    Total
Stockholders’
Equity
 

Balance at December 31, 2005

  $ 1,508   $ 779,509     $ (65,530 )   $ (34,733 )   $ (1,282 )   $ 679,472  

Net Income

    —       —         159,867       —         —         159,867  

Gas Cash Flow Hedge (Net of $23,859 tax)

    —       —         —         36,382       —         36,382  
                                             

Comprehensive Income

    —       —         159,867       36,382       —         196,249  

Initial adjustment upon adoption of FAS 158 (Net of $485 tax)

    —       —         —         761       —         761  

Elimination of Unearned Compensation on Restricted Stock Units

    —       (1,282 )     —         —         1,282       —    

Stock-Based Compensation

    —       3,733       —         —         —         3,733  
                                             

Balance at December 31, 2006

    1,508     781,960       94,337       2,410       —         880,215  

Net Income

    —       —         135,678       —         —         135,678  

Gas Cash Flow Hedge (Net of $2,145 tax)

    —       —         —         4,214       —         4,214  

FAS 158 Other Post Employment Benefits Adjustment (Net of $190 tax)

    —       —         —         (296 )     —         (296 )

FAS 158 Pension Adjustment (Net of $88 tax)

    —       —         —         (137 )     —         (137 )
                                             

Comprehensive Income

    —       —         135,678       3,781       —         139,459  

FASB Interpretation No. 48 Adoption

    —       —         (53 )     —         —         (53 )

Stock Options Exercised

    1     302       —         —         —         303  

Tax Benefit from Stock-Based Compensation

    —       53       —         —         —         53  

Amortization of Stock Based Compensation Awards

    —       3,260       —         —         —         3,260  
                                             

Balance at December 31, 2007

  $ 1,509   $ 785,575     $ 229,962     $ 6,191     $ —       $ 1,023,237  

Net Income

    —       —         239,073       —         —         239,073  

Gas Cash Flow Hedge (Net of ($77,291) tax)

    —       —         —         118,646       —         118,646  

Issuance of Common Stock

    1     —         —         —         —         1  

Amortization of Prior Service Costs and Actuarial Losses (Net of $52 tax)

    —       —         —         (83 )     —         (83 )

FAS 158 Other Post Employment Benefits Adjustment (Net of ($70) tax)

    —       —         —         109       —         109  

FAS 158 Pension Adjustment (Net of ($38) tax)

    —       —         —         (59 )     —         (59 )
                                             

Comprehensive Income

    1     —         239,073       118,613       —         357,687  

Cumulative Effect of FAS 158 Measurement Adoption (Net of $64 tax)

    —       —         (80 )     (20 )     —         (100 )

Stock Options Exercised

    —       292       —         —         —         292  

Tax Benefit from Stock-Based Compensation

    —       380       —         —         —         380  

Amortization of Stock Based Compensation Awards

    —       3,378       —         —         —         3,378  
                                             

Balance at December 31, 2008

  $ 1,510   $ 789,625     $ 468,955     $ 124,784     $ —       $ 1,384,874  
                                             

 

The accompanying notes are an integral part of these consolidated financial statements.

 

65


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

CONSOLIDATED STATEMENTS OF CASH FLOWS

(Dollars in thousands, except per share data)

 

     For the Years Ended December 31,  
     2008     2007     2006  

Operating Activities:

      

Net Income

   $ 239,073     $ 135,678     $ 159,867  

Adjustments to Reconcile Net Income to Net Cash Provided by Operating Activities:

      

Depreciation, Depletion and Amortization

     70,010       48,961       37,999  

Stock-based Compensation

     3,378       3,260       3,733  

Deferred Income Taxes

     117,870       70,352       60,358  

Equity in Earnings of Affiliates

     (551 )     (2,174 )     (978 )

Changes in Operating Assets:

     —         —         —    

Accounts Receivable

     (21,789 )     8,267       (6,682 )

Related Party Receivable

     3,256       1,723       (2,017 )

Other Current Assets

     191       770       (2,284 )

Changes in Other Assets

     3,861       2,294       83  

Changes in Operating Liabilities:

      

Accounts Payable

     33,531       2,732       (7,343 )

Income Taxes

     (28,515 )     (4,171 )     (3,327 )

Other Current Liabilities

     16,668       3,193       2,552  

Changes in Other Liabilities

     10,611       1,968       1,668  

Other

     (219 )     (405 )     (60 )
                        

Net Cash Provided by Operating Activities

     447,375       272,448       243,569  

Investing Activities:

      

Capital Expenditures

     (524,663 )     (295,422 )     (154,243 )

Acquisition of Knox Energy

     (36,000 )     —         —    

Acquisition of Mineral Rights

     —         (61,777 )     —    

Investment in Equity Affiliates

     1,081       2,785       (1,777 )

Proceeds From Sales of Assets

     450       187       —    
                        

Net Cash Used in Investing Activities

     (559,132 )     (354,227 )     (156,020 )

Financing Activities:

      

Capital Lease Payments

     (2,769 )     (2,552 )     (449 )

Proceeds from Variable Interest Equity Debt

     11,032       8,851       —    

Proceeds from Short-Term Borrowings

     72,700       —         —    

Exercise of Stock Options

     292       302       —    

Tax Benefit from Stock Based Compensation

     380       53       —    
                        

Net Cash Provided by Financing Activities

     81,635       6,654       (449 )
                        

Net Decrease in Cash and Cash Equivalents

     (30,122 )     (75,125 )     87,100  

Cash and Cash Equivalents at Beginning of Period

     32,048       107,173       20,073  
                        

Cash and Cash Equivalents at End of Period

   $ 1,926     $ 32,048     $ 107,173  
                        

 

The accompanying notes are an integral part of these consolidated financial statements.

See Note 15—Supplemental Cash Flow Information

 

66


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 1—Significant Accounting Policies:

 

A summary of the significant accounting policies of CNX Gas is presented below. These, together with the other notes that follow, are an integral part of the consolidated financial statements.

 

Basis of Consolidation

 

The consolidated financial statements of CNX Gas include the accounts of majority-owned and controlled subsidiaries. Investments in business entities in which CNX Gas does not have control, but has the ability to exercise significant influence over the operating and financial policies, are accounted for under the equity method. All significant intercompany transactions and accounts have been eliminated in consolidation.

 

CNX Gas uses the equity method of accounting for our 50% ownership in Buchanan Generation for the years presented. The company also used the equity method of accounting for our 50% ownership in Knox Energy and Coalfield Pipeline Company for the year ended December 31, 2007 and 2006. The remaining interest which CNX Gas did not previously own in Knox Energy, LLC and Coalfield Pipeline Company was purchased in 2008 and these entities are now fully consolidated.

 

Use of Estimates

 

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses, and various disclosures. Actual results could differ from those estimates. The most significant estimates included in the preparation of the financial statements are related to derivative instruments, contingencies, net recoverable reserves, asset retirement obligations, income taxes, and stock based compensation.

 

Cash and Cash Equivalents

 

Cash and cash equivalents include cash on hand and in financial institutions as well as all highly liquid short-term securities with original maturities of three months or less.

 

Trade Accounts Receivable

 

Trade accounts receivable are recorded at the invoiced amount and do not bear interest. CNX Gas reserves for specific accounts receivable when it is probable that all or a part of an outstanding balance will not be collected. CNX Gas regularly reviews collectibility and establishes or adjusts the allowance as necessary using the specific identification method. Account balances are charged off against the allowance after all means of collection have been exhausted and the potential for recovery is considered remote. Reserves for uncollectible amounts were not material in the periods presented.

 

Property, Plant and Equipment

 

CNX Gas follows the successful efforts method of accounting for gas properties. Accordingly, costs of property acquisitions, successful exploratory wells, development wells and related support equipment and facilities are capitalized. Costs of unsuccessful exploratory wells are expensed when such wells are determined to be non-productive, or if the determination cannot be made after finding sufficient quantities of reserves to continue evaluating the viability of the project. Planned maintenance costs which do not extend the useful lives of existing plant and equipment are expensed as incurred.

 

67


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Upon the sale or retirement of a complete or partial unit of proved property, the cost and related accumulated depletion are eliminated from the property accounts, and the resultant gain or loss is recognized in other income.

 

CNX Gas computes depreciation on gathering assets using the straight-line method over their estimated economic lives, which range from 30-40 years. CNX Gas amortizes acquisition costs on proved gas properties and mineral interests using the ratio of current production to the estimated aggregate proved gas reserves. Wells and related equipment and intangible drilling costs are amortized on a units of production method using the ratio of current production to the estimated aggregate proved developed gas reserves. Units-of-production amortization rates are revised when events and circumstances indicate an adjustment is necessary, or at least once a year, and accounted for prospectively.

 

Costs for purchased and internally developed software are expensed until it has been determined that the software will result in probable future economic benefits and management has committed to funding the project. Thereafter, all direct costs of materials and services incurred in developing or obtaining software, including certain payroll and benefit costs of employees associated with the project, are capitalized and amortized using the straight-line method over the estimated useful life which does not exceed 7 years.

 

Impairment of Long-Lived Assets

 

Impairment of long-lived assets is recorded when indicators of impairment are present and the undiscounted cash flows estimated to be generated by those assets are less than the assets’ carrying value. The carrying value of the assets is then reduced to their estimated fair value which is usually measured based on an estimate of future discounted cash flows. Impairment of equity investments is recorded when indicators of impairment are present and the estimated fair value of the investment is less than the assets’ carrying value. There were no impairment losses during the periods presented in the Consolidated Financial Statements.

 

Income Taxes

 

CNX Gas is included in the consolidated federal income tax return of CONSOL Energy. Separate company state tax returns are filed in those states in which CNX Gas is registered to do business. Income taxes are calculated as if CNX Gas files a tax return on a separate company basis. Deferred tax assets and liabilities are recognized for the expected future tax consequences of events that have been recognized in CNX Gas’ financial statements or separate tax return that would be filed on a separate company basis. Deferred taxes result from differences between the financial and tax bases of CNX Gas’ assets and liabilities and are adjusted for changes in tax rates and tax laws when changes are enacted. Valuation allowances are recorded to reduce deferred tax assets where it is more likely than not that a deferred tax benefit will not be realized.

 

In July 2006, the Financial Accounting Standards Board (FASB) released FASB Interpretation No. 48, “Accounting for Uncertainty in Income Taxes—an interpretation of FASB Statement 109” (FIN 48). FIN 48 provides a model for how a company should recognize, measure, present and disclose in its financial statements uncertain tax positions that it has taken or expects to take on a tax return. FIN 48 was effective for CNX Gas on January 1, 2007. The adoption of FIN 48 did not have a material impact on CNX Gas’ consolidated financial statements.

 

Asset Retirement Obligations

 

CNX Gas accrues for dismantling and removing costs of gas related facilities using the accounting treatment prescribed by Statement of Financial Accounting Standards No. 143, “Accounting for Asset Retirement

 

68


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Obligations” (SFAS No. 143). This statement requires the fair value of an asset retirement obligation be recognized in the period in which it is incurred if a reasonable estimate of fair value can be made. The present value of the estimated asset retirement costs is capitalized as part of the carrying amount of the long-lived asset. Depreciation of the capitalized asset retirement cost is generally determined on a units-of-production basis. Accretion of the asset retirement obligation is recognized over time and generally will escalate over the life of the producing asset, typically as production declines. Accretion expense is included in lifting costs on the Consolidated Statements of Income. Asset retirement obligations primarily relate to the plugging of gas wells upon exhaustion of the gas reserves.

 

Accrued costs of dismantling and removing gas related facilities are regularly reviewed by management and are revised for changes in future estimated costs and regulatory requirements.

 

Revenue Recognition

 

Sales are recognized when title passes to the customers. This occurs at the contractual point of delivery.

 

We have an operational gas balancing agreement with Columbia pipeline. The imbalance agreement is managed internally using the sales method of accounting. The sales method recognizes revenue when the gas is taken by the purchaser.

 

Included in royalty interest gas sales are the revenues related to the portion of production associated with royalty interest owners.

 

CNX Gas sells gas to accommodate the delivery points of its customers. In general, this gas is purchased at market price and re-sold on the same day at market price less a small transaction fee. These matching buy/sell transactions include a legal right of offset of obligations and have been simultaneously entered into with the counterparty which qualify for netting under EITF No. 04-13, “Accounting for Purchases and Sales of Inventory with the Same Counter-Party” and are therefore reflected net on the income statement in gathering and compression costs.

 

CNX Gas also provides gathering services to third parties by purchasing gas produced by the third party, at market prices less a fee. The gas purchased from third party producers is then resold by CNX Gas to end users or gas marketers at current market prices. These revenues and expenses are recorded gross as purchased gas revenue and purchased gas expense in the consolidated statement of income. Purchased gas revenue is recognized when title passes to the customer. Purchased gas expense is recognized when title passes to CNX Gas from the third party producer.

 

Royalty Recognition

 

Royalty costs for gas rights are included in royalty interest gas costs when the related revenue for the gas sale is recognized. These royalty costs are paid in cash in accordance with the terms of each agreement. Revenues for gas sold related to production under royalty contracts, versus owned by CNX Gas, are separately identified and recorded on a gross basis. The recognized revenues for these transactions are not net of related royalty fees.

 

Contingencies

 

CNX Gas and our subsidiaries from time to time are subject to various lawsuits and claims with respect to such matters as personal injury, wrongful death, damage to property, exposure to hazardous substances,

 

69


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

governmental regulations including environmental remediation, employment and contract disputes, and other claims and actions, arising out of the normal course of business. Liabilities are recorded when it is probable that obligations have been incurred and the amounts can be reasonably estimated. Estimates are developed through consultation with legal counsel involved in the defense and are based upon an analysis of potential results, assuming a combination of litigation and settlement strategies. Environmental liabilities are not discounted or reduced by possible recoveries from third parties. Legal fees associated with defending these various lawsuits and claims are expensed when incurred.

 

Derivative Instruments

 

CNX Gas accounts for derivative instruments in accordance with Statement of Financial Accounting Standards No. 133, “Accounting for Derivative Instruments and Hedging Activities,” (SFAS No. 133) and its corresponding amendments under SFAS No. 138, “Accounting for Certain Derivative Instruments and Certain Hedging Activities an amendment of FASB Statement No. 133” (SFAS No. 138). CNX Gas measures every derivative instrument (including certain derivative instruments embedded in other contracts) at fair value and records them on the balance sheet as either an asset or liability. Changes in fair value of derivatives are recorded currently in earnings unless special hedge accounting criteria are met. For derivatives designated as cash flow hedges, the effective portions of changes in fair value of the derivative are reported in other comprehensive income or loss and reclassified into earnings in the same period or periods which the forecasted transaction affects earnings. The ineffective portions of hedges are recognized in earnings in the current year. CNX Gas only engages in cash flow hedges.

 

CNX Gas formally assesses, both at inception of the hedge and on an ongoing basis, whether each derivative is highly effective in offsetting changes in fair values or cash flows of the hedged item. If it is determined that a derivative is not highly effective as a hedge or if a derivative ceases to be a highly effective hedge, CNX Gas will discontinue hedge accounting prospectively.

 

Stock-Based Compensation

 

Effective January 1, 2006, CNX Gas adopted the fair value recognition provisions of Statement of Financial Accounting Standards No. 123(R), “Share-Based Payment” (SFAS 123R), using the modified prospective transition method. Under this transition method, stock-based compensation expense for the years presented include compensation expense for all stock-based compensation awards granted prior to, but not yet vested as of January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of SFAS No. 123, “Accounting for Stock-Based Compensation” (SFAS 123). Stock-based compensation expense for all stock-based compensation awards granted after January 1, 2006 is based on the grant-date fair value estimated in accordance with the provisions of SFAS 123R. CNX Gas recognizes these compensation costs on a straight-line basis over the requisite service period of the award, which is generally the option vesting term. See Note 13 to the Consolidated Financial Statements for a further discussion on stock-based compensation.

 

Earnings Per Share

 

Basic earnings per share are computed by dividing net income by the weighted average shares outstanding during the years ended December 31, 2008, 2007 and 2006. Diluted earnings per share are calculated using the treasury stock method, which assumes outstanding stock options were exercised and restricted stock units were converted into shares and the proceeds from such activity were used to acquire shares of common stock at the average market price during the reporting period. The dilutive effect is calculated in a manner similar to the

 

70


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

calculation of basic earnings per share, except that the weighted average shares outstanding are increased to include additional shares from the assumed exercise of stock options, if dilutive, and the assumed redemption of restricted stock units. Options to purchase 17,175 shares, 490,056 shares and 479,065 shares of common stock outstanding for the years ending December 31, 2008, 2007 and 2006, respectively, were not included in the computation of diluted earnings per share because the effect would be anti-dilutive.

 

     For the Year
Ended December 31,
     2008    2007    2006

Net Income

   $ 239,073    $ 135,678    $ 159,867
                    

Weighted Average Number of Common Shares Outstanding:

        

Basic

     150,947,516      150,886,433      150,845,518

Effect of stock-based compensation awards

     384,437      247,087      171,938
                    

Dilutive

     151,331,953      151,133,520      151,017,456
                    

Earnings per share:

        

Basic

   $ 1.58    $ 0.90    $ 1.06
                    

Diluted

   $ 1.58    $ 0.90    $ 1.06
                    

 

Shares of common stock were outstanding as follows:

 

     2008    2007    2006

Balance, beginning of year

   150,915,198    150,864,075    150,833,334

Issuance related to stock-based compensation

   56,438    51,123    30,741
              

Balance, end of year

   150,971,636    150,915,198    150,864,075
              

 

Accounting for Carbon Emission Offsets

 

In 2008, CNX Gas completed the independent verification and registration processes necessary to sell carbon emission offsets on the Chicago Climate Exchange. CNX Gas has verified approximately 8.4 million metric tons of offsets. These offsets are recorded at their historical cost, which is zero. Sales of these emission offsets will be reflected in other income as they occur. To date, no offsets have been sold.

 

Accounting for Business Combinations

 

The Company accounts for its business acquisitions under the purchase method of accounting consistent with the requirements of SFAS no. 141, “Business Combinations.” The total cost of acquisitions is allocated to the underlying identifiable net assets, based on their respective estimated fair values. Determining the fair value of assets acquired and liabilities assumed requires management’s judgment, and the utilization of independent valuation experts, and often involves the use of significant estimates and assumptions with respect to future cash inflows and outflows, discount rates, asset lives, and market multiples, among other items.

 

Recent Accounting Pronouncements

 

In May 2008, The Financial Accounting Standards Board (FASB) issued Statement No. 162, “The Hierarchy of Generally Accepted Accounting Principles.” The new standard is intended to improve financial reporting by identifying a consistent framework, or hierarchy, for selecting accounting principles to be used in

 

71


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

preparing financial statements that are presented in conformity with U.S. generally accepted accounting principles (GAAP) for nongovernmental entities. Statement 162 establishes that the GAAP hierarchy should be directed to entities because it is the entity (not its auditor) that is responsible for selecting accounting principles for financial statements that are presented in conformity with GAAP. Statement 162 is effective 60 days following the SEC’s approval of the Public Company Accounting Oversight Board Auditing amendments to AU Section 411, “The Meaning of Present Fairly in Conformity with Generally Accepted Accounting Principles.” We do not expect this guidance to have a significant impact on CNX Gas.

 

In March 2008, The Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 161, “disclosures about Derivative Instruments and Hedging Activities, an amendment of FASB Statement 133” (SFAS 161). The new standard is intended to improve financial reporting about derivative instruments and hedging activities by requiring enhanced disclosures to enable investors to better understand their effects on an entity’s financial positions, results of operations and cash flows. The new standard also improves transparency about how and why a company uses derivative instruments and how derivative instruments and related hedge items are accounted for under Statement 133. It is effective for financial statements issued for fiscal years and interim periods beginning after November 15, 2008, with early application encouraged. CNX Gas’ management is currently assessing the new disclosure requirements required by SFAS 161.

 

In December 2007, the Financial Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards No. 141(R), “Business Combinations” (SFAS 141R), and Statement of Financial Accounting Standards No. 160, “Accounting and Reporting of Noncontrolling Interest in Consolidated Financial Statements, an amendment of ARB No. 51” (SFAS 160). SFAS 141R and SFAS 160 will significantly change the accounting for and reporting of business combination transactions and noncontrolling (minority) interests in consolidated financial statements. SFAS 141R retains the fundamental requirements in Statement 141 “Business Combinations” while providing additional definitions, such as the definition of the acquirer in a purchase and improvements in the application of how the acquisition method is applied. SFAS 160 will change the accounting and reporting for minority interests, which will be recharacterized as noncontrolling interests, and classified as a component of equity. These Statements become simultaneously effective January 1, 2009. Early adoption is not permitted. We are currently evaluating the impact this guidance will have on our consolidated financial statements.

 

Reclassifications

 

Certain amounts in prior periods have been reclassified to conform with the report classifications of the year ended December 31, 2008 with no effect on previously reported net income or stockholders’ equity. These reclassifications include amounts related to other income and other expenses.

 

Note 2—Significant Acquisitions:

 

In July 2008, CNX Gas completed the acquisition of several leases and gas wells from KIS Oil & Gas Inc. for a cash payment of $19,324. The purchase price was principally allocated to property, plant, and equipment. The sales agreement called for the transfer of approximately 5,600 leased acres and 30 oil and gas wells. This acquisition enhanced our acreage position in Northern Appalachia. The pro forma results for this acquisition were not significant to CNX Gas’ financial results.

 

In June 2008, CNX Gas completed the acquisition of the remaining 50% interest in Knox Energy, LLC and Coalfield Pipeline not already owned by CNX Gas for a cash payment of $36,000 which was principally

 

72


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

allocated to property, plant, and equipment. Prior to December 31, 2007 these companies were reported under the equity method. From December 31, 2007 to acquisition date, the companies were proportionately consolidated into CNX Gas’ financial statements. Knox Energy, LLC is a natural gas production company and Coalfield Pipeline is a natural gas transportation company with operations in Tennessee. The pro forma results for this acquisition were not significant to CNX Gas’ financial results.

 

In June 2007, CNX Gas entered into a three-way transaction with Peabody Energy and majority shareholder CONSOL Energy Inc. (CONSOL or CONSOL Energy) to acquire certain oil and gas, coalbed methane, and other gas interests. Pursuant to the transaction, CNX Gas acquired certain coal assets from CONSOL for $45,000 cash, plus $1,777 of miscellaneous acquisition costs, plus a future payment with an estimated present value of $7,023, which we approximate to be the fair value of the assets. CNX Gas then exchanged those assets plus $15,000 cash for Peabody’s oil and gas, coalbed methane, and other gas rights to approximately 985,000 acres, including 603,000 acres in the Illinois Basin, 2,000 acres in Central Appalachia, 151,000 acres in Northern Appalachia, 171,000 acres in the San Juan Basin, 47,000 acres in the Powder River Basin, and 11,000 acres in the Rockies. This acreage has no proved gas reserves.

 

Note 3—Transactions with Related Parties:

 

CNX Gas sells gas to CONSOL Energy on a basis reflecting the monthly average price received by CNX Gas from third party sales. CNX Gas revenue from CONSOL Energy was $7,337, $6,242 and $1,171 for the years ended December 31, 2008, 2007 and 2006, respectively. CNX Gas also sells gas to Buchanan Generation, LLC, in which CNX Gas has a 50% interest, on both a market and discounted basis, depending on the circumstances. CNX Gas revenue from Buchanan Generation, LLC was $2,195, $5,376 and $7,319 for the years ended December 31, 2008, 2007 and 2006, respectively.

 

CNX Gas also purchases various supplies from CONSOL Energy’s wholly owned subsidiary, Fairmont Supply. The cost of these items reflect current market prices and are included in lifting costs and gathering and compression costs as arms-length transactions. CNX Gas paid Fairmont Supply $2,434, $699, and $210 for the years ended December 31, 2008, 2007, and 2006, respectively.

 

CNX Gas utilizes certain services and engages in operating transactions in the normal course of business with CONSOL Energy. The following represents a summary of the significant transactions of this nature:

 

General and administrative expenses contain fees of $3,213, $1,635, and $3,954 for the years ended December 31, 2008, 2007, and 2006, respectively, for certain accounting and administrative services provided by CONSOL Energy. These fees are allocated to CNX Gas based on annual estimated hours worked on CNX Gas versus total hours available.

 

CNX Gas also paid $150, $200, and $200 of rent for the years ended December 31, 2008, 2007, and 2006, respectively, for one of our facilities.

 

CNX Gas paid CONSOL Energy $61,397, $18,676 and $35,646 for federal and state income taxes for years ended December 31, 2008, 2007 and 2006, respectively.

 

CONSOL Energy currently incurs drilling costs related to gob gas production due to the necessity to de-gas coal mines prior to production for safety reasons. The cost to CONSOL Energy for drilling these wells was as follows: $14,073 in 2008, $7,101 in 2007, and $8,917 in 2006. CNX Gas captures and markets the gas from these wells and, therefore, benefits from this drilling activity, although CNX Gas is not burdened with the cost to drill

 

73


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

gob wells. CNX Gas is responsible for the costs incurred to gather and deliver the gob gas to market. All gob well drilling costs are borne by CONSOL Energy and only the collection and processing costs are recorded in CNX Gas’ financial statements.

 

Employees may also participate in a defined contribution investment plan administered by CONSOL Energy. CONSOL Energy charges CNX Gas the actual amounts contributed by CONSOL Energy on behalf of CNX Gas’ employees. Amounts charged to expense by CNX Gas for the investment plan were $1,757, $1,233, and $646 for the years ended December 31, 2008, 2007, and 2006, respectively. For all years noted, this expense includes a matching contribution of up to 6% of an individual’s eligible pay contributed to the plan. For the year ended December 31, 2008, the charge to expense also includes an additional 3% company contribution for those employees hired on or after January 1, 2006, as well as those employees hired prior to December 31, 2005 who elected to freeze their defined benefit accruals as of January 1, 2007. Please see Note 12 to the Consolidated Financial Statements for further information.

 

Eligible employees may also participate in a long-term disability plan administered by CONSOL Energy. Benefits for this plan are based on a percentage of monthly earnings, offset by all other income benefits available to the disabled. CNX Gas’ allocation of the long-term disability plan expense under this plan was $577, $493, and $321 for the years ended December 31, 2008, 2007, and 2006, respectively. Allocation of the expense for this plan is based on the percentage of CNX Gas’ active salary employees compared to the total active salary employees covered by the plan.

 

CNX Gas also participates in certain CONSOL Energy sponsored benefit plans which provide medical and life benefits to employees that retire with at least twenty years of service and have attained age 55 or fifteen years of service and have attained age 62. Additionally, any salaried employees that are hired or rehired effective August 1, 2004 or later will not become eligible for retiree health benefits. In lieu of traditional retiree health coverage, if certain eligibility requirements are met, these employees may be eligible to receive a retiree medical spending allowance of one thousand dollars per year of service at retirement. Also, the plan includes a cost sharing structure where essentially all participants contribute a minimum of 20% of plan costs. Annual cost increases in excess of 6% are paid entirely by the Plan participants. CNX Gas does not expect to contribute to the other postretirement benefit plan in 2009 and instead expects to pay benefit claims as they become due.

 

CNX Gas is insured through CONSOL Energy for workers’ compensation claims in several states and is self-insured for these claims in Virginia. Workers’ compensation expense for these benefits was $32, $21, and $16 for the years ended December 31, 2008, 2007, and 2006, respectively.

 

CONSOL Energy has provided financial guarantees on behalf of CNX Gas. As discussed in Note 19 to the Consolidated Financial Statements, CNX Gas anticipates that these parental guarantees will be transferred from CONSOL Energy to CNX Gas over time. We also believe that these parental guarantees will expire without being funded, and therefore will not have a material adverse effect on the financial statements.

 

74


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 4—Other Income:

 

     For the Years
Ended December 31,
 
     2008    2007    2006  

Business Interruption Insurance

   $ 8,000    $ 1,600    $ 10,165  

Third Party Gathering Revenue

     1,601      1,077      1,341  

Timber Income

     768      99      —    

Legal Settlement

     650      —        —    

Equity in Earnings

     551      2,174      (978 )

Interest Income

     400      3,793      3,453  

Royalty Income

     —        —        10,230  

Miscellaneous

     1,360      72      97  
                      

Total Other Income

   $ 13,330    $ 8,815    $ 24,308  
                      

 

Note 5—Income Taxes:

 

The following is a reconciliation, stated as a percentage of pretax income, of the U.S. statutory federal income tax rate to CNX Gas’ effective tax rate:

 

     For the Year
Ended December 31,
 
     2008     2007     2006  
     Dollars     Rate     Dollars     Rate     Dollars     Rate  

Statutory U.S. Federal Income Tax Rate

   $ 137,455     35.0 %   $ 77,223     35.0 %   $ 89,754     35.0 %

Net Effect of State Income Tax

     16,945     4.3 %     9,108     4.1 %     9,032     3.5 %

Other

     (744 )   (0.2 )%     (1,370 )   (0.6 )%     (2,213 )   (0.8 )%
                                          

Income Tax Expense/Effective Rate

   $ 153,656     39.1 %   $ 84,961     38.5 %   $ 96,573     37.7 %
                                          

 

CNX Gas is included in the consolidated federal income tax return of CONSOL Energy. Income taxes are calculated as if CNX Gas files a tax return on a separate company basis. CNX Gas is no longer subject to U.S. federal, state, and local, or non-U.S. income tax examinations by tax authorities for tax years prior to 2003. The Internal Revenue Service (IRS) commenced an examination of CONSOL Energy’s U.S. income tax returns for 2004 and 2005. This examination is anticipated to be completed by March 31, 2009. As of December 31, 2008, the IRS has not proposed any significant adjustments relating to any tax position taken by CNX Gas as part of CONSOL Energy’s consolidated federal income tax return.

 

75


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Income taxes provided on earnings consisted of:

 

     For the Year
Ended December 31,
     2008    2007    2006

Current:

        

Federal

   $ 29,622    $ 13,836    $ 30,032

State

     6,164      2,755      6,183
                    
     35,786      16,591      36,215

Deferred:

        

Federal

     98,144      57,112      52,646

State

     19,726      11,258      7,712
                    
     117,870      68,370      60,358
                    

Total Income Tax Expense

   $ 153,656    $ 84,961    $ 96,573
                    

 

The components of the net deferred tax liabilities are as follows:

 

     As of December 31,  
     2008     2007  

Deferred Tax Assets:

    

Capital Lease Obligations

   $ 23,924     $ 25,043  

Derivatives

     —         428  

Asset Retirement Obligations

     2,904       1,560  

Other Postretirement Benefits

     1,154       1,058  

Stock-Based Compensation

     1,868       1,176  

Other

     7,844       9,724  
                

Total Deferred Tax Assets

     37,694       38,989  
                

Deferred Tax Liabilities:

    

Property, Plant and Equipment

     (338,435 )     (216,554 )

Investment in Equity Affiliates

     (4,536 )     (6,936 )

Derivatives

     (81,061 )     (4,197 )

Other

     —         (986 )
                

Total Deferred Tax Liabilities

     (424,032 )     (228,673 )
                

Net Deferred Tax Liabilities

   $ (386,338 )   $ (189,684 )
                

 

76


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

CNX Gas adopted the provisions of FASB Interpretation (FIN) No. 48, “Accounting for Uncertainty in Income Taxes”, on January 1, 2007. As a result of the implementation of FIN No. 48, CNX Gas recognized approximately a $53 net increase in the liability for unrecognized tax benefits, which was accounted for as a reduction to the January 1, 2007 balance of retained earnings. During the years ending December 31, 2008 and December 31, 2007, the Company recognized an increase in the liability relating to unrecognized tax benefits of $1,012 and $1,417, respectively. The balance of unrecognized tax benefits as of December 31, 2008 and 2007 was $5,545 and $4,533, respectively. The unrecognized tax changes include tax positions for which the ultimate deductibility is certain, but for which there is uncertainty about the proper tax year in which the tax positions are deductible. Consequently, these unrecognized tax benefits during 2008 and 2007 would not have an impact on CNX Gas’ effective income tax rate. A reconciliation of the beginning and ending unrecognized tax benefits is as follows:

 

Balance at December 31, 2007

   $ 4,533

Additions related to current year tax positions

     1,012
      

Balance at December 31, 2008

   $ 5,545
      

 

CNX Gas recognizes interest accrued related to unrecognized tax benefits in its interest expense. As of December 31, 2008 and December 31, 2007, CNX Gas reported an accrued interest liability relating to uncertain tax positions of $516 and $182 respectively. The accrued interest liability for these periods includes $334 and $90 of interest expense that is reflected in the Company’s statements of operations for the years ended December 31, 2008 and 2007 respectively.

