-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NXN3IiAs+ECXIcmg1t8bk4524u4ppXXCHm/WriEKHa38aaBBY7sbgFotflQnXRec ac6tBRntiMV5BCG7ARSgOg== 0000950157-03-000555.txt : 20030919 0000950157-03-000555.hdr.sgml : 20030919 20030919163015 ACCESSION NUMBER: 0000950157-03-000555 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20030919 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: CONSOL ENERGY INC CENTRAL INDEX KEY: 0001070412 STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE MINING [1220] IRS NUMBER: 510337383 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-56369 FILM NUMBER: 03902904 BUSINESS ADDRESS: STREET 1: C/O CONSOL INC STREET 2: 1800 WASHINGTON RD CITY: PITTSBURGH STATE: PA ZIP: 15241 MAIL ADDRESS: STREET 1: CONSOL INC STREET 2: 1800 WASHINGTON RD CITY: PITTSBURGH STATE: PA ZIP: 15241 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: RWE AKTIENGESELLSCHAFT /ADR/ CENTRAL INDEX KEY: 0000942157 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] IRS NUMBER: 000000000 STATE OF INCORPORATION: I8 FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: OPERNPLATZ 1 STREET 2: 45128 ESSEN GERMANY CITY: GERMANY STATE: I8 ZIP: 10286 BUSINESS PHONE: 492011215150 MAIL ADDRESS: STREET 1: OPERNPLATZ 1 STREET 2: 45128 ESSEN CITY: GERMANY SC 13D/A 1 sc13da.txt AMENDMENT NO. 3 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------ SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (Amendment No. 3)* CONSOL Energy Inc. (Name of Issuer) ----------------------------------------------------- Common Stock, par value $.01 per share ----------------------------------------------------- (Title of Class of Securities) 20854P 10 9 ----------------------------------------------------- (CUSIP Number) Dr. Georg Muller General Counsel RWE Aktiengesellschaft Opernplatz 1 D-45128 Essen, Federal Republic of Germany 011 49-201-12-00 ----------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) With a copy to: Peter S. Wilson, Esq. Cravath, Swaine & Moore LLP Worldwide Plaza 825 Eighth Avenue New York, NY 10019 (212) 474-1000 September 18, 2003 ----------------------------------------------------- (Date of Event Which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of SS 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). 2 CUSIP No.20854P 10 9 13D ________________________________________________________________________________ 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) RWE AKTIENGESELLSCHAFT ________________________________________________________________________________ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_] (b) [_] ________________________________________________________________________________ 3 SEC USE ONLY ________________________________________________________________________________ 4 SOURCE OF FUNDS* AF ________________________________________________________________________________ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) [_] ________________________________________________________________________________ 6 CITIZENSHIP OR PLACE OF ORGANIZATION THE FEDERAL REPUBLIC OF GERMANY ________________________________________________________________________________ 7 SOLE VOTING POWER NUMBER OF 0 SHARES _________________________________________________________________ 8 SHARED VOTING POWER BENEFICIALLY 57,997,357 OWNED BY _________________________________________________________________ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON _________________________________________________________________ 10 SHARED DISPOSITIVE POWER WITH 57,997,357 ________________________________________________________________________________ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 57,997,357 ________________________________________________________________________________ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_] ________________________________________________________________________________ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 73.6% ________________________________________________________________________________ 14 TYPE OF REPORTING PERSON* HC ________________________________________________________________________________ *SEE INSTRUCTIONS 3 This Amendment No. 3 amends and restates in its entirety the Statement on Schedule 13D initially filed on June 7, 1999, with the Securities and Exchange Commission (the "SEC") by RWE Aktiengesellschaft, a corporation organized under the laws of the Federal Republic of Germany ("RWE"), as previously amended by Amendment No. 1 filed with the SEC by RWE on September 5, 2001, and Amendment No. 2 filed with the SEC by RWE on June 2, 2003 (such Schedule 13D as previously amended, the "Schedule 13D"), which Schedule 13D relates to the common stock, par value $.01 per share, of CONSOL Energy Inc. Item 1. Security and Issuer The title of the class of equity securities to which this statement relates is common stock, par value $.01 per share, of CONSOL Energy Inc. (the "Common Stock"), a Delaware corporation (the "Issuer"). The address of the principal executive offices of the Issuer is Consol Plaza, 1800 Washington Road, Pittsburgh, Pennsylvania 15241. Item 2. Identity and Background The person filing this statement is RWE Aktiengesellschaft, a corporation organized under the laws of the Federal Republic of Germany ("RWE"). The principal business of RWE is that of a holding company of a group of companies active mainly in the energy, water and environmental businesses. The address of RWE's principal business and principal office is Opernplatz 1, 45128 Essen, Federal Republic of Germany. The (i) name, (ii) residence or business address, (iii) present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted, and (iv) citizenship of each member of the Executive Board and each member of the Supervisory Board of RWE are set forth on Schedule A attached hereto. During the last five years, neither RWE nor, to the best of its knowledge, any natural person identified on Schedule A (a) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (b) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration This statement presently only relates to the disposition of Common Stock. Item 4. Purpose of Transaction The initial acquisition of Common Stock by subsidiaries of RWE was solely for investment purposes. On May 28, 2003, RWE announced that, in connection with its review of its existing investments, RWE was considering the disposition of some or all of the Common Stock owned by RWE's wholly owned subsidiary, RWE Rheinbraun Aktiengesellschaft 4 ("Rheinbraun"). On September 18, 2003, Rheinbraun, through which RWE beneficially owns all of its Common Stock, agreed to sell 14,100,000 shares at a price of $17.82 per share to a number of investors in a private placement that is scheduled to close on September 23, 2003. Rheinbraun will pay a placement fee of 50 cents per share to the placement agent. The Placement Agreement dated September 18, 2003 (the "Placement Agreement"), covering this transaction is filed as Exhibit 1 hereto and is incorporated herein by reference. At the closing, pursuant to an Option Agreement between Rheinbraun and the placement agent for the private placement, Rheinbraun will grant to the placement agent the right (the "Placement Right") to place all or a portion of Rheinbraun's remaining Common Stock for a period beginning on the date of closing of the private placement and ending on the earlier of (i) 90 days thereafter or (ii) 30 days following the date of effectiveness of the registration statement the Issuer has agreed to file under a registration rights agreement entered into for the benefit of the private investors, subject to extension in certain events. Should the exercise of the Placement Right result in shares being sold at a purchase price in excess of $17.82, Rheinbraun has granted to the investors in the initial private placement a pro rata right to receive the amount by which such purchase price exceeds $17.82. Should Rheinbraun still own any Common Stock at the time of expiration of the Placement Right, RWE intends, subject to market conditions, to seek to dispose of all or as much of such remaining Common Stock as reasonably practicable thereafter through open market or private sales, underwritten offerings or otherwise. It is possible that Rheinbraun may not sell any Common Stock in the future and, while it has no present intention to do so, RWE or one of its subsidiaries may decide to purchase Common Stock. The Form of Option Agreement is attached as Exhibit 2 hereto and is incorporated herein by reference. The current board of directors of the Issuer consists of eight members. Four of those members are representatives of Rheinbraun. After the closing of the private placement described above, the placement agent will select one additional director to be nominated to the Issuer's board of directors. It is further contemplated that following the private placement described above, and the sale of Common Stock by exercise of the Placement Right, Rheinbraun's representatives on the Issuer's board of directors shall be reduced as follows: (i) one representative of Rheinbraun will resign from the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall to 39% or below but remain in excess of 25% of all outstanding Common Stock, (ii) a cumulative total of two representatives of Rheinbraun will resign from the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall to 25% or below but remain in excess of 15% of all outstanding Common Stock, (iii) a cumulative total of three representatives of Rheinbraun will resign from the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall to 15% or below but remain in excess of 5% of all outstanding