 

CNX Gas recognizes penalties accrued related to unrecognized tax benefits in its income tax expense. As of December 31, 2008 and 2007, the Company had no accrued penalties relating to its uncertain income tax positions.

 

All of CNX Gas’ earnings before income tax was generated from domestic entities.

 

Note 6—Asset Retirement Obligations:

 

CNX Gas accrues for asset retirement obligations using the accounting treatment prescribed by Statement of Financial Accounting Standards No. 143, “Accounting for Asset Retirement Obligations” (SFAS No. 143). CNX Gas recognizes capitalized asset retirement costs by increasing the carrying amount of related long-lived assets, net of the associated accumulated depreciation.

 

The reconciliation of changes in the asset retirement obligations at December 31, 2008 and 2007 is as follows:

 

     As of December 31,  
     2008    2007  

Balance at beginning of period

   $ 3,981    $ 9,214  

Accretion expense

     460      267  

Payments

     —        (144 )

Liabilities incurred

     1,943      1,180  

Revisions in estimated cash flows

     1,017      (6,536 )
               

Balance at end of period

   $ 7,401    $ 3,981  
               

 

77


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

For the year ended December 31, 2008, the revisions in estimated cash flows are due primarily to the effect on the present value of an increase in the estimated average plugging costs of our wells. For the year ended December 31, 2007, the revisions in estimated cash flows are due primarily to the effect on the present value of an increase in the estimated average life of our wells.

 

Note 7—Property, Plant and Equipment:

 

     As of December 31,  
     2008     2007  

Leasehold Improvements

   $ 1,352     $ 1,351  

Proved Properties

     121,605       104,515  

Unproved Properties

     220,848       101,680  

Wells and Related Equipment

     222,685       166,468  

Intangible Drilling

     793,456       531,097  

Gathering Assets

     740,396       596,173  

Asset Retirement Obligations

     3,739       1,035  

Capitalized Internal Software

     7,302       6,741  
                

Total Property, Plant and Equipment

     2,111,383       1,509,060  

Accumulated Depreciation, Depletion and Amortization

     (322,470 )     (254,154 )
                

Property and Equipment, net

   $ 1,788,913     $ 1,254,906  
                

 

Property, plant and equipment includes gross assets acquired under capital leases of $69,990 and $66,919 at December 31, 2008 and 2007, respectively. Related amounts in accumulated depreciation, depletion and amortization are $10,900 and $5,242 at December 31, 2008 and 2007, respectively.

 

Note 8—Credit Facility:

 

CNX Gas has a five-year $200,000 unsecured credit agreement which extends through October 2010. The agreement gives CNX Gas the ability to request an increase in the aggregate outstanding principal amount up to $300,000, including borrowings and letters of credit. The $200,000 credit agreement for CNX Gas is unsecured; however, it does contain a negative pledge provision providing that CNX Gas assets cannot be used to secure any other obligations. Fees and interest rate spreads are based on the percentage of facility utilization, measured quarterly. Covenants in the facility limit our ability to dispose of assets, make investments, purchase or redeem CNX Gas stock and merge with another corporation. The facility includes a maximum leverage ratio covenant of not more than 3.00 to 1.00, measured quarterly. The leverage ratio was 0.32 to 1.00 at December 31, 2008. The facility also includes a minimum interest coverage ratio of no less than 3.00 to 1.00, measured quarterly. The interest coverage ratio covenant was 77.29 to 1.00 at December 31, 2008.

 

At December 31, 2008, the CNX Gas credit agreement had outstanding borrowings of $72,700 and $14,933 of letters of credit outstanding, leaving $112,367 of capacity available for borrowings and the issuance of letters of credit. The outstanding borrowings had a weighted average interest rate of 3.51% during the year ended December 31, 2008.

 

CNX Gas and subsidiaries have executed a Supplemental Indenture and are guarantors of CONSOL Energy’s 7.875% notes due March 1, 2012 in the principal amount of $250,000. In addition, if CNX Gas were to grant liens to a lender as part of a future borrowing, the indenture governing CONSOL Energy’s 7.875% notes would require CNX Gas to ratably secure the notes.

 

78


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 9—Other Current Liabilities:

 

     As of December 31,
         2008            2007    

Short Term Incentive Compensation Plan

   $ 8,108    $ 5,241

Accrued Property Taxes

     2,894      577

Accrued Payroll and Benefits

     2,416      455

Accrued Firm Transportation

     1,380      474

Purchased Gas

     1,256      1,815

Other

     2,062      1,255
             

Total Other Current Liabilities

   $ 18,116    $ 9,817
             

 

Note 10—Leases:

 

CNX Gas uses various leased facilities and equipment in our operations. Future minimum lease payments under capital and operating leases, together with the present value of the net minimum capital lease payments, at December 31, 2008, are as follows:

 

     Capital
Leases
    Operating
Leases

2009

   $ 9,191     $ 2,443

2010

     8,185       2,154

2011

     7,949       1,777

2012

     7,548       1,406

2013

     7,380       1,380

Thereafter

     57,754       2,208
              

Total Minimum Lease Payments

     98,007     $ 11,368
        

Less Imputed Interest

     (34,746 )  
          

Present Value of Minimum Lease Payments

     63,261    

Less Amount Due in One Year

     3,965    
          

Total Long-term Capital Lease Obligation

   $ 59,296    
          

 

We are a party to a 15-year capital lease obligation through October 2021. Under this agreement, we are guaranteed approximately 197,500 mcf of capacity daily on the Jewell Ridge lateral pipeline. This lease does not transfer ownership at the end of the term.

 

Rental expense under operating leases was $9,381, $6,675, and $4,650 for the years ended December 31, 2008, 2007, and 2006, respectively.

 

79


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 11—Long-Term Debt:

 

     As of
December 31,
2008

Debt:

  

Note Payable—Huntington National Bank, due 2011 at 6.10%

   $ 18,940

Members loans payable, due various undetermined dates, no interest

     621

Other notes payable, due various dates through 2011 with interest rates ranging from 7.350% to 10.423%

     322
      

Total Debt

     19,883

Less amounts due in one year

     4,497
      

Total Long-term Debt

   $ 15,386
      

 

Maturities on long-term debt in each of the next five years are as follows:

 

2009

   $ 4,497

2010

     4,674

2011

     10,091

2012

     —  

2013

     —  

Thereafter

     621
      

Total Long-Term Debt Maturities

   $ 19,883
      

 

Note 12—Pension and Other Postretirement Benefits:

 

As of December 31, 2005, CNX Gas participated in a non-contributory defined benefit retirement plan, administered by CONSOL Energy, covering substantially all salaried employees. The pension benefit obligation earned by salaried CNX Gas employees prior to the date of separation from CONSOL Energy remains with CONSOL Energy. As of the date of separation, any incremental pension liability earned by CNX Gas salaried employees, as a result of service after August 1, 2005, is the obligation of CNX Gas. The benefits for this plan are based primarily on years of service and employees’ compensation near retirement. On January 1, 2006, an amendment was made to the CONSOL Energy Inc. Employee Retirement Plan that suspended all service accruals of gas employees in this plan. In its place, an identical plan, the CNX Gas Corporation Employee Retirement Plan (Pension Plan), was created and sponsored by CNX Gas to provide a benefit for all defined benefit accruals going forward. As of that date, the lump sum benefits formula was frozen for service and salaries and prospectively the lump sum option will not be offered for any benefits earned after January 1, 2006. Also, the amount of future benefit accruals was reduced and early retirement subsidies were eliminated.

 

Effective January 1, 2007, employees hired by CNX Gas will not be eligible to participate in the non-contributory defined benefit retirement plan. In lieu of participation in the non-contributory defined benefit plan, these employees will begin receiving an additional 3% company contribution into their defined contribution plan. CNX Gas employees who were hired prior to December 31, 2005, or who were full time salaried employees of CONSOL Energy immediately prior to their date of transfer, were given a one time opportunity to elect to remain in the defined benefit plan or to freeze their defined benefit accruals and participate in the additional 3% company contribution into their defined contribution plan. All employees, regardless of the hire date or plan

 

80


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

election, will continue to receive up to a 6% company match of eligible pay contributed to the defined contribution plan. In addition, any employees hired on or after January 1, 2006 had their pension benefit frozen as of December 31, 2006 and were automatically enrolled into the additional 3% company contribution into their defined contribution plan effective January 1, 2007. The Company intends to freeze all defined benefit accruals after ten years for employees that elected to remain in the defined benefit plan.

 

CNX Gas adopted the measurement provisions of Statement of Financial Accounting Standards No. 158 “Employers’ Accounting for Defined Benefit Pension and Other Postretirement Plans” (SFAS 158), during the year ended December 31, 2008. As a result of this adoption, the Company recognized an increase of $85 and $79 in the pension and other postretirement benefit liabilities, respectively, which was accounted for as a reduction in the January 1, 2008 balance of retained earnings.

 

CNX Gas participates in certain CONSOL Energy sponsored benefit plans which provide medical and life benefits to employees that retire with at least twenty years of service and have attained age 55 or fifteen years of service and have attained age 62. Additionally, any salaried employees that are hired or rehired effective August 1, 2004 or later will not become eligible for retiree health benefits. In lieu of traditional retiree health coverage, if certain eligibility requirements are met, these employees may be eligible to receive a retiree medical spending allowance of $1,000 per year of service at retirement. The plan structure includes a cost sharing arrangement where essentially all participants contribute 20% of plan costs. Annual cost increases in excess of 6% are paid entirely by the Plan participants.

 

81


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

The reconciliation of changes in the benefit obligation, plan assets and funded status of this plan at December 31, 2008 and 2007 is as follows:

 

    Pension Benefits at December 31,     Other Benefits at December 31,  
        2008             2007             2008             2007      

Change in benefit obligation:

       

Benefit obligation at beginning of year

  $ 615     $ 207     $ 2,814     $ 2,325  

Service cost (9/30/07-12/31/07)

    80       —         33       —    

Service cost

    323       262       132       124  

Interest cost (9/30/07-12/31/07)

    10       —         46       —    

Interest cost

    40       12       183       139  

Actuarial loss (gain)

    110       150       (145 )     335  

Benefits paid (9/30/07-12/31/07)

    (5 )     —         (34 )     —    

Benefits paid

    (28 )     (16 )     (147 )     (109 )
                               

Benefit obligation at end of period

  $ 1,145     $ 615     $ 2,882     $ 2,814  
                               

Change in plan assets:

       

Fair value of plan assets at beginning of period

  $ 288     $ 18     $ —       $ —    

Actual return on plan assets

    —         (51 )     —         —    

Company contributions (9/30/07-12/31/07)

    43       —         33       —    

Company contributions

    518       337       147       109  

Benefits and other payments (9/30/07-12/31/07)

    (5 )     —         (33 )     —    

Benefits paid

    (28 )     (16 )     (147 )     (109 )
                               

Fair value of plan assets at end of period

  $ 816     $ 288     $ —       $ —    
                               

Funded status:

       

Current liabilities

  $ —       $ —       $ (154 )   $ (114 )

Noncurrent liabilities

    (329 )     (327 )     (2,728 )     (2,700 )
                               

Net obligation recognized

  $ (329 )   $ (327 )   $ (2,882 )   $ (2,814 )
                               

Amounts recognized in accumulated other comprehensive income consist of:

       

Net actuarial (gain) loss

  $ 46     $ (50 )   $ 579     $ 803  

Prior Service Credit

    —         —         (1,072 )     (1,287 )
                               

Net amount recognized (before tax effect)

  $ 46     $ (50 )   $ (493 )   $ (484 )
                               

 

The components of net periodic benefit costs are as follows:

 

    Pension Benefits     Other Benefits  
    For the Years Ended December 31,     For the Years Ended December 31,  
          2008                 2007                 2006                 2008                 2007                 2006        

Components of net periodic benefit cost:

           

Service cost

  $ 323     $ 262     $ 282     $ 132     $ 124     $ 91  

Interest cost

    40       12       5       183       139       101  

Expected return on plan assets

    (25 )     (2 )     (9 )     —         —         —    

Amortization of prior service cost (credit)

    —         —         —         (172 )     (172 )     (172 )

Recognized net actuarial loss

    —         (23 )     (12 )     36       21       —    
                                               

Benefit cost

  $ 338     $ 249     $ 266     $ 179     $ 112     $ 20  
                                               

 

82


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Amounts included in accumulated other comprehensive income, expected to be recognized in 2009 net periodic benefit costs:

 

     Pension
Benefits
   Postretirement
Benefits

Prior service cost (benefit) recognition

   $ —      $ 172

Actuarial loss recognition

   $ —      $ 19

 

The accumulated benefit obligation for the Pension Plan at December 31, 2008 and 2007 was $894 and $470, respectively.

 

Assumptions:

 

The weighted-average assumptions used to determine benefit obligations are as follows:

 

     Pension Benefits at
December 31,
    Other Benefits at
December 31,
 
         2008             2007             2008             2007      

Discount rate

   6.28 %   6.57 %   6.20 %   6.63 %

Rate of compensation increase

   5.34 %   5.46 %   —       —    

 

The weighted-average assumptions used to determine net periodic benefit costs are as follows:

 

     Pension Benefits at
December 31,
    Other Benefits at
December 31,
 
      2008       2007       2006       2008       2007       2006   

Discount rate

   6.57 %   6.00 %   5.75 %   6.63 %   6.00 %   5.75 %

Expected long-term return on plan assets

   8.00 %   8.00 %   8.00 %   —       —       —    

Rate of compensation increase

   5.46 %   4.36 %   4.11 %   —       —       —    

 

The long-term rate of return is the sum of the portion of total assets in each asset class held multiplied by the expected return for that class, adjusted for expected expenses to be paid from the assets. The expected return for each class is determined using the plan asset allocation at the measurement date and a distribution of compound average returns over a 20-year time horizon. The model uses asset class returns, variances and correlation assumptions to produce the expected return for each portfolio. The return assumptions used forward-looking gross returns influenced by the current Treasury yield curve. These returns recognize current bond yields, corporate bond spreads and equity risk premiums based on current market conditions. In general, the long-term rate of return is the sum of the portion of total assets in each asset class multiplied by the expected return for that class, adjusted for expected expenses to be paid from the assets.

 

The assumed health care cost trend rates are as follows:

 

     As of December 31,  
     2008     2007     2006  

Healthcare cost trend rate for next year

   9.60 %   8.00 %   8.50 %

Rate to which the cost trend rate is assumed to decline (ultimate trend rate)

   5.00 %   5.00 %   5.00 %

Year that the rate reaches ultimate trend rate

   2015     2013     2011  

 

83


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Assumed health care cost trend rates have a significant effect on the amounts reported for the medical plans. A one-percentage-point change in assumed health care cost trend rates would have the following effects:

 

     1-Percentage
Point Increase
   1-Percentage
Point Decrease
 

Effect on total of service and interest costs components

   $ 47    $ (39 )

Effect on accumulated postretirement benefit obligation

   $ 253    $ (427 )

 

Assumed discount rates also have a significant effect on the amounts reported for both pension and other benefit costs. A one-quarter percentage point change in assumed discount rate would have the following effect on benefit costs:

 

     0.25 Percentage
Point Increase
    0.25 Percentage
Point Decrease

Pension benefit costs (decrease) increase

   $ (15 )   $ 17

Other postemployment benefits costs (decrease) increase

   $ (12 )   $ 13

 

Plan Assets:

 

As of December 31, 2008 and September 30, 2007, all of the pension plan assets were held in cash and cash equivalents. CNX Gas had no plan assets as of December 31, 2008 and September 30, 2007 for other postretirement benefits.

 

Cash Flows:

 

We expect to contribute $400 to the Pension Plan in 2009. The Company does not expect to contribute to the other postretirement benefit plan in 2009. We intend to pay benefit claims as they are due. The following benefit payments, reflecting future service, are expected to be paid as follows:

 

     Pension Benefits    Other Benefits

2009

   $ 19    $ 154

2010

     23      162

2011

     29      170

2012

     37      179

2013

     48      145

Year 2014-2018

     622      909

 

Note 13—Stock-Based Compensation:

 

CNX Gas adopted the amended CNX Gas Equity Incentive Plan on October 11, 2006. The plan is administered by our board of directors and the board of directors may delegate administration of the plan to a committee of the board of directors. Our directors and employees, and our affiliates’ (which include CONSOL Energy) directors and employees, are eligible to receive awards under the plan. Some of our employees including our executive officers and non-employee directors have participated in or have been eligible to participate in and, will continue to be eligible to participate in, CNX Gas’ Equity Incentive Plan.

 

The CNX Gas Equity Incentive Plan consists of the following components: stock options, stock appreciation rights, restricted stock units, performance awards, cash awards and other stock-based awards. The total number

 

84


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

of shares of CNX Gas common stock with respect to which awards may be granted under CNX Gas’ plan is 2,500,000. When stock based awards are exercised or vest, the issuances are made from CNX Gas’ unissued common shares.

 

The total stock-based compensation expense was $3,378, $3,260 and $3,733 for the years ended December 31, 2008, 2007 and 2006, respectively, and the related deferred tax benefit totaled $1,326, $1,277 and $1,455, respectively.

 

Effective January 1, 2006, CNX Gas adopted the fair value recognition provisions of SFAS 123R, “Share-Based Payment” (SFAS 123R), using the modified prospective transition method. Under this transition method, stock-based compensation expense for all years presented includes compensation expense for all stock-based compensation awards granted prior to, but not yet vested as of, January 1, 2006, based on the grant date fair value estimated in accordance with the original provisions of SFAS 123. Share-based compensation expense for all share-based payment awards granted after January 1, 2006 is based on the grant date fair value in accordance with the provisions of FAS 123R. CNX Gas recognizes compensation costs net of an estimated forfeiture rate and recognizes the compensation cost for only those shares expected to vest on a straight-line basis over the requisite service period of the award, which is generally the option vesting term, or to an employee’s eligible retirement date, if earlier and applicable.

 

As part of its SFAS 123R adoption, CNX Gas uses the Black-Scholes option pricing model to value its options. The risk free interest rate was determined for each vesting tranche of an award based upon the calculated yield on U.S Treasury obligations for the expected term of the award. The expected volatility and expected term of the awards were developed by examining the stock option activity for a peer group of companies. The expected forfeiture rate is estimated based upon historical forfeiture activity. The fair value of share based payment awards was estimated using the Black-Scholes option pricing model with the following assumptions and weighted average fair values:

 

     Years Ended December 31,  
     2008     2007     2006  

Weighted Average Fair Value of Grants

   $ 15.02     $ 9.61     $ 9.83  

Risk Free Interest Rate

     4.58 %     4.58 %     4.65 %

Expected Volatility

     34.50 %     34.50 %     32.39 %

Expected Forfeiture Rate

     2.0 %     2.0 %     2.0 %

Expected Term

     4.5 years       4.5 years       4.5 years  

 

Stock Options Awards

 

There are 972,307 employee stock options that vest 25% per year, beginning one year after the grant date and 442,986 employee stock options that vest 100%, three years after the grant date. There are 24,989 non-employee director stock options outstanding which vest 33% per year, beginning one year after the grant date. The vesting of the options will accelerate in the event of death, disability or retirement and may accelerate upon a change of control of CNX Gas. These stock options will terminate ten years after the date on which they were granted. For the years ended December 31, 2008, 2007 and 2006, the total fair value of stock options granted was $30, $151 and $4,784, respectively.

 

85


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

A summary of the status of stock options granted is presented below:

 

     Shares     Weighted
Average
Exercise Price
   Weighted Average
Remaining
Contractual Term

(in years)
   Aggregate
Intrinsic Value
(dollars in
thousands)

Balance at December 31, 2007

   1,489,107     $ 20.13    7.85   

Granted

   2,000       41.50      

Exercised

   (18,079 )     16.16      

Forfeited

   (32,746 )     26.12      
                  

Balance at December 31, 2008

   1,440,282     $ 20.07    6.85    $ 10,972
                        

Vested and expected to vest

   1,430,923     $ 20.02    6.84    $ 10,971
                        

Exercisable at December 31, 2008

   741,025     $ 16.31    6.61    $ 8,162
                        

 

Cash received from option exercises for the year ended December 31, 2008 was $292. The excess tax benefit realized for the tax deduction from option exercises totaled $380 for the year ended December 31, 2008. This excess tax benefit is included in cash flows from financing activities in the Consolidated Statement of Cash Flows.

 

The aggregate intrinsic value in the table above represents the total pretax intrinsic value (the difference between CNX Gas closing stock price on the last trading day of the year ended December 31, 2008 and the exercise price, multiplied by the number of in-the-money options) that would have been received by the option holders had all option holders exercised their options on December 31, 2008. This amount changes based on the fair market value of CNX Gas stock. The total intrinsic value of options exercised for the years ended December 31, 2008, 2007 and 2006 was $201, $286, and $0, respectively.

 

As of December 31, 2008, $1,287 of total unrecognized compensation cost related to unvested options awards is expected to be recognized over a weighted-average period of 0.60 years.

 

Restricted Stock Units

 

Under the Equity Incentive Plan, CNX Gas granted certain employees and certain directors restricted stock unit awards. These awards entitle the holder to receive shares of common stock as the award vests. A total of 28,375 restricted stock units were outstanding at December 31, 2008. Compensation expense will be recognized over the vesting period of the units. The total fair value of restricted stock unit awards that vested during the year was $1,214. For the years ended December 31, 2008, 2007 and 2006, the total fair value of restricted stock units granted was $600, $480 and $175, respectively.

 

The following represents the unvested restricted stock units and corresponding fair value (based upon the closing share price) at the date of the grant:

 

     Shares     Weighted
Average
Grant Date Fair
Value

Non-vested at December 31, 2007

   52,310     $ 21.04

Granted

   14,424       41.59

Vested

   (38,359 )     18.51
            

Non-Vested at December 31, 2008

   28,375     $ 34.91
            

 

86


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

As of December 31, 2008, $436 of total unrecognized compensation cost related to unvested Restricted Stock Unit (RSU) awards is expected to be recognized over a weighted-average period of 0.67 years.

 

Long Term Incentive Compensation

 

CNX Gas also has a long-term incentive program. This program allows for the award of performance share units (PSUs). A PSU represents a contingent right to receive a cash payment, determined by reference to the value of one share of the Company’s common stock. The total number of units earned, if any, by a participant will be based on the Company’s total stock holder return relative to the stock holder return of a pre-determined peer group of companies. CNX Gas will recognize compensation costs over the requisite service period. The basis of the compensation costs will be re-valued quarterly. As of December 31, 2008, there were two tranches of PSUs outstanding. The first tranche, awarded in 2006 had 183,280 units outstanding and a performance measurement period from October 11, 2006 to December 31, 2009. The second tranche, awarded in 2008, had 187,382 units outstanding and a performance measurement period from January 1, 2008 to December 31, 2010. The combined fair value of these awards recorded as a liability at December 31, 2008 was $11,780. Approximately $8,779, $2,231, and $770 of compensation costs have been recognized for the years ended 2008, 2007, and 2006, respectively.

 

Note 14—Accumulated Other Comprehensive Income:

 

Components of accumulated other comprehensive income consist of the following:

 

     Change in
Fair Value

of Cash Flow
Hedges
    Adjustments
for FASB

Statement
No. 158
    Accumulated
Other

Comprehensive
Income
 

Balance at December 31, 2006

   $ 1,650     $ 760     $ 2,410  

Net increase in value of cash flow hedge

     23,943       —         23,943  

Reclassification from other comprehensive income to earnings

     (19,729 )     —         (19,729 )

Current period adjustment

     —         (433 )     (433 )
                        

Balance at December 31, 2007

     5,864       327       6,191  

Net increase in value of cash flow hedge

     117,699       —         117,699  

Reclassification from other comprehensive income to earnings

     947       —         947  

Current period adjustment

     —         (33 )     (33 )

Cumulative effect adjustment prior period

     —         (20 )     (20 )
                        

Balance at December 31, 2008

   $ 124,510     $ 274     $ 124,784  
                        

 

The cash flow hedges that CNX Gas holds are disclosed in Note 18. The adjustments for FASB Statement No. 158 are disclosed in Note 12.

 

87


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 15—Supplemental Cash Flow Information:

 

     For the Years
Ended December 31,
 
     2008     2007     2006  

Net Cash provided from operating activities included:

      

Interest paid

   $ 7,114     $ 5,328     $ 870  

Income Taxes paid

   $ 63,919     $ 19,220     $ 37,241  

Non-cash investing and financing activities:

      

Purchase of Property, Plant and Equipment

      

Change in Assets

   $ (32,096 )   $ 341     $ (12,674 )

Change in Liabilities

   $ (32,096 )   $ 341     $ (12,674 )

Tenant Improvement Allowance

      

Change in Assets

   $ —       $ (1,109 )   $ —    

Change in Liabilities

   $ —       $ (1,109 )   $ —    

Businesses Acquired (Note 2)

      

Change in Assets

   $ (6,110 )   $ —       $ —    

Change in Liabilities

   $ (6,110 )   $ —       $ —    

Accounting for Asset Retirement Obligations

      

Change in Assets

   $ (2,143 )   $ 3,563     $ 2,027  

Change in Liabilities

   $ (2,143 )   $ 3,563     $ 2,027  

Adoption of FIN 48

      

Change in Assets

   $ —       $ (4,572 )   $ —    

Change in Liabilities

   $ —       $ (4,572 )   $ —    

Acquisition of Mineral Rights

      

Change in Assets

   $ —       $ (6,500 )   $ —    

Change in Liabilities

   $ —       $ (6,500 )   $ —    

Consolidation of VIE

      

Change in Assets

   $ 680     $ (870 )   $ —    

Change in Liabilities

   $ 680     $ (870 )   $ —    

Capital Lease Obligation

      

Change in Assets

   $ (1,874 )   $ —       $ (66,919 )

Change in Liabilities

   $ (1,874 )   $ —       $ (66,919 )

 

88


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Note 16—Concentration of Credit Risk:

 

CNX Gas markets methane gas for sale primarily to gas wholesalers. Credit is extended based on an evaluation of the customer’s financial condition, and generally collateral is not required. A table illustrating sales to individual customers constituting 10% or more of outside sales is as follows:

 

For the Year
Ended December 31,

  

Customer

   Amount For the
Year Ended
December 31,
   Percent of
Outside
Sales
    Accounts
Receivable
Balance at

December 31,

2008

   Sempra Energy    $ 105,864    14 %   $ 7,191
   B.P. Energy Company    $ 103,093    14 %   $ 8,388
   Interstate Gas Supply, Inc.    $ 88,654    12 %   $ 6,304

2007

   B.P. Energy Company    $ 110,517    27 %   $ 7,525
   Interstate Gas Supply, Inc.    $ 63,489    16 %   $ 6,531
   Eagle Energy Partners I, L.P.    $ 51,116    13 %   $ 3,867
   Atmos Energy Marketing, LLC    $ 39,121    10 %   $ 2,325

2006

   B.P. Energy Company    $ 89,118    23 %   $ 8,950
   Interstate Gas Supply, Inc.    $ 55,647    14 %   $ 6,767
   Eagle Energy Partners I, L.P.    $ 54,258    14 %   $ 5,742
   Conoco-Phillips    $ 45,920    12 %   $ —  

 

Note 17—Fair Value of Financial Instruments:

 

Effective January 1, 2008, CNX Gas adopted Statement of Financial Accounting Standards 157, “Fair Value Measurements” (SFAS 157) and Statement of Financial Accounting Standards 159, “The Fair Value Option for Financial Assets and Financial Liabilities-Including an amendment of FASB Statement No. 115” (FAS 159). The adoption of SFAS 157 was not material to CNX Gas. As a result of the adoption, CNX Gas elected not to measure any additional financial assets or liabilities at fair value, other than those which were recorded at fair value prior to the adoption of SFAS 159.

 

The financial assets measured at fair value on a recurring basis are summarized below:

 

     Fair Value Measurements at December 31, 2008
       Quoted Prices in
Active Markets for
Identical Liabilities
   Significant
Other
Observable Inputs
   Significant
Unobservable
Inputs

Description

   (Level 1)    (Level 2)    (Level 3)

Gas Cash Flow Hedges

   $  —      $ 206,509    $  —  

 

Statement of Financial Accounting Standards No. 107, “Disclosures About Fair Value of Financial Instruments” (SFAS 107) requires the disclosure of the estimated fair value of financial instruments including those financial instruments for which the SFAS 159 fair value option was not elected. The following methods and assumptions were used to estimate the fair value of those financial instruments:

 

Cash and cash equivalents: The carrying amount reported in the balance sheets for cash and cash equivalents approximates its fair value due to the short maturity of these instruments.

 

Short-term notes payable: The carrying amount reported in the balance sheets for short-term notes payable approximates its fair value due to the short-term maturity of these instruments.

 

89


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Long-term debt: The fair values of long-term debt are estimated using discounted cash flow analyses, based on CNX Gas’ current incremental borrowing rates for similar types of borrowing arrangements.

 

The carrying amounts and fair values of financial instruments for which SFAS 159 was not elected are as follows:

 

     December 31, 2008     December 31, 2007  
     Carrying
Amount
    Fair Value     Carrying
Amount
    Fair Value  

Cash and cash equivalents

   $ 1,926     $ 1,926     $ 32,048     $ 32,048  

Short-term notes payable

   $ (72,700 )   $ (72,700 )   $ —       $ —    

Long-term debt

   $ (19,883 )   $ (16,549 )   $ (8,850 )   $ (7,951 )

 

Note 18—Derivative Instruments:

 

CNX Gas has entered into derivative financial instruments, for purposes other than trading, to convert the market prices related to these anticipated sales of natural gas to fixed prices. These instruments are designated as cash flow hedges and extend through 2010. The net fair values of the outstanding instruments are an asset of $206,509 and an asset of $9,619 at December 31, 2008 and 2007, respectively.

 

CNX Gas entered into cash flow hedges for natural gas in 2008, 2007 and 2006. Gains or losses related to these derivative instruments were recognized when the sale of the natural gas affected earnings. The ineffective portion of the changes in the fair value of these contracts was insignificant in 2008, 2007 and 2006.

 

For these cash flow hedge strategies, the fair values of the derivatives are recorded on the balance sheet. The effective portions of the changes in fair values of the derivatives are recorded in accumulated other comprehensive income and loss and are reclassified to sales in the period in which earnings are impacted by the hedged items or in the period that the transaction no longer qualifies as a cash flow hedge. There were no transactions that ceased to qualify as a cash flow hedge in 2008, 2007 or 2006.

 

Assuming market prices remain constant with prices at December 31, 2008, $91,486 of the net $124,510 gain included in other comprehensive income is expected to be recognized in earnings over the next 12 months. The remaining net gain is expected to be recognized through 2010.

 

CNX Gas did not have any derivatives designated as fair value hedges in 2008, 2007 or 2006.

 

Note 19—Commitments and Contingent Liabilities:

 

CNX Gas is subject to various pending and threatened lawsuits and claims arising in the ordinary course of its business. Certain of the more significant of these lawsuits and claims are described below. Our current estimates related to these pending claims, individually and in the aggregate, are immaterial to the financial position, results of operations and cash flows of CNX Gas. However, it is reasonably possible that the ultimate liabilities in the future with respect to these lawsuits and claims may be material to the financial position, results of operations or cash flows of CNX Gas.