Common Stock, and (iv) all representatives of Rheinbraun will resign from the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall to 5% or below of all outstanding Shares. Other than as set forth in this statement, Rheinbraun has no current plans which relate to or would result in any of the events described in Items (a) through (j) of the instructions to this Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer 5 (a) As of the date of this statement, the aggregate amount of Common Stock beneficially owned by RWE is 57,997,357 shares, representing approximately 73.6% of the total number of shares of Common Stock outstanding (based on the 78,762,586 shares represented by the Issuer as outstanding as of April 30, 2003 in its Quarterly Report on Form 10-Q/A for the period ended March 31, 2001). RWE beneficially owns the 57,997,357 shares through its wholly owned subsidiary, Rheinbraun. Upon closing of the private placement described above in Item 4, RWE expects to beneficially own 43,897,357 shares, representing approximately 48.9% of the total amount of Common Stock anticipated to be outstanding at the time (based on an aggregation of the 78,762,586 shares represented by the Issuer as outstanding on April 30, 2003 and the 11,000,000 shares expected to be issued by the Issuer concurrently with the closing of RWE's sale of Common Stock in the private placement). (b) Rheinbraun has sole power to vote or direct the vote and to dispose or direct the disposition of the shares that are the subject of this Schedule 13D. By reason of its ownership of Rheinbraun, RWE may be deemed to have the power to vote or direct the vote and to dispose or direct the disposition of the shares that are the subject of this Schedule 13D. By reason of its Placement Right, the placement agent may be deemed to share the power to dispose or direct the disposition of the shares that are the subject of this Schedule 13D. (c) Other than the agreement to sell 14,100,000 shares and the granting of the Placement Right in connection with the private placement described in Item 4, there has been no transaction in the Common Stock effected by RWE or its subsidiaries within the past sixty days. To the best knowledge of RWE, no natural person identified on Schedule A has engaged in any transaction in the Common Stock within the past sixty days. (d) The investors purchasing shares in the private placement described in Item 4 have the right to receive a portion of the proceeds of the sale of RWE's shares subject to the Placement Right as described in Item 4. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer RWE has certain registration rights pursuant to an agreement (the "Registration Rights Agreement") among the Issuer, Rheinbraun and Rheinbraun U.S. GmbH (subsequently merged into Rheinbraun). The Registration Rights Agreement, as amended by the First Amendment (by letter agreement) and Second Amendment thereto is attached as Exhibits 3, 4 and 5, respectively, hereto and is incorporated herein by reference. Effective July 1, 2001, RWE instituted a new policy concerning compensation received by employees of RWE and of its subsidiaries (the "RWE Group") for their service as directors of any member company of the RWE Group. To the extent that the compensation received by any such director exceeds a specified level, he or she must turn over the excess to the RWE Group company that is his or her principal employer. The value of stock options received by any such director, as measured on the date of exercise, is considered to be part of his or her 6 total compensation and is therefore subject to the policy. Thus, under certain circumstances, RWE may have a pecuniary interest in the stock options of the Issuer held from time to time by those directors of the Issuer who are employed by RWE or an RWE Group company. Under no circumstances, however, does the policy result in any RWE Group company acquiring the right to vote or dispose (or to direct the voting or disposition) of any such stock option or the Common Stock that may be acquired upon exercise of the option. Directors of the Issuer who are principally employed by the Issuer are not subject to the policy. In connection with the private placement described in Item 4, Rheinbraun has entered into the Placement Agency Agreement with the Issuer and the placement agent and expects to enter into the Option Agreement with the placement agent. Other than as set forth in this Item 6, there are no contracts, arrangements, understandings or relationships with respect to any securities of the Issuer to which RWE or any of the natural persons identified on Schedule A is a party. Item 7. Materials to be Filed as Exhibits Exhibit 1 Placement Agreement dated September 18, 2003. Exhibit 2 Form of Option Agreement. Exhibit 3 Registration Rights Agreement dated February 1, 1999, among the Issuer, Rheinbraun and Rheinbraun U.S. GmbH (subsequently merged into Rheinbraun), Exhibit 4 First Amendment (by letter agreement) dated May 23, 2003 to Registration Rights Agreement. Exhibit 5 Second Amendment dated September 18, 2003 to Registration Rights Agreement. 7 Signature After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: September 19, 2003 RWE AKTIENGESELLSCHAFT, By /s/ Dr. Georg Muller ------------------------------------- Name: Dr. Georg Muller Title: General Counsel By /s/ Andreas Zetzsche ------------------------------------- Name: Andreas Zetzsche Title: Senior Vice President Mergers & Acquisitions Schedule A RWE's business is managed by an Executive Board currently consisting of four members. Under German law, the Executive Board has management responsibility for RWE and broad authority to take actions in the name of RWE, subject to the authority expressly reserved by the German Stock Corporation Act and by RWE's Articles of Association to the Shareholders Meeting or the Supervisory Board of RWE. The following list sets forth the (i) name and (ii) citizenship of the current members of RWE's Executive Board. In each case, the present principal occupation or employment and the name, principal business and the address of the corporation or other organization in which such employment is conducted is: Member of the Executive Board, RWE Aktiengesellschaft, holding company, Opernplatz 1, D-45128 Essen, Federal Republic of Germany (this is also these individuals' business address). Harry Roels Mr. Roels' country of citizenship is the Netherlands. Dr. Gert Maichel Dr. Maichel's country of citizenship is the Federal Republic of Germany. Dr. Klaus Sturany Dr. Sturany's country of citizenship is Austria. Jan Zilius Mr. Zilius' country of citizenship is the Federal Republic of Germany. The Supervisory Board supervises the management of RWE by the Executive Board. The following list sets forth the (i) name, (ii) business address, (iii) present principal occupation or employment and the name, address and principal business (where applicable) of the corporation or organization in which such employment is conducted and (iv) citizenship of each member of RWE's Supervisory Board. Dr. Paul Achleitner Allianz Aktiengesellschaft Koeniginstrasse 28 80802 Muenchen Federal Republic of Germany Dr. Achleitner is an Executive Vice-President of Allianz Aktiengesellschaft, Koeniginstrasse 28, 80802 Muenchen, Federal Republic of Germany (insurance business). Dr. Achleitner's country of citizenship is Austria. Carl-Ludwig von Boehm-Bezing Deutsche Bank Aktiengesellschaft 2 Taunusanlage 12 60325 Frankfurt am Main Federal Republic of Germany Mr. von Boehm-Bezing is a former Member of the Executive Board of Deutsche Bank Aktiengesellschaft, Taunusanlage 12, 60325 Frankfurt am Main, Federal Republic of Germany (banking business). Mr. von Boehm-Bezing's country of citizenship is the Federal Republic of Germany. Frank Bsirske ver.di Vereinte Dienstleistungsgewerkschaft e. V. Potsdamer Platz 10 10785 Berlin Federal Republic of Germany Mr. Bsirske is the Chairman of ver.di Vereinte Dienstleistungsgewerkschaft e. V., Potsdamer Platz 10, 10785 Berlin, Federal Republic of Germany (labor union). Mr. Bsirske's country of citizenship is the Federal Republic of Germany. Burkhard Drescher Stadt Oberhausen Schwartzstr. 72 46042 Oberhausen Federal Republic of Germany Mr. Drescher is the Lord Mayor of the City of Oberhausen, Stadt Oberhausen, Schwartzstr. 