 

On February 14, 2007, GeoMet, Inc. and certain of its affiliates filed a lawsuit against CNX Gas Company LLC and Island Creek Coal Company, a subsidiary of CONSOL Energy, in the Circuit Court for the County of

 

90


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Tazewell, Virginia (Case No. CL07000065-00). The lawsuit alleged that CNX Gas conspired with Island Creek and has violated the Virginia Antitrust Act and tortuously interfered with GeoMet’s contractual relations, prospective contracts and business expectancies. CNX Gas and Island Creek filed motions to dismiss all counts of the complaint. On December 19, 2007, the court granted CNX Gas’ and Island Creek’s motions to dismiss all counts, with leave for GeoMet to file an amended complaint. On March 31, 2008, GeoMet filed an amended complaint. The amended complaint is again against CNX Gas and Island Creek, but it added CONSOL Energy and Cardinal States Gathering Company as additional defendants. The amended complaint restates allegations that CNX Gas, Island Creek and now CONSOL Energy and Cardinal States Gathering Company violated the Virginia Antitrust Act and tortuously interfered with GeoMet’s contractual relations, prospective contracts and business expectancies. The amended complaint seeks injunctive relief, compensatory damages of $385,600 and treble damages. CNX Gas continues to believe this lawsuit to be without merit and intends to vigorously defend it. CNX Gas’ action seeking to dismiss GeoMet’s complaint is pending. We cannot predict the ultimate outcome of this litigation; however, it is reasonably possible that the ultimate liabilities in the future with respect to these lawsuits and claims may be material to the financial position, results of operations, or cash flows of CNX Gas.

 

On January 7, 2009, CNX Gas received a civil investigative demand for information and documents from the Attorney General of the Commonwealth of Virginia regarding the company’s exploration, production, transportation and sale of coalbed methane gas in Virginia. According to the request, the Attorney General is investigating whether the company may have violated the Virginia Antitrust Act. The request for information does not constitute the commencement of legal proceedings and does not make any specific allegations against the company. CNX Gas does not believe that it has violated the Virginia Antitrust Act and the company intends to cooperate with the Attorney General’s investigation.

 

The Company is a party to a case captioned Earl Kennedy et. al v. CNX Gas and CONSOL Energy in the Court of Common Pleas of Greene County, Pennsylvania (Case No. 225 of 2007). The lawsuit alleges that CNX Gas and CONSOL Energy conspired and were unjustly enriched, trespassed, converted, and committed fraud relating to gas and other minerals allegedly belonging to Mr. Kennedy. The suit also seeks to overturn existing law as to the ownership of coalbed methane in Pennsylvania. The complaint, as amended, seeks injunctive relief, including having us be removed from the property, quiet title and compensatory damages of $20,000. CNX Gas believes this lawsuit to be without merit and intends to vigorously defend it. We cannot predict the ultimate outcome of this litigation; however, it is reasonably possible that the ultimate liabilities in the future with respect to these lawsuits and claims may be material to the financial position, results of operations, or cash flows of CNX Gas.

 

In April 2005, Buchanan County, Virginia (through its Board of Supervisors and Commissioner of Revenue) filed a “Motion for Judgment Pursuant to the Declaratory Judgment Act Virginia Code § 8.01-184” against CNX Gas Company LLC in the Circuit Court of the County of Buchanan (Case No. CL05000149-00) for the year 2002; the county has since filed and served two substantially similar cases for years 2003, 2004 and 2005. These cases have been consolidated. The complaint alleges that our calculation of the license tax on the basis of the wellhead value (sales price less post production costs) rather than the sales price is improper. For the period from 1999 through mid 2002, we paid the tax on the basis of the sales price, but we have filed a claim for a refund for these years. Since 2002, we have continued to pay Buchanan County taxes based on our method of calculating the taxes. However, we have been accruing an additional liability reflected in Other Liabilities on our balance sheet in an amount based on the difference between our calculation of the tax and Buchanan County’s calculation. We believe that we have calculated the tax correctly and in accordance with the applicable rules and regulations of Buchanan County and intend to vigorously defend our position. However, it is reasonably possible that the ultimate liabilities in the future with respect to these lawsuits and claims may be material to the financial position, results of operations or cash flows of CNX Gas.

 

91


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

In 2004, Yukon Pocahontas Coal Company, Buchanan Coal Company and Sayers-Pocahontas Coal Company filed a complaint against Consolidation Coal Company (“CCC”), a subsidiary of CONSOL Energy in the Circuit Court of Buchanan County, Virginia, seeking damages and injunctive relief in connection with the deposit of untreated water from mining activities at CCC’s Buchanan Mine into nearby void spaces in the mine of one of CONSOL Energy’s other subsidiaries, Island Creek Coal Company (“ICCC”). CCC believes that it had, and continues to have, the right to store water in these void areas. On September 21, 2006, the plaintiffs filed an amended complaint in the Circuit Court of Buchanan County, Virginia (Case No. CL04-91) which, among other things, added CONSOL Energy, ICCC and CNX Gas Company LLC as additional defendants. The amended complaint alleges, among other things, that CNX Gas, as lessee and operator under certain coalbed methane gas leases from plaintiffs, had a duty to prevent CCC from depositing water into the mine voids and failed to do so. The proposed amended complaint seeks $150,000 in damages from the additional defendants, plus costs, interest and attorneys’ fees. CNX Gas denies that it has any liability in this matter and intends to vigorously defend this action. We cannot predict the ultimate outcome of this litigation; however, it is reasonably possible that the ultimate liabilities in the future with respect to these lawsuits and claims may be material to the financial position, results of operations or cash flows of CNX Gas.

 

In 1999, CNX Gas was named in a suit brought by a group of royalty owners that lease gas development rights to CNX Gas in southwest Virginia. The suit alleged the underpayment of royalties to the group of royalty owners. The claim of underpayment of royalties related to the interpretation of permissible deductions from production revenues upon which royalties are calculated. The deductions at issue relate to post-production expenses of gathering, compression and transportation. CNX Gas was ordered to pay, and subsequently paid, damages to the group of royalty owners that brought the suit. A final payment was subsequently made to the plaintiffs to adjust all royalties owed to the plaintiffs for subsequent periods, which effectively settled this case. CNX Gas recognized an estimated liability for other similarly situated plaintiffs who could bring similar claims. This amount is included in Other Liabilities on the balance sheet and is evaluated quarterly. CNX Gas believes that the final resolution of this matter will not have a material effect on our financial position, results of operations or cash flows.

 

92


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

At December 31, 2008, CNX Gas has provided the following financial guarantees, unconditional purchase obligations and letters of credit to certain third parties, as described by major category in the following table. These amounts represent the maximum potential total of future payments that we could be required to make under these instruments. These amounts have not been reduced for potential recoveries under recourse or collateralization provisions. Generally, recoveries under reclamation bonds would be limited to the extent of the work performed at the time of the default. No amounts related to these financial guarantees and letters of credit are recorded as liabilities on the financial statements. CNX Gas management believes that these guarantees will expire without being funded, and therefore the commitments will not have a material adverse effect on financial condition.

 

     Amounts
Committed
   Less than
1 Year
   1-3 Years    3-5 Years    Beyond
5 Years

Letters of Credit:

              

Gas

   $ 14,933    $ 14,933    $  —      $ —      $  —  
                                  

Total Letters of Credit

   $ 14,933    $ 14,933    $ —      $ —      $ —  

Surety Bonds:

              

Environmental

   $ 1,544    $ 1,544    $ —      $ —      $ —  

Other

     2,728      2,663      65      —        —  
                                  

Total Surety Bonds

   $ 4,272    $ 4,207    $ 65    $ —      $ —  

Other:

              

Guarantees

     279,741      29,741      —        250,000      —  
                                  

Total Guarantees

   $ 279,741    $ 29,741    $ —      $ 250,000    $ —  
                                  

Total Commitments

   $ 298,946    $ 48,881    $ 65    $ 250,000    $  
                                  

 

Financial guarantees have primarily been provided to support various performance bonds related to land usage, pipeline usage and restorative issues. Other contingent liabilities have been extended to support insurance policies, legal matters and other items necessary in the normal course of business. CNX Gas has also provided financial guarantees for the purchase and delivery of gas to various counterparties. CNX Gas and subsidiaries have executed a Supplemental Indenture and are guarantors of CONSOL Energy’s 7.875% notes due March 1, 2012 in the principal amount of $250,000. In addition, if CNX Gas were to grant liens to a lender as part of a future borrowing, the indenture governing CONSOL Energy’s 7.875% notes would require CNX Gas to ratably secure the notes.

 

CONSOL Energy has also provided certain parental guarantees related to gas purchases, gas sales and firm transportation associated with CNX Gas. CNX Gas anticipates that these parental guarantees will be transferred from CONSOL Energy to CNX Gas over time. CNX Gas management believes these parental guarantees will also expire without being funded, and therefore the commitments will not have a material adverse effect on our financial condition.

 

93


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

CNX Gas enters into long-term unconditional purchase obligations to procure firm transportation and gas drilling services. These purchase obligations are not recorded on the Consolidated Balance Sheet. As of December 31, 2008, the amounts of purchase obligations for each of the next five years were as follows:

 

Year Ended December 31,

   Amount

2009

   $ 22,177

2010

     24,014

2011

     17,249

2012

     16,354

2013

     15,881

Thereafter

     239,196
      

Total purchase obligations

   $ 334,871
      

 

Note 20—Segment Information:

 

The principal activity of CNX Gas is to produce methane gas for sale primarily to gas wholesalers. In the current year, CNX Gas implemented a new internal segment reporting method to align segment results to how management assesses the operations. As a result, some charges that were previously reflected in Central Appalachia and Northern Appalachia segments have been reclassified to the Other segment. Also, some corporate charges that were previously reflected in the Central Appalachia and Northern Appalachia segment are now reported as Corporate items and reflected in the reconciliation between Segment Earnings (Loss) Before Income Tax to Total Earnings (Loss) Before Income Tax. Prior year information has also been changed to eliminate intersegment revenue and allocate Earnings Before Income Taxes between Central Appalachia and Northern Appalachia. CNX Gas has three reportable segments: Central Appalachia, Northern Appalachia and Other. Each of these reportable segments includes a number of operating segments. For the year ended December 31, 2008, the Central Appalachia segment includes the following operating segments: Virginia Operations, Cardinal States Gathering and Knox Energy. For the year ended December 31, 2008, the Northern Appalachia segment includes the following operating segments: Mountaineer, Nittany and Panther. The Other segment includes other operating segments that fall outside the reported geographic areas and various other activities assigned to operations but not allocated to an individual operating segment. Operating profit for each segment is based on sales less identifiable operating and non-operating expenses.

 

Reportable segment results for the year ended December 31, 2008 are:

 

    Central
Appalachia
  Northern
Appalachia
  Other   Total Gas   Corporate     Consolidated  

Sales—outside

  $ 569,051   $ 106,668   $ 3,074   $ 678,793   $ —       $ 678,793 (A)

Sales—related parties

    9,495     37     —       9,532     —         9,532  

Sales—royalty interest gas

    78,485     817     —       79,302     —         79,302  

Sales—purchased gas

    8,074     390     —       8,464     —         8,464  

Other revenue

    11,056     1     1,545     12,602     728       13,330  
                                       

Total Revenue and Other Income

  $ 676,161   $ 107,913   $ 4,619   $ 788,693   $ 728     $ 789,421  
                                       

Earnings Before Income Taxes(B)

  $ 383,247   $ 37,197   $ 379   $ 420,823   $ (28,094 )   $ 392,729  
                                       

Segment assets

  $ 1,416,986   $ 562,336   $ 88,137   $ 2,067,459   $ 57,514     $ 2,124,973  
                                       

Depreciation, depletion and amortization

  $ 56,734   $ 12,137   $ 1,139   $ 70,010   $ —       $ 70,010  
                                       

Capital expenditures

  $ 256,576   $ 290,130   $ 13,957   $ 560,663   $ —       $ 560,663  
                                       

 

(A) Included in the Central Appalachia segment are sales of $105,864 to Sempra Energy, $103,093 to B.P. Energy Company and $88,654 to Interstate Gas Supply, Inc.
(B) Includes equity in earnings (loss) of unconsolidated affiliates of $223 for Central Appalachia.

 

94


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Reportable segment results for the year ended December 31, 2007 are:

 

    Central
Appalachia
  Northern
Appalachia
    Other     Total Gas   Corporate     Consolidated  

Sales—outside

  $ 374,663   $ 30,070     $ 102     $ 404,835   $ —       $ 404,835 (C)

Sales—related parties

    11,564     54       —         11,618     —         11,618  

Sales—royalty interest gas

    46,169     417       —         46,586     —         46,586  

Sales—purchased gas

    7,628     —         —         7,628     —         7,628  

Other revenue

    4,851     —         55       4,906     3,909       8,815  
                                           

Total Revenue and Other Income

  $ 444,875   $ 30,541     $ 157     $ 475,573   $ 3,909     $ 479,482  
                                           

Earnings Before Income Taxes(D)

  $ 240,737   $ (4,438 )   $ (1,802 )   $ 234,497   $ (13,858 )   $ 220,639  
                                           

Segment assets(E)

  $ 1,047,325   $ 203,923     $ 71,558     $ 1,322,806   $ 57,897     $ 1,380,703  
                                           

Depreciation, depletion and amortization

  $ 41,835   $ 6,152     $ 974     $ 48,961   $ —       $ 48,961  
                                           

Capital expenditures

  $ 157,313   $ 115,374     $ 84,512     $ 357,199   $ —       $ 357,199  
                                           

 

(C)   Included in the Central Appalachia segment are sales of $110,517 to B.P. Energy Company, $63,489 to Interstate Gas Supply, Inc. and $39,121 to Atmos Energy Marketing, LLC. Included in Central Appalachia and Northern Appalachia segments are sales of $51,116 to Eagle Energy Partners I, L.P.

(D)   Includes equity in earnings (loss) of unconsolidated affiliates of $2,058 for Central Appalachia.

(E)   Includes investments in unconsolidated equity affiliates of $3,408 for Central Appalachia.

 

Reportable segment results for the year ended December 31, 2006 are:

 

       

     

     

 

    Central
Appalachia
  Northern
Appalachia
    Other     Total Gas   Corporate     Consolidated  

Sales—outside

  $ 363,241   $ 21,815     $ —       $ 385,056   $ —       $ 385,056 (F)

Sales—related parties

    8,392     98       —         8,490     —         8,490  

Sales—royalty interest gas

    50,878     176       —         51,054     —         51,054  

Sales—purchased gas

    43,973     —         —         43,973     —         43,973  

Other revenue

    22,542     696       —         23,238     3,026       26,264  
                                           

Total Revenue and Other Income

  $ 489,026   $ 22,785     $ —       $ 511,811   $ 3,026     $ 514,837  
                                           

Earnings Before Income Taxes(G)

  $ 259,391   $ 4,064     $ —       $ 263,455   $ (7,015 )   $ 256,440  
                                           

Segment assets(H)

  $ 943,222   $ 79,846     $ —       $ 1,023,068   $ 131,933     $ 1,155,001  
                                           

Depreciation, depletion and amortization

  $ 35,190   $ 2,809     $ —       $ 37,999   $ —       $ 37,999  
                                           

Capital expenditures

  $ 122,287   $ 31,956     $ —       $ 154,243   $ —       $ 154,243  
                                           

 

(F) Included in the Central Appalachia segment are sales of $89,118 to B.P. Energy Company, $55,647 to Interstate Gas Supply, Inc. and $45,920 to Conoco-Phillips. Included in the Central Appalachia and Northern Appalachia segments are sales of $54,258 to Eagle Energy Partners I, L.P.
(G) Includes equity in earnings (loss) of unconsolidated affiliates of $1,405 for Central Appalachia.
(H) Includes investments in unconsolidated equity affiliates of $27,523 for Central Appalachia.

 

95


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Reconciliation of Segment Information to Consolidated Amounts:

 

Earnings Before Income Taxes:

 

     For the Years
Ended December 31,
 
     2008     2007     2006  

Segment earnings before income taxes for total reportable business segments

   $ 420,823     $ 234,497     $ 263,455  

Equity in earnings (losses) of Buchanan Generation

     328       116       (427 )

Incentive Compensation

     (7,988 )     (5,659 )     (4,511 )

Compensation from restricted stock unit grants, stock option expense and performance share unit expense

     (12,157 )     (5,491 )     (4,504 )

Bank fees

     (857 )     (1,011 )     (1,017 )

Interest income (expense), net

     (7,420 )     (1,813 )     3,444  
                        

Earnings before income taxes

   $ 392,729     $ 220,639     $ 256,440  
                        

Total Assets:

      
     December 31,  
     2008     2007     2006  

Segment assets for total reportable business segments

   $ 2,067,459     $ 1,322,806     $ 1,023,068  

Items excluded from segment assets:

      

Cash and other investments

     2,008       32,048       107,173  

Recoverable income taxes

     30,302       972       —    

Investment in Buchanan Generation

     25,204       24,877       24,760  
                        

Total Consolidated Assets

   $ 2,124,973     $ 1,380,703     $ 1,155,001  
                        

 

All of CNX Gas’ revenues and property, plant and equipment are attributable to or located in the United States.

 

96


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Other Supplemental Information—Supplemental Gas Data (unaudited):

 

The following information was prepared in accordance with Statement of Financial Accounting Standards No. 69, “Disclosures About Oil and Gas Producing Activities” and related accounting rules:

 

Capitalized Costs:

 

     As of December 31,  
     2008     2007  

Proved Properties:

   $ 121,605     $ 104,515  

Unproved Properties

     220,848       101,680  

Wells and Related Equipment

     1,001,381       698,600  

Gathering Assets

     740,396       596,173  
                

Total Property, Plant and Equipment

     2,084,230       1,500,968  

Accumulated Depreciation, Depletion and Amortization

     (319,959 )     (252,779 )
                

Net Capitalized Costs

   $ 1,764,271     $ 1,248,189  
                

Proportionate Share of Gas Producing Net Property, Plant and Equipment of Unconsolidated Equity Affiliates

   $ —       $ 28,581  
                

 

Costs incurred for Property Acquisition, Exploration and Development (*):

 

     For the Years Ended December 31,
     2008    2007    2006
     Consolidated
Operations
   Equity
Affiliates
   Consolidated
Operations
   Equity
Affiliates
   Consolidated
Operations
   Equity
Affiliates

Property acquisitions

                 

Proved Properties

   $ 17,090    $ —      $ 33,205    $ —      $ 8,797    $ —  

Unproved Properties

     119,168      —        80,313      —        765      —  

Development

     378,119      —        257,935      —        151,774      —  

Exploration

     68,495      —        16,503      —        832      2,334
                                         

Total

   $ 582,872    $ —      $ 387,956    $ —      $ 162,168    $ 2,334
                                         

 

(*) Includes costs incurred whether capitalized or expensed

 

97


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

Results of Operations for Producing Activities:

 

     For the Years Ended December 31,  
     2008     2007     2006  
     Consolidated
Operations
    Equity
Affiliates
    Consolidated
Operations
    Equity
Affiliates
    Consolidated
Operations
    Equity
Affiliates
 

Production Revenue

   $ 688,325     $ —       $ 416,452     $ 2,755     $ 393,649     $ 1,913  

Royalty Interest Gas Revenue

     79,302       —         46,586       294       51,054       446  

Purchased Gas Revenue

     8,464       —         7,628       201       43,973       356  
                                                

Total Revenue

     776,091       —         470,666       3,250       488,676       2,715  
                                                

Lifting Costs

     67,653       —         38,721       679       33,357       480  

Gathering Costs

     83,752       —         61,798       630       58,102       359  

Royalty Expense

     74,041       —         40,011       294       41,998       446  

Other Costs

     34,078       —         19,772       646       12,876       541  

Purchased Gas Costs

     8,175       —         7,162       165       44,843       299  

DD&A

     70,010       —         48,961       294       37,999       512  
                                                

Total Costs

     337,709       —         216,425       2,708       229,175       2,637  
                                                

Pre-tax Operating Income

     438,382       —         254,241       542       259,501       78  

Income Taxes

     171,407       —         98,595       210       97,728       29  
                                                

Results of Operations for Producing Activities excluding Corporate and Interest Costs

   $ 266,975     $ —       $ 155,646     $ 332     $ 161,773     $ 49  
                                                

Net Reserve Quantity (mmcfe)

            

Beginning Reserves(a)

     1,339,909       3,584       1,263,293       2,200       1,127,724       2,672  

Revisions(b)

     (30,828 )     —         (25,036 )     221       109,116       (584 )

Extensions and Discoveries(c)

     182,701       —         145,834       1,484       82,363       337  

Production

     (76,562 )     —         (57,928 )     (321 )     (55,910 )     (225 )

Acquisition of Remaining Interest in Equity Affiliate

     3,584       (3,584 )     —         —         —         —    

Purchases of Reserves In-Place

     3,242       —         13,746       —         —         —    

Sales of Reserves In-Place

     —         —         —         —         —         —    
                                                

Ending Reserves

     1,422,046       —         1,339,909       3,584       1,263,293       2,200  
                                                

Proved Developed Reserves:

            

Beginning of Period

     667,726       3,584       609,700       2,200       549,574       2,672  
                                                

End of Period

     783,290       —         667,726       3,584       609,700       2,200  
                                                

 

(a) Proved developed and proved undeveloped gas reserves are defined by the Securities and Exchange Commission Rule 4.10(a) of Regulation S-X. Generally, these reserves would be commercially recovered under current economic conditions, operating methods and government regulations. CNX Gas cautions that there are many inherent uncertainties in estimating proved reserve quantities, projecting future production rates and timing of development expenditures. Accordingly, these estimates are likely to change as future information becomes available. Proved oil and gas reserves are estimated quantities of natural gas and CBM gas which geological and engineering data demonstrate with reasonable certainty to be recoverable in future years from known reservoirs under existing economic and operating conditions. Proved developed reserves are those reserves expected to be recovered through existing wells, with existing equipment and operating methods.

 

98


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

(b) Revisions are primarily due to the lower pricing used at December 31, 2008 for reserve estimates.
(c) Extensions and discoveries are the result of additional drilling activities which bring in offset locations as proved reserves. Additionally, they are the result of state oil and gas boards approval of additional well locations.

 

CNX Gas proved gas reserves are located in the United States.

 

Standardized Measure of Discounted Future Net Cash Flows:

 

The following information has been prepared in accordance with the provisions of Statement of Financial Accounting Standards No. 69, “Disclosures about Oil and Gas Producing Activities.” This statement requires the standardized measure of discounted future net cash flows to be based on year-end sales prices, costs and statutory income tax rates and a 10 percent annual discount rate. Because prices used in the calculation are as of the end of the period, the standardized measure could vary significantly from year to year based on the market conditions at that specific date.

 

The projections should not be viewed as realistic estimates of future cash flows, nor should the “standardized measure” be interpreted as representing current value to CNX Gas. Material revisions to estimates of proved reserves may occur in the future; development and production of the reserves may not occur in the periods assumed; actual prices realized are expected to vary significantly from those used; and actual costs may vary. CNX Gas’ investment and operating decisions are not based on the information presented, but on a wide range of reserve estimates that include probable as well as proved reserves and on different price and cost assumptions.

 

The standardized measure is intended to provide a better means for comparing the value of CNX Gas’ proved reserves at a given time with those of other gas producing companies than is provided by a comparison of raw proved reserve quantities.

 

     December 31,  
     2008     2007     2006  

Future Cash Flows:

      

Revenues

   $ 8,856,817     $ 9,509,665     $ 7,105,265  

Production costs

     (3,525,902 )     (3,004,619 )     (2,568,731 )

Development costs

     (793,592 )     (636,436 )     (552,114 )

Income tax expense

     (1,713,713 )     (2,259,415 )     (1,500,533 )
                        

Future Net Cash Flows

     2,823,610       3,609,195       2,483,887  

Discounted to present value at a 10% annual rate

     (1,605,176 )     (2,219,655 )     (1,548,996 )
                        

Total standardized measure of discounted net cash flows

   $ 1,218,434     $ 1,389,540     $ 934,891  
                        

 

99


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

The following are the principal sources of change in the standardized measure of discounted future net cash flows during:

 

     December 31,  
     2008     2007     2006  
     Consolidated
Operations
    Equity
Affiliates
    Consolidated
Operations
    Equity
Affiliates
    Consolidated
Operations
    Equity
Affiliates
 

Balance at Beginning of Period

   $ 1,384,983     $ 4,557     $ 933,186     $ 1,705     $ 1,865,097     $ 5,697  

Net changes in sales prices and production costs

     (676,358 )       1,681,550       7,356       (5,327,975 )     (13,550 )

Sales net of production costs

     (438,382 )       (207,688 )     (1,122 )     (435,909 )     (2,265 )

Net change due to revisions in quantity estimates

     (63,547 )       479,618       5,959       1,495,140       (2,486 )

Net change due to acquisition

     4,158         2,840       —         —         —    

Acquisition of Remaining Interest in Equity Affiliate

     4,557       (4,557 )        

Development costs incurred during the period

     378,119         257,935       —         151,774       —    

Difference in previously estimated development costs compared to actual costs incurred during the period

     (136,742 )       (87,408 )     —         (40,466 )     —    

Changes in estimated future development costs

     (398,534 )       (254,635 )     (214 )     (241,095 )     (12 )

Net change in future income taxes

     545,702         (754,209 )     (4,673 )     1,743,570       7,162  

Accretion of discount and other

     614,478         (666,206 )     (4,454 )     1,723,050       7,159  
                                                

Total Discounted Cash Flow at End of Period

   $ 1,218,434     $ —       $ 1,384,983     $ 4,557     $ 933,186     $ 1,705  
                                                

 

Other Supplemental Information—Selected Quarterly Data (unaudited) ($ in thousands):

 

     Three Months Ended
     March 31,
2008
   June 30,
2008
   September 30,
2008
   December 31,
2008

Total Revenue and Other Income

   $ 160,613    $ 205,809    $ 216,947    $ 206,052

Total Costs and Expense

   $ 79,696    $ 101,423    $ 101,372    $ 114,201

Total Earnings Before Income Tax

   $ 80,917    $ 104,386    $ 115,575    $ 91,851

Net Income

   $ 49,921    $ 64,255    $ 67,415    $ 57,482

Earnings per Share

           

Basic

   $ 0.33    $ 0.43    $ 0.45    $ 0.38
                           

Diluted

   $ 0.33    $ 0.42    $ 0.45    $ 0.38
                           

Weighted Average Shares Outstanding

           

Basic

     150,923,490      150,937,820      150,939,418      150,971,636
                           

Dilutive

     151,324,786      151,438,737      151,292,158      151,340,785
                           

 

100


Table of Contents

CNX GAS CORPORATION AND SUBSIDIARIES

 

NOTES TO AUDITED FINANCIAL STATEMENTS

(Dollars in thousands, except per share data)

 

     Three Months Ended
     March 31,
2007
   June 30,
2007
   September 30,
2007
   December 31,
2007*

Total Revenue and Other Income

   $ 115,339    $ 133,667    $ 110,732    $ 119,744

Total Costs and Expense

   $ 62,101    $ 66,735    $ 58,735    $ 71,272

Total Earnings Before Income Tax

   $ 53,238    $ 66,932    $ 51,997    $ 48,472

Net Income

   $ 32,996    $ 41,488    $ 31,296    $ 29,898

Earnings per Share

           

Basic

   $ 0.22    $ 0.27    $ 0.21    $ 0.20
                           

Diluted

   $ 0.22    $ 0.27    $ 0.21    $ 0.20
                           

Weighted Average Shares Outstanding

           

Basic

     150,864,825      150,870,810      150,895,233      150,914,225
                           

Dilutive

     151,068,089      151,145,174      151,149,432      151,241,316
                           

 

* Included in the fourth quarter are out-of-period year-to-date adjustments made in the fourth quarter due to actualization and adjustments primarily related to sales with related parties. These adjustments resulted in lower Revenue, Other Income, Total Earnings Before Income Tax, Net Income and Earnings per Share, both Basic and Diluted in the quarter ended December 31, 2007.

 

101


Table of Contents
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosures

 

Changes in Accountants

 

On February 19, 2008 (Dismissal Date) CNX Gas dismissed PricewaterhouseCoopers LLP (PwC) as the Company’s independent registered public accounting firm. The audit Committee of the Board of Directors of the Company recommended and approved the dismissal of PwC.

 

The reports of PwC on the consolidated financial statements of the Company for the years ended December 31, 2007 and 2006, did not contain an adverse opinion or a disclaimer of opinion and were not qualified or modified as to uncertainty, audit scope, or accounting principles.

 

During the years ended December 31, 2007 and 2006 and through the Dismissal Date, there were no disagreements with PwC on any matter of accounting principles or practices, financial statement disclosures, or auditing scope or procedure, which disagreement(s), if not resolved to the satisfaction of PwC, would have caused it to make reference thereto in its reports on the financial statements of the Company for such years. During the years ended December 31, 2007 and 2006, and through the Dismissal Date, there were no “ reportable events as defined under Item 304(a)(1)(v) of Regulation S-K.

 

Also, on February 19, 2008, the Audit Committee recommended and approved the selection of Ernst & Young LLP (“Ernst & Young), effective immediately, as the Company’s new independent registered public accounting firm.

 

During the years ended December 31, 2007 and 2006, and through the Dismissal Date, neither the Company, nor anyone on its behalf, consulted Ernst & Young regarding either (i) the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered with respect to the financial statements of the Company, and no written report was provided to the Company or oral advice was provided that Ernst & Young concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial reporting issue; or (ii) any matter that was the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) or a “ reportable event” (as described in Item 304(a)(1)(v) of Regulation S-K).

 

Disagreements with Accountants on Accounting and Financial Disclosures

 

None.

 

Item 9A. Controls and Procedures

 

Disclosure controls and procedures

 

CNX Gas, under the supervision and with the participation of its management, including the Company’s principal executive officer and principal financial officer, evaluated the effectiveness of its “disclosure controls and procedures,” as such term is defined in Rule 13a-15(e) under the Securities Act of 1934, as amended (the “Exchange Act”), as of the end of the period covered by this annual report on Form 10-K. Based on that evaluation, our principal executive officer and principal financial officer have concluded that CNX Gas’ disclosure controls and procedures are effective to ensure that information required to be disclosed by CNX Gas in reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms, and include controls and procedures designed to ensure that information required to be disclosed by us in such reports is accumulated and communicated to our management, including our principal executive officer and principal financial officer, as appropriate to allow timely decisions regarding required disclosure.

 

102


Table of Contents

Management’s Annual Report on Internal Control Over Financial Reporting

 

CNX Gas management is responsible for establishing and maintaining adequate internal control over financial reporting. CNX Gas’ internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles.

 

CNX Gas internal control over financial reporting included policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect transactions and dispositions of assets; (2) provide reasonable assurances that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures are being made only in accordance with authorizations of management and the directors of CNX Gas; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of CNX Gas’ assets that could have a material effect on our financial statements.

 

Because of its inherent limitation, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

Management assessed the effectiveness of CNX Gas’ internal control over financial reporting as of December 31, 2008. In making this assessment, management used the criteria set forth by the Committee of Sponsoring Organizations of the Treadway Commission (COSO) in Internal Control-Integrated Framework. Based on assessment and those criteria, management has concluded that CNX Gas maintained effective internal control over financial reporting as of December 31, 2008. The effectiveness of CNX Gas’ internal control over financial reporting as of December 31, 2008 has been audited by Ernst and Young, LLP, an independent registered public accounting firm, as stated in their report set forth in the Report of Independent Registered Public Accounting Firm in Part II, Item 8 of this Annual Report on Form 10-K.

 

Changes in Internal Controls Over Financial Reporting

 

There were no changes that occurred during the fourth quarter of the fiscal year covered by the Annual Report on Form 10-K that have materially affected, or are reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

103


Table of Contents

Report of Independent Registered Public Accounting Firm

 

The Board of Directors and Stockholders of CNX Gas Corporation

 

We have audited CNX Gas Corporation’s internal control over financial reporting as of December 31, 2008, based on criteria established in Internal Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission (the COSO criteria). CNX Gas Corporation’s management is responsible for maintaining effective internal control over financial reporting, and for its assessment of the effectiveness of internal control over financial reporting included in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting appearing under Item 9a. Our responsibility is to express an opinion on the company’s internal control over financial reporting based on our audit.

 

We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.

 

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the company’s assets that could have a material effect on the financial statements.

 

Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

 

In our opinion, CNX Gas Corporation maintained, in all material respects, effective internal control over financial reporting as of December 31, 2008, based on the COSO criteria .

 

We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet of CNX Gas Corporation (and Subsidiaries) as of December 31, 2008, and the related consolidated statements of income, stockholders’ equity, and cash flows for the year then ended and our report dated February 17, 2009 expressed an unqualified opinion thereon.