72, 46042 Oberhausen, Federal Republic of Germany. Mr. Drescher's country of citizenship is the Federal Republic of Germany. Ralf Hiltenkamp RWE Umwelt Aktiengesellschaft Hegestuck 20 58640 Iserlohn Federal Republic of Germany Mr. Hiltenkamp is the Chairman of the General Works Council of RWE Umwelt Westfalen GmbH & Co. KG, Hegestuck 20, 58640 Iserlohn, Federal Republic of Germany (service business). Mr. Hiltenkamp's country of citizenship is the Federal Republic of Germany. Heinz-Eberhard Holl Landkreis Osnabrueck Am Scholerberg 1 49082 Osnabrueck Federal Republic of Germany Mr. Holl is the former Chief Administrative Officer of Landkreis (Rural District) Osnabrueck, Landkreis Osnabrueck, Am Scholerberg 1, 49082 Osnabrueck, Federal Republic of 3 Germany. Mr. Holl's country of citizenship is the Federal Republic of Germany. Berthold Huber IG Metall Stuttgarter Str. 23 70469 Stuttgart Federal Republic of Germany Mr. Huber is the Deputy Chairman of IG Metall Trade Union, IG Metall, Stuttgarter Str. 23, 70469 Stuttgart, Federal Republic of Germany (labor union). Mr. Huber's country of citizenship is the Federal Republic of Germany. Berthold Krell RWE Net Aktiengesellschaft Netzregion Sued Friedrichstrasse 60 57072 Siegen Federal Republic of Germany Mr. Krell is the Chairman of the General Works Council of RWE Net Aktiengesellschaft, Flamingoweg 1, 44139 Dortmund, Federal Republic of Germany (energy business). Mr. Krell's country of citizenship is the Federal Republic of Germany. Dr. Gerhard Langemeyer Stadt Dortmund Rathaus Friedensplatz 1 44135 Dortmund Federal Republic of Germany Dr. Langemeyer is the Lord Mayor of the City of Dortmund, Stadt Dortmund, Friedensplatz 1, 44135 Dortmund, Federal Republic of Germany. Dr. Langemeyer's country of citizenship is the Federal Republic of Germany. Dr. h.c. Friedel Neuber Albertusbogen Heerdter Lohweg 35 40549 Duesseldorf Federal Republic of Germany Dr. Neuber is the former President and CEO of Westdeutsche Landesbank Girozentrale, Herzogstrasse 15, 40217 Duesseldorf, Federal Republic of Germany (banking business). Dr. Neuber's country of citizenship is the Federal Republic of Germany. Dr. Wolfgang Reiniger Stadt Essen Rathaus 4 45121 Essen Federal Republic of Germany Dr. Reiniger is the Lord Mayor of the City of Essen, Stadt Essen, Rathaus, 45121 Essen, Federal Republic of Germany. Dr. Reiniger's country of citizenship is the Federal Republic of Germany. Guenter Reppien RWE Power Aktiengesellschaft Erlenweg 3 49808 Lingen Federal Republic of Germany Mr. Reppien is the Chairman of the General Works Council of RWE Power Aktiengesellschaft, Huyssenallee 2, 45128 Essen, Federal Republic of Germany (energy business). Mr. Reppien's country of citizenship is the Federal Republic of Germany. Bernhard von Rothkirch RWE Rheinbraun Aktiengesellschaft Verwaltung Niederaussem Auenheimer Strasse 50129 Bergheim Federal Republic of Germany Mr. von Rothkirch is a chief engineer at RWE Rheinbraun Aktiengesellschaft, Verwaltung Niederaussem Auenheimer Strasse, 50129 Bergheim, Federal Republic of Germany (lignite business). Mr. von Rothkirch's country of citizenship is the Federal Republic of Germany. Dr. Manfred Schneider Bayer Aktiengesellschaft 51368 Leverkusen Federal Republic of Germany Dr. Schneider is the Chairman of the Supervisory Board of Bayer AG, 51368 Leverkusen, Federal Republic of Germany (chemical business). Dr. Schneider's country of citizenship is the Federal Republic of Germany. Klaus-Dieter Suedhofer IG Bergbau, Chemie, Energie Koenigsworther Platz 6 30167 Hannover Federal Republic of Germany Mr. Suedhofer is the Deputy Chairman of IG Bergbau, Chemie, Energie, Koenigsworther Platz 6, 30167 Hannover, Federal Republic of Germany (labor union). Mr. 5 Suedhofer's country of citizenship is the Federal Republic of Germany. Dr. Dietmar Kuhnt Opernplatz 1 45128 Essen Federal Republic of Germany Dr. Dietmar Kuhnt is the former President and CEO of RWE Aktiengesellschaft, Opernplatz 1, 45128 Essen, Federal Republic of Germany (energy business). Dr. Kuhnt's country of citizenship is the Federal Republic of Germany. Prof. Karel Van Miert Puttestraat 10 B-1650 Bersel The Netherlands Mr. Van Miert is the former President of the University Nyenrode, Puttestraat 10, B-1650 Bersel, The Netherlands (education). Mr. Van Miert's country of citizenship is Belgium. Erwin Winkel RWE Rheinbraun Aktiengesellschaft Tagebau Hambach Heideweg 52382 Niederzier Federal Republic of Germany Mr. Winkel is the Chairman of the General Works Council of RWE Rheinbraun Aktiengesellschaft, Stuettgenweg 2, 50935 Koeln, Federal Republic of Germany (lignite business). Mr. Winkel's country of citizenship is the Federal Republic of Germany. Wilfried Eickenberg RWE Plus Aktiengesellschaft Neue Juelicher Strasse 60 52353 Dueren Cologne Federal Republic of Germany Mr. Eickenberg is the Chairman of the General Works Council of RWE Plus Aktiengesellschaft, Kruppstrasse 5, 45128 Essen, Federal Republic of Germany (energy business). Mr. Eickenberg's country of citizenship is the Federal Republic of Germany. Josef Pitz Heidelberger Druckmaschinen Aktiengesellschaft Gutenbergstrasse 2 69168 Wiesloch Federal Republic of Germany 6 Mr. Pitz is the Chairman of the General Works Council of Heidelberger Druckmaschinen Aktiengesellschaft, Gutenbergstrasse 2, 69168 Wiesloch (printing systems business). Mr. Pitz's country of citizenship is the Federal Republic of Germany. EX-1 3 ex1.txt PLACEMENT AGREEMENT Exhibit 1 EXECUTION VERSION 25,100,000 SHARES OF COMMON STOCK PLACEMENT AGREEMENT September 18, 2003 [ ] [ ] [ ] [ ] Ladies and Gentlemen: CONSOL Energy Inc., a Delaware corporation (the "Company"), confirms its agreement with [ ] ("[ ]"), whereby [ ] shall act as placement agent for the Company with respect to the offering and sale of an aggregate of 11,000,000 shares (the "Primary Shares") of common stock, par value $0.01 per share (the "Common Stock"), of the Company, and RWE Rheinbraun AG, a stock corporation organized under the laws of The Federal Republic of Germany (the "Seller") and a wholly-owned subsidiary of RWE AG, confirms its agreement with [ ], whereby [ ] shall act as placement agent for the Seller with respect to the offering and sale of an aggregate of 14,100,000 shares (the "Secondary Shares" and, together with the Primary Shares, the "Shares") of Common Stock. This placement agreement is referred to herein as this "Agreement." The Shares are being offered in a private placement (the "Private Placement") without being registered under the Securities Act of 1933, as amended, and the rules and regulations thereunder (the "Securities Act"), in reliance upon applicable exemptions from the registration requirements of the Securities Act to "accredited investors" (as that term is defined in Rule 501(a) under the Securities Act), and non-U.S. persons under Regulation S under the Securities Act. The Shares are being sold to those offerees listed on Schedule 1 hereto (the "Purchasers"), each of whom has entered into the agreements, and made the representations, set forth in the form of Purchaser Letter/Subscription Agreement attached as Exhibit A hereto (the "Purchaser Letter"). The Purchaser Letter of each Purchaser has been delivered on the date hereof. In connection with the offer and sale of the Shares, the Company has prepared a preliminary private placement memorandum, subject to completion, dated September 15, 2003 (the "Preliminary Private Placement Memorandum"), and a final private placement memorandum, dated September 18, 2003 (the "Final Private Placement Memorandum" and, together with the Preliminary Private Placement Memorandum, the "Private Placement Memorandum"). The Private Placement Memorandum sets forth certain information concerning the Company, the Seller and the Shares. The Company hereby confirms that it has authorized the use of the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum in connection with the offering and sale of the Shares. Any references herein to the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum shall be deemed to include all annexes and exhibits thereto and all documents or filings incorporated by reference therein. The Purchasers of the Shares will be entitled to the benefits of a Registration Rights Agreement dated the Closing Date (as defined in Section 1(b) below) between the Company, on the one hand, and [ ] for the benefit of the Purchasers and others, on the other hand (the "Registration Rights Agreement"), to be substantially in the form attached as Exhibit B hereto. [ ] will be entitled to the benefits of an Option Agreement dated the Closing Date among the Seller, the Company and [ ] (the "Option Agreement") to be substantially in the form attached as Exhibit C hereto. Each of the Seller, the Company and [ ] agree as follows: 1. Purchase, Sale and Delivery of the Shares: (a) The Shares. On the basis of the agreements herein, but subject to the conditions herein set forth, (i) the Company agrees to offer and sell to each Purchaser, upon the terms herein set forth, the number of Primary Shares set forth opposite such Purchaser's name on Schedule 1 hereto and (ii) the Seller agrees to offer and sell to each Purchaser, upon the terms herein set forth, the number of Secondary Shares set forth opposite such Purchaser's name on Schedule 1 hereto. The Shares will be sold by the Company and the Seller at a purchase price of $17.82 per share. The purchase price for the Shares shall be collected by [ ] and held in an [ ] bank account pending the Closing Date (hereinafter defined). The Company shall pay [ ] a placement fee of $0.50 per share for each Primary Share sold by the Company. The Seller shall pay [ ] a placement fee of $0.50 per share for each Secondary Share sold by the Seller. The placement fee to be paid by the Company with respect to the Primary Shares and by the Seller with respect to the Secondary Shares is referred to herein in each case as the "Placement Fee". (b) The Closing Date. Delivery of the Shares and payment therefor shall be made at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019, or such other place as may be agreed to by the Company, the Seller and [ ], at 11:00 a.m. Eastern time, on September 23, 2003, or such other time and date as [ ], the Company and the Seller shall agree (the time and date of such closing are called the "Closing Date"). (c) Payment and Delivery. At the Closing Date, subject to the satisfaction of the closing conditions set forth herein, [ ] shall (i) pay to the Company, by wire transfer of United States dollars in immediately available funds, the aggregate purchase price for the Primary Shares, to the extent such price has been received by [ ] from the Purchasers prior to the Closing Date (net of the Placement Fee and any applicable withholding taxes), against the Company's delivery, to the extent such net purchase price therefor is paid by [ ] to the Company, of the certificates for the Primary Shares to [ ] for each such Purchaser's account and (ii) pay to the Seller, by wire transfer of United States Dollars in immediately available funds, the aggregate purchase price for the Secondary Shares, to the extent such price has been received by [ ] from the Purchasers prior to the Closing Date (net of the Placement Fee and any applicable withholding taxes held in escrow as described in paragraph (d) of this Section), against the delivery to the extent such net purchase price therefor is paid by [ ] to the Seller, of the certificates for the Secondary Shares to [ ] for each such Purchaser's account. 2 The certificates for Shares shall be in the names and amounts identified in Schedule 1 hereto and shall bear legends in accordance with the Private Placement Memorandum and Purchaser Letters. The parties hereto agree that the Company and the Seller are selling the Shares directly to the Purchasers, and [ ] (i) shall not purchase any Shares, (ii) shall not use its own funds with respect to the purchase of the Shares by Purchasers and (iii) assumes no obligation, responsibility or liability with respect to any failure of any Purchaser to deliver sufficient funds or otherwise satisfy such Purchaser's obligations. (d) Withholding Tax Escrow. Pursuant to the terms of the Escrow Agreement attached hereto as Exhibit D, the escrow agent named therein (the "Escrow Agent") shall hold in escrow 10% of the aggregate applicable gross purchase price for the Secondary Shares being sold by the Seller (the "Escrow Amount") until such date (the "Determination Date") as the United States Internal Revenue Service (the "IRS") issues a final determination (the "Determination") with respect to the Seller's application for a withholding certificate allowing for the reduction or elimination of U.S. withholding tax on the sale of Secondary Shares. By the later of (i) 10 calendar days following the Determination Date and (ii) five business days following receipt by the Escrow Agent of notice of the Determination Date, the Escrow Agent shall, on behalf of the Purchasers, pay to the IRS that portion of the Escrow Amount equal to the amount of withholding set forth in the Determination, if any, and shall pay the remainder of the Escrow Amount, if any, to the Seller by wire transfer of United States dollars in immediately available funds. (e) Payment to Purchasers Contingent on Sale of Option Shares. If [ ] exercises its option under the Option Agreement to place any Option Shares (as defined in the Option Agreement) and the Market Price (as defined in the Option Agreement) paid per Option Share in such placement exceeds $17.82 (the amount of such excess for any such placement, multiplied by the number of Option Shares sold in such placement, is referred to herein as the "Option Excess" for such placement), the Seller agrees to pay to each Purchaser such Purchaser's Applicable Percentage (as defined below) of the Option Excess for such placement, to be paid to such Purchaser no later than three business days following the date of the closing of such placement by check or wire transfer to an account designated by such Purchaser. "Applicable Percentage" means, with respect to any Purchaser, the percentage of the aggregate number of Shares being purchased by all Purchasers that such Purchaser purchased pursuant to Section 1(a) above. The Purchasers shall have no right to receive any proceeds from sales of shares of Common Stock by the Seller subsequent to the Option Period that are not made pursuant to an exercise of [ ]'s option to place Option Shares under the Option Agreement. The Company shall not be responsible for or have any liability to [ ], the Seller or any Purchaser with respect to the Option Shares and Option Excess. 2. Representations and Warranties of the Seller: The Seller represents and warrants to [ ] and the Company that, as of the date of this Agreement: (a) To the extent that any statements or omissions made in the Preliminary Private Placement Memorandum are made in reliance upon and in conformity with written information furnished to the Company by the Seller expressly for use therein, the Preliminary Private Placement Memorandum, on the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. To the extent that any statements or omissions made in the Final Private Placement Memorandum are made in reliance upon and in conformity with written information furnished to the Company by the Seller expressly for use therein, on the date hereof, the Final Private Placement Memorandum does not (and any amendment or supplement thereto, at the date thereof, will not), contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the 3 circumstances under which they were made, not misleading. The Company, [ ] and the Seller hereby confirm and agree that the only information furnished to the Company by the Seller expressly for use in the Private Placement Memorandum is (i) the number of shares (but not the percentages) set forth in the second and third sentences in the first paragraph of the cover page, in the second sentence of "Private Placement Memorandum Summary -- The Offering -- Seller," in the first sentence of the paragraph under the caption "Risk Factors -- Following completion of this offering, RWE will own approximately ____% of CONSOL's outstanding common stock and may be able, together with one or more other holders of CONSOL common stock to control significant business decisions by CONSOL" and in the first sentence of the first paragraph under "Risk Factors -- CONSOL's share price may decline due to shares eligible for future sale" ("Risk Factor A"), (ii) the information in the second and third sentences of the second paragraph of Risk Factor A and (iii) the information under the caption "Escrow of Withholding Taxes." (b) The Seller has been duly formed and is validly existing and in good standing under the laws of its jurisdiction of formation. (c) The Seller has full corporate power and authority to enter into and perform this Agreement and to consummate the transactions contemplated herein. (d) Neither the Seller nor any of its affiliates ("Affiliates") (as that term is defined in Regulation D under the Securities Act ("Regulation D")) (other than the Company and its subsidiaries as to whom no representations or warranties are made hereby) nor any person acting on their behalf (other than [ ] as to whom no representations or warranties are made hereby) (i) has, directly or indirectly, made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of the Shares under the Securities Act; or (ii) has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Shares in the United States or (iii) has engaged or will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Shares sold outside the United States to non-U.S. persons (as defined in Regulation S); and the Seller and its Affiliates and any person acting on their behalf (other than [ ] and the Company and its subsidiaries as to whom no representations or warranties are made hereby) have complied and will comply with the offering restriction requirements of Regulation S. (e) The Seller is the record and beneficial owner of the Shares being sold by it, free and clear of any encumbrance or claim. (f) The Option Agreement, the Escrow Agreement and this Agreement have been duly authorized by the Seller. This Agreement has been duly executed and delivered by the Seller, and at the Closing Date the Option Agreement and the Escrow Agreement will have been 4 duly executed and delivered by the Seller. Section 1(e) of this Agreement constitutes, and at the Closing Date the Option Agreement and the Escrow Agreement will constitute, legal, valid and binding obligations of the Seller, enforceable in accordance with their respective terms, except as may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, (b) principles of equity, whether considered at law or equity and (c) principles of public policy limiting the right to indemnification. (g) The sale of the Shares being sold by the Seller, and the compliance by the Seller with all of the provisions of this Agreement, the Option Agreement and the Escrow Agreement (all such agreements being referred to collectively as the "Seller Transaction Documents") and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound, (ii) result in any violation of the provisions of the organizational documents of the Seller, or (iii) result in any violation of any statute or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Seller, except in the case of clauses (i), (ii) and (iii), for any such conflict, breach, violation or default which would not reasonably be expected to have a material adverse effect on the Seller's ability to consummate the transactions contemplated hereby or on the enforceability of any documents entered into by the Seller in connection therewith. (h) No consent, approval, authorization or order of, or filing, registration or qualification by the Seller with, any court or governmental agency or body, domestic or foreign, having jurisdiction over the Seller is required for the offering and sale of the Shares being sold by the Seller or the consummation by the Seller of the other transactions contemplated by this Agreement or the Option Agreement, except such filings as may be required by the Exchange Act. 3. Representations and Warranties of the Company: The Company represents and warrants to [ ] and the Seller that, as of the date of this Agreement: (a) The Preliminary Private Placement Memorandum, on the date thereof, did not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. On the date hereof and on the Closing Date, the Final Private Placement Memorandum did not, and will not (and any amendment or supplement thereto, at the date thereof and at the Closing Date, will not), contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Company does not make any representation or warranty as to the information contained in or omitted from the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum, or any amendment or supplement thereto, in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of [ ] or the Seller specifically for inclusion therein. (b) The documents annexed to and deemed to be a part of the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum, to the extent they were filed with the Securities and Exchange Commission (the "Commission"), conformed in all material 5 respects to the requirements of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") and the rules and regulations of the Commission thereunder, when they were filed with the Commission, and when read together with the other information in the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum, as the case may be, at the time issued do not, and as of the Closing Date will not, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) Neither the Company nor any of its subsidiaries has sustained, since the date of the latest financial statements of the Company incorporated by reference in the Final Private Placement Memorandum or the documents annexed thereto and deemed to be a part thereof, any material loss or interference with its business that is material to the business of the Company and its subsidiaries taken as a whole from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Final Private Placement Memorandum and, since the respective dates as of which information is given in the Final Private Placement Memorandum, there has not been any material change in the capital stock or any material increase in the consolidated short-term or long-term debt of the Company or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, prospects, financial condition or results of operations of the Company and its subsidiaries taken as a whole, or any material transaction entered into by the Company or any of its subsidiaries, in each case whether or not in the ordinary course of business, otherwise than as set forth or contemplated in the Final Private Placement Memorandum. (d) The Company has been duly incorporated, is validly existing and is in good standing under the laws of State of Delaware, with corporate power and authority to own, lease and operate its properties and conduct its business as described in the Private Placement Memorandum and to enter into and perform this Agreement and to consummate the transactions contemplated herein; the Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not reasonably be expected to have a material adverse effect on the business, properties, financial condition or earnings of the Company and its subsidiaries taken as a whole (a "Material Adverse Effect"); each subsidiary of the Company, other than those subsidiaries which would not constitute a "significant subsidiary" as defined in Item 1-02(w) of Regulation S-X (each a "Subsidiary"), is a corporation, partnership, limited liability company or business trust duly incorporated or organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, with the requisite entity power and authority to own, lease and operate its properties. Each Subsidiary is duly qualified as a foreign corporation, partnership, limited liability company, business trust or other organization to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to qualify or to be in good standing would not reasonably be expected to result in a Material Adverse Effect. (e) The Company has outstanding equity capitalization as set forth in the Final Private Placement Memorandum (except for subsequent issuances, if any, pursuant to employee benefit plans 6 or pursuant to the exercise of convertible securities or options), and all of the issued shares of capital stock of the Company, including without limitation the Shares being sold by the Seller, have been duly and validly authorized and issued and are fully paid and nonassessable; upon the issuance and sale of the Shares being sold by the Company pursuant to the terms hereof, the Shares being sold by the Company will have been duly and validly authorized and issued and fully paid and nonassessable; except as otherwise disclosed in the Final Private Placement Memorandum, all of the issued and outstanding capital stock or other ownership interests of each Subsidiary of the Company (i) have been duly authorized and validly issued, (ii) are fully paid and nonassessable and (iii) except for shares necessary to qualify directors or to maintain any minimum number of shareholders required by law, are owned by the Company directly or through subsidiaries, free and clear of any encumbrance or claim except as described in the Final Private Placement Memorandum and except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (f) [Intentionally left blank] (g) The Option Agreement, the Registration Rights Agreement and this Agreement have been duly authorized by the Company. This Agreement has been duly executed and delivered by the Company and at the Closing Date the Option Agreement and the Registration Rights Agreement will have been duly executed and delivered by the Company. This Agreement constitutes, and at the Closing Date the Option Agreement and the Registration Rights Agreement will constitute, legal, valid and binding obligations of the Company, enforceable in accordance with their respective terms, except as may be limited or otherwise affected by (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, (b) principles of equity, whether considered at law or equity and (c) principles of public policy limiting the right to indemnification. (h) The Registration Rights Agreement and the Option Agreement conform in all material respects, and the Shares will conform, in all material respects, to the descriptions thereof contained in the Final Private Placement Memorandum. (i) Assuming the truth and accuracy of the representations and warranties of the Seller, the Company and [ ] in Sections 2(d), 3(x) and 4(b) of this Agreement, and compliance by the Company and the Seller with their respective covenants set forth in Sections 5(a)(iv), 5(a)(v), 5(b)(i) and 5(b)(ii), the issuance and sale of the Shares, and the compliance by the Company with all of the provisions of this Agreement, the Registration Rights Agreement (all such agreements being referred to collectively as the "Transaction Documents") and the consummation of the transactions herein and therein contemplated, will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any of the property or assets of the Company or any of its subsidiaries pursuant to the terms of, (i) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, which would reasonably be expected to have a Material Adverse Effect or affect the validity of the Shares or the legal authority of the Company to comply with the terms of the Transaction Documents; (ii) result in any violation of the provisions of the organizational documents of the Company or any of its subsidiaries; or (iii) result in any violation of any statute 7 or any order, rule or regulation of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its subsidiaries or any of their respective properties which would reasonably be expected to have a Material Adverse Effect or affect the validity of the Shares or the legal authority of the Company to comply with the Transaction Documents. (j) The sale of the Shares, and the compliance by the Company with all of the provisions of the Transaction Documents and the consummation of the transactions contemplated therein, will not result in a "change of control" of the Company under (i) any statute or any order, rule or regulation of any court or governmental agency or body, or regulatory authority, foreign or domestic, having jurisdiction over the Company or (ii) any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company is a party or by which it is bound. For purposes hereof, "change of control" and similar terms shall have the meaning given thereto in the applicable statute, order, rule, regulation, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument. (k) No consent, approval, authorization or order of, or filing, registration or qualification by the Company with, any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company is required for the offering and sale of the Shares or the consummation by the Company of the other transactions contemplated by this Agreement or the Registration Rights Agreement except such filings as may be required by the Securities Act or the Exchange Act. (l) Other than as set forth in the Final Private Placement Memorandum, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which if determined adversely to the Company, or such subsidiary, would individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or which would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated under this Agreement, the Registration Rights Agreement, or the performance by the Company of its respective obligations hereunder or thereunder; and, to the Company's knowledge, no such proceedings are threatened or contemplated by governmental authorities or threatened by others. (m) PricewaterhouseCoopers LLP and Ernst & Young, who have audited the financial statements of the Company and its consolidated subsidiaries included in or annexed to the Final Private Placement Memorandum, are independent public accountants with respect to the Company as required by the Securities Act. (n) The audited financial statements, and the related notes thereto, included in the documents annexed to or incorporated by reference into the Private Placement Memorandum present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries and the consolidated results of its operations and the changes in its consolidated cash flows, as of the dates and for the periods indicated, and said financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except as otherwise stated therein; the unaudited consolidated financial statements and the related notes thereto included in the documents annexed to the Private Placement Memorandum present fairly in all material respects the consolidated financial position of the Company and its consolidated subsidiaries as of the dates and 8 for the periods indicated and the results of its operations and the changes in its consolidated cash flows, subject to year-end audit adjustments, have been prepared in accordance with generally accepted accounting principles applied on a consistent basis throughout the periods involved, except for the absence of notes thereto and as otherwise stated therein and have been prepared on a basis substantially consistent with that of the audited financial statements referred to above except as otherwise stated therein. (o) All information related to the Company's coal reserves (in the aggregate and by resource group) included in its Annual Report on Form 10-K/A for the year ended December 31, 2002, as amended through the date of the Private Placement Memorandum at the time such report was filed with the Commission (collectively, the "Company Coal Reserve Information") (i) was accurate in all material respects and (ii) complied in all material respects with the requirements of the Exchange Act and the rules and regulations of the Commission thereunder; all assumptions used in the calculation of the Company Coal Reserve Information were reasonable. (p) The Company and each of its subsidiaries owns and possesses all such patents, patent rights, trademarks, trademark rights, trade names, trade name rights, service mark rights and copyrights as the Company considers necessary for the conduct of the businesses of the Company or such subsidiaries as now conducted without any infringement upon rights of others which, individually or in the aggregate, would have a Material Adverse Effect. There is no individual patent or patent license used by the Company or any subsidiary in the conduct of its business the loss of which would have a Material Adverse Effect. (q) Neither the Company, nor any of its subsidiaries (i) is in violation of its certificate or articles of incorporation or bylaws or comparable governing instruments or (ii) is in breach or violation of any of the terms or provisions of, or with the giving of notice or lapse of time, or both, would be in default under, any contract, indenture, mortgage, deed of trust, loan agreement, note, lease, partnership agreement, or other agreement or instrument to which it is a party or by which it is bound or to which its properties or assets may be subject, except for such violations or defaults that would not, individually or in the aggregate, be reasonably expected to have a Material Adverse Effect. (r) Except as set forth or contemplated in the Final Private Placement Memorandum, the Company and each of its subsidiaries possess all licenses, certificates, permits and other authorizations issued by the appropriate federal, state or foreign regulatory authorities, necessary to conduct their respective businesses, except for any such license, certificate, permit or authorization the absence of which, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, and neither the Company nor any such subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would reasonably be expected to have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business; and the Company and each of its subsidiaries is in material compliance with all laws and regulations relating to the conduct of its respective businesses as conducted as of the date hereof, except where noncompliance with such laws or regulations would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 9 (s) The Company and each of its subsidiaries own or lease all such properties as are necessary to the conduct of their respective operations as presently conducted, except where the failure to own or lease such properties would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (t) No labor problem or dispute with the employees of the Company or any of its subsidiaries exists or to the knowledge of the Company is threatened, and the Company is not aware of any existing or threatened labor disturbance by the employees of any of its, or its respective subsidiaries', principal suppliers, contractors or customers, any of which would reasonably be expected to have a Material Adverse Effect, except as set forth or contemplated in the Final Private Placement Memorandum. (u) The Company and its subsidiaries are (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants ("Environmental Laws"); (ii) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses; and (iii) have not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except, in the cases of each of clauses (i) through (iii), as would not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business, and except as set forth or contemplated in the Final Private Placement Memorandum. (v) The Company is not, and upon the offering and sale of the Shares as herein contemplated will not be, an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (w) There is and has been no material failure on the part of the Company or any of the Company's directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002. (x) Neither the Company, nor any of its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company, as to whom no representations or warranties are made hereby) nor any person acting on their behalf (other than [ ] as to whom no representations or warranties are made hereby) (i) has directly or indirectly made offers or sales of any security, or solicited offers to buy any security, under circumstances that would require the registration of the Shares under the Securities Act; or (ii) has engaged or will engage in any form of general solicitation or general advertising (within the meaning of Regulation D) in connection with any offer or sale of the Shares in the United States or (iii) has engaged or will engage in any directed selling efforts (as that term is defined in Regulation S) with respect to the Shares sold outside the United States to Non-U.S. Persons (as defined in Regulation S); and the Company and its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company, as to whom no representations or warranties are made hereby) and any person acting on their behalf (other than [ ] as to whom no representations or warranties are made hereby) have complied and will comply with the offering restriction requirements of Regulation S. 10 (y) It is not necessary, in connection with the offer, sale and delivery of the Shares to the Purchasers under this Agreement and the Final Private Placement Memorandum, to register the Shares under the Securities Act, assuming that the representations and warranties of Seller and [ ] in Sections 2 and 4 hereof, respectively, and the representations and warranties of the Purchasers set forth in the Purchaser Letters are true and the Seller, [ ] and each Purchaser have not breached and will not breach their respective representations and warranties in Sections 2 and 4 of this Agreement or, in the case of the Purchasers, in the Purchaser Letters. (z) The Company has not taken, directly or indirectly, any action designed to cause or which has constituted or which might reasonably be expected to cause or result, under the Exchange Act or otherwise, in the stabilization or manipulation of the price of any security of the Company to facilitate the offering and sale of the Shares. Any certificate signed by any officer of the Company and delivered to [ ] or counsel for [ ] in connection with the offering of the Shares shall be deemed a representation and warranty by the Company as to matters covered thereby to [ ]. 4. Representations and Warranties of [ ]: [ ] represents and warrants to the Seller and the Company, and hereby agrees, as follows: (a) [ ] has not made any offers of the Shares to any person prior to the date hereof not in conformity with the terms hereof, and after the date hereof will make no offer of the Shares not in conformity with the terms hereof. The offer of the Shares by [ ] will be made only in those jurisdictions designated by [ ] for which there is an effective qualification or exemption from registration of the offering of Shares in such jurisdictions by a broker-dealer registered under the laws of such jurisdictions. (b) [ ] has not solicited, and will not solicit, offers to buy the Shares by any form of general solicitation or general advertising, including but not limited to the methods described in Rule 502(c) under the Securities Act, or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act. [ ] has not engaged and will not engage in any directed selling efforts (as that term is defined in Regulation S under the Securities Act) with respect to the Shares sold outside the United States to non-U.S. persons (as defined in Regulation S under the Securities Act) and [ ] and any person acting on its behalf have complied and will comply with the offering restriction requirements of Regulation S. (c) [ ] and its representatives who have participated and will participate in the offer of the Shares were, and will continue to be, throughout the offering, registered as broker-dealers or salesmen, as required, or are exempt from such registration, in each jurisdiction in which [ ] offers the Shares. (d) [ ] has complied and will comply with all requirements imposed upon it by the Securities Act, and by all applicable state securities laws and regulations, to permit the continuance of offers of the Shares, in accordance with the provisions hereof, the Preliminary Private Placement Memorandum, the Final Private Placement Memorandum and such laws and regulations. 11 (e) [ ] is (i) duly registered as a broker-dealer under the Exchange Act and (ii) a member in good standing of the National Association of Securities Dealers, Inc. (f) In soliciting purchasers for the Shares, [ ] and its representatives have utilized and will utilize only the Private Placement Memorandum and [ ] and its representatives have not used and will not use any other solicitation material or advertisement without the prior written approval of the Seller and the Company. [ ] and its representatives have not and will not make any representations or furnish any information in connection with this Agreement or the offering of the Shares other than that contained in the Private Placement Memorandum. (g) If requested by the Company, [ ] shall use its commercially reasonable efforts to obtain from prospective purchasers a confidentiality agreement in form and substance reasonably satisfactory to the Company. [ ] understands that the Company and, for the purposes of the opinions to be delivered to [ ] pursuant to Section 6 hereof, counsel to the Company, counsel to the Seller and counsel to [ ] will rely upon the accuracy and the truth of the forgoing representations and [ ] hereby consents to such reliance. 5. Certain Agreements: (a) The Company hereby agrees with [ ] and the Seller, as follows: (i) to prepare the Final Private Placement Memorandum in a form reasonably approved by [ ] and to furnish promptly (and with respect to the initial delivery of such Final Private Placement Memorandum, not later than 10:00 a.m. (New York City time) on the second day following the execution and delivery of this Agreement) to [ ] as many copies of the Final Private Placement Memorandum (and any amendments or supplements thereto) as [ ] may reasonably request for the purposes contemplated by this Agreement; (ii) to advise [ ] and the Seller promptly, confirming the general nature of such advice in writing, of (A) the happening of any event known to the Company at any time prior to the Closing Date, which, in the reasonable judgment of the Company, would require the making of any change in the Final Private Placement Memorandum then being used so that the Final Private Placement Memorandum would not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading and to prepare and furnish, at the Company's expense, to [ ] (and to any persons reasonably designated by [ ]) promptly any proposed amendments or supplements to the Final Private Placement Memorandum as may be necessary so that the Final Private Placement Memorandum does not include or omit to state such material fact, and (B) the receipt of any notification with respect to the modification, rescission, withdrawal or suspension of the qualification of the Shares, or of any exemption from such qualification or from registration of the Shares, for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and, if any government agency or authority should issue any such order, to make every reasonable effort to obtain the lifting or removal of such order as soon as possible; 12 (iii) not to amend or supplement the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum for a period of 30 days from the date hereof unless [ ] shall previously have been advised thereof and shall have consented thereto (which consent shall not be unreasonably withheld or delayed); provided that consent of [ ] shall not be required for the filing by the Company with the SEC, at the request of the SEC, of any amendment to any previously filed Company report; (iv) that neither the Company nor any of its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company) will solicit any offer to buy or offer or sell the Shares by means of any form of general solicitation or general advertising (within the meaning of Regulation D) or engage in any directed selling efforts (as defined in Rule 902 of Regulation S) with regard to the Shares; (v) that neither the Company nor any of its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company) will sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) the offering of which security will be integrated with the Private Placement in a manner which would require the registration under the Securities Act of the sale of the Shares to the Purchasers; (vi) that the Company will not take, and will use all commercially reasonable efforts to cause its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company) not to take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Shares; (vii) that, except as permitted by the Securities Act, neither the Company nor any of its Affiliates (other than the Seller and any Affiliates of the Seller that control the Company) will distribute any offering materials in connection with the offering and sale of the Shares as contemplated hereby, other than the Preliminary Private Placement Memorandum, the Final Private Placement Memorandum and any related marketing materials developed jointly and approved by the Seller, the Company and [ ]; (viii) to pay all expenses, fees and taxes in connection with (A) the preparation of the Preliminary Private Placement Memorandum and the Final Private Placement Memorandum, and any amendments or supplements thereto, and the printing and furnishing of copies of each thereof to [ ] (including costs of mailing and shipment), (B) the issuance, sale and delivery of the Primary Shares, including any stock or other transfer taxes or duties payable upon the sale of the Shares to the Purchasers, (C) the fees and expenses of any transfer agent or registrar for the Common Stock, (D) the costs and expenses of the Company incurred in connection with the marketing of the Shares, including "road show" costs and expenses, and (E) the performance of the Company's other obligations hereunder; provided, however, that the Company shall not pay the fees or expenses (including without limitation legal expenses) incurred by [ ]; and 13 (ix) that, until the board of directors of the Company has determined otherwise, the Company will conduct its affairs in such a manner so as to ensure that the Company will not be an "investment company" within the meaning of the Investment Company Act. (b) The Seller hereby agrees with [ ] and the Company as follows: (i) the Seller will not solicit any offer to buy or offer or sell the Shares by means of any form of general solicitation or general advertising (within the meaning of Regulation D); (ii) the Seller will not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) the offering of which security will be integrated with the Private Placement in a manner which would require the registration under the Securities Act of the offer and sale of the Shares to the Purchasers; (iii) the Seller will not take, directly or indirectly, any action designed to, or that might be reasonably expected to, cause or result in stabilization or manipulation of the price of the Shares; and (iv) that, except as permitted by the Securities Act, the Seller will not distribute any offering materials in connection with the offering and sale of the Shares as contemplated hereby, other than the Preliminary Private Placement Memorandum, the Final Private Placement Memorandum and any related marketing materials developed jointly and approved by the Seller, the Company and [ ]. (c) The Company agrees as follows: The Company will increase by one the number of directors on its board of directors and to cause the appointment of a nominee selected by [ ] as promptly as possible following the Closing Date. Such nominee must be "independent" (as defined by applicable securities laws and New York Stock Exchange regulations) and acceptable to the board of directors of the Company in its reasonable judgment. The Company shall use all commercially reasonable efforts to cause such nominee to be elected as a director of the Company at the Company's next meeting of stockholders at which members of the board of directors are elected and to cause such nominee to be a member of the Company's board of directors for no less than three years following the date of initial appointment. (d) The Seller agrees as follows: (i) The Seller will use all commercially reasonable efforts to cause: (A) one representative of the Seller to resign from the Company's board of directors, if the Seller's holdings of Common Stock fall to 39% or below but remain in excess of 25% of all shares entitled to be voted in the election of directors; 14 (B) a cumulative total of two representatives of the Seller to resign from the Company's board of directors, if the Seller's holdings of Common Stock fall to 25% or below but remain in excess of 15% of all shares entitled to be voted in the election of directors; (C) a cumulative total of three representatives of the Seller to resign from the Company's board of directors, if the Seller's holdings of Common Stock fall to 15% or below but remain in excess of 5% of all shares entitled to be voted in the election of directors; and (D) all representatives of the Seller to resign from the Company's board of directors, if the Seller's holdings of Common Stock fall to 5% or below of all shares entitled to be voted in the election of directors. (ii) The Seller shall pay all stock or other transfer taxes or duties payable upon the sale of the Secondary Shares to the Purchasers. 6. Conditions of Purchasers' Obligations: The obligation of the Purchasers to purchase the Shares in accordance with the terms hereof shall be subject to (i) the accuracy in all respects of those representations and warranties of the Seller and the Company contained herein that are qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality and (ii) the accuracy in all material respects of those representations and warranties of the Seller and the Company contained herein that are not so qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality, as of the date and time that this Agreement is executed and delivered by the parties hereto (the "Execution Time") and as of the Closing Date as though made on and as of such date, be, to the accuracy of the statements of the Company's and Seller's officers contained in any certificates delivered pursuant to the provisions hereof, to the performance by the Seller and the Company of their respective covenants and agreements hereunder and to the following additional conditions: (a) The Company shall furnish to [ ] on the Closing Date an opinion of Piper Rudnick LLP, counsel for the Company, addressed to [ ] and dated the Closing Date and in form reasonably satisfactory to [ ], substantially as set forth on Exhibit E hereto. (b) The Seller shall furnish to [ ] on the Closing Date an opinion of Cravath, Swaine & Moore LLP, counsel for the Seller, addressed to [ ] and dated the Closing Date and in form satisfactory to [ ], substantially as set forth in Exhibit F hereto. (c) The Seller shall furnish to [ ] on the Closing Date an opinion of Walter Froehling, Esq., Senior Counsel, International Legal Affairs, of the Seller, addressed to [ ] and dated the Closing Date and in form satisfactory to [ ] substantially as set forth in Exhibit G hereto. (d) [ ] shall have received certificates, addressed to [ ] dated the Closing Date, of duly authorized officers of the Company on behalf of the Company, to the effect that: (i) the Final Private Placement Memorandum and all amendments or supplements thereto, or modifications thereof, if any, do not contain an untrue statement of 15 material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (ii) between the time of execution of this Agreement and the Closing Date, (A) except as set forth or contemplated in the Final Private Placement Memorandum, no event constituting a Material Adverse Effect on the Company shall have occurred, (B) except as set forth or contemplated in the Final Private Placement Memorandum, no transaction which is material to the Company and its subsidiaries taken as a whole shall have been entered into by the Company or any subsidiary and (C) the Commission shall not have issued any order, decree or stop order preventing the use of the Final Private Placement Memorandum or any amendment or supplement thereto, or any order asserting that the offer and sale of the Shares to the Purchasers contemplated by this Agreement are subject to the registration requirements of the Securities Act; (iii) The representations and warranties of the Company set forth in this Agreement that are qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality are true and correct in all respects, and those that are not so qualified are true and correct in all material respects, as of the Closing Date, as though made on and as such time (except to the extent that such representations and warranties speak as of another time, in which case such representations and warranties that are qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality shall be true and correct in all respects, and those that are not so qualified shall be true and correct in all material respects, in each case as of such other time). (e) [ ] shall have received certificates, dated the Closing Date, of two officers of the Seller, on behalf of the Seller, to the effect that the representations and warranties of the Seller set forth in this Agreement that are qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality are true and correct in all respects, and those that are not so qualified are true and correct in all material respects, as of the Closing Date, as though made on and as such time (except to the extent that such representations and warranties speak as of another time, in which case such representations and warranties that are qualified by terms such as "material," "materially," "Material Adverse Effect" and similar qualifications as to materiality shall be true and correct in all respects, and those that are not so qualified shall be true and correct in all material respects, in each case as of such other time). (f) On or before the Closing Date, the Company shall have executed and delivered to [ ] the Registration Rights Agreement. (g) On or before the Closing Date, the Seller shall have executed and delivered to [ ] the Option Agreement. 16 (h) On or before the Closing Date, the Seller shall have executed and delivered to [ ] and the escrow agent the Escrow Agreement. (i) The Seller and the Company shall have furnished to [ ] such other documents and certificates as [ ] may reasonably request. (j) [ ] shall receive a certificate of the Secretary of the Company certifying (i) the Certificate of Incorporation and any amendments thereto, (ii) the Bylaws and any amendments thereto, (iii) that all corporate action has been taken on the part of the Company necessary to authorize the execution and delivery of this Agreement, the Registration Rights Agreement and the other offering documents and the transactions contemplated herein and therein, (iv) resolutions of the Board of Directors of the Company approving the original issuance and sale of the Shares to the Seller, and (v) a specimen Common Stock certificate. All opinions, certificates, letters and documents delivered pursuant to this Agreement will comply with the provisions hereof only if they are reasonably satisfactory in all material respects to [ ] and counsel for [ ]. The Company and the Seller, as the case may be, shall furnish to [ ] such copies of such opinions, certificates, letters and documents in such quantities as [ ] and counsel for [ ] shall reasonably request. 7. Termination: (a) This Agreement may be terminated at the option of the Purchasers of a majority of the Shares by giving notice to the Company and the Seller prior to the Closing Date if, in the sole discretion of the Purchasers of a majority of the Shares, any of the following makes it inadvisable to proceed with the purchase of the Shares to be delivered at the Closing Date: (i) the Company shall have, in the reasonable judgment of the Purchasers of a majority of the Shares, sustained any Material Adverse Effect; (ii) trading generally in securities on the New York Stock Exchange or Nasdaq National Market shall have been suspended or minimum or maximum prices shall generally have been established on either such exchange or market system; (iii) a banking moratorium shall have been declared by New York or United States authorities; or (iv) there shall have been any outbreak or escalation of national or international hostilities or any other calamity or crisis, including without limitation any terrorist attack or similar attack, in each case resulting in a material adverse change in United States financial markets. (b) Termination of this Agreement pursuant to this Section 7 shall be without liability of any party to any other party except for the expenses to be paid by the Company pursuant to Section 5 and except as provided in Section 8 hereof. 17 8. Indemnification and Contribution: (a) The Company agrees to indemnify, defend and hold harmless [ ], the Seller and any person who controls [ ] or the Seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any loss, expense, liability, damage or claim (including the reasonable cost of investigation) which, jointly or severally, [ ], the Seller or such controlling person may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon (i) any breach of any representation, warranty or covenant of the Company contained in Sections 3(x), 3(y), 5(a)(iv) and 5(a)(v) hereof or (ii) any untrue statement or alleged untrue statement of a material fact contained in the Preliminary Private Placement Memorandum, or the Final Private Placement Memorandum or any other offering materials approved in writing by the Company prior to the use thereof, or arises out of or is based upon any omission or alleged omission to state a material fact required to be stated in either such Preliminary Private Placement Memorandum or the Final Private Placement Memorandum or necessary to make the statements made therein, in the light of the circumstances under which they were made, not misleading, except insofar as any such loss, expense, liability, damage or claim arises out of or is based upon any untrue statement or alleged untrue statement or omission or alleged omission of a material fact contained in and in conformity with information furnished in writing by [ ] or the Seller to the Company expressly for use in such Preliminary Private Placement Memorandum or Final Private Placement Memorandum, provided, however, that the indemnity agreement contained in this subsection (a) with respect to the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum shall not inure to the benefit of [ ] (or to the benefit of any person controlling [ ]) with respect to any person asserting any such loss, expense, liability, damage or claim which is the subject thereof if the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum or any amendment or supplement thereto prepared with the consent of [ ] and furnished to [ ] prior to the Closing Date corrected any such alleged untrue statement or omission and if [ ] failed to send or give a copy of the corrected Preliminary Private Placement Memorandum or Final Private Placement Memorandum or