 

/s/ Ernst & Young LLP

 

Pittsburgh, PA

February 17, 2009

 

Item 9B. Other Information .

 

None.

 

104


Table of Contents

PART III

 

Item 10. Directors and Executive Officers of the Registrant .

 

Executive Officers of CNX Gas Corporation

 

The following is a list of CNX Gas executive officers, their ages as of February 15, 2009 and their positions and offices held with CNX Gas.

 

Name

  

Age

  

Position

J. Brett Harvey    58    Chairman of the Board and Chief Executive Officer
Nicholas J. DeIuliis    40    President and Chief Operating Officer
William J. Lyons    60    Executive Vice President and Chief Financial Officer
P. Jerome Richey    59    Executive Vice President Corporate Affairs and Chief Legal Officer
Robert P. King    56    Executive Vice President Business Advancement and Support Services
Robert F. Pusateri    58    Executive Vice President Energy Sales and Transportation Services

 

J. Brett Harvey has been President and Chief Executive Officer and a Director of CONSOL Energy since January 1998. He has been a Director of CNX Gas Corporation since June 30, 2005 and he became Chairman of the Board and Chief Executive Officer of CNX Gas Corporation on January 16, 2009. Mr. Harvey is a Director of Barrick Gold Corporation, the world’s largest gold producer, and Allegheny Technologies Incorporated, a specialty metals producer.

 

Nicholas J. DeIuliis was a Director and President and Chief Executive Officer of CNX Gas Corporation from June 30, 2005 to January 16, 2009, when he became President and Chief Operating Officer of CNX Gas Corporation and Executive Vice President and Chief Operating Officer of CONSOL Energy. From November 2004 until August 2005 he was the Senior Vice President—Strategic Planning of CONSOL Energy. Prior to that, Mr. DeIuliis served as Vice President Strategic Planning from April 2002 until November 2004, Director—Corporate Strategy from October 2001 until April 2002, Manager—Strategic Planning from January 2001 until October 2001 and Supervisor—Process Engineering from April 1999 until January 2001

 

William J. Lyons has been Chief Financial Officer of CONSOL Energy since February 2001 and Chief Financial Officer of CNX Gas Corporation since April 28, 2008. He added the title of Executive Vice President of CONSOL Energy on May 2, 2008 and of CNX Gas Corporation on January 16, 2009. From January 1995 until February 2001, Mr. Lyons held the position of Vice President—Controller for CONSOL Energy. Mr. Lyons joined CONSOL Energy in 1976. He was a Director of CNX Gas Corporation from October 17, 2005 to January 16, 2009. Mr. Lyons is a director of Calgon Carbon Corporation, a supplier of products and services for purifying water and air.

 

P. Jerome Richey became Executive Vice President—Corporate Affairs and Chief Legal Officer of CONSOL Energy and CNX Gas Corporation on January 16, 2009. He was General Counsel and Corporate Secretary of CONSOL Energy since March 2005, and on June 20, 2007, he added the title of Senior Vice President. Prior to joining CONSOL Energy, Mr. Richey, for more than five years, was a shareholder in the Pittsburgh office for the law firm of Buchanan Ingersoll & Rooney PC.

 

Robert P. King became Executive Vice President—Business Advancement and Support Services of CONSOL Energy and CNX Gas Corporation on January 16, 2009. Prior to that, he was Senior Vice President—Administration since February 2, 2007 and he served as Vice President—Land from August 2006 to February 2007. Prior to joining CONSOL Energy, Mr. King was Vice President of Interwest Mining Company (a subsidiary of PacifiCorp). Mr. King joined PacifiCorp in November 1990.

 

Robert F. Pusateri became Executive Vice President Energy Sales and Transportation Services of CONSOL Energy and CNX Gas Corporation on January 16, 2009. Prior to that, he was named Vice President Sales of CONSOL Energy in 1996 and held that position until he was elected President of CONSOL Energy Sales Company in August 2005. He first became an officer in May 1996.

 

105


Table of Contents
Item 11. Executive Compensation .

 

The information required by this Item is incorporated by reference to the information under the captions “General Information—Compensation of Directors,” “General Information—Understanding our Director Compensation Table,” “Executive Compensation and Stock Option Information—Compensation Discussion and Analysis,” “Executive Compensation and Stock Option Information—Executive Compensation,” “Executive Compensation and Stock Option Information—Board of Directors’ Report,” “General Information—The Board of Directors and its Committees—Compensation Committee Interlocks and Insider Participation,” and “Potential Payments Upon Termination or Change-In-Control,” in the Proxy Statement.

 

Item 12. Security Ownership of Certain Beneficial Owners and Management .

 

The information requested by this Item is incorporated by reference to the information under the captions “Equity Compensation Plan Information,” and “General Information—Beneficial Ownership of Securities” in the Proxy Statement.

 

Item 13. Certain Relationships and Related Transactions .

 

The information requested by this Item is incorporated by reference to the information under the captions “Certain Relationships and Related Transactions” and “General Information—The Board of Directors and its Committees” in the Proxy Statement.

 

Item 14. Principal Accounting Fees and Services .

 

The information required by this Item is incorporated by reference to the information in the table found in the section captioned “Accountants and Audit Committee” and the information under the caption “Accountants and Audit Committee—Audit Committee Pre-Approval of Audit and Permissible Non-audit Services” in the Proxy Statement.

 

106


Table of Contents

PART IV

 

Item 15. Exhibits and Financial Statement Schedules .

 

(a)(1)    Financial Statements:
   The financial statements included in Part II, Item 8 above are filed as part of this annual report.
(a)(2)   

Financial Statement Schedules:

 

No schedules are required to be presented by CNX Gas.

(a)(3) and (b)    Exhibits:
   The exhibits listed on the Exhibit Index which follows the signatures hereto are filed as part of this annual report.

 

107


Table of Contents

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized, as of the 17th day of February 2009.

 

CNX G AS C ORPORATION

By:   /s/    J. B RETT H ARVEY        
 

J. Brett Harvey

Chief Executive Officer

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed as of the 17th day of February 2009, by the following persons on behalf of the Registrant in the capacities indicated:

 

Signature

  

Title

/s/    J. B RETT H ARVEY        

J. Brett Harvey

  

Chairman and Chief Executive Officer (Chief Executive Officer and Director)

/s/    W ILLIAM J. L YONS        

William J. Lyons

  

Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)

/s/    P HILIP W. B AXTER        

Philip W. Baxter

  

Director

/s/    J AMES E. A LTMEYER , S R .        

James E. Altmeyer, Sr.

  

Director

/s/    R AJ K. G UPTA        

Raj K. Gupta

  

Director

/s/    J OHN R. P IPSKI        

John R. Pipski

  

Director

 

108


Table of Contents

EXHIBIT INDEX

 

  3.1      Amended and Restated Certificate of Incorporation of CNX Gas Corporation(1)
  3.2      Second Amended and Restated Bylaws of CNX Gas Corporation, as amended(25)
  4.1      Form of stock certificate(1)
10.1      Summary of Employment Terms for Nicholas J. DeIuliis(2)*
10.2      Offer letter for Stephen W. Johnson(1)*
10.3      Form of Change in Control Agreement for DeIuliis, Albert and Onifer(24)*
10.4      Form of Change in Control Agreement for Johnson and Gibbons*
10.5      Master Separation Agreement dated as of August 1, 2005 by and among CONSOL Energy Inc. and each of its subsidiaries (other than CNX Gas Corporation and its subsidiaries) and CNX Gas Corporation and its subsidiaries(3)
10.6      Master Cooperation and Safety Agreement dated as of August 1, 2005 by and among CONSOL Energy Inc. and each CEI Subsidiary (as defined therein) and CNX Gas Corporation and each CNX Subsidiary (as defined therein)(3)
10.7      Amendment No. 1 to the Master Cooperation and Safety Agreement dated as of May 30, 2008(22)
10.8      Tax Sharing Agreement dated August 1, 2005 between CONSOL Energy Inc. and CNX Gas Corporation(3)
10.9      Services Agreement dated August 1, 2005 by and among CONSOL Energy Inc., CNX Land Resources Inc. and CNX Gas Corporation and its subsidiaries that become a party to the agreement(3)
10.10    Intercompany Revolving Credit Agreement between CONSOL Energy Inc. and CNX Gas Corporation(3)
10.11    Master Lease dated August 1, 2005 by and between CONSOL Energy Inc. and each of its subsidiaries made a party thereto and CNX Gas Company, LLC(3)
10.12    Credit Agreement dated October 7, 2005 between CNX Gas Corporation, certain of its subsidiaries and the Lender parties thereto(4)
10.13    Indenture, dated March 7, 2002, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(5)
10.14    Supplemental Indenture No. 1, dated March 7, 2002, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(6)
10.15    Supplemental Indenture No. 2, dated as of September 30, 2003, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(7)
10.16    Supplemental Indenture No. 3, dated as of April 15, 2005, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(8)
10.17    Supplemental Indenture No. 4, dated as of August 8, 2005, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(3)
10.18    Supplemental Indenture No. 5, dated as of October 21, 2005, among CONSOL Energy Inc., certain subsidiaries of CONSOL Energy Inc. and The Bank of Nova Scotia Trust Company of New York, as trustee(9)

 

109


Table of Contents
10.19    Precedent Agreement dated July 29, 2005 by and between East Tennessee Natural Gas, LLC and CNX Gas Company, LLC(10)
10.20    Firm Transportation Agreement, dated as of April 27th , 2006, between CNX Gas Company, LLC, a wholly owned subsidiary of CNX Gas, and East Tennessee Natural Gas, LLC(11)
10.21    Firm Lateral Transportation Agreement, dated as of April 27th, 2006, between CNX Gas Company, LLC, a wholly owned subsidiary of CNX Gas, and East Tennessee Natural Gas, LLC(12)
10.22    CNX Gas Corporation Long-Term Incentive Program for the performance period from October 11, 2006 to December 31, 2009 and Form of Award Agreement thereunder(13)*
10.23    CNX Gas Corporation Equity Incentive Plan, as amended*
10.24    Form of Award Agreements under CNX Gas Corporation Equity Incentive Plan, as amended(1)*
10.25    Offer letter of Mark D. Gibbons(14)*
10.26    Summary description of CNX Gas 2007 Short-term incentive program(15)*
10.27    Summary description of the base compensation and short-term incentive opportunities for the executive officers of CNX Gas for 2007(16)*
10.28    Agreement of Sale entered into on June 8, 2007, by and between CNX Gas Company LLC, as purchaser, and Consolidation Coal Company, as seller(17)
10.29    Asset Exchange Agreement entered into on June 20, 2007, but effective as of April 1, 2007, among American Land Holdings of Indiana, LLC, et al and CNX Gas Company LLC(17)
10.30    Form Oil and Gas Deed, Assignment, And Assumption, which is Exhibit F to Asset Exchange Agreement that is Exhibit 10.29, above(17)
10.31    Asset Purchase Agreement entered into on June 20, 2007, but effective as of April 1, 2007, among American Land Holdings of Indiana, LLC, et al., as seller, and CNX Gas Company LLC, as buyer(17)
10.32    Form Oil and Gas Deed, Assignment, Assumption and Bill of Sale, which is Exhibit D to Asset Purchase Agreement that is Exhibit 10.31, above(17)
10.33    Asset Purchase Agreement entered into on June 20, 2007, but effective as of April 1, 2007, among CNX Gas Company LLC, as seller, and Cyprus Creek Land Resources, LLC, as buyer(17)
10.34    Asset Purchase Agreement entered into on June 20, 2007, but effective as of April 1, 2007, among CNX Gas Company LLC, as seller, and Eastern Associated Coal, LLC, as buyer(17)
10.35    Offer letter to Dr. DeAnn Craig dated June 18, 2007(18)*
10.36    Schedule of Compensation of Non-Employee Directors, effective August 2007(18)*
10.37    2008 CNX Gas Long-Term Incentive Program and the Form of Award Agreement thereunder(19)*
10.38    Summary of CNX Gas 2008 Short-term Incentive Program(20)
10.39    CNX Gas Corporation Directors Deferred Fee Plan effective January 1, 2008(21)
10.40    Separation Agreement and General Release dated as of April 30, 2008 between Mark D. Gibbons and CNX Gas Corporation(23)
21         Subsidiaries of CNX Gas Corporation
23.1      Consent of Ernst & Young LLP
23.2      Consent of PricewaterhouseCoopers LLP
23.3      Consent of Ralph E. Davis Associates, Inc.

 

110


Table of Contents
23.4      Consent of Schlumberger Data and Consulting Services
31.1      Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2      Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1      Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2      Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

 

(1) Incorporated by reference from the Amendment No. 1 to the Registration Statement on Form S-1 (file no. 333-127483) filed on September 29, 2005
(2) Incorporated by reference from the Current Report on Form 8-K filed by CONSOL Energy Inc. on August 19, 2005 (SEC File No. 001-14901)
(3) Incorporated by reference from the Current Report on Form 8-K filed by CONSOL Energy Inc. on August 12, 2005 (SEC File No. 001-14901)
(4) Incorporated by reference from the Current Report on Form 8-K filed by CONSOL Energy Inc. on October 13, 2005
(5) Incorporated by reference from Exhibit 4.1 to Form 10-K filed by CONSOL Energy Inc. on March 29, 2002
(6) Incorporated by reference from Exhibit 4.2 to Form 10-K filed by CONSOL Energy Inc. on March 29, 2002
(7) Incorporated by reference from Exhibit 4.2 to Form 10-Q filed by CONSOL Energy Inc. on November 19, 2003
(8) Incorporated by reference from Exhibit 4.5 to Form 10-Q filed by CONSOL Energy Inc. on August 3, 2005
(9) Incorporated by reference from the Amendment No. 2 to the Registration Statement on Form S-1 (file no. 333-127483) filed on October 27, 2005
(10) Incorporated by reference from the Amendment No. 4 to the Registration Statement on Form S-1 (file no. 333-127483) filed on December 19, 2005
(11) Incorporated by reference from Exhibit 10.1 to Form 10-Q filed by CNX Gas Corporation on August 2, 2006
(12) Incorporated by reference from Exhibit 10.2 to Form 10-Q filed by CNX Gas Corporation on August 2, 2006
(13) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas Corporation on October 17, 2006 (SEC File No. 001-32723)
(14) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on January 26, 2007
(15) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on March 1, 2007
(16) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on April 27, 2007
(17) Incorporated by reference from the Form 10-Q filed by CNX Gas on July 31, 2007
(18) Incorporated by reference from the Form 10-Q filed by CNX Gas on October 30, 2007
(19) Incorporated by reference from the Form 10-K filed by CNX Gas on February 15, 2008
(20) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on April 25, 2008
(21) Incorporated by reference from the Form 10-Q filed by CNX Gas on April 30, 2008
(22) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on June 2, 2008
(23) Incorporated by reference from the Form 10-Q filed by CNX Gas on August 5, 2008
(24) With respect to Messrs. Onifer and Albert, the change in control agreements have a two-times multiplier and do not contain a Section 280G gross up.
(25) Incorporated by reference from the Current Report on Form 8-K filed by CNX Gas on January 20, 2009

 

In accordance with SEC Release 33-8238, Exhibits 32.1 and 32.2 are being furnished and not filed.

* Management compensatory contract or arrangement.

 

111

Exhibit 10.3

CHANGE IN CONTROL SEVERANCE AGREEMENT

THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), dated as of December 30, 2008 (the “Effective Date”), is made by and among CNX Gas Corporation, 5 Penn Center, West, Suite 401, Pittsburgh, Pennsylvania, 15276, a Delaware corporation (the “Company”), CONSOL Energy, Inc., CNX Center, 1000 CONSOL Energy Drive, Canonsburg, Pennsylvania, 15317, a Delaware corporation (“CONSOL”), and              (the “Executive”).

WITNESSETH:

WHEREAS, the Executive is a senior executive of the Company and has made and is expected to continue to make major contributions to the short- and long-term profitability, growth and financial strength of the Company and CONSOL; and

WHEREAS, the Board (as defined below) and the board of directors of CONSOL (the “CONSOL Board”) recognize that the possibility of a Change in Control (as defined below) exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of key management personnel to the detriment of the Company, CONSOL and their respective stockholders; and

WHEREAS, the Board and the CONSOL Board have determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Company’s management, including the Executive, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a Change in Control; and

WHEREAS, in consideration of the Executive’s continued employment with the Company and the Executive’s agreement to waive certain rights he may have to receive severance compensation and benefits under any applicable severance plan or policy, as set forth below, the Company and CONSOL desire to provide the Executive with certain compensation and benefits set forth in this Agreement in order to ameliorate the financial and career impact on the Executive in the event the Executive’s employment is terminated for a reason related to a Change in Control; and

WHEREAS, the Executive agrees to waive any rights he may have under any severance plan or policy in which the Executive is entitled to participate with respect to severance compensation and benefits in the event the Executive’s employment with the Company is terminated as the result of an Involuntary Termination Associated With a Change in Control (as defined below).

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, the Company, CONSOL and the Executive agree as follows:

1. Certain Defined Terms . In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:

(a) “Base Pay” means the greater of (i) the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately preceding the Executive’s Termination Date, or (ii) the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately prior to the Change in Control.

 

1


(b) “Board” means the Board of Directors of the Company. If the Executive is also a member of the Board, then in the case of any provision hereof that requires action by, or a determination of, the Board in connection with this Agreement, it is understood that such provision refers to the members of the Board other than the Executive.

(c) “Cause” means a determination by the Board that the Executive has committed any of the following acts:

(i) the Executive has been convicted of, or the Executive has pleaded guilty or nolo contendere to, (x) any felony, or (y) any misdemeanor involving fraud, embezzlement or theft; or

(ii) the Executive has wrongfully disclosed material confidential information of the Company, a Subsidiary, or CONSOL and/or its subsidiaries, has intentionally violated any material express provision of the Company’s code of conduct for executives and management employees (as in effect on the date of the Change in Control), or has intentionally failed or refused to perform any of his material assigned duties for the Company, and any such failure or refusal has been demonstrably and materially harmful to the Company.

Notwithstanding the foregoing, the Executive will not be deemed to have been terminated for “Cause” under this subsection (ii) unless and until there has been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than the majority of the members of the Board plus one member, finding that, in the good faith opinion of the Board, the Executive has committed an act constituting “Cause,” as herein defined, and specifying the particulars thereof in detail. Prior to any such determination, the Executive shall be provided with reasonable notice of such pending determination and the Executive, together with his counsel (if the Executive chooses to have counsel present at such meeting), shall be provided with the opportunity to be heard before the Board makes any such determination. Nothing herein will limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.

(d) “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 25% of the combined voting

 

2


power of the then outstanding Voting Stock of the Company; provided, however, that for purposes of this Section 1(d)(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 Section 1(d)(ii), below), (B) any acquisition by the Company and/or CONSOL and any of their respective subsidiaries 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, a Subsidiary, or CONSOL and/or its subsidiaries, (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 Section 1(d)(iii), below; or

(ii) other than at a time when CONSOL and/or its subsidiaries beneficially own more than 50% of the total Voting Stock of the Company, individuals who constitute the Board as of the Effective Date (the “Incumbent Board,” as modified by this Section 1(d)(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 and/or CONSOL and/or their respective subsidiaries 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

 

3


corporation thereof (disregarding all “acquisitions” described in subsections (A) - (C) of Section 1(d)(i)), and (C) other than at a time when CONSOL and/or its subsidiaries beneficially own more than 50% of the total Voting Stock of the Company, 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;

(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 Section 1(d)(iii); or

(v) other than at a time when CONSOL and/or it subsidiaries beneficially own less than 50% of the total Voting Stock of the Company, a Change in Control of CONSOL.

(e) “Change in Control of CONSOL” 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 25% of the combined voting power of the then outstanding Voting Stock of CONSOL; provided, however, that for purposes of this Section 1(e)(i), the following acquisitions will not constitute a Change in Control of CONSOL: (A) any issuance of Voting Stock of CONSOL directly from CONSOL that is approved by the Incumbent Board of CONSOL (as defined in Section 1(e)(ii), below), (B) any acquisition by CONSOL and/or its subsidiaries of Voting Stock of CONSOL, (C) any acquisition of Voting Stock of CONSOL by any employee benefit plan (or related trust) sponsored or maintained by CONSOL and/or its subsidiaries, (D) any acquisition of Voting Stock of CONSOL by an underwriter holding securities of CONSOL in connection with a public offering thereof, or (E) any acquisition of Voting Stock of CONSOL by any Person pursuant to a Business Combination of CONSOL that complies with clauses (A), (B) and (C) of Section 1(e)(iii), below; or

(ii) individuals who constitute the CONSOL Board as of the Effective Date (the “Incumbent Board of CONSOL,” as modified by this Section 1(e)(ii)), cease for any reason to constitute at least a majority of the CONSOL Board; provided, however, that any individual becoming a director subsequent to such date whose election, or nomination for election by CONSOL’s stockholders, was approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board of CONSOL (either by a specific vote or by approval of the proxy statement of CONSOL 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 of CONSOL, but excluding, for this purpose,

 

4


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 CONSOL Board; or

(iii) consummation of a reorganization, merger or consolidation of CONSOL, 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 CONSOL, or other transaction involving CONSOL (each, a “Business Combination of CONSOL”), unless, in each case, immediately following such Business Combination of CONSOL, (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of CONSOL immediately prior to such Business Combination of CONSOL 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 of CONSOL or any direct or indirect parent corporation thereof (including, without limitation, an entity which as a result of such transaction owns CONSOL or all or substantially all of CONSOL’s assets either directly or through one or more subsidiaries), (B) no Person other than CONSOL 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 of CONSOL or any direct or indirect parent corporation thereof (disregarding all “acquisitions” described in subsections (A) - (C) of Section 1 (e) (i)), and (C) at least a majority of the members of the board of directors of the entity resulting from such Business Combination of CONSOL or any direct or indirect parent corporation thereof were members of the Incumbent Board of CONSOL at the time of the execution of the initial agreement or of the action of the CONSOL Board providing for such Business Combination of CONSOL; or

(iv) approval by the stockholders of CONSOL of a complete liquidation or dissolution of CONSOL, except pursuant to a Business Combination of CONSOL that complies with clauses (A), (B) and (C) of Section 1(e)(iii).

(f) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

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

(h) “Consultancy Period” shall have the meaning assigned to such term in Section 2(d) hereof.

(i) “Constructive Termination Associated With a Change in Control” means the termination of the Executive’s employment with the Company by the Executive as a result of the occurrence without the Executive’s written consent of one of the following events:

(i) a material adverse change in the Executive’s position with the Company and/or a Subsidiary (or any successor thereto by operation of law or otherwise) (but excluding any loss of any position with a Subsidiary with respect to which the Executive is not separately compensated) as compared to the Executive’s position with the Company (and/or a Subsidiary) immediately prior to the Change in Control;

 

5


(ii) (A) a material reduction in the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately prior to the Change in Control; (B) a material reduction in the Executive’s Target Bonus opportunity in effect immediately prior to the Change in Control; or (C) a material reduction in the level of Employee Benefits provided to the Executive immediately prior to the Change in Control (excluding any reduction that is generally applicable to all or substantially all salaried Company employees);

(iii) a material adverse change in circumstances has occurred following a Change in Control, including, without limitation, a material change in the scope of the business or other activities for which the Executive was responsible immediately prior to the Change in Control, which has rendered the Executive unable to carry out, has materially hindered the Executive’s performance of, or has caused the Executive to suffer a material reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control; a good faith determination by the Executive (that a material adverse change has occurred) will be conclusive and binding upon the parties hereto unless otherwise shown by the Company to be not in good faith);

(iv) in connection with the liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or substantially all of its business and/or assets, the Company breached this Agreement by not requiring the successor or successors (by liquidation, merger, consolidation, reorganization, transfer or otherwise) to which all or substantially all of its business and/or assets have been transferred (by operation of law or otherwise) to assume all duties and obligations of the Company under this Agreement pursuant to Section 14(a); or

(v) the relocation of the Executive’s principal work location (other than in connection with a relocation contemplated by the Company as of the date hereof or pursuant to organizational changes in accordance with past practice) to a location that increases the Executive’s normal work commute by fifty (50) miles or more as compared to the Executive’s normal work commute immediately prior to the Change in Control, or that the Executive’s required travel away from his office in the course of discharging his responsibilities or duties of his job is materially increased as compared to that which was required of the Executive in any of the three (3) full years immediately prior to the Change in Control.

 

6


Without limiting the generality or effect of the foregoing, the Executive shall have no right to terminate employment in a Constructive Termination Associated With a Change in Control in connection with an event described above unless (A) the Executive provides written notice to the Company within one (1) month of the occurrence of such event that identifies such event with particularity, (B) the Company fails to correct such event within thirty (30) days after receipt of such notice from the Executive and (C) such termination must occur within sixty (60) days after the expiration of the failure of the Company to correct the event.

In no event shall the termination of the Executive’s employment with the Company on account of the Executive’s death or Disability or because the Executive engaged in conduct constituting Cause be deemed to be a Constructive Termination Associated With a Change in Control.

(j) “Disability” means the Executive becomes permanently disabled within the meaning of, and begins actually to receive disability benefits pursuant to, the long-term disability plan in effect for, or applicable to, the Executive.

(k) “Employee Benefits” means the perquisites, benefits and service credit for benefits as provided under any and all employee retirement income and welfare benefit policies, plans, programs or arrangements in which the Executive is entitled to participate, including, without limitation, any stock option, performance share, performance unit, stock purchase, stock appreciation, savings, pension, supplemental executive retirement, or other retirement income or welfare benefit, deferred compensation, incentive compensation, group or other life, health, medical/hospital or other insurance (whether funded by actual insurance or self-insured), disability, salary continuation, expense reimbursement and other employee benefit policies that may exist as of a Change in Control or any successor policies, plans or arrangements that provide substantially similar perquisites or benefits.

(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(m) “Incentive Pay” means the greater of: (i) the Executive’s Target Bonus for which the Executive was eligible during the period that includes the Termination Date, or (ii) the average of the annual bonuses paid by the Company to the Executive for the three years prior to the year that includes the Termination Date. For purposes of this definition, “Target Bonus” means 100% of the amount established under the Company’s short-term incentive compensation program, if any, for the Executive, and any other annual bonus, applicable incentive, commission or other sales incentive compensation, or comparable incentive payment opportunity which, in the sole discretion of the Company, is deemed to constitute a Target Bonus, in addition to Base Pay, for which the Executive was eligible to receive, but did not receive prior to his Termination Date, in regard to services rendered in the year covered by the Executive’s Termination Date and which is to be made pursuant to any bonus, incentive, profit-sharing, performance, discretionary pay or similar agreement, policy, plan, program or arrangement (whether or not funded) in which the Executive is eligible to participate. For purposes of this definition, “Incentive Pay” does not include any stock option, stock appreciation, stock purchase,

 

7


restricted stock or similar plan, program, arrangement or grant, one time bonus or payment (including, but not limited to, any sign-on bonus), any amounts contributed by the Company for the benefit of the Executive to any qualified or nonqualified deferred compensation plan, whether or not provided under an arrangement described in the prior sentence, or any amounts designated by the parties as amounts other than Incentive Pay.

(n) “Involuntary Termination Associated With a Change in Control” means the termination of the Executive’s employment related to a Change in Control: (i) involuntarily by the Company (and any Subsidiary) for any reason other than Cause, the Executive’s death or the Executive’s Disability, or (ii) on account of a Constructive Termination Associated With a Change in Control.

(o) “Restricted Business” means any business function with a direct competitor of the Company that is substantially similar to the business function performed by the Executive with the Company immediately prior to his Termination Date.

(p) “Restricted Territory” means the counties, towns, cities or states of any country in which the Company operates or does business.

(q) “Subsidiary” means any Company controlled affiliate.

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

(s) “Termination of Employment” means, except as provided in the following sentence and subject to the provisions of Section 19(b), the termination of the Executive’s active employment relationship with the Company on account of an Involuntary Termination Associated With a Change in Control. For purposes of the non-solicitation provision of Section 10 of this Agreement, the term “Termination of Employment” shall mean the termination of the Executive’s employment relationship with the Company for any reason (or with CONSOL and/or its subsidiaries if the Executive is reemployed by CONSOL and/or its subsidiaries pursuant to Section 2(e)).

(t) “Voting Stock” means securities entitled to vote generally in the election of directors.

2. Termination Associated With a Change in Control .

(a) Involuntary Termination Associated With a Change in Control . In the event the Executive’s employment is terminated after, or in connection with, a Change in Control, on account of (i) an Involuntary Termination Associated With a Change in Control within the two year period after the Change in Control, or (ii) an involuntary termination by the Company (other than for Cause, due to the Executive’s death or Disability) that (A) occurs not more than three (3) months prior to the date on which a Change in Control occurs, or (B) is requested by a third party who initiates a Change in Control, the Executive shall be entitled to such benefits as provided under the provisions of subsection (b) of this Section 2. For purposes of subsection 2(a)(ii)(B) above, to be

 

8


eligible to receive amounts described in Section 2(b) below, a Change in Control must be consummated within the twelve (12) month period following the Executive’s Termination Date, except in circumstances pursuant to which the consummation of the Change in Control is delayed, through no failure of the Company or the third person, by a governmental or regulatory authority or agency with jurisdiction over the matter, or as a result of other similar circumstances where third party approval is necessary and is delayed. In such a circumstance, the remainder of the twelve (12) month period shall be tolled and shall recommence upon termination of the delaying event.

(b) Compensation and Benefits Upon Involuntary Termination Associated With a Change in Control . In the event a termination described in subsection (a) of this Section 2 occurs, and subject to the Executive’s compliance with the provisions of Section 4 hereof, the Company shall pay and provide to the Executive after his Termination Date:

(i) A lump sum cash payment equal to (A) two and one-half (2.5) times Base Pay, plus (B) two and one-half (2.5) times Incentive Pay.

(ii) The Executive shall receive a pro rated payment of his Incentive Pay for the year in which his Termination of Employment occurs. The pro rated payment shall be based on the Executive’s Incentive Pay as of the Executive’s Termination Date, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of his termination and the denominator of which is 365.

(iii) For the thirty (30) month period immediately following the Termination Date or, if later, the date of the Change in Control:

(1) If the Executive elects COBRA continuation coverage, the Executive shall continue to participate in all medical, dental and vision insurance plans he was participating in on the Termination Date, and the Company shall pay the applicable premium. During the applicable period of coverage described in the foregoing sentences, the Executive shall be entitled to benefits on substantially the same basis and cost as would have otherwise been provided had the Executive not separated from service. To the extent that such benefits are available under the above-referenced benefit plans and the Executive had such coverage immediately prior to the Termination Date, such continuation of benefits for the Executive shall also cover the Executive’s dependents for so long as the Executive is receiving benefits under this paragraph (iii). The COBRA Continuation Period for medical and dental insurance under this paragraph (iii) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally eighteen (18) months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the health care plan. For purposes of this Agreement, “COBRA Continuation Period” shall mean the continuation period for medical and dental insurance to be provided under the terms of this Agreement which shall commence on the first day of the calendar month following the month in which the Termination Date falls and generally shall continue for an 18-month period.

 

9


(2) Following the conclusion of the 18-month COBRA period described above, the Company will provide coverage as follows :

(A) If the relevant plan is self insured (within the meaning of Code Section 105(h)), and such plan permits coverage for the Executive, then the Company will continue to provide coverage under the plan for an additional twelve (12) months and will annually impute income to the Executive for the fair market value of the premium.

(B) If, however, any such plan does not permit the continued participation following the end of the COBRA Continuation Period as contemplated above, then the Company will reimburse the Executive for the actual cost to the Executive of any individual health insurance policy obtained by Employee in accordance with the procedures set forth in subsection (iv) below.

(iv) If the Executive would have been eligible for post-retirement medical and dental coverage had he retired from employment during the period of thirty (30) months following his Termination Date, but is not so eligible as a result of his termination, then, at the conclusion of the benefit continuation period described in (iii) above, the Company shall take all commercially reasonable efforts to provide the Executive with additional continued group medical and dental coverage comparable to that which would have been available to him from time to time under the Company’s post-retirement medical and dental benefit program, for as long as such coverage would have been available under such program. It is specifically acknowledged by the Executive that if such coverage is provided under a Company sponsored self-insured plan, it will be provided on an after-tax basis and the Executive will have income imputed to him annually equal to the fair market value of the premium. If this coverage cannot be provided by the Company, (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided), then as an alternative, the Company will reimburse the Executive in lieu of such coverage an amount equal to the Executive’s actual and reasonable after-tax cost of continuing comparable coverage.

Reimbursement to the Executive pursuant to subsections (iii) or (iv) above will be available only to the extent that (1) such expense is actually incurred for any particular calendar year and reasonably substantiated; (2) reimbursement shall be made no later than the end of the calendar year following the year in which such expense is incurred by the Executive; (3) no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year; and (4) the right to this reimbursement is not subject to liquidation or exchange for another benefit. Notwithstanding the foregoing, under subsection (iii) no reimbursement will be provided for any expense incurred following the additional twelve (12) months or for any expense which relates to coverage after such date.

 

10


(v) A lump sum cash payment equal to the total amount that the Executive would have received under the Company’s 401(k) plan as a Company match if the Executive was eligible to participate in the Company’s 401(k) plan for the thirty (30) month period after his Termination Date and he contributed the maximum amount to the plan for the match. Such amount shall be determined based on the assumption that the Executive would have received annual Base Pay plus Incentive Pay during such period in the amounts set forth in Sections 2(b)(i) and (ii) above.

(vi) A lump sum cash payment equal to the difference between the present value of the Executive’s accrued pension benefits at his Termination Date under the Company’s qualified defined benefit plan and (if eligible) its pension restoration plan (together, the “pension plans”) and the present value of the accrued pension benefits to which the Executive would have been entitled under the pension plans if the Executive had continued participation in those plans for the thirty (30) month period after his Termination Date. Such amount shall be determined based on the assumption that the Executive would have received annual Base Pay plus Incentive Pay during such period in the amounts set forth in Sections 2(b)(i) and (ii) above.

(vii) A lump sum cash payment of $25,000 in order to cover the cost of outplacement assistance services for the Executive and other expenses associated with seeking another employment position.

(viii) The Executive shall receive any amounts earned, accrued or owing but not yet paid to the Executive as of his Termination Date, payable in a lump sum, and any benefits accrued or earned in accordance with the terms of any applicable benefit plans and programs of the Company.

(ix) All payments under this subsection 2(b) will be made in a lump sum no later than sixty (60) days after the Termination Date (or, if later, the date of the Change in Control, as applicable); provided, however, that the benefits due under subsections (iii) and (iv) shall be provided as specified thereunder.

(c) Vesting of Equity Rights . Notwithstanding any provision to the contrary in any applicable plan, program or agreement, upon the occurrence of a Change in Control, all stock options, stock appreciation rights, restricted stock, restricted stock units and other equity rights awarded by the Company and/or CONSOL and held by the Executive will become fully vested and/or exercisable, as the case may be, on the date on which the Change in Control occurs, and all such stock options or stock appreciation rights held by the Executive shall remain exercisable for the period set forth in the award agreement covering the options or rights.

 

11


(d) Consultancy Period Option . Except in the event CONSOL exercises its reemployment rights set forth in Section 2(e) hereof, if any Involuntary Termination Associated With a Change in Control occurs, the Company may, in its sole discretion, elect to require reasonable cooperation from the Executive following the Executive’s Termination Date for a period (the “Consultancy Period”) not to exceed twenty-four (24) months. In the event that the Company so elects, the Executive shall, during the pendency of the Consultancy Period, be available from time to time, at the request of the Company’s Chairman of the Board or Chief Executive Officer, to provide advice and assistance concerning (i) the transition of the Executive’s duties and responsibilities to any successor to his position, and (ii) any other matters concerning the Company’s corporate, business and financial affairs which are consistent with the Executive’s expertise and experience. Such advice and assistance may, at the Executive’s option, be provided either in person or by telephone or videoconference. In no event shall the Company request, nor shall the Executive be required to provide more than five (5) hours of consulting services per work week, nor to provide such services other than during normal Company business hours. The Executive shall be reimbursed by the Company for any reasonable expenses incurred in connection with the performance of such services, subject to compliance with the Company’s standard policies and procedures regarding reimbursement of expenses. The Executive shall be permitted, during the Consultancy Period, to engage in other business and personal activities; provided, that such activities are not inconsistent with the Executive’s duties under Sections 9 and 10 hereof.

(e) CONSOL Reemployment Option . In the case of any Involuntary Termination Associated With a Change in Control (other than a Change in Control within the meaning of Section 1(d)(v)), CONSOL may, in its sole discretion, elect on or before the 30th day following the Executive’s Termination Date, to reemploy the Executive, effective as of the Executive’s Termination Date, on a full-time basis in a salaried employment position. In the event that CONSOL elects to reemploy the Executive as described above, then the Executive shall be entitled to receive generally comparable annual base salary, Incentive Pay and Employee Benefits from CONSOL for a period not extending beyond the two-year anniversary of the Change in Control (the “Reemployment Period”). If the Executive refuses or fails to accept CONSOL’s offer of reemployment, subject to such terms, conditions and agreements as CONSOL may require, the Executive shall not be considered to have terminated employment under this Agreement and shall not receive benefits pursuant to Section 2 hereof.

Upon any such reemployment, the Executive hereby agrees that (i) no compensation and benefits shall be payable to the Executive under this Agreement except for CONSOL’s obligations under this Section 2(e) during the Reemployment Period, and (ii) the Executive shall agree to terminate this Agreement with the Company and CONSOL (except as provided in Section 20 hereof) and execute a change in control agreement and a noncompete, nonsolicitation and nondisclosure agreement in such form(s) satisfactory to, and provided by, CONSOL. In the event that CONSOL subsequently terminates the Executive during the Reemployment Period, CONSOL shall pay to the Executive the benefits provided under Section 2(b) (as determined on the date of the Change in Control); provided, however, that (i) the amount payable upon the Executive’s termination under (b)(i) and (b)(ii) above shall be reduced by the amount of

 

12


salary and incentive pay received by the Executive during the Reemployment Period, and (ii) the periods applicable under (b)(iii), (b)(iv), (b)(v) and (b)(vi) above shall be reduced by the number of months the Executive was employed by CONSOL during the Reemployment Period.

3. Termination of Employment on Account of Disability, Cause or Death . Notwithstanding anything in this Agreement to the contrary, if the Executive’s employment terminates on account of Disability, the Executive shall be entitled to receive disability benefits under any disability program maintained by the Company that covers the Executive, and the Executive shall not be considered to have terminated employment under this Agreement and shall not receive benefits pursuant to Section 2 hereof. If the Executive’s employment terminates on account of Cause or because of his death, the Executive shall not be considered to have terminated employment under this Agreement and shall not receive benefits pursuant to Section 2 hereof.

4. Release . To receive the consideration described in Section 2(b) of this Agreement, the Executive must sign a Separation of Employment and General Release Agreement, substantially in the form attached hereto as Annex A (the “Release”), deliver the signed Release to the Company’s General Counsel within thirty (30) days (unless a longer period is required by law) and not revoke the Release within the seven-day revocation period provided for in the Release. In the event that CONSOL elects to reemploy the Executive as contemplated in Section 2(e), then the payment of compensation, incentive pay and benefits contemplated under Sections 2(b) and 2(e) shall be subject, at CONSOL’s election, to the Executive’s execution and non-revocation of a Release at the time his Reemployment Period commences and the Executive’s renewal of such Release, and non-revocation of such renewal, at the time of any subsequent termination during the Reemployment Period.

5. Enforcement . Without limiting the rights of the Executive at law or in equity, if the Company or CONSOL fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite “prime rate” as quoted from time to time during the relevant period in the Eastern Edition of The Wall Street Journal . Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.

6. Certain Additional Payments by the Company .

(a) The provisions of this Section 6 shall apply notwithstanding anything in this Agreement or any other agreement to the contrary. Subject to subsection (b) below, in the event that it shall be determined that any payment or distribution to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Code, the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 of the Code, and any federal, state and local income tax, employment tax, excise tax and other tax imposed upon the Gross-Up Payment, shall be equal to the Payment.

 

13


(b) Notwithstanding subsection (a), and notwithstanding any other provisions of this Agreement to the contrary, if the net after-tax benefit to the Executive of receiving the Gross-Up Payment does not exceed the Safe Harbor Amount (as defined below) by more than 10% (as compared to the net-after tax benefit to the Executive resulting from elimination of the Gross-Up Payment and reduction of the Payments to the Safe Harbor Amount), then (i) the Company shall not pay the Executive the Gross-Up Payment, and (ii) the provisions of subsection (c) below shall apply. The term “Safe Harbor Amount” means the maximum dollar amount of parachute payments that may be paid to the Executive under Section 280G of the Code without imposition of an excise tax under Section 4999 of the Code.

(c) The provisions of this subsection (c) shall apply only if the Company is not required to pay the Executive a Gross-Up Payment as a result of subsection (b) above. If the Company is not required to pay the Executive a Gross-Up Payment as a result of the provisions of subsection (b), the Company will apply a limitation on the Payment amount as set forth below (a “Parachute Cap”) as follows: The aggregate present value of the Payments under Section 2(b) of this Agreement (“Agreement Payments”) shall be reduced (but not below zero) to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this Section 6, “present value” shall be determined in accordance with Section 280G(d)(4) of the Code.

(d) Except as set forth in the next sentence, all determinations to be made under this Section 6 shall be made by the nationally recognized independent public accounting firm used by the Company immediately prior to the Change in Control (“Accounting Firm”), which Accounting Firm shall provide its determinations and any supporting calculations to the Company and the Executive within ten (10) days of the Executive’s Termination Date. The value of the Executive’s non-competition covenant under Section 10(a) of this Agreement shall be determined by independent appraisal by a nationally-recognized business valuation firm acceptable to both the Executive and the Company, and a portion of the Agreement Payments shall, to the extent of that appraised value, be specifically allocated as reasonable compensation for such non-competition covenant and shall not be treated as a parachute payment. If any Gross-Up Payment is required to be made, the Company shall make the Gross-Up Payment within ten (10) days after receiving the Accounting Firm’s calculations, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which the Executive remits the related taxes. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive.

(e) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 6 shall be borne solely by the Company.

 

14


7. No Mitigation Obligation . The Company hereby acknowledges that it will be difficult and may be impossible for the Executive to find reasonably comparable employment following the Termination Date. Accordingly, the payment of the severance compensation by the Company to the Executive in accordance with the terms of this Agreement is hereby acknowledged by the Company to be reasonable, and the Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of the Executive hereunder or otherwise. Notwithstanding anything to the contrary contained herein, as a condition to accepting benefits provided hereunder, the Executive will be required to waive, and will be deemed to have waived, any other right or entitlement to severance or termination benefits from the Company, its Subsidiaries, CONSOL and/or its subsidiaries.

8. Legal Fees and Expenses . In the event of a Change in Control, it is the intent of the Company that the Executive not be required to incur legal fees and the related expenses associated with the interpretation, enforcement or defense of the Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would detract from the benefits intended to be extended to the Executive hereunder. Accordingly, if a Change in Control occurs and it should appear to the Executive that the Company or any other person has failed to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Executive the benefits provided or intended to be provided to the Executive under Section 2 of this Agreement, the Company irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice, at the expense of the Company as hereafter provided, to advise and represent the Executive in connection with any such interpretation, enforcement or defense, including without limitation the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer or employee of the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to the Executive’s entering into an attorney-client relationship with such counsel, and in that connection, the Company and the Executive agree that a confidential relationship will exist between the Executive and such counsel. Without respect to whether the Executive prevails, in whole or in part, in connection with any of the foregoing, the Company will pay and be solely financially responsible for any and all reasonable attorneys’ and related fees and expenses incurred by the Executive in connection with any of the foregoing; provided that, in regard to such matters, the Executive has not acted frivolously, in bad faith or with no colorable claim of success. Such fees and expenses will be paid by the Company as they are incurred by the Executive, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which the Executive incurs the fees and expenses. In addition, no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year, and the right to this reimbursement is not subject to liquidation or exchange for another benefit.

9. Confidentiality . The Executive hereby covenants and agrees that, except as specifically requested or directed by the Company, he will not disclose to any person not employed by the Company, or use in connection with engaging in competition with the

 

15


Company, any confidential or proprietary information (as defined below) of the Company. For purposes of this Agreement, the term “confidential or proprietary information” will include all information of any nature and in any form that is owned by the Company and that is not publicly available (other than by the Executive’s breach of this Section 9) or generally known to persons engaged in businesses similar or related to those of the Company. Confidential or proprietary information will include, without limitation, the Company’s financial matters, customers, employees, industry contracts, strategic business plans, product development (or other proprietary product data), marketing plans, consulting solutions and processes, and all other secrets and all other information of a confidential or proprietary nature which is protected by the Uniform Trade Secrets Act. For purposes of this Section 9, the term “Company” will also include CONSOL, and its subsidiaries, and any Subsidiary (collectively, the “Restricted Group”). The foregoing obligations imposed by this Section 9 will not apply (i) in the course of the business of and for the benefit of the Company, (ii) if such confidential or proprietary information has become, through no fault of the Executive, generally known to the public, or (iii) if the Executive is required by law to make disclosure (after giving the Company notice and an opportunity to contest such requirement).

10. Covenants Not to Compete and Not to Solicit . In the event of the Executive’s Termination of Employment, the Company’s obligations to provide the payments and benefits set forth in Section 2 shall be expressly conditioned upon the Executive’s compliance with the covenants not to compete and not to solicit as provided herein. In the event the Executive breaches his obligations to the Company as provided herein, the Company’s obligations to provide the payments and benefits set forth in Section 2 shall cease, without prejudice to any other remedies that may be available to the Company. For purposes of this Section 10 and the definition of “Restricted Business” and “Restricted Territory” as used herein, the term “Company” will also include CONSOL, and its subsidiaries, and any Subsidiary

(a) Covenant Not to Compete . If the Executive is receiving payments and benefits under Section 2 above (or subsequently becomes entitled thereto because of a termination described in Section 2(a)(ii)), then, for a period of one (1) year following the Executive’s Termination Date, the Executive shall not directly or indirectly engage in (whether as an employee, consultant, proprietor, partner, director or otherwise), or have any ownership interest in, or participate in a financing, operation, management or control of, any person, firm, corporation or business that is a Restricted Business in a Restricted Territory without the prior written consent of the Board. For this purpose, ownership of no more than 5% of the outstanding Voting Stock of a publicly traded corporation shall not constitute a violation of this provision.

(b) Covenant Not to Solicit . If the Executive is receiving payments and benefits under Section 2 above (or subsequently becomes entitled thereto because of a termination described in Section 2(a)(ii)), then, for a period of two (2) years following the Executive’s Termination Date, the Executive shall not: (i) solicit, encourage or take any other action which is intended to induce any other employee of the Company to terminate his employment with the Company; or (ii) interfere in any manner with the contractual or employment relationship between the Company and any such employee of the Company. The foregoing shall not prohibit the Executive or any entity with which the Executive may be affiliated from hiring a former employee of the Company; provided, that such hiring results exclusively from such former employee’s affirmative response to a general recruitment effort.

 

16


(c) Interpretation . The covenants contained herein are intended to be construed as a series of separate covenants, one for each county, town, city and state or other political subdivision of a Restricted Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in the preceding subsections. If, in any judicial proceeding, the court shall refuse to enforce any of the separate covenants (or any part thereof) deemed included in such subsections, then such unenforceable covenant (or such part) shall be deemed to be eliminated from this Agreement for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced.

(d) Reasonableness . In the event that the provisions of this Section 10 shall ever be deemed to exceed the time, scope or geographic limitations permitted by applicable laws, then such provisions shall be reformed to the maximum time, scope or geographic limitations, as the case may be, permitted by applicable laws.

11. Employment Rights . Nothing expressed or implied in this Agreement will create any (i) right or duty on the part of the Company or the Executive to have the Executive remain in the employment of the Company or any Subsidiary prior to or following any Change in Control, or (ii) duty on the part of CONSOL to reemploy the Executive following any Change in Control.

12. Withholding of Taxes . The Company, CONSOL and their respective subsidiaries may withhold from any amounts payable under this Agreement all federal, state, city or other taxes required to be withheld pursuant to any applicable law, regulation or ruling.

13. Term of Agreement . The term of this Agreement shall commence on the Effective Date hereof and shall continue until December 31, 2008; provided, however, that commencing on January 1, 2009, and each January 1 thereafter, the term of this Agreement shall automatically be extended until the following December 31, unless the Company gives notice not later than October 31 of the preceding year that it does not wish to extend this Agreement; and provided, further, that regardless of any such notice by the Company, this Agreement shall continue in effect for a period of twenty-four (24) months beyond the term provided herein if a Change in Control of the Company occurs during the period that this Agreement is in effect unless otherwise terminated sooner as provided herein.

14. Successors and Binding Agreement.

(a) The Company and CONSOL will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company or CONSOL, by agreement in form and substance reasonably satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company or CONSOL would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of the Company, CONSOL and any successor to the Company or CONSOL, including without limitation any persons

 

17


acquiring directly or indirectly all or substantially all of the business or assets of the Company or CONSOL whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the “Company” and/or “CONSOL” for the purposes of this Agreement), but will not otherwise be assignable, transferable or delegable by the Company or CONSOL.

(b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees. This Agreement will supersede the provisions of any employment or other agreement between the Executive, the Company and/or CONSOL that relate to any matter that is also the subject of this Agreement and such provisions in such other agreements will be null and void.

(c) This Agreement is personal in nature and neither of the parties hereto will, without the consent of the other, assign, transfer or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Sections 14(a) and (b). Without limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not be assignable, transferable or delegable, whether by pledge, creation of a security interest, or otherwise, other than by a transfer by the Executive’s will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer contrary to this Section 14(c), the Company and CONSOL will have no liability to pay any amount so attempted to be assigned, transferred or delegated.

15. Notices . For all purposes of this Agreement, all communications, including without limitation, notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed by the recipient), or five (5) business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid, or three (3) business days after having been sent by a nationally recognized courier service for overnight/next-day delivery, such as FedEx, UPS, or the United States Postal Service, addressed to the Company and CONSOL (to the attention of the Secretary of the Company/CONSOL) at its principal executive office and to the Executive at his principal residence, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.

16. Governing Law . The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to the principles of conflict of laws of such Commonwealth.

17. Validity . If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid or legal.

 

18


18. Miscellaneous . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Executive, the Company and CONSOL. No waiver by any party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party that are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement. Any reference in this Agreement to a provision of a statute, rule or regulation will also include any successor provision thereto. Whenever used herein, the masculine includes the feminine.

19. Section 409A .

(a) If any benefit provided under this Agreement is subject to the provisions of Section 409A of the Code and the regulations issued thereunder, the provisions of the Agreement shall be administered, interpreted and construed in a manner necessary to comply with Section 409A and the regulations issued thereunder (or disregarded to the extent such provision cannot be so administered, interpreted, or construed).

(b) Severance benefits are payable only if the Executive is involuntarily terminated by the Company as provided under this Agreement. For purposes of this Agreement, the Executive shall be considered to have experienced a termination of employment only if the Executive has terminated 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. Whether the Executive has terminated employment will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A of the Code.

(c) For purposes of Section 409A, each severance benefit payment shall be treated as a separate payment. Each payment under this Agreement is intended to be excepted from Section 409A to the maximum extent provided under Section 409A as follows: (i) each payment that is scheduled to be made on or before March 15th of the calendar year following the calendar year containing the Executive’s Termination Date (or, if later, the date of the Change in Control) is intended to be excepted under the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4); (ii) post-termination medical benefits are intended to be excepted under the medical benefits exceptions as specified in Treas. Reg. § 1.409A-1(b)(9)(v)(B); and (iii) each payment that is not otherwise excepted under the short-term deferral exception or medical benefits exception is intended to be excepted under the involuntary pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii). The Executive shall have no right to designate the date of any payment under this Agreement.

 

19


(d) With respect to payments subject to Section 409A of the Code (and not excepted therefrom), if any, it is intended that each payment is paid on permissible distribution event and at a specified time consistent with Section 409A of the Code. The Company reserves the right to accelerate and/or defer any payment to the extent permitted and consistent with Section 409A. Notwithstanding any provision of this Agreement to the contrary, to the extent that a payment hereunder is subject to Section 409A of the Code (and not excepted therefrom) and payable on account or a termination of employment, such payment shall be delayed for a period of six (6) months after the Termination Date (or, if earlier, the death of the Executive ) if the Executive is a “specified employee” (as defined in Section 409A of the Code and determined in accordance with the procedures established by the Company). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period in the month following the month containing the 6-month anniversary of the Termination Date.

20. Survival . Notwithstanding any provision of this Agreement to the contrary, the parties’ respective rights and obligations under Sections 2, 6, 8, 9, and 10 will survive any termination or expiration of this Agreement or the termination of the Executive’s employment for any reason whatsoever.

21. Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.

(Remainder of Page Intentionally Blank)

 

20


IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.

 

CNX Gas Corporation
By:  

 

Name:  
Title:  
CONSOL Energy Inc.
By:  

 

Name:  
Title:  

 

 

21


Annex A

SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT

THIS SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT (this “Agreement”) is made as of this      day of             ,         , by and between                      and                      (collectively the “Company”) and                      (the “Executive”).

WHEREAS, the Executive formerly was employed by the Company as                     ; and

WHEREAS, the Executive and Company entered into a Change in Control Severance Agreement, dated                  , 200    , (the “Severance Agreement”) which provides for certain payments and benefits in the event that the Executive’s employment is terminated on account of a reason set forth in the Severance Agreement; and

WHEREAS, the Executive’s employment with the Company was terminated for reasons that qualify the Executive to receive certain payments and benefits, as set forth in Section 2(b) [or 2(e)] of the Severance Agreement, subject to, among other things, the Executive’s execution of this Agreement.

NOW, THEREFORE, for and in consideration of the Company’s commitments in Section 2(b) [and 2(e)] of the Severance Agreement, and intending to be legally bound, the Executive and the Company hereby agree as follows:

1. (a) The Executive does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its and their respective officers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, as well as the current and former fiduciaries of any pension, welfare, or other benefit plans applicable to the employees or former employees of the Company, and the current and former welfare and other benefit plans sponsored by the Company (collectively, “Releasees”) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which the Executive ever had, now has, or hereafter may have, whether known or unknown, or which the Executive’s heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of time to the date the Executive signs this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to the Executive’s employment relationship with the Company, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Worker Readjustment and Retraining Notification Act, the Consolidated Omnibus Budget Reconciliation Act, the Employee Retirement Income Security Act of 1974, the Pennsylvania Human Relations Act, and any other claims under any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys’ fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.

 

1


(b) Although Paragraph 1(a) is intended to be a general release, it is understood and agreed that Paragraph 1(a) excludes claims related to the Executive’s right to receive the payments and benefits described in Section 2(b) [and 2(e)] of the Severance Agreement, as well as claims under any statute or common law that the Executive is legally barred from releasing, such as the Executive’s entitlement to vested pension benefits.

(c) Nothing herein is intended to or shall preclude the Executive from filing a charge with any appropriate federal, state or local government agency and/or cooperating with said agency in its investigation. The Executive, however, explicitly waives any right to file a personal lawsuit or receive monetary damages that the agency may recover against the Releasees, without regard as to who brought any said complaint or charge. Employee further agrees that to the extent any relief, including monetary relief, is awarded in any such proceeding, all amounts paid as consideration under Section 2(b) [or 2(e)] of the Separation Agreement shall be a setoff and credit against any such award to the fullest extent permitted by law.

(d) The Executive represents and agrees by signing below that the Executive has not been denied any leave or benefit requested, has received the appropriate pay for all hours worked for the Company, and has no known workplace injuries or occupational diseases.

(e) To the fullest extent permitted by law, the Executive represents and affirms that (i) [ other than                     , ] the Executive has not filed or caused to be filed on the Executive’s behalf any claim for relief against any Releasee and, to the best of the Executive’s knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on the Executive’s behalf; and (ii) [ other than                     , ] the Executive has not reported any improper, unethical or illegal conduct or activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Company’s legal or compliance departments, or to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or activities. The Executive agrees to promptly dismiss with prejudice all claims for relief filed before the date the Executive signs this Agreement.

2. The Company does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Executive from all claims, demands or causes of action arising out of facts or occurrences prior to the date of this Agreement, but only to the extent the Company knows or reasonably should know of such facts or occurrence and only to the extent such claim, demand or cause of action relates to a violation of applicable law or the performance of the Executive’s duties with the Company; provided, however, that this release of claims shall not in any case be effective with respect to any claim by the Company alleging a breach of the Executive’s obligations under this Agreement. [Note: The Company and the Executive may, but shall not be required to mutually agree on a case-by-case basis at the time of the signing of this release to include the foregoing provision, or a substantially similar provision, to this Agreement.]

3. The Executive further agrees and recognizes that the Executive’s employment relationship with the Company has been permanently severed, that the Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ the Executive in the future.

 

2


4. The Executive further agrees that the Executive will not disparage or subvert the Company, or make any statement reflecting negatively on the Releasees including, but not limited to, statements relating to the operation or management of the Company, the Executive’s employment and the termination of the Executive’s employment, irrespective of the truthfulness or falsity of such statement.

5. The Executive acknowledges that if the Executive had not executed this Agreement containing a release of all claims, the Executive would not have been entitled to the payments and benefits set forth in Section 2(b) [or 2(e)] of the Severance Agreement.

6. This Agreement contains the entire agreement between the Company and the Executive relating to the subject matter hereof. No prior or contemporaneous oral or written agreements or representations may be offered to alter the terms of this Agreement. To the extent Employee has entered into other agreements with the Company that are not in conflict with this Agreement, including, but not limited to the Severance Agreement, the terms of this Agreement shall not supersede, but shall be in addition to such other agreements.

7. The Executive agrees not to disclose the terms of this Agreement or the Severance Agreement to anyone, except the Executive’s spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the terms of this Agreement will not be disclosed except as may be necessary to obtain approval or authorization to fulfill its obligations hereunder or as required by law. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.

8. The Executive represents that the Executive has returned to the Company and does not presently have in the Executive’s possession or control any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of the Executive’s prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by the Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. In addition, the Executive has or will promptly return in good condition any other Company owned equipment or property, including, but not limited to, automobiles, personal data assistants, facsimile machines, copy machines, pagers, credit cards, cellular telephone equipment, business cards, laptops and computers. At the Executive’s request, the Company will make reasonable arrangements to transfer cellular phone numbers and personal fax numbers to the Executive.

9. Nothing in this Agreement shall prohibit or restrict the Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Company’s designated legal, compliance or human resources officers; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.

 

3


10. The parties agree and acknowledge that the agreement by the Company described herein, and the release of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to the Executive.

11. The Executive agrees and recognizes that should the Executive breach any of the obligations or covenants set forth in Section 10 of the Severance Agreement, the Company will have no further obligation to provide the Executive with the consideration set forth in Section 2(b) [or 2(e)] of the Severance Agreement, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Notwithstanding the foregoing, the Executive acknowledges that if the Executive breaches Section 10 of the Severance Agreement, and if the Company terminates or recovers any of the payments or benefits provided under Section 2(b) [or 2(e)] of the Severance Agreement (as provided for in Section 10 of the Severance Agreement), the release provided by Section 1 of this Agreement shall remain valid and enforceable.

12. The Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.

13. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania.

14. The Executive certifies and acknowledges as follows:

(a) That the Executive has read the terms of this Agreement, and that the Executive understands its terms and effects, including the fact that the Executive has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of the Executive’s employment relationship with the Company and the termination of that employment relationship; and

(b) That the Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which the Executive acknowledges is adequate and satisfactory to him and which the Executive acknowledges is in addition to any other benefits to which the Executive is otherwise entitled; and

(c) That the Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; and

(d) That the Executive does not waive rights or claims that may arise after the date this Agreement is executed; and

 

4


(e) That the Company has provided the Executive with a period of [ twenty-one (21) ] or [ forty-five (45) ] days within which to consider this Agreement, and that the Executive has signed on the date indicated below after concluding that this Agreement is satisfactory; and

(f) The Executive acknowledges that this Agreement may be revoked within seven (7) days after execution, and it shall not become effective until the expiration of such seven (7) day revocation period. In the event of a timely revocation by the Executive, this Agreement will be deemed null and void and the Company will have no obligations hereunder or under Section 2(b) [or 2(e)] of the Severance Agreement.

Intending to be legally bound hereby, the Executive and the Company executed the foregoing Separation of Employment and General Release Agreement this      day of             ,         .

 

 

    Witness:  

 

Executive      
[Insert Company Name]      
By:  

 

    Witness:  

 

Name:        
Title:        

 

5

Exhibit 10.4

CHANGE IN CONTROL SEVERANCE AGREEMENT

THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this “Agreement”), dated as of December 30, 2008 (the “Effective Date”), is made by and among CNX Gas Corporation, 5 Penn Center, West, Suite 401, Pittsburgh, Pennsylvania, 15276, a Delaware corporation (the “Company”), CONSOL Energy, Inc., CNX Center, 1000 CONSOL Energy Drive, Canonsburg, Pennsylvania, 15317, a Delaware corporation (“CONSOL”), and             (the “Executive”).

WITNESSETH:

WHEREAS, the Executive is a senior executive of the Company and has made and is expected to continue to make major contributions to the short- and long-term profitability, growth and financial strength of the Company and CONSOL; and

WHEREAS, the Board (as defined below) and the board of directors of CONSOL (the “CONSOL Board”) recognize that the possibility of a Change in Control (as defined below) exists and that such possibility, and the uncertainty and questions which it may raise among management, may result in the departure or distraction of key management personnel to the detriment of the Company, CONSOL and their respective stockholders; and

WHEREAS, the Board and the CONSOL Board have determined that appropriate steps should be taken to reinforce and encourage the continued attention and dedication of members of the Company’s management, including the Executive, to their assigned duties without distraction in the face of potentially disturbing circumstances arising from the possibility of a Change in Control; and

WHEREAS, in consideration of the Executive’s continued employment with the Company and the Executive’s agreement to waive certain rights he may have to receive severance compensation and benefits under any applicable severance plan or policy, as set forth below, the Company and CONSOL desire to provide the Executive with certain compensation and benefits set forth in this Agreement in order to ameliorate the financial and career impact on the Executive in the event the Executive’s employment is terminated for a reason related to a Change in Control; and

WHEREAS, the Executive agrees to waive any rights he may have under any severance plan or policy in which the Executive is entitled to participate with respect to severance compensation and benefits in the event the Executive’s employment with the Company is terminated as the result of an Involuntary Termination Associated With a Change in Control (as defined below).

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements hereinafter set forth and intending to be legally bound hereby, the Company, CONSOL and the Executive agree as follows:

1. Certain Defined Terms . In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:

(a) “Base Pay” means the greater of (i) the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately preceding the Executive’s Termination Date, or (ii) the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately prior to the Change in Control.

 

1


(b) “Board” means the Board of Directors of the Company. If the Executive is also a member of the Board, then in the case of any provision hereof that requires action by, or a determination of, the Board in connection with this Agreement, it is understood that such provision refers to the members of the Board other than the Executive.

(c) “Cause” means a determination by the Board that the Executive has committed any of the following acts:

(i) the Executive has been convicted of, or the Executive has pleaded guilty or nolo contendere to, (x) any felony, or (y) any misdemeanor involving fraud, embezzlement or theft; or

(ii) the Executive has wrongfully disclosed material confidential information of the Company, a Subsidiary, or CONSOL and/or its subsidiaries, has intentionally violated any material express provision of the Company’s code of conduct for executives and management employees (as in effect on the date of the Change in Control), or has intentionally failed or refused to perform any of his material assigned duties for the Company, and any such failure or refusal has been demonstrably and materially harmful to the Company.

Notwithstanding the foregoing, the Executive will not be deemed to have been terminated for “Cause” under this subsection (ii) unless and until there has been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than the majority of the members of the Board plus one member, finding that, in the good faith opinion of the Board, the Executive has committed an act constituting “Cause,” as herein defined, and specifying the particulars thereof in detail. Prior to any such determination, the Executive shall be provided with reasonable notice of such pending determination and the Executive, together with his counsel (if the Executive chooses to have counsel present at such meeting), shall be provided with the opportunity to be heard before the Board makes any such determination. Nothing herein will limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.

(d) “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 25% of the combined voting

 

2


power of the then outstanding Voting Stock of the Company; provided, however, that for purposes of this Section 1(d)(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 Section 1(d)(ii), below), (B) any acquisition by the Company and/or CONSOL and any of their respective subsidiaries 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, a Subsidiary, or CONSOL and/or its subsidiaries, (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 Section 1(d)(iii), below; or

(ii) other than at a time when CONSOL and/or its subsidiaries beneficially own more than 50% of the total Voting Stock of the Company, individuals who constitute the Board as of the Effective Date (the “Incumbent Board,” as modified by this Section 1(d)(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 and/or CONSOL and/or their respective subsidiaries 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

 

3


corporation thereof (disregarding all “acquisitions” described in subsections (A) - (C) of Section 1(d)(i)), and (C) other than at a time when CONSOL and/or its subsidiaries beneficially own more than 50% of the total Voting Stock of the Company, 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;

(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 Section 1(d)(iii); or

(v) other than at a time when CONSOL and/or it subsidiaries beneficially own less than 50% of the total Voting Stock of the Company, a Change in Control of CONSOL.

(e) “Change in Control of CONSOL” 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 25% of the combined voting power of the then outstanding Voting Stock of CONSOL; provided, however, that for purposes of this Section 1(e)(i), the following acquisitions will not constitute a Change in Control of CONSOL: (A) any issuance of Voting Stock of CONSOL directly from CONSOL that is approved by the Incumbent Board of CONSOL (as defined in Section 1(e)(ii), below), (B) any acquisition by CONSOL and/or its subsidiaries of Voting Stock of CONSOL, (C) any acquisition of Voting Stock of CONSOL by any employee benefit plan (or related trust) sponsored or maintained by CONSOL and/or its subsidiaries, (D) any acquisition of Voting Stock of CONSOL by an underwriter holding securities of CONSOL in connection with a public offering thereof, or (E) any acquisition of Voting Stock of CONSOL by any Person pursuant to a Business Combination of CONSOL that complies with clauses (A), (B) and (C) of Section 1(e)(iii), below; or

(ii) individuals who constitute the CONSOL Board as of the Effective Date (the “Incumbent Board of CONSOL,” as modified by this Section 1(e)(ii)), cease for any reason to constitute at least a majority of the CONSOL Board; provided, however, that any individual becoming a director subsequent to such date whose election, or nomination for election by CONSOL’s stockholders, was approved by a vote of at least two-thirds of the directors then comprising the Incumbent Board of CONSOL (either by a specific vote or by approval of the proxy statement of CONSOL 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 of CONSOL, but excluding, for this purpose,

 

4


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 CONSOL Board; or

(iii) consummation of a reorganization, merger or consolidation of CONSOL, 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 CONSOL, or other transaction involving CONSOL (each, a “Business Combination of CONSOL”), unless, in each case, immediately following such Business Combination of CONSOL, (A) all or substantially all of the individuals and entities who were the beneficial owners of Voting Stock of CONSOL immediately prior to such Business Combination of CONSOL 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 of CONSOL or any direct or indirect parent corporation thereof (including, without limitation, an entity which as a result of such transaction owns CONSOL or all or substantially all of CONSOL’s assets either directly or through one or more subsidiaries), (B) no Person other than CONSOL 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 of CONSOL or any direct or indirect parent corporation thereof (disregarding all “acquisitions” described in subsections (A) - (C) of Section 1 (e) (i)), and (C) at least a majority of the members of the board of directors of the entity resulting from such Business Combination of CONSOL or any direct or indirect parent corporation thereof were members of the Incumbent Board of CONSOL at the time of the execution of the initial agreement or of the action of the CONSOL Board providing for such Business Combination of CONSOL; or

(iv) approval by the stockholders of CONSOL of a complete liquidation or dissolution of CONSOL, except pursuant to a Business Combination of CONSOL that complies with clauses (A), (B) and (C) of Section 1(e)(iii).

(f) “COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

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

(h) “Consultancy Period” shall have the meaning assigned to such term in Section 2(d) hereof.

(i) “Constructive Termination Associated With a Change in Control” means the termination of the Executive’s employment with the Company by the Executive as a result of the occurrence without the Executive’s written consent of one of the following events:

(i) a material adverse change in the Executive’s position with the Company and/or a Subsidiary (or any successor thereto by operation of law or otherwise) (but excluding any loss of any position with a Subsidiary with respect to which the Executive is not separately compensated) as compared to the Executive’s position with the Company (and/or a Subsidiary) immediately prior to the Change in Control;

 

5


(ii) (A) a material reduction in the Executive’s annual base salary rate, exclusive of bonuses, commissions and other Incentive Pay, as in effect immediately prior to the Change in Control; (B) a material reduction in the Executive’s Target Bonus opportunity in effect immediately prior to the Change in Control; or (C) a material reduction in the level of Employee Benefits provided to the Executive immediately prior to the Change in Control (excluding any reduction that is generally applicable to all or substantially all salaried Company employees);

(iii) a material adverse change in circumstances has occurred following a Change in Control, including, without limitation, a material change in the scope of the business or other activities for which the Executive was responsible immediately prior to the Change in Control, which has rendered the Executive unable to carry out, has materially hindered the Executive’s performance of, or has caused the Executive to suffer a material reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control; a good faith determination by the Executive (that a material adverse change has occurred) will be conclusive and binding upon the parties hereto unless otherwise shown by the Company to be not in good faith);

(iv) in connection with the liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or substantially all of its business and/or assets, the Company breached this Agreement by not requiring the successor or successors (by liquidation, merger, consolidation, reorganization, transfer or otherwise) to which all or substantially all of its business and/or assets have been transferred (by operation of law or otherwise) to assume all duties and obligations of the Company under this Agreement pursuant to Section 14(a); or

(v) the relocation of the Executive’s principal work location (other than in connection with a relocation contemplated by the Company as of the date hereof or pursuant to organizational changes in accordance with past practice) to a location that increases the Executive’s normal work commute by fifty (50) miles or more as compared to the Executive’s normal work commute immediately prior to the Change in Control, or that the Executive’s required travel away from his office in the course of discharging his responsibilities or duties of his job is materially increased as compared to that which was required of the Executive in any of the three (3) full years immediately prior to the Change in Control.

 

6


Without limiting the generality or effect of the foregoing, the Executive shall have no right to terminate employment in a Constructive Termination Associated With a Change in Control in connection with an event described above unless (A) the Executive provides written notice to the Company within one (1) month of the occurrence of such event that identifies such event with particularity, (B) the Company fails to correct such event within thirty (30) days after receipt of such notice from the Executive and (C) such termination must occur within sixty (60) days after the expiration of the failure of the Company to correct the event.

In no event shall the termination of the Executive’s employment with the Company on account of the Executive’s death or Disability or because the Executive engaged in conduct constituting Cause be deemed to be a Constructive Termination Associated With a Change in Control.

(j) “Disability” means the Executive becomes permanently disabled within the meaning of, and begins actually to receive disability benefits pursuant to, the long-term disability plan in effect for, or applicable to, the Executive.

(k) “Employee Benefits” means the perquisites, benefits and service credit for benefits as provided under any and all employee retirement income and welfare benefit policies, plans, programs or arrangements in which the Executive is entitled to participate, including, without limitation, any stock option, performance share, performance unit, stock purchase, stock appreciation, savings, pension, supplemental executive retirement, or other retirement income or welfare benefit, deferred compensation, incentive compensation, group or other life, health, medical/hospital or other insurance (whether funded by actual insurance or self-insured), disability, salary continuation, expense reimbursement and other employee benefit policies that may exist as of a Change in Control or any successor policies, plans or arrangements that provide substantially similar perquisites or benefits.

(l) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

(m) “Incentive Pay” means the greater of: (i) the Executive’s Target Bonus for which the Executive was eligible during the period that includes the Termination Date, or (ii) the average of the annual bonuses paid by the Company to the Executive for the three years prior to the year that includes the Termination Date. For purposes of this definition, “Target Bonus” means 100% of the amount established under the Company’s short-term incentive compensation program, if any, for the Executive, and any other annual bonus, applicable incentive, commission or other sales incentive compensation, or comparable incentive payment opportunity which, in the sole discretion of the Company, is deemed to constitute a Target Bonus, in addition to Base Pay, for which the Executive was eligible to receive, but did not receive prior to his Termination Date, in regard to services rendered in the year covered by the Executive’s Termination Date and which is to be made pursuant to any bonus, incentive, profit-sharing, performance, discretionary pay or similar agreement, policy, plan, program or arrangement (whether or not funded) in which the Executive is eligible to participate. For purposes of this definition, “Incentive Pay” does not include any stock option, stock appreciation, stock purchase,

 

7


restricted stock or similar plan, program, arrangement or grant, one time bonus or payment (including, but not limited to, any sign-on bonus), any amounts contributed by the Company for the benefit of the Executive to any qualified or nonqualified deferred compensation plan, whether or not provided under an arrangement described in the prior sentence, or any amounts designated by the parties as amounts other than Incentive Pay.

(n) “Involuntary Termination Associated With a Change in Control” means the termination of the Executive’s employment related to a Change in Control: (i) involuntarily by the Company (and any Subsidiary) for any reason other than Cause, the Executive’s death or the Executive’s Disability, or (ii) on account of a Constructive Termination Associated With a Change in Control.

(o) “Restricted Business” means any business function with a direct competitor of the Company that is substantially similar to the business function performed by the Executive with the Company immediately prior to his Termination Date.

(p) “Restricted Territory” means the counties, towns, cities or states of any country in which the Company operates or does business.

(q) “Subsidiary” means any Company controlled affiliate.

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

(s) “Termination of Employment” means, except as provided in the following sentence and subject to the provisions of Section 19(b), the termination of the Executive’s active employment relationship with the Company on account of an Involuntary Termination Associated With a Change in Control. For purposes of the non-solicitation provision of Section 10 of this Agreement, the term “Termination of Employment” shall mean the termination of the Executive’s employment relationship with the Company for any reason.

(t) “Voting Stock” means securities entitled to vote generally in the election of directors.

2. Termination Associated With a Change in Control .

(a) Involuntary Termination Associated With a Change in Control . In the event the Executive’s employment is terminated after, or in connection with, a Change in Control, on account of (i) an Involuntary Termination Associated With a Change in Control within the two year period after the Change in Control, or (ii) an involuntary termination by the Company (other than for Cause, due to the Executive’s death or Disability) that (A) occurs not more than three (3) months prior to the date on which a Change in Control occurs, or (B) is requested by a third party who initiates a Change in Control, the Executive shall be entitled to such benefits as provided under the provisions of subsection (b) of this Section 2. For purposes of subsection 2(a)(ii)(B) above, to be eligible to receive amounts described in Section 2(b) below, a Change in Control must be

 

8


consummated within the twelve (12) month period following the Executive’s Termination Date, except in circumstances pursuant to which the consummation of the Change in Control is delayed, through no failure of the Company or the third person, by a governmental or regulatory authority or agency with jurisdiction over the matter, or as a result of other similar circumstances where third party approval is necessary and is delayed. In such a circumstance, the remainder of the twelve (12) month period shall be tolled and shall recommence upon termination of the delaying event.

(b) Compensation and Benefits Upon Involuntary Termination Associated With a Change in Control . In the event a termination described in subsection (a) of this Section 2 occurs, and subject to the Executive’s compliance with the provisions of Section 4 hereof, the Company shall pay and provide to the Executive after his Termination Date:

(i) A lump sum cash payment equal to (A) two (2) times Base Pay, plus (B) two (2) times Incentive Pay.

(ii) The Executive shall receive a pro rated payment of his Incentive Pay for the year in which his Termination of Employment occurs. The pro rated payment shall be based on the Executive’s Incentive Pay as of the Executive’s Termination Date, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of his termination and the denominator of which is 365.

(iii) For the twenty-four (24) month period immediately following the Termination Date or, if later, the date of the Change in Control:

(1) If the Executive elects COBRA continuation coverage, the Executive shall continue to participate in all medical, dental and vision insurance plans he was participating in on the Termination Date, and the Company shall pay the applicable premium. During the applicable period of coverage described in the foregoing sentences, the Executive shall be entitled to benefits on substantially the same basis and cost as would have otherwise been provided had the Executive not separated from service. To the extent that such benefits are available under the above-referenced benefit plans and the Executive had such coverage immediately prior to the Termination Date, such continuation of benefits for the Executive shall also cover the Executive’s dependents for so long as the Executive is receiving benefits under this paragraph (iii). The COBRA Continuation Period for medical and dental insurance under this paragraph (iii) shall be deemed to run concurrent with the continuation period federally mandated by COBRA (generally eighteen (18) months), or any other legally mandated and applicable federal, state, or local coverage period for benefits provided to terminated employees under the health care plan. For purposes of this Agreement, “COBRA Continuation Period” shall mean the continuation period for medical and dental insurance to be provided under the terms of this Agreement which shall commence on the first day of the calendar month following the month in which the Termination Date falls and generally shall continue for an 18-month period.

 

9


(2) Following the conclusion of the 18-month COBRA period described above, the Company will provide coverage as follows :

(A) If the relevant plan is self insured (within the meaning of Code Section 105(h)), and such plan permits coverage for the Executive, then the Company will continue to provide coverage under the plan for an additional six (6) months and will annually impute income to the Executive for the fair market value of the premium.

(B) If, however, any such plan does not permit the continued participation following the end of the COBRA Continuation Period as contemplated above, then the Company will reimburse the Executive for the actual cost to the Executive of any individual health insurance policy obtained by Employee in accordance with the procedures set forth in subsection (iv) below.

(iv) If the Executive would have been eligible for post-retirement medical and dental coverage had he retired from employment during the period of twenty-four (24) months following his Termination Date, but is not so eligible as a result of his termination, then, at the conclusion of the benefit continuation period described in (iii) above, the Company shall take all commercially reasonable efforts to provide the Executive with additional continued group medical and dental coverage comparable to that which would have been available to him from time to time under the Company’s post-retirement medical and dental benefit program, for as long as such coverage would have been available under such program. It is specifically acknowledged by the Executive that if such coverage is provided under a Company sponsored self-insured plan, it will be provided on an after-tax basis and the Executive will have income imputed to him annually equal to the fair market value of the premium. If this coverage cannot be provided by the Company, (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided), then as an alternative, the Company will reimburse the Executive in lieu of such coverage an amount equal to the Executive’s actual and reasonable after-tax cost of continuing comparable coverage.

Reimbursement to the Executive pursuant to subsections (iii) or (iv) above will be available only to the extent that (1) such expense is actually incurred for any particular calendar year and reasonably substantiated; (2) reimbursement shall be made no later than the end of the calendar year following the year in which such expense is incurred by the Executive; (3) no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year; and (4) the right to this reimbursement is not subject to liquidation or exchange for another benefit. Notwithstanding the foregoing, under subsection (iii) no reimbursement will be provided for any expense incurred following the additional six (6) months or for any expense which relates to coverage after such date.

 

10


(v) A lump sum cash payment equal to the total amount that the Executive would have received under the Company’s 401(k) plan as a Company match if the Executive was eligible to participate in the Company’s 401(k) plan for the twenty-four (24) month period after his Termination Date and he contributed the maximum amount to the plan for the match. Such amount shall be determined based on the assumption that the Executive would have received annual Base Pay plus Incentive Pay during such period in the amounts set forth in Sections 2(b)(i) and (ii) above.

(vi) A lump sum cash payment equal to the difference between the present value of the Executive’s accrued pension benefits at his Termination Date under the Company’s qualified defined benefit plan and (if eligible) its pension restoration plan (together, the “pension plans”) and the present value of the accrued pension benefits to which the Executive would have been entitled under the pension plans if the Executive had continued participation in those plans for the twenty-four (24) month period after his Termination Date. Such amount shall be determined based on the assumption that the Executive would have received annual Base Pay plus Incentive Pay during such period in the amounts set forth in Sections 2(b)(i) and (ii) above.

(vii) A lump sum cash payment of $25,000 in order to cover the cost of outplacement assistance services for the Executive and other expenses associated with seeking another employment position.

(viii) The Executive shall receive any amounts earned, accrued or owing but not yet paid to the Executive as of his Termination Date, payable in a lump sum, and any benefits accrued or earned in accordance with the terms of any applicable benefit plans and programs of the Company.

(ix) All payments under this subsection 2(b) will be made in a lump sum no later than sixty (60) days after the Termination Date (or, if later, the date of the Change in Control, as applicable); provided, however, that the benefits due under subsections (iii) and (iv) shall be provided as specified thereunder.

(c) Vesting of Equity Rights . Notwithstanding any provision to the contrary in any applicable plan, program or agreement, upon the occurrence of a Change in Control, all stock options, stock appreciation rights, restricted stock, restricted stock units and other equity rights awarded by the Company and/or CONSOL and held by the Executive will become fully vested and/or exercisable, as the case may be, on the date on which the Change in Control occurs, and all such stock options or stock appreciation rights held by the Executive shall remain exercisable for the period set forth in the award agreement covering the options or rights.

 

11


(d) Consultancy Period Option . If any Involuntary Termination Associated With a Change in Control occurs, the Company may, in its sole discretion, elect to require reasonable cooperation from the Executive following the Executive’s Termination Date for a period (the “Consultancy Period”) not to exceed twenty-four (24) months. In the event that the Company so elects, the Executive shall, during the pendency of the Consultancy Period, be available from time to time, at the request of the Company’s Chairman of the Board or Chief Executive Officer, to provide advice and assistance concerning (i) the transition of the Executive’s duties and responsibilities to any successor to his position, and (ii) any other matters concerning the Company’s corporate, business and financial affairs which are consistent with the Executive’s expertise and experience. Such advice and assistance may, at the Executive’s option, be provided either in person or by telephone or videoconference. In no event shall the Company request, nor shall the Executive be required to provide more than five (5) hours of consulting services per work week, nor to provide such services other than during normal Company business hours. The Executive shall be reimbursed by the Company for any reasonable expenses incurred in connection with the performance of such services, subject to compliance with the Company’s standard policies and procedures regarding reimbursement of expenses. The Executive shall be permitted, during the Consultancy Period, to engage in other business and personal activities; provided, that such activities are not inconsistent with the Executive’s duties under Sections 9 and 10 hereof.

3. Termination of Employment on Account of Disability, Cause or Death . Notwithstanding anything in this Agreement to the contrary, if the Executive’s employment terminates on account of Disability, the Executive shall be entitled to receive disability benefits under any disability program maintained by the Company that covers the Executive, and the Executive shall not be considered to have terminated employment under this Agreement and shall not receive benefits pursuant to Section 2 hereof. If the Executive’s employment terminates on account of Cause or because of his death, the Executive shall not be considered to have terminated employment under this Agreement and shall not receive benefits pursuant to Section 2 hereof.

4. Release . To receive the consideration described in Section 2(b) of this Agreement, the Executive must sign a Separation of Employment and General Release Agreement, substantially in the form attached hereto as Annex A (the “Release”), deliver the signed Release to the Company’s General Counsel within thirty (30) days (unless a longer period is required by law) and not revoke the Release within the seven-day revocation period provided for in the Release.

5. Enforcement . Without limiting the rights of the Executive at law or in equity, if the Company or CONSOL fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite “prime rate” as quoted from time to time during the relevant period in the Eastern Edition of The Wall Street Journal . Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.

 

12


6. Certain Additional Payments by the Company .

(a) The provisions of this Section 6 shall apply notwithstanding anything in this Agreement or any other agreement to the contrary. Subject to subsection (b) below, in the event that it shall be determined that any payment or distribution to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (a “Payment”), would constitute an “excess parachute payment” within the meaning of Section 280G of the Code, the Company shall pay the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive after deduction of any excise tax imposed under Section 4999 of the Code, and any federal, state and local income tax, employment tax, excise tax and other tax imposed upon the Gross-Up Payment, shall be equal to the Payment.

(b) Notwithstanding subsection (a), and notwithstanding any other provisions of this Agreement to the contrary, if the net after-tax benefit to the Executive of receiving the Gross-Up Payment does not exceed the Safe Harbor Amount (as defined below) by more than 10% (as compared to the net-after tax benefit to the Executive resulting from elimination of the Gross-Up Payment and reduction of the Payments to the Safe Harbor Amount), then (i) the Company shall not pay the Executive the Gross-Up Payment, and (ii) the provisions of subsection (c) below shall apply. The term “Safe Harbor Amount” means the maximum dollar amount of parachute payments that may be paid to the Executive under Section 280G of the Code without imposition of an excise tax under Section 4999 of the Code.

(c) The provisions of this subsection (c) shall apply only if the Company is not required to pay the Executive a Gross-Up Payment as a result of subsection (b) above. If the Company is not required to pay the Executive a Gross-Up Payment as a result of the provisions of subsection (b), the Company will apply a limitation on the Payment amount as set forth below (a “Parachute Cap”) as follows: The aggregate present value of the Payments under Section 2(b) of this Agreement (“Agreement Payments”) shall be reduced (but not below zero) to the Reduced Amount. The “Reduced Amount” shall be an amount expressed in present value which maximizes the aggregate present value of Agreement Payments without causing any Payment to be subject to the limitation of deduction under Section 280G of the Code. For purposes of this Section 6, “present value” shall be determined in accordance with Section 280G(d)(4) of the Code.

(d) Except as set forth in the next sentence, all determinations to be made under this Section 6 shall be made by the nationally recognized independent public accounting firm used by the Company immediately prior to the Change in Control (“Accounting Firm”), which Accounting Firm shall provide its determinations and any supporting calculations to the Company and the Executive within ten (10) days of the Executive’s Termination Date. The value of the Executive’s non-competition covenant under Section 10(a) of this Agreement shall be determined by independent appraisal by a nationally-recognized business valuation firm acceptable to both the Executive and the Company, and a portion of the Agreement Payments shall, to the extent of that appraised value, be specifically allocated as reasonable compensation for such non-competition covenant and shall not be treated as a parachute payment. If any Gross-Up Payment is

 

13


required to be made, the Company shall make the Gross-Up Payment within ten (10) days after receiving the Accounting Firm’s calculations, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which the Executive remits the related taxes. Any such determination by the Accounting Firm shall be binding upon the Company and the Executive.

(e) All of the fees and expenses of the Accounting Firm in performing the determinations referred to in this Section 6 shall be borne solely by the Company.

7. No Mitigation Obligation . The Company hereby acknowledges that it will be difficult and may be impossible for the Executive to find reasonably comparable employment following the Termination Date. Accordingly, the payment of the severance compensation by the Company to the Executive in accordance with the terms of this Agreement is hereby acknowledged by the Company to be reasonable, and the Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of the Executive hereunder or otherwise. Notwithstanding anything to the contrary contained herein, as a condition to accepting benefits provided hereunder, the Executive will be required to waive, and will be deemed to have waived, any other right or entitlement to severance or termination benefits from the Company, its Subsidiaries, CONSOL and/or its subsidiaries.

8. Legal Fees and Expenses . In the event of a Change in Control, it is the intent of the Company that the Executive not be required to incur legal fees and the related expenses associated with the interpretation, enforcement or defense of the Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would detract from the benefits intended to be extended to the Executive hereunder. Accordingly, if a Change in Control occurs and it should appear to the Executive that the Company or any other person has failed to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Executive the benefits provided or intended to be provided to the Executive under Section 2 of this Agreement, the Company irrevocably authorizes the Executive from time to time to retain counsel of the Executive’s choice, at the expense of the Company as hereafter provided, to advise and represent the Executive in connection with any such interpretation, enforcement or defense, including without limitation the initiation or defense of any litigation or other legal action, whether by or against the Company or any director, officer or employee of the Company, in any jurisdiction. Notwithstanding any existing or prior attorney-client relationship between the Company and such counsel, the Company irrevocably consents to the Executive’s entering into an attorney-client relationship with such counsel, and in that connection, the Company and the Executive agree that a confidential relationship will exist between the Executive and such counsel. Without respect to whether the Executive prevails, in whole or in part, in connection with any of the foregoing, the Company will pay and be solely financially responsible for any and all reasonable attorneys’ and related fees and expenses incurred by the Executive in connection with any of the foregoing; provided that, in regard to such matters, the Executive has not acted frivolously, in bad faith or with no colorable claim of success. Such fees and expenses will be paid by the Company as they are incurred by the

 

14


Executive, but in no event later than the end of the Executive’s taxable year following the Executive’s taxable year in which the Executive incurs the fees and expenses. In addition, no reimbursement provided for any expense incurred in one taxable year will affect the amount available in another taxable year, and the right to this reimbursement is not subject to liquidation or exchange for another benefit.

9. Confidentiality . The Executive hereby covenants and agrees that, except as specifically requested or directed by the Company, he will not disclose to any person not employed by the Company, or use in connection with engaging in competition with the Company, any confidential or proprietary information (as defined below) of the Company. For purposes of this Agreement, the term “confidential or proprietary information” will include all information of any nature and in any form that is owned by the Company and that is not publicly available (other than by the Executive’s breach of this Section 9) or generally known to persons engaged in businesses similar or related to those of the Company. Confidential or proprietary information will include, without limitation, the Company’s financial matters, customers, employees, industry contracts, strategic business plans, product development (or other proprietary product data), marketing plans, consulting solutions and processes, and all other secrets and all other information of a confidential or proprietary nature which is protected by the Uniform Trade Secrets Act. For purposes of this Section 9, the term “Company” will also include CONSOL, and its subsidiaries, and any Subsidiary (collectively, the “Restricted Group”). The foregoing obligations imposed by this Section 9 will not apply (i) in the course of the business of and for the benefit of the Company, (ii) if such confidential or proprietary information has become, through no fault of the Executive, generally known to the public, or (iii) if the Executive is required by law to make disclosure (after giving the Company notice and an opportunity to contest such requirement).

10. Covenants Not to Compete and Not to Solicit . In the event of the Executive’s Termination of Employment, the Company’s obligations to provide the payments and benefits set forth in Section 2 shall be expressly conditioned upon the Executive’s compliance with the covenants not to compete and not to solicit as provided herein. In the event the Executive breaches his obligations to the Company as provided herein, the Company’s obligations to provide the payments and benefits set forth in Section 2 shall cease, without prejudice to any other remedies that may be available to the Company. For purposes of this Section 10 and the definition of “Restricted Business” and “Restricted Territory” as used herein, the term “Company” will also include CONSOL, and its subsidiaries, and any Subsidiary

(a) Covenant Not to Compete . If the Executive is receiving payments and benefits under Section 2 above (or subsequently becomes entitled thereto because of a termination described in Section 2(a)(ii)), then, for a period of one (1) year following the Executive’s Termination Date, the Executive shall not directly or indirectly engage in (whether as an employee, consultant, proprietor, partner, director or otherwise), or have any ownership interest in, or participate in a financing, operation, management or control of, any person, firm, corporation or business that is a Restricted Business in a Restricted Territory without the prior written consent of the Board. For this purpose, ownership of no more than 5% of the outstanding Voting Stock of a publicly traded corporation shall not constitute a violation of this provision.

 

15


(b) Covenant Not to Solicit . If the Executive is receiving payments and benefits under Section 2 above (or subsequently becomes entitled thereto because of a termination described in Section 2(a)(ii)), then, for a period of two (2) years following the Executive’s Termination Date, the Executive shall not: (i) solicit, encourage or take any other action which is intended to induce any other employee of the Company to terminate his employment with the Company; or (ii) interfere in any manner with the contractual or employment relationship between the Company and any such employee of the Company. The foregoing shall not prohibit the Executive or any entity with which the Executive may be affiliated from hiring a former employee of the Company; provided, that such hiring results exclusively from such former employee’s affirmative response to a general recruitment effort.

(c) Interpretation . The covenants contained herein are intended to be construed as a series of separate covenants, one for each county, town, city and state or other political subdivision of a Restricted Territory. Except for geographic coverage, each such separate covenant shall be deemed identical in terms to the covenant contained in the preceding subsections. If, in any judicial proceeding, the court shall refuse to enforce any of the separate covenants (or any part thereof) deemed included in such subsections, then such unenforceable covenant (or such part) shall be deemed to be eliminated from this Agreement for the purpose of those proceedings to the extent necessary to permit the remaining separate covenants (or portions thereof) to be enforced.

(d) Reasonableness . In the event that the provisions of this Section 10 shall ever be deemed to exceed the time, scope or geographic limitations permitted by applicable laws, then such provisions shall be reformed to the maximum time, scope or geographic limitations, as the case may be, permitted by applicable laws.

11. Employment Rights . Nothing expressed or implied in this Agreement will create any (i) right or duty on the part of the Company or the Executive to have the Executive remain in the employment of the Company or any Subsidiary prior to or following any Change in Control, or (ii) duty on the part of CONSOL to reemploy the Executive following any Change in Control.

12. Withholding of Taxes . The Company, CONSOL and their respective subsidiaries may withhold from any amounts payable under this Agreement all federal, state, city or other taxes required to be withheld pursuant to any applicable law, regulation or ruling.

13. Term of Agreement . The term of this Agreement shall commence on the Effective Date hereof and shall continue until December 31, 2008; provided, however, that commencing on January 1, 2009, and each January 1 thereafter, the term of this Agreement shall automatically be extended until the following December 31, unless the Company gives notice not later than October 31 of the preceding year that it does not wish to extend this Agreement; and provided, further, that regardless of any such notice by the Company, this Agreement shall continue in effect for a period of twenty-four (24) months beyond the term provided herein if a Change in Control of the Company occurs during the period that this Agreement is in effect, unless otherwise terminated sooner as provided herein.

 

16


14. Successors and Binding Agreement .

(a) The Company and CONSOL will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company or CONSOL, by agreement in form and substance reasonably satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company or CONSOL would be required to perform if no such succession had taken place. This Agreement will be binding upon and inure to the benefit of the Company, CONSOL and any successor to the Company or CONSOL, including without limitation any persons acquiring directly or indirectly all or substantially all of the business or assets of the Company or CONSOL whether by purchase, merger, consolidation, reorganization or otherwise (and such successor will thereafter be deemed the “Company” and/or “CONSOL” for the purposes of this Agreement), but will not otherwise be assignable, transferable or delegable by the Company or CONSOL.

(b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees. This Agreement will supersede the provisions of any employment or other agreement between the Executive, the Company and/or CONSOL that relate to any matter that is also the subject of this Agreement and such provisions in such other agreements will be null and void.

(c) This Agreement is personal in nature and neither of the parties hereto will, without the consent of the other, assign, transfer or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Sections 14(a) and (b). Without limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not be assignable, transferable or delegable, whether by pledge, creation of a security interest, or otherwise, other than by a transfer by the Executive’s will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer contrary to this Section 14(c), the Company and CONSOL will have no liability to pay any amount so attempted to be assigned, transferred or delegated.

15. Notices . For all purposes of this Agreement, all communications, including without limitation, notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed by the recipient), or five (5) business days after having been mailed by United States registered or certified mail, return receipt requested, postage prepaid, or three (3) business days after having been sent by a nationally recognized courier service for overnight/next-day delivery, such as FedEx, UPS, or the United States Postal Service, addressed to the Company and CONSOL (to the attention of the Secretary of the Company/CONSOL) at its principal executive office and to the Executive at his principal residence, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address will be effective only upon receipt.

16. Governing Law . The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, without giving effect to the principles of conflict of laws of such Commonwealth.

 

17


17. Validity . If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid or legal.

18. Miscellaneous . No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in a writing signed by the Executive, the Company and CONSOL. No waiver by any party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party that are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement. Any reference in this Agreement to a provision of a statute, rule or regulation will also include any successor provision thereto. Whenever used herein, the masculine includes the feminine.

19. Section 409A .

(a) If any benefit provided under this Agreement is subject to the provisions of Section 409A of the Code and the regulations issued thereunder, the provisions of the Agreement shall be administered, interpreted and construed in a manner necessary to comply with Section 409A and the regulations issued thereunder (or disregarded to the extent such provision cannot be so administered, interpreted, or construed).

(b) Severance benefits are payable only if the Executive is involuntarily terminated by the Company as provided under this Agreement. For purposes of this Agreement, the Executive shall be considered to have experienced a termination of employment only if the Executive has terminated 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. Whether the Executive has terminated employment will be determined based on all of the facts and circumstances and in accordance with the guidance issued under Section 409A of the Code.

(c) For purposes of Section 409A, each severance benefit payment shall be treated as a separate payment. Each payment under this Agreement is intended to be excepted from Section 409A to the maximum extent provided under Section 409A as follows: (i) each payment that is scheduled to be made on or before March 15th of the

 

18


calendar year following the calendar year containing the Executive’s Termination Date (or, if later, the date of the Change in Control) is intended to be excepted under the short-term deferral exception as specified in Treas. Reg. § 1.409A-1(b)(4); (ii) post-termination medical benefits are intended to be excepted under the medical benefits exceptions as specified in Treas. Reg. § 1.409A-1(b)(9)(v)(B); and (iii) each payment that is not otherwise excepted under the short-term deferral exception or medical benefits exception is intended to be excepted under the involuntary pay exception as specified in Treas. Reg. § 1.409A-1(b)(9)(iii). The Executive shall have no right to designate the date of any payment under this Agreement.

(d) With respect to payments subject to Section 409A of the Code (and not excepted therefrom), if any, it is intended that each payment is paid on permissible distribution event and at a specified time consistent with Section 409A of the Code. The Company reserves the right to accelerate and/or defer any payment to the extent permitted and consistent with Section 409A. Notwithstanding any provision of this Agreement to the contrary, to the extent that a payment hereunder is subject to Section 409A of the Code (and not excepted therefrom) and payable on account or a termination of employment, such payment shall be delayed for a period of six (6) months after the Termination Date (or, if earlier, the death of the Executive ) if the Executive is a “specified employee” (as defined in Section 409A of the Code and determined in accordance with the procedures established by the Company). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period in the month following the month containing the 6-month anniversary of the Termination Date.

20. Survival . Notwithstanding any provision of this Agreement to the contrary, the parties’ respective rights and obligations under Sections 2, 6, 8, 9, and 10 will survive any termination or expiration of this Agreement or the termination of the Executive’s employment for any reason whatsoever.

21. Counterparts . This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original but all of which together will constitute one and the same agreement.

(Remainder of Page Intentionally Blank)

 

19


IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.

 

CNX Gas Corporation
By:  

 

Name:  
Title:  
CONSOL Energy Inc.
By:  

 

Name:  
Title:  

 

20


Annex A

SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT

THIS SEPARATION OF EMPLOYMENT AND GENERAL RELEASE AGREEMENT (this “Agreement”) is made as of this      day of             ,         , by and between                      and                      (collectively the “Company”) and                      (the “Executive”).

WHEREAS, the Executive formerly was employed by the Company as                      ; and

WHEREAS, the Executive and Company entered into a Change in Control Severance Agreement, dated         , 200  , (the “Severance Agreement”) which provides for certain payments and benefits in the event that the Executive’s employment is terminated on account of a reason set forth in the Severance Agreement; and

WHEREAS, the Executive’s employment with the Company was terminated for reasons that qualify the Executive to receive certain payments and benefits, as set forth in Section 2(b) of the Severance Agreement, subject to, among other things, the Executive’s execution of this Agreement.

NOW, THEREFORE, for and in consideration of the Company’s commitments in Section 2(b) of the Severance Agreement, and intending to be legally bound, the Executive and the Company hereby agree as follows:

1. (a) The Executive does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Company, its affiliates, subsidiaries and parents, and its and their respective officers, directors, employees, and agents, and its and their respective successors and assigns, heirs, executors, and administrators, as well as the current and former fiduciaries of any pension, welfare, or other benefit plans applicable to the employees or former employees of the Company, and the current and former welfare and other benefit plans sponsored by the Company (collectively, “Releasees”) from all causes of action, suits, debts, claims and demands whatsoever in law or in equity, which the Executive ever had, now has, or hereafter may have, whether known or unknown, or which the Executive’s heirs, executors, or administrators may have, by reason of any matter, cause or thing whatsoever, from the beginning of time to the date the Executive signs this Agreement, and particularly, but without limitation of the foregoing general terms, any claims arising from or relating in any way to the Executive’s employment relationship with the Company, the terms and conditions of that employment relationship, and the termination of that employment relationship, including, but not limited to, any claims arising under the Age Discrimination in Employment Act, the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Worker Readjustment and Retraining Notification Act, the Consolidated Omnibus Budget Reconciliation Act, the Employee Retirement Income Security Act of 1974, the Pennsylvania Human Relations Act, and any other claims under any federal, state or local common law, statutory, or regulatory provision, now or hereafter recognized, and any claims for attorneys’ fees and costs. This Agreement is effective without regard to the legal nature of the claims raised and without regard to whether any such claims are based upon tort, equity, implied or express contract or discrimination of any sort.

 

1


(b) Although Paragraph 1(a) is intended to be a general release, it is understood and agreed that Paragraph 1(a) excludes claims related to the Executive’s right to receive the payments and benefits described in Section 2(b) of the Severance Agreement, as well as claims under any statute or common law that the Executive is legally barred from releasing, such as the Executive’s entitlement to vested pension benefits.

(c) Nothing herein is intended to or shall preclude the Executive from filing a charge with any appropriate federal, state or local government agency and/or cooperating with said agency in its investigation. The Executive, however, explicitly waives any right to file a personal lawsuit or receive monetary damages that the agency may recover against the Releasees, without regard as to who brought any said complaint or charge. Employee further agrees that to the extent any relief, including monetary relief, is awarded in any such proceeding, all amounts paid as consideration under Section 2(b) of the Separation Agreement shall be a setoff and credit against any such award to the fullest extent permitted by law.

(d) The Executive represents and agrees by signing below that the Executive has not been denied any leave or benefit requested, has received the appropriate pay for all hours worked for the Company, and has no known workplace injuries or occupational diseases.

(e) To the fullest extent permitted by law, the Executive represents and affirms that (i) [ other than                      , ] the Executive has not filed or caused to be filed on the Executive’s behalf any claim for relief against any Releasee and, to the best of the Executive’s knowledge and belief, no outstanding claims for relief have been filed or asserted against the Company or any Releasee on the Executive’s behalf; and (ii) [ other than                     , ] the Executive has not reported any improper, unethical or illegal conduct or activities to any supervisor, manager, department head, human resources representative, agent or other representative of the Company, to any member of the Company’s legal or compliance departments, or to the ethics hotline, and has no knowledge of any such improper, unethical or illegal conduct or activities. The Executive agrees to promptly dismiss with prejudice all claims for relief filed before the date the Executive signs this Agreement.

2. The Company does hereby REMISE, RELEASE AND FOREVER DISCHARGE the Executive from all claims, demands or causes of action arising out of facts or occurrences prior to the date of this Agreement, but only to the extent the Company knows or reasonably should know of such facts or occurrence and only to the extent such claim, demand or cause of action relates to a violation of applicable law or the performance of the Executive’s duties with the Company; provided, however, that this release of claims shall not in any case be effective with respect to any claim by the Company alleging a breach of the Executive’s obligations under this Agreement. [Note: The Company and the Executive may, but shall not be required to mutually agree on a case-by-case basis at the time of the signing of this release to include the foregoing provision, or a substantially similar provision, to this Agreement.]

3. The Executive further agrees and recognizes that the Executive’s employment relationship with the Company has been permanently severed, that the Executive shall not seek employment with the Company or any affiliated entity at any time in the future, and that the Company has no obligation to employ the Executive in the future.

 

2


4. The Executive further agrees that the Executive will not disparage or subvert the Company, or make any statement reflecting negatively on the Releasees including, but not limited to, statements relating to the operation or management of the Company, the Executive’s employment and the termination of the Executive’s employment, irrespective of the truthfulness or falsity of such statement.

5. The Executive acknowledges that if the Executive had not executed this Agreement containing a release of all claims, the Executive would not have been entitled to the payments and benefits set forth in Section 2(b) of the Severance Agreement.

6. This Agreement contains the entire agreement between the Company and the Executive relating to the subject matter hereof. No prior or contemporaneous oral or written agreements or representations may be offered to alter the terms of this Agreement. To the extent Employee has entered into other agreements with the Company that are not in conflict with this Agreement, including, but not limited to the Severance Agreement, the terms of this Agreement shall not supersede, but shall be in addition to such other agreements.

7. The Executive agrees not to disclose the terms of this Agreement or the Severance Agreement to anyone, except the Executive’s spouse, attorney and, as necessary, tax/financial advisor. Likewise, the Company agrees that the terms of this Agreement will not be disclosed except as may be necessary to obtain approval or authorization to fulfill its obligations hereunder or as required by law. It is expressly understood that any violation of the confidentiality obligation imposed hereunder constitutes a material breach of this Agreement.

8. The Executive represents that the Executive has returned to the Company and does not presently have in the Executive’s possession or control any records and business documents, whether on computer or hard copy, and other materials (including but not limited to computer disks and tapes, computer programs and software, office keys, correspondence, files, customer lists, technical information, customer information, pricing information, business strategies and plans, sales records and all copies thereof) (collectively, the “Corporate Records”) provided by the Company and/or its predecessors, subsidiaries or affiliates or obtained as a result of the Executive’s prior employment with the Company and/or its predecessors, subsidiaries or affiliates, or created by the Executive while employed by or rendering services to the Company and/or its predecessors, subsidiaries or affiliates. In addition, the Executive has or will promptly return in good condition any other Company owned equipment or property, including, but not limited to, automobiles, personal data assistants, facsimile machines, copy machines, pagers, credit cards, cellular telephone equipment, business cards, laptops and computers. At the Executive’s request, the Company will make reasonable arrangements to transfer cellular phone numbers and personal fax numbers to the Executive.

9. Nothing in this Agreement shall prohibit or restrict the Executive from: (i) making any disclosure of information required by law; (ii) providing information to, or testifying or otherwise assisting in any investigation or proceeding brought by, any federal regulatory or law enforcement agency or legislative body, any self-regulatory organization, or the Company’s designated legal, compliance or human resources officers; or (iii) filing, testifying, participating in or otherwise assisting in a proceeding relating to an alleged violation of any federal, state or municipal law relating to fraud, or any rule or regulation of the Securities and Exchange Commission or any self-regulatory organization.

 

3


10. The parties agree and acknowledge that the agreement by the Company described herein, and the release of any asserted or unasserted claims against the Releasees, are not and shall not be construed to be an admission of any violation of any federal, state or local statute or regulation, or of any duty owed by any of the Releasees to the Executive.

11. The Executive agrees and recognizes that should the Executive breach any of the obligations or covenants set forth in Section 10 of the Severance Agreement, the Company will have no further obligation to provide the Executive with the consideration set forth in Section 2(b) of the Severance Agreement, and will have the right to seek repayment of all consideration paid up to the time of any such breach. Notwithstanding the foregoing, the Executive acknowledges that if the Executive breaches Section 10 of the Severance Agreement, and if the Company terminates or recovers any of the payments or benefits provided under Section 2(b) of the Severance Agreement (as provided for in Section 10 of the Severance Agreement), the release provided by Section 1 of this Agreement shall remain valid and enforceable.

12. The Executive further agrees that the Company shall be entitled to preliminary and permanent injunctive relief, without the necessity of proving actual damages, as well as to an equitable accounting of all earnings, profits and other benefits arising from any violations of this Agreement, which rights shall be cumulative and in addition to any other rights or remedies to which the Company may be entitled.

13. This Agreement and the obligations of the parties hereunder shall be construed, interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania.

14. The Executive certifies and acknowledges as follows:

(a) That the Executive has read the terms of this Agreement, and that the Executive understands its terms and effects, including the fact that the Executive has agreed to RELEASE AND FOREVER DISCHARGE the Releasees from any legal action arising out of the Executive’s employment relationship with the Company and the termination of that employment relationship; and

(b) That the Executive has signed this Agreement voluntarily and knowingly in exchange for the consideration described herein, which the Executive acknowledges is adequate and satisfactory to him and which the Executive acknowledges is in addition to any other benefits to which the Executive is otherwise entitled; and

(c) That the Executive has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement; and

(d) That the Executive does not waive rights or claims that may arise after the date this Agreement is executed; and

 

4


(e) That the Company has provided the Executive with a period of [ twenty-one (21) ] or [ forty-five (45) ] days within which to consider this Agreement, and that the Executive has signed on the date indicated below after concluding that this Agreement is satisfactory; and

(f) The Executive acknowledges that this Agreement may be revoked within seven (7) days after execution, and it shall not become effective until the expiration of such seven (7) day revocation period. In the event of a timely revocation by the Executive, this Agreement will be deemed null and void and the Company will have no obligations hereunder or under Section 2(b) of the Severance Agreement.

Intending to be legally bound hereby, the Executive and the Company executed the foregoing Separation of Employment and General Release Agreement this              day of     ,      .

 

 

    Witness:  

 

Executive      
[Insert Company Name]      
By:  

 

    Witness:  

 

Name:        
Title:        

 

5

Exhibit 10.23

CNX GAS CORPORATION

EQUITY INCENTIVE PLAN

AS AMENDED AND RESTATED ON AUGUST 13, 2008

Capitalized terms shall have the meaning set forth in Section 16 of the Plan.

 

1. Purpose.

The purposes of the CNX Gas Corporation Equity Incentive Plan are to promote the interests of the Company and its stockholders by (i) attracting and retaining executive officers, directors and other key employees and consultants of the Company and its Affiliates; (ii) motivating such individuals by means of performance-related incentives to achieve long-range performance goals; and (iii) enabling such individuals to participate in the long-term growth and financial success of the Company. The Plan is amended and restated as set forth herein to comply with Section 409A.

 

2. Administration.

 

  (a) Authority of Board . The Plan shall be administered by the Board. Subject to the terms of the Plan and applicable law, and in addition to other express powers and authorizations conferred on the Board by the Plan, the Board shall have full power and discretionary authority to decide all matters relating to the administration and interpretation of the Plan, including but not limited to the authority to:

 

  (i) designate Participants;

 

  (ii) determine the type or types of Awards to be granted to an Eligible Individual;

 

  (iii) determine the number of Shares to be covered by, or with respect to which payments, rights, or other matters are to be calculated in connection with, Awards;

 

  (iv) determine the terms and conditions of any Award, including the discretion to determine the extent to which Awards will be structured to conform to the requirements applicable to performance-based compensation described in Section 162(m) of the Code;

 

  (v) determine whether, to what extent, and under what circumstances Awards may be settled or exercised in cash, Shares, other securities, other Awards or other property, or canceled, forfeited, or suspended and the method or methods by which Awards may be settled, exercised, canceled, forfeited, or suspended;

 

  (vi) determine whether, and to what extent, and under what circumstances cash, Shares, other securities, other Awards, other property, and other amounts payable with respect to an Award shall be deferred either automatically or at the election of the holder thereof or of the Board;


  (vii) interpret and administer the Plan and any instrument or agreement relating to, or Award made under, the Plan;

 

  (viii) establish, amend, suspend, or waive such rules and regulations and appoint such agents as it shall deem appropriate for the proper administration of the Plan;

 

  (ix) advance the lapse of any waiting period, accelerate any exercise date, waive or modify any restriction applicable to Awards (except those restrictions imposed by law);

 

  (x) approve forms of Award Agreements for Awards under the Plan;

 

  (xi) establish the terms and conditions of Awards as the Board determines to be necessary or appropriate to conform to applicable requirements or practices of jurisdictions outside of the United States;

 

  (xii) correct any defect or supply any omission or reconcile any inconsistency in the Plan or in any Award Agreement in the manner and to the extent it shall deem expedient to carry the Plan into effect, and it shall be the sole and final judge of such expediency; and

 

  (xiii) make any other determination and take any other action that the Board deems necessary or desirable for the administration of the Plan.

 

  (b) Board Discretion Binding . Unless otherwise expressly provided in the Plan, all designations, determinations, interpretations, and other decisions under or with respect to the Plan or any Award shall be within the sole discretion of the Board, may be made at any time and shall be final, conclusive, and binding upon all Persons, including the Company, any Affiliate, any Participant, any holder or beneficiary of any Award, any stockholder and any Employee.

 

  (c) Delegation to Committee . The Board may delegate to the Committee any or all authority for administration of the Plan, and may revoke such delegation at any time. If authority is delegated to the Committee, all references to the Board in the Plan shall mean and relate to the Committee except as otherwise provided by the Board.

 

  (d) Delegation by the Committee . Except to the extent prohibited by applicable law or regulation, the Committee may delegate all or any portion of its responsibilities and powers to any person or persons selected by it, and may revoke any such delegation at any time.

 

  (e) No Liability . No member of the Board, the Committee, or any person they delegate responsibilities and/or duties to, shall be liable for any action taken or determination made in good faith with respect to the Plan or any Award granted hereunder.

 

2


3. Shares Available for Awards; Limitations.

 

  (a) Shares Available . The maximum number of Shares that may be delivered pursuant to Awards granted under the Plan shall be 2,500,000. No Participant receiving an Award shall be granted: (i) Options or Stock Appreciation Rights with respect to more than 350,000 Shares during any fiscal year; (ii) Performance Awards (denominated in Shares) which could result in such Participant receiving more than 150,000 Shares for each full or partial fiscal year of the Company contained in the performance period of a particular Performance Award; or (iii) Performance Awards (paid in cash) which could result in such Participant receiving a cash amount in equivalent value equal to more than 250,000 Shares for each full or partial fiscal year of the Company contained in the performance period of a particular Performance Award. The foregoing limitations shall be subject to adjustment as provided in Section 3(c), but only to the extent that any such adjustment will not affect the status of: (i) any Award intended to qualify as performance-based compensation under Section 162(m) of the Code; or (ii) any Award intended to qualify as an Incentive Stock Option.

If, after the Effective Date, any Shares covered by an Award granted under the Plan, or to which such an Award relates, are forfeited, or otherwise terminate or are canceled without the delivery of Shares, then the Shares covered by such Award, or to which such Award relates, or the number of Shares otherwise counted against the aggregate number of Shares with respect to which Awards may be granted, to the extent of any such forfeiture, termination or cancellation, shall again become Shares with respect to which Awards may be granted under the Plan.

 

  (b)

Adjustments . In the event a dividend or other distribution (whether in the form of cash, Shares, other securities, or other property), recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase, or exchange of Shares or other securities of the Company, issuance of warrants or other rights to purchase Shares or other securities of the Company, or other similar corporate transaction or event affects the Shares such that an adjustment is determined by the Board to be necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan, then the Board shall, in an equitable manner, (i) adjust any or all of (A) the number of Shares or other securities of the Company (or number and kind of other securities or property) with respect to which Awards may be granted, (B) the maximum number of Shares subject to an Award granted to a Participant pursuant to Section 3(a) of the Plan, (C) the number of Shares or other securities of the Company (or number and kind of other securities or property) subject to outstanding Awards, and (D) the grant or exercise price with respect to any Award; (ii) if deemed appropriate, provide for an equivalent award in respect of securities of the surviving entity of any merger, consolidation or other transaction or event having a similar effect; or (iii) if deemed appropriate, make provision for a cash payment to the holder of an outstanding Award; provided, in each case, that (A) with respect to Awards of

 

3


 

Incentive Stock Options no such adjustment shall be authorized to the extent that such authority would cause the Plan to violate Section 422(b)(1) of the Code, as from time to time amended; (B) with respect to any Award, no such adjustment shall be authorized to the extent that such authority would be inconsistent with the Plan’s meeting the requirements of Section 162(m) of the Code, unless otherwise determined by the Board; and (C) with respect to any Award subject to Section 409A, no such adjustment shall be authorized to the extent that such adjustment would cause the Plan to fail to comply with Section 409A.

 

  (c) Substitute Awards . Any Shares underlying Substitute Awards shall not, unless required by law, be counted against the Shares available for Awards under the Plan.

 

  (d) Sources of Shares Deliverable under Awards . Shares to be issued under the Plan may be made available from authorized but unissued Stock, Stock held by the Company in its treasury, or Stock purchased on the open market or otherwise. During the term of the Plan, the Company will at all times reserve and keep available the number of Shares of Stock that shall be sufficient to satisfy the requirements of the Plan.

 

4. Eligibility.

Any Eligible Individual shall be eligible to be designated a Participant.

 

5. Stock Options.

 

  (a) Grant . Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the Participants to whom Options shall be granted (provided that Incentive Stock Options may only be granted to employees of the Company or a parent or subsidiary of the Company within the meaning of Code Sections 424(e) and (f)), the number of Shares to be covered by each Option, the Option price and the conditions and limitations applicable to the exercise of the Option. The Board shall have the authority to grant Incentive Stock Options, or to grant Non-Qualified Stock Options, or to grant both types of Options. In the case of Incentive Stock Options, the terms and conditions of such grants shall be subject to and comply with such rules as may be prescribed by Section 422 of the Code, as from time to time amended, and any regulations implementing such statute.

 

  (b) Exercise Price . The Board, in its sole discretion, shall establish the exercise price at the time each Option is granted. Except in the case of Substitute Awards, the exercise price of an Option may not be less than Fair Market Value on the Grant Date.

 

  (c)

Exercise . Each Option shall be exercisable at such times and subject to such terms and conditions as the Board may, in its sole discretion, specify in the applicable Award Agreement or thereafter. The Board may impose such conditions with respect to the exercise of Options, including without limitation,

 

4


 

any relating to the application of federal or state securities laws, as it may deem necessary or advisable. Notwithstanding the foregoing, an Option shall not be exercisable after the expiration of ten years from the Grant Date.

 

  (d) Payment . No Shares shall be delivered pursuant to any exercise of an Option until payment in full of the Option price is received by the Company. Such payment may be made in cash, or its equivalent, or by exchanging, actually or constructively, Shares owned by the Participant (for any minimum period set forth in the Award Agreement or as may otherwise be required by the Board (and which are not the subject of any pledge or other security interest)), or by a combination of the foregoing, provided that the combined value of all cash and cash equivalents and the Fair Market Value of any such Shares so tendered to the Company as of the date of such tender is at least equal to such Option price. The Board shall determine, in its discretion, whether a Participant may elect to pay all or any portion of the aggregate exercise price by having Shares with a Fair Market Value on the date of exercise equal to the aggregate exercise price withheld by the Company or sold by a broker-dealer or, as otherwise provided in an Award Agreement. Shares that are withheld from an award to satisfy tax-withholding obligations, shares that are surrendered to fulfill tax obligations incurred under the Plan, and shares surrendered in payment of the option exercise price upon the exercise of an option will not be available for reissuance under the Plan.

 

  (e) Restoration Options . The Board may provide in an Award Agreement for the automatic grant of a Restoration Option to a Participant who delivers Shares in payment of the exercise price of any Option granted hereunder in accordance with Section 5(d), or in the event that the withholding tax liability arising upon exercise of any such Option or Options by a Participant is satisfied through the withholding by the Company of Shares otherwise deliverable upon exercise of the Option. The grant of a Restoration Option shall be subject to the satisfaction of such conditions or criteria as the Board, in its sole discretion, shall establish from time to time. A Restoration Option shall entitle the holder thereof to purchase a number of Shares equal to the number of such Shares so delivered or withheld upon exercise of the original Option. A Restoration Option shall have a per share exercise price of not less than 100% of the per Share Fair Market Value on the Grant Date of such Restoration Option and such other terms and conditions as the Board, in its sole discretion, shall determine.

 

6. Stock Appreciation Rights.

 

  (a)

Grant . Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the Participants to whom Stock Appreciation Rights shall be granted, the number of Shares to be covered by each Stock Appreciation Right Award, the grant price thereof and the conditions and limitations applicable to the exercise thereof. Stock Appreciation Rights may be granted in tandem with another Award, in addition to another Award, or freestanding and unrelated to another Award. Stock Appreciation Rights granted in tandem with or in addition to an Award may be granted either at the same time

 

5


 

as the Award or, except in the case of Incentive Stock Options, at a later time. Stock Appreciation Rights shall have a grant price no less that the Fair Market Value of Shares covered by the right on the Grant Date (except with respect to a Substitute Award).

 

  (b) Exercise and Payment . A Stock Appreciation Right shall entitle the Participant to receive an amount equal to the excess of the Fair Market Value of a Share on the date of exercise of the Stock Appreciation Right over the grant price thereof. Unless otherwise determined by the Board, a Stock Appreciation Right shall be settled in Shares. Stock Appreciation Rights to be settled in shares of Common Stock shall be counted in full against the number of shares available for award under the Plan.

 

  (c) Other Terms and Conditions . Subject to the terms of the Plan and any applicable Award Agreement, the Board shall determine, at or after the grant of a Stock Appreciation Right, the term (up to a maximum of ten years from the Grant Date), methods of exercise, methods and form of settlement, and any other terms and conditions of any Stock Appreciation Right. Any such determination by the Board may be changed by the Board from time to time and may govern the exercise of Stock Appreciation Rights granted or exercised prior to such determination as well as Stock Appreciation Rights granted or exercised thereafter. The Board may impose such conditions or restrictions on the exercise of any Stock Appreciation Right as it shall deem appropriate.

 

7. Restricted Stock and Restricted Stock Units.

 

  (a) Grant . Subject to the provisions of the Plan, the Board shall have sole and complete authority to determine the Participants to whom Shares of Restricted Stock and Restricted Stock Units shall be granted, the number of Shares of Restricted Stock and/or the number of Restricted Stock Units to be granted to each Participant, the duration of the period during which, and the conditions under which, the Restricted Stock and Restricted Stock Units may be forfeited to the Company, and the other terms and conditions of such Awards.

 

  (b) Transfer Restrictions . Shares of Restricted Stock and Restricted Stock Units may not be sold, assigned, transferred, pledged or otherwise encumbered, except, in the case of Restricted Stock, as provided in the Plan or the applicable Award Agreements. Certificates issued in respect of Shares of Restricted Stock shall be registered in the name of the Participant and deposited by such Participant, together with a stock power endorsed in blank, with the Company. Upon the lapse of the restrictions applicable to such Shares of Restricted Stock, the Company shall deliver such certificates to the Participant or the Participant’s legal representative.

 

  (c) Payment . Each Restricted Stock Unit shall have a value equal to the Fair Market Value of a Share. Restricted Stock Units shall be paid in cash, Shares, other securities or other property, as determined in the sole discretion of the Board, upon the lapse of the restrictions applicable thereto, or otherwise in accordance with the applicable Award Agreement.

 

6


  (d) Dividends and Distributions . Dividends and other distributions paid on or in respect of any Shares of Restricted Stock or Restricted Stock Units may be paid directly to the Participant, or may be reinvested in additional Shares of Restricted Stock or in additional Restricted Stock Units, as determined by the Board in its sole discretion.

 

8. Performance Awards.

 

  (a) Grant . Subject to the limitations set forth in Section 3, the Board shall have sole and complete authority to determine the Eligible Individuals who shall receive a “Performance Award,” which shall consist of a right that is (i) denominated in cash, Options, or Shares, (ii) valued, as determined by the Board, in accordance with the achievement of such performance goals during such performance periods as the Board shall establish, and (iii) payable at such time and in such form as the Board shall determine. Unless otherwise determined by the Board, any such Performance Award shall be evidenced by an Award Agreement containing the terms of the award, including, but not limited to, the performance criteria and such terms and conditions as may be determined from time to time by the Board, in each case, not inconsistent with this Plan.

 

  (b)

Terms and Conditions . For Awards intended to be performance-based compensation under Section 162(m) of the Code, Performance Awards shall be conditioned upon the achievement of pre-established goals relating to one or more of the following performance measures, as determined in writing by the Board and subject to such modifications as specified by the Board: cash flow; cash flow from operations; earnings (including earnings before interest, taxes, depreciation, and amortization or some variation thereof); earnings per share, diluted or basic; earnings per share from continuing operations; net asset turnover; inventory turnover; capital expenditures; debt; debt reduction; working capital; return on investment; return on sales; net or gross sales; market share; economic value added; cost of capital; change in assets; expense reduction levels; productivity; delivery performance; safety record; stock price; return on equity; total or relative increases to stockholder return; return on capital; return on assets or net assets; revenue; income or net income; operating income or net operating income; operating profit or net operating profit; gross margin, operating margin or profit margin; and completion of acquisitions, business expansion, product diversification and other non-financial operating and management performance objectives. To the extent consistent with Section 162(m) of the Code, the Board may determine at the time the performance goals are established that certain adjustments shall apply, in whole or in part, in such manner as determined by the Board, to exclude the effect of any of the following events that occur during a performance period: the impairment of tangible or intangible assets; litigation or claim judgments or settlements; the effect of changes in tax law, accounting principles or other such laws or provisions affecting reported results; business

 

7


 

combinations, reorganizations and/or restructuring programs, including, but not limited to, reductions in force and early retirement incentives; currency fluctuations; and any extraordinary, unusual, infrequent or non-recurring items, including, but not limited to, such items described in management’s discussion and analysis of financial condition and results of operations or the financial statements and notes thereto appearing in the Company’s annual report to stockholders for the applicable year. Performance measures may be determined either individually, alternatively or in any combination, applied to either the Company as a whole or to a business unit or subsidiary entity thereof, either individually, alternatively or in any combination, and measured over a period of time including any portion of a year, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to previous years’ results or to a designated comparison group, in each case as specified by the Board.

 

  (c) Preestablished Performance Goals . For Awards intended to be performance-based compensation under Section 162(m) of the Code, performance goals relating to the performance measures set forth above shall be preestablished in writing by the Board, and achievement thereof certified in writing prior to payment of the Award, as required by Section 162(m) and regulations promulgated thereunder. All such performance goals shall be established in writing no later than ninety (90) days after the beginning of the applicable performance period; provided however, that for a performance period of less than one year, the Board shall take any such actions prior to the lapse of 25% of the performance period. In addition to establishing minimum performance goals below which no compensation shall be payable pursuant to a Performance Award, the Board, in its discretion, may create a performance schedule under which an amount less than or more than the target award may be paid so long as the performance goals have been achieved.

 

  (d) Additional Restrictions/Negative Discretion . The Board, in its sole discretion, may also establish such additional restrictions or conditions that must be satisfied as a condition precedent to the payment of all or a portion of any Performance Awards. Such additional restrictions or conditions need not be performance-based and may include, among other things, the receipt by a Participant of a specified annual performance rating, the continued employment by the Participant and/or the achievement of specified performance goals by the Company, business unit or Participant. Furthermore and notwithstanding any provision of this Plan to the contrary, the Board, in its sole discretion, may retain the discretion to reduce the amount of any Performance Award to a Participant if it concludes that such reduction is necessary or appropriate based upon: (i) an evaluation of such Participant’s performance; (ii) comparisons with compensation received by other similarly situated individuals working within the Company’s industry; (iii) the Company’s financial results and conditions; or (iv) such other factors or conditions that the Board deems relevant; provided, however, the Board shall not use its discretionary authority to increase any Award that is intended to be performance-based compensation under Section 162(m) of the Code.

 

8


  (e) Payment of Performance Awards . Performance Awards may be paid in a lump sum or in installments following the close of the performance period or, in accordance with procedures established by the Board, on a deferred basis.

 

9. Other Stock-Based Awards.

The Board shall have authority to grant to Participants “Other Stock-Based Awards,” which shall consist of any right that is (i) not an Award described in Sections 5 through 8 above and (ii) an Award of Shares or an Award denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Shares (including, without limitation, securities convertible into Shares), as deemed by the Board to be consistent with the purposes of the Plan. Subject to the terms of the Plan and any applicable Award Agreement, the Board shall determine the terms and conditions of any such Other Stock-Based Award.

 

10. Termination of Employment Service.

The Board shall have the full power and authority to determine the terms and conditions that shall apply to any Award upon a termination of employment/service, including a termination by the Company or an Affiliate of the Company without Cause, by a Participant voluntarily, or by reason of death, Disability or Retirement.

 

11. Change in Control.

To the extent not inconsistent with Section 13(r) hereof, in the event that the Company engages in a transaction constituting a Change in Control, the Board shall have complete authority and discretion, but not the obligation, to accelerate the vesting of outstanding Awards and the termination of restrictions on Shares. As part of any agreement in connection with a Change in Control, the Board may also negotiate terms providing protection for Participants, including, the assumption of any Awards outstanding under the Plan or the substitution of similar awards for those outstanding under the Plan.

 

12. Amendment and Termination.

 

  (a)

Except to the extent prohibited by applicable law and unless otherwise expressly provided in an Award Agreement or in the Plan, the Board may amend, alter, suspend, discontinue, cancel, or terminate the Plan or an Award Agreement or any portion thereof at any time; provided, however , that no such amendment, alteration, suspension, discontinuation, cancellation or termination shall be made without: (i) stockholder approval if such approval is necessary to comply with any tax or regulatory requirement for which or with which the Board deems it necessary or desirable to qualify or comply; or (ii) the consent of the affected Participant, if such action would adversely affect any material rights of such Participant under any outstanding Award. Notwithstanding the foregoing or any provision of the Plan or an Award Agreement to the contrary, the Board may at any time (without the consent of the Participant) modify, amend or terminate any or all of the provisions of this Plan or an Award Agreement to the extent necessary: (i) to conform the provisions of the Plan or an Award with Section

 

9


 

409A and Section 162(m) of the Code other applicable law, the regulations issued thereunder or an exception thereto, regardless of whether such modification, amendment, or termination of the Plan and/or Award shall adversely affect the rights of a Participant; and (ii) to enable the Plan to achieve its stated purposes in any jurisdiction outside the United States in a tax-efficient manner and in compliance with local rules and regulations.

 

  (b) With respect to Participants who reside or work outside the United States of America, the Board may, in its sole discretion, amend, or otherwise modify, without stockholder approval, the terms of the Plan or Awards with respect to such Participants in order to conform such terms with the provisions of local law; provided that such amendment or other modification shall not increase the total number of Shares reserved for purposes of the Plan without the approval of the stockholders of the Company.

 

  (c) The Board shall be authorized to make adjustments in the terms and conditions of, and the criteria included in, Awards in recognition of unusual or nonrecurring events (including, without limitation, an event affecting the Company, or the financial statements of the Company, or of changes in applicable laws, regulations or accounting principles), whenever the Board determines that such adjustments are appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under the Plan; provided that no such adjustment shall be authorized to the extent that such authority would be inconsistent with the Plan’s meeting the requirements of Section 162(m) or Section 409A..

 

  (d) To the extent not inconsistent with Section 13(r) hereof, in connection with a Change in Control or an event described in Section 3(b) hereof or such other events as determined by the Board and set forth in an agreement, the Board may, in its discretion: (i) cancel any or all outstanding Awards under the Plan in consideration for payment to the holder of each such cancelled Award of an amount equal to the portion of the consideration that would have been payable to such holder pursuant to such transaction if such Award had been fully vested and exercisable, and had been fully exercised, immediately prior to such transaction, less the exercise price if any that would have been payable therefor, or (ii) if the net amount referred to in clause (i) would be negative, cancel such Award for no consideration or payment of any kind. Payment of any amount payable pursuant to the preceding sentence may be made in cash and/or securities or other property in the Board’s discretion.

 

  (e)

To the extent not inconsistent with Section 13(r), in the event of a Take-In Transaction and effective as of the effective date of the Take-In Transaction (the “Take-In Date”): (i) any Option (or portion thereof), which is vested as of the Take-In Date, shall be paid in cash to the holder thereof in an amount equal to the excess, if any, of the Fair Market Value (as determined by the Board and the CONSOL Energy Inc. Board of Directors in connection with the Take-In Transaction) of the unexercised portion of such Option over the aggregate

 

10


 

exercise price of such shares underlying such Option, (ii) any Option (or any portion thereof), which is not vested as of the Take-In Date, shall continue to have, and be subject to, substantially the same terms and conditions as applicable to such award prior to the Take-In Date, including the vesting schedule, except that each Option will be exercisable for the number of CONSOL Energy Inc. shares of common stock as determined by the Board and the CONSOL Energy Inc. Board of Directions in connection with the Take-In Transaction, (iii) any Restricted Stock Units outstanding as of the date of the Take-In Transaction shall be converted into restricted stock unit awards of CONSOL Energy Inc. as determined by the Board and the CONSOL Energy Inc. Board of Directors in connection with the Take-In Transaction, and shall continue to have, and be subject to, substantially the same terms and conditions as applicable to the Restricted Stock Units prior to the Take-In Date, (iv) any outstanding Performance Awards issued in connection with the Company’s various Long-Term Incentive Programs as of the Take-In Date shall be treated as follows: (x) fifty percent (50%) of each Award shall be paid in cash as if the Performance Period and Ending Point (as each is defined in the applicable Long Term Incentive Program governing documents) had ended on the Take-In Date; provided that, a Participant may elect, so long as such election is made in compliance with Section 409(A), to receive such cash value of the Award in restricted stock units of CONSOL Energy Inc. (based on a conversion rate as determined by the Board and the CONSOL Energy Inc. Board of Directors), with such restricted stock units vesting on the date of the original Performance Period for such Award, and otherwise having substantially the same terms and conditions (other than the performance conditions) as applicable to such Awards prior to the Take-In Date, and (y) fifty percent (50%) shall be converted into restricted stock units of CONSOL Energy Inc. (based on a conversion rate as determined by the Board and the CONSOL Energy Inc. Board of Directors), with such restricted stock units vesting on the date of the original Performance Period for such Award, and otherwise having substantially the same terms and conditions (other than the performance conditions) as applicable to such Awards prior to the Take-In Date. Any substitution or assumption authorized under the foregoing provisions shall be made consistent with Sections 162(m) and Section 409A and the guidance issued thereunder, to the extent applicable, such that such substitution or assumption does not give rise to the grant of a new stock right or a material modificaton of an existing stock right.

 

13. General Provisions.

 

  (a) Section 162(m) . Notwithstanding any provision of the Plan or Award Agreement to the contrary if an award under this Plan 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 Plan or an Award 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). In no event shall any member of the Board, the Committee or the Company (or its employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Award to satisfy the requirements of Section 162(m).

 

11


  (b) Dividend Equivalents . In the sole and complete discretion of the Board, an Award may provide the Participant with dividends or dividend equivalents, payable in cash, Shares, other securities or other property on a current or deferred basis.

 

  (c) Nontransferability . Except to the extent provided in an Award Agreement, no Award shall be assigned, alienated, pledged, attached, sold or otherwise transferred or encumbered by a Participant, except by will or the laws of descent and distribution.

 

  (d) No Rights to Awards . No Person shall have any claim to be granted any Award, and there is no obligation for uniformity of treatment of Participants under the Plan. The terms and conditions of Awards need not be the same with respect to each recipient.

 

  (e) Share Certificates . All certificates for Shares or other securities of the Company or any Affiliate delivered under the Plan pursuant to any Award or the exercise thereof shall be subject to such stop transfer orders and other restrictions as the Board may deem advisable under the Plan or the rules, regulations, and other requirements of the SEC, any stock exchange upon which such Shares or other securities are then listed, and any applicable Federal or state laws, and the Board may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.

 

  (f) Withholding . A Participant may be required to pay to the Company or any Affiliate and the Company or any Affiliate shall have the right and is hereby authorized to withhold from any Award, from any payment due or transfer made under any Award or under the Plan or from any compensation or other amount owing to a Participant the amount (in cash, Shares, other securities, other Awards or other property) of any applicable withholding or other taxes in respect of an Award, its exercise, or any payment or transfer under an Award or under the Plan and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such taxes. Notwithstanding the foregoing or any provisions of the Plan to the contrary, any broker-assisted cashless exercise shall comply with the requirements for equity classification of Paragraph 35 of FASB Statement No. 123(R) and any withholding satisfied through a net-settlement shall be limited to the minimum statutory withholding requirements. The Board may provide for additional cash payments to holders of Awards to defray or offset any tax arising from the grant, vesting, exercise, or payments of any Award to the extent not inconsistent with Section 13(r) hereof.

 

  (g) Award Agreements . Unless otherwise determined by the Board, each Award hereunder shall be evidenced by an Award Agreement that shall be delivered to the Participant and shall specify the terms and conditions of the Award and any rules applicable thereto.

 

12


  (h) No Limit on Other Compensation Arrangements . Nothing contained in the Plan shall prevent the Company or any Affiliate from adopting or continuing in effect other compensation arrangements, which may, but need not, provide for the grant of options, restricted stock, Shares and other types of Awards provided for hereunder (subject to stockholder approval if such approval is required), and such arrangements may be either generally applicable or applicable only in specific cases.

 

  (i) No Right to Employment . The grant of an Award shall not be construed as giving a Participant the right to be retained in the employ of the Company or any Affiliate. Further, the Company or an Affiliate may at any time dismiss a Participant from employment, free from any liability or any claim under the Plan, unless otherwise expressly provided in the Plan or in an Award Agreement.

 

  (j) No Rights as Stockholder . Subject to the provisions of the applicable Award, no Participant or holder or beneficiary of any Award shall have any rights as a stockholder with respect to any Shares to be distributed under the Plan until he or she has become the holder of such Shares. Notwithstanding the foregoing, in connection with each grant of Restricted Stock hereunder, the applicable Award shall specify if and to what extent the Participant shall not be entitled to the rights of a stockholder in respect of such Restricted Stock.

 

  (k) Governing Law . The validity, construction, and effect of the Plan and any rules and regulations relating to the Plan and any Award Agreement shall be determined in accordance with the laws of the State of Delaware without giving effect to the conflict of law principles thereof.

 

  (l) Severability . If any provision of the Plan or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or Award, or would disqualify the Plan or any Award under any law deemed applicable by the Board, such provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot be construed or deemed amended without, in the determination of the Board, materially altering the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction, Person or Award and the remainder of the Plan and any such Award shall remain in full force and effect.

 

  (m) Other Laws . The Board may refuse to issue or transfer any Shares or other consideration under an Award if, acting in its sole discretion, it determines that the issuance or transfer of such Shares or such other consideration might violate any applicable law or regulation or entitle the Company to recover the same under Section 16(b), and any payment tendered to the Company by a Participant, other holder or beneficiary in connection with the exercise of such Award shall be promptly refunded to the relevant Participant, holder, or beneficiary.

 

13


  (n) No Trust or Fund Created . Neither the Plan nor any Award shall create or be construed to create a trust or separate fund of any kind or a fiduciary relationship between the Company or any Affiliate and a Participant or any other Person. To the extent that any Person acquires a right to receive payments from the Company or any Affiliate pursuant to an Award, such right shall be no greater than the right of any unsecured general creditor of the Company or any Affiliate.

 

  (o) No Fractional Shares . No fractional Shares shall be issued or delivered pursuant to the Plan or any Award, and the Board shall determine whether cash, other securities, or other property shall be paid or transferred in lieu of any fractional Shares or whether such fractional Shares or any rights thereto shall be canceled, terminated, or otherwise eliminated.

 

  (p) Headings . Headings are given to the Sections and subsections of the Plan solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of the Plan or any provision thereof.

 

  (q) Parachute Payments . The Board may provide in an Award Agreement that no amounts shall be paid or considered paid to the extent that any such payments would be nondeductible by the Company under Code Section 280G.

 

  (r) Section 409A. Notwithstanding any provision of the Plan or an Award Agreement to the contrary, if any Award or benefit provided under this Plan is subject to the provisions of Section 409A, the provisions of the Plan and any applicable Award Agreement shall be administered, interpreted and construed in a manner necessary to comply with Section 409A or an exception thereto (or disregarded to the extent such provision cannot be so administered, interpreted or construed). The following provisions shall apply, as applicable:

(i) If a Participant is a Specified Employee and a payment subject to Section 409A (and not excepted therefrom) to the Participant is due upon Separation from Service, such payment shall be delayed for a period of six (6) months after the date the Participant Separates from Service (or, if earlier, the death of the Participant). Any payment that would otherwise have been due or owing during such six-month period will be paid immediately following the end of the six-month period in the month following the month containing the 6-month anniversary of the date of termination unless another compliant date is specified in the applicable agreement.

(ii) For purposes of Section 409A, and to the extent applicable to any Award or benefit under the Plan, it is intended that distribution events qualify as permissible distribution events for purposes of Section 409A and shall be interpreted and construed accordingly. With respect to payments subject to Section 409A, the Company reserves the right to accelerate and/or defer any payment to the extent permitted and consistent with Section 409A. Whether a Participant has Separated from Service or employment will be determined based

 

14


on all of the facts and circumstances and, to the extent applicable to any Award or benefit, in accordance with the guidance issued under Section 409A. For this purpose, a Participant will be presumed to have experienced a Separation from Service when the level of bona fide services performed permanently decreases to a level less than twenty percent (20%) of the average level of bona fide services performed during the immediately preceding thirty-six (36) month period or such other applicable period as provided by Section 409A.

(iii) The Board, in its discretion, may specify the conditions under which the payment of all or any portion of any Award may be deferred until a later date. Deferrals shall be for such periods or until the occurrence of such events, and upon such terms and conditions, as the Board shall determine in its discretion, in accordance with the provisions of Section 409A, the regulations and other binding guidance promulgated thereunder; provided, however, that no deferral shall be permitted with respect to Options, Stock Appreciation Rights and other stock rights subject to Section 409A. An election shall be made by filing an election with the Company (on a form provided by the Company) on or prior to December 31st of the calendar year immediately preceding the beginning of the calendar year (or other applicable service period) to which such election relates (or at such other date as may be specified by the Board to the extent consistent with Section 409A) and shall be irrevocable for such applicable calendar year (or other applicable service period). To the extent authorized, a Participant who first becomes eligible to participate in the Plan may file an election (“Initial Election”) at any time prior to the 30-day period following the date on which the Participant initially becomes eligible to participate in the Plan (or at such other date as may be specified by the Board to the extent consistent with Section 409A). Any such Initial Election shall only apply to compensation earned and payable for services rendered after the effective date of the Election.

(iv) The grant of Non-Qualified Stock Options, Stock Appreciation Rights and other stock rights subject to Section 409A shall be granted under terms and conditions consistent with Treas. Reg. § 1.409A-1(b)(5) such that any such Award does not constitute a deferral of compensation under Section 409A. Accordingly, any such Award may be granted to Employees and Eligible Directors of the Company and its subsidiaries and affiliates in which the Company has a controlling interest. In determining whether the Company has a controlling interest, the rules of Treas. Reg. § 1.414(c)-2(b)(2)(i) shall apply; provided that the language “at least 50 percent” shall be used instead of “at least 80 percent” in each place it appears; provided, further, where legitimate business reasons exist (within the meaning of Treas. Reg. § 1.409A-1(b)(5)(iii)(E)(i)), the language “at least 20 percent” shall be used instead of “at least 80 percent” in each place it appears. The rules of Treas. Reg. §§ 1.414(c)-3 and 1.414(c)-4 shall apply for purposes of determining ownership interests.

(v) Notwithstanding anything to the contrary contained herein and with respect to Options that were earned and vested under the Plan prior to January 1, 2005 (as determined under Section 409A, “Grandfather Options”), such

 

15


Grandfathered Options are intended to be exempt from Section 409A and shall be administered and interpreted in a manner intended to ensure that any such Grandfathered Option remains exempt from Section 409A. No amendments or other modifications shall be made to such Grandfathered Options except as specifically set forth in a separate writing thereto, and no amendment or modification to the Plan shall be interpreted or construed in a manner that would cause a material modification (within the meaning of Section 409A, including Treas. Reg. § 1.409A-6(a)(4)) to any such Grandfathered Options.

(vi) In no event shall any member of the Board, the Committee or the Company (or its employees, officers or directors) have any liability to any Participant (or any other Person) due to the failure of an Award to satisfy the requirements of Section 409A.

 

14. Term of the Plan.

 

  (a) Effective Date . The Plan shall be effective as of the Effective Date.

 

  (b) Expiration Date . No Award shall be granted under the Plan after the tenth anniversary of the Effective Date. Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted hereunder may extend beyond such date, and the authority of the Board to amend, alter, adjust, suspend, discontinue, cancel or terminate any such Award or to waive any conditions or rights under, any such Award and the authority of the Board to amend the Plan, shall extend beyond such date.

 

15. Definitions.

As used in the Plan, the following terms shall have the meanings set forth below:

“Affiliate” shall mean (i) any entity that, directly or indirectly, is controlled by the Company, (ii) any entity in which the Company has a significant equity interest, (iii) an Affiliate of the Company as defined in Rule 12b-2 promulgated under Section 12 of the Exchange Act, in either case of (i) and (ii) as determined by the Board, (iv) any entity that, directly or indirectly, controls the Company, and (v) any entity that, directly or indirectly, is the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of 50% or more of the outstanding voting securities of the Company.

“Award” shall mean any Option, Stock Appreciation Right, Restricted Stock Award, Restricted Stock Unit, Performance Award or Other Stock-Based Award.

“Award Agreement” shall mean any written agreement, contract, or other instrument or document evidencing any Award, which may, but need not be, executed or acknowledged by a Participant.

“Board” shall mean the Board of Directors of the Company.

 

16


“Cause” shall mean, unless otherwise defined in the applicable Award Agreement, a determination by the Board that a Participant has: (i) committed an act of embezzlement, fraud, dishonesty or breach of fiduciary duty to the Company; (ii) deliberately and repeatedly violated the rules of the Company or the valid instructions of the Board or an authorized officer of the Company; (iii) made any unauthorized disclosure of any of the material secrets or confidential information of the Company; or (iv) engaged in any conduct that could reasonably be expected to result in material loss, damage or injury to the Company.

“Change in Control” shall mean, unless otherwise defined in the applicable Award Agreement:

 

  (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 25% of the combined voting power of the then outstanding voting Stock of the Company; provided, however, that for purposes of this clause (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 clause (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, (E) any acquisition of voting Stock by CONSOL Energy Inc. and/or its subsidiaries, or (F) any acquisition of voting Stock of the Company by any Person pursuant to a Business Combination that complies with clauses (A), (B), (C) of clause (iii) below; or

 

  (ii) other than at a time when CONSOL Energy Inc. and/or its subsidiaries beneficially own more than 50% of the total voting Stock, individuals who constitute the Board as of the Effective Date (the “Incumbent Board,” as modified by this clause (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

 

17


  (iii) consummation of a reorganization, merger or consolidation of the Company or 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 and/or CONSOL Energy Inc. and/or its subsidiaries, beneficially own 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 subsections (A)—(C) of clause (i)), and (C) other than at a time when CONSOL Energy Inc. and/or its subsidiaries beneficially own more than 50% of the total voting Stock, 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;

 

  (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 clause (iii); or

 

  (v)

other than at a time when CONSOL Energy Inc. and/or its subsidiaries beneficially own less than 50% of the total voting Stock of the Company, the earliest to occur of: (i) any one “person” as such term is used in Sections 13(d) and 14(d) of the Exchange Act (other than (A) CONSOL Energy Inc., (B) any trustee or other fiduciary holding securities under an employee benefit plan of CONSOL Energy Inc., and (C) any corporation owned, directly or indirectly, by the stockholders of CONSOL Energy Inc. in substantially the same proportions as their ownership of shares of CONSOL Energy Inc.’s common stock), or more than one “person” acting as a “group,” is or becomes the “beneficial owner” (as defined in Section 13d-3 under the Exchange Act) of shares of common stock of CONSOL Energy Inc. that, together with the shares held by such “person” or “group,” possess more than 50% of the total fair market value or voting power of CONSOL Energy Inc.’s shares of common stock; (ii) a majority of the members of CONSOL Energy Inc.’s board of directors is replaced

 

18


 

during any 12 month period by directors whose appointment or election is not endorsed by a majority of the members of CONSOL Energy Inc.’s board of directors prior to the date of appointment or election; or (iii) the sale of all or substantially all of CONSOL Energy Inc.’s assets.

Notwithstanding the foregoing or any provision of this Plan to the contrary, if an Award is subject to Section 409A (and not excepted therefrom) and a Change in Control is a distribution event for purposes of an Award, the foregoing definition of Change in Control shall be interpreted, administered and construed in manner necessary to ensure that the occurrence of any such event shall result in a Change in Control only if such event qualifies 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, as applicable, within the meaning of Treas. Reg. § 1.409A-3(i)(5).

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.

“Committee” shall mean a committee of the Board designated by the Board to administer the Plan. To the extent deemed appropriate by the Board, the Committee shall be composed of not less than two individuals who are “outside directors” within the meaning of Code Section 162(m) and “non-employee directors” within the meaning of Section 16 and “independent directors” within the meaning of Section 303A of the New York Stock Exchange Listed Company Manual.

“Company” shall mean CNX Gas Corporation, and any successor thereto.

“CONSOL Group” means CONSOL Energy Inc. and/or its subsidiaries including the Company and its subsidiaries.

“Disability” shall mean, unless otherwise defined in the applicable Award Agreement, a Participant’s inability, because of physical or mental incapacity or injury (that has continued for a period of at least 12 consecutive calendar months), to perform for the Company or an Affiliate substantially the same services as he or she performed prior to incurring such incapacity or injury.

“Effective Date” shall mean June 30, 2005, as amended August 1, 2005.

“Eligible Individual” means any full-time or part-time employee, officer, director or consultant of the Company or an Affiliate, including any Affiliates which become such after adoption of the Plan. Eligible Individual shall also include any individual or individuals to whom an offer of employment or service has been extended.

“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.

“Fair Market Value” shall mean the fair market value of the property or other items being valued, as determined by the Board, in its sole discretion. Fair Market Value with respect to the Shares, as of any date, shall mean (i) if the Shares are listed on a securities exchange or are traded over the NASDAQ National Market System, the closing sales price of the Shares on such exchange or over such system on such date, or in the absence

 

19


of reported sales on such date, the closing sales price on the immediately preceding date on which sales were reported, (ii) if the Shares are not so listed or traded, the mean between the bid and offered prices of the Shares as quoted by the National Association of Securities Dealers through NASDAQ for such date, or (iii) in the event there is no public market for the Shares, the fair market value as determined by the Board in its sole discretion.

“Grant Date” means, with respect to an Award, date on which the Board makes the determination to grant such Award, or such other date as is determined by the Board. Within a reasonable time thereafter, the Company will deliver an Award Agreement to the Participant.

“Incentive Stock Option” shall mean a right to purchase Shares from the Company that is granted under Section 5 of the Plan and that is intended to meet the requirements of Section 422 of the Code or any successor provision thereto.

“Non-Qualified Stock Option” shall mean a right to purchase Shares from the Company that is granted under Section 5 of the Plan and that is not intended to be an Incentive Stock Option.

“Option” shall mean an Incentive Stock Option or a Non-Qualified Stock Option and shall include a Restoration Option.

“Other Stock-Based Award” shall mean any right granted under Section 9 of the Plan. “Participant” shall mean any Eligible Individual who receives an Award under the Plan. “Performance Award” shall mean any right granted under Section 8 of the Plan.

“Person” shall mean any individual, corporation, company, partnership, association, joint-stock company, trust, unincorporated organization, government or political subdivision thereof or other entity.

“Plan” shall mean this CNX Gas Corporation Equity Incentive Plan.

“Restoration Option” shall mean an Option granted pursuant to Section 5(e) of the Plan.

“Restricted Stock” shall mean any Share granted under Section 7 of the Plan.

“Restricted Stock Unit” shall mean any unit granted under Section 7 of the Plan.

“Retirement” shall mean retirement of a Participant from the employ or service of the Company or any of its Affiliates in accordance with the terms of the applicable Company retirement plan or, if a Participant is not covered by any such plan, retirement on or after such Participant’s 65th birthday, unless otherwise defined in the applicable Award Agreement.

“SEC” shall mean the Securities and Exchange Commission or any successor thereto and shall include the staff thereof.

 

20


“Section 16” shall mean Section 16 of the Exchange Act and the rules promulgated thereunder and any successor provision thereto as in effect from time to time.

“Section 162(m)” shall mean Section 162(m) of the Code and the rules promulgated thereunder or any successor provision thereto as in effect from time to time.

Section 409A shall mean Section 409A of the Code, the regulations and other binding guidance promulgated thereunder.

“Separation from Service” and “Separate from Service” shall mean the Participant’s death, retirement or other termination of employment or service with the Company (including all persons treated as a single employer under Section 414(b) and 414(c) of the Code) that constitutes a “separation from service” (within the meaning of Section 409A). 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 Separated from Service will be determined based on all of the facts and circumstances and, to the extent applicable to any Award or benefit, in accordance with the guidance issued under Section 409A. A Participant will be presumed to have experienced a Separation from Service when the level of bona fide services performed permanently decreases to a level less than twenty percent (20%) of the average level of bona fide services performed during the immediately preceding thirty-six (36) month period or such other applicable period as provided by Section 409A.

“Specified Employee” means a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof) of the Company as determined in accordance with the regulations issued under Code Section 409A and the procedures established by the Company.

“Shares” shall mean a share of Stock.

“Stock” shall mean the common stock, $.01 par value, of the Company (as such par value may be adjusted from time to time), or such other securities of the Company, as may be designated by the Board from time to time.

“Stock Appreciation Right” shall mean any right granted under Section 6 of the Plan.

“Substitute Awards” shall mean Awards granted in assumption of, or in substitution for, outstanding awards previously granted by a company acquired by the Company or with which the Company combines.

 

21


“Take In Transaction” means the first to occur of any of the following events:

 

  (i) the Company becomes a direct or indirect wholly owned subsidiary of CONSOL Energy Inc.; or

 

  (ii) if at any time when the CONSOL Group beneficially owns more than fifty percent (50%) of the combined voting power of the then outstanding Voting Stock of the Company, the stockholders of the Company approve a plan for the complete liquidation or dissolution of the Company; or

 

  (iii) if at any time when the Stock of the Company is no longer listed for trading on the New York Stock Exchange or any other national stock exchange, the CONSOL Group beneficially owns (within the meaning of Rule 13d-3 promulgated under the Exchange Act) more than ninety percent (90%) of the voting power of each class of then outstanding Voting Stock of the Company; or

 

  (iv) 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”), resulting in the CONSOL Group beneficially owning more than ninety percent (90%) of the voting power of each class of then outstanding Voting Stock of the Company.

“Voting Stock” means securities entitled to vote generally in the election of directors.

The undersigned Secretary of the Company certifies that the amendments to the CNX Gas Corporation Equity Incentive Plan originally effective as of June 30, 2005, contained in this Amended and Restated Equity Incentive Plan have been duly adopted by the Board of Directors on August 13, 2008.

 

/s/ Stephen W. Johnson

Secretary

 

22

Exhibit 21

List of Subsidiaries

CNX Gas Company LLC, a Virginia limited liability company

Cardinal States Gathering Company, a Virginia general partnership

Buchanan Generation, LLC, a Virginia limited liability company

Coalfield Pipeline Company, a Tennessee corporation

Knox Energy, LLC, a Tennessee limited liability company

MOB Corporation, a Pennsylvania corporation

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statements Form S-8 (File No. 333-133988 and File No. 333-131497) of CNX Gas Corporation of our report dated February 17, 2009, with respect to the consolidated financial statements of CNX Gas Corporation, and the effectiveness of internal control over financial reporting of CNX Gas Corporation included in this Annual Report (Form 10-K) for the year ended December 31, 2008.

/s/ Ernst and Young

Pittsburgh, Pennsylvania

February 17, 2009

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in the Registration Statement on Form S-8 (Nos. 333-133988 and 333-131497) of CNX Gas Corporation of our report dated February 15, 2008 relating to the financial statements and financial statement schedule, which appears in this Form 10-K.

PricewaterhouseCoopers LLP

Pittsburgh, Pennsylvania

February 17, 2009

Exhibit 23.3

LOGO

CONSENT OF RALPH E. DAVIS ASSOCIATES, INC.

As independent petroleum engineers, we hereby consent to (a) the use of our reserve reports relating to the proved reserves of gas and oil (including coalbed methane) of CNX Gas Corporation (and/or its predecessor(s) in interest) as of December 31, 2004 and (b) the references to us as experts, in each case, in (x) CNX Gas Corporation’s Annual Report on Form 10-K for the year ended December 31, 2008, and (y) all of CNX Gas Corporation’s current and future registration statements filed with the U.S. Securities and Exchange Commission, including all pre-effective and post-effective amendments thereto including by incorporation by reference, including without limitation, CNX Gas Corporation’s Registration Statements on Form S-8 (file nos. 333-131497 and 333-133988).

We further wish to advise that we are not employed on a contingent basis and that at the time of the preparation of our report, as well as at present, neither Ralph E. Davis Associates, Inc. nor any of its employees had, or now has, a substantial interest in CNX Gas Corporation or any of its subsidiaries, as a holder of its securities, promoter, underwriter, voting trustee, director, officer or employee.

 

RALPH E. DAVIS ASSOCIATES, INC.
By:  

/ S / A LLEN C. B ARRON , P.E.

  Allen C. Barron, P.E.
  President

Date: February 9, 2009

1717 St. James Place, Suite 460 Houston, Texas 77056 Office 713-622-8955 Fax 713-626-3664

www.ralphedavis.com

Worldwide Energy Consultants Since 1924

Exhibit 23.4

LOGO

Data & Consulting Services

Division of Schlumberger Technology Corporation

1310 Commerce Drive

Park Ridge 1

Pittsburgh, PA 15275-1011

Tel: 412-787-5403

Fax: 412-787-2906

Consent of Data & Consulting Services Division of Schlumberger Technology Corporation

As independent petroleum engineers, we hereby consent to (a) the use of our reserve reports relating to the proved reserves of gas and oil (including coalbed methane) of CNX Gas Corporation (and/or its predecessor(s) in interest) as of December 31, 2008, 2007, 2006, 2005, and 2004 and as of March 31, 2005, and (b) the references to us as experts, in each case, in (x) CNX Gas Corporation’s Annual Report on Form 10-K for the year ended December 31, 2008, and (y) all of CNX Gas Corporation’s current and future registration statements filed with the U.S. Securities and Exchange Commission, including all pre-effective and post-effective amendments thereto including by incorporation by reference, including without limitation, CNX Gas Corporation’s Registration Statements on Form S-8 (file nos. 333-131497 and 333-133988).

We further wish to advise that we are not employed on a contingent basis and that at the time of the preparation of our report, as well as at present, neither Data & Consulting Services Division of Schlumberger Technology Corporation nor any of its employees had, or now has, a substantial interest in CNX Gas Corporation or any of its subsidiaries, as a holder of its securities, promoter, underwriter, voting trustee, director, officer or employee.

 

  DATA & CONSULTING SERVICES
  DIVISION OF SCHLUMBERGER TECHNOLOGY CORPORATION
  By:  

/s/ Charles M. Boyer II, PG

    Charles M. Boyer II, PG
    Operations Manager

Date: February 5, 2009

Exhibit 31.1

CERTIFICATIONS

I, J. Brett Harvey, certify that:

(1) I have reviewed this annual report on Form 10-K of CNX Gas Corporation;

(2) Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

(3) Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

(4) The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and

d. Disclosed in this annual report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

(5) The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 17, 2009

 

/s/ J. B RETT H ARVEY
J. Brett Harvey
Chief Executive Officer and Director

Exhibit 31.2

CERTIFICATIONS

I, William J. Lyons, certify that:

(1) I have reviewed this annual report on Form 10-K of CNX Gas Corporation;

(2) Based on my knowledge, this annual report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this annual report;

(3) Based on my knowledge, the financial statements, and other financial information included in this annual report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this annual report;

(4) The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this annual report is being prepared;

b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c. Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this annual report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this annual report based on such evaluation; and

d. Disclosed in this annual report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

(5) The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

Date: February 17, 2009

 

/s/ W ILLIAM J. L YONS
William J. Lyons
Chief Financial Officer and Chief Accounting Officer

Exhibit 32.1

CERTIFICATIONS

I, J. Brett Harvey, President and Chief Executive Officer (principal executive officer) of CNX Gas Corporation (the “Registrant”), certify that to my knowledge, based upon a review of the Annual Report on Form 10-K for the period ended December 31, 2008, of the Registrant (the “Report”):

(i) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: February 17, 2009

 

/s/ J. B RETT H ARVEY
J. Brett Harvey
Chief Executive Officer and Director

Exhibit 32.2

CERTIFICATIONS

I, William J. Lyons, Chief Financial Officer (principal financial and accounting officer) of CNX Gas Corporation. (the “Registrant”), certify that to my knowledge, based upon a review of the Annual Report on Form 10-K for the period ended December 31, 2008, of the Registrant (the “Report”):

(i) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and

(ii) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Registrant.

Date: February 17, 2009

 

/s/ W ILLIAM J. L YONS
William J. Lyons
Chief Financial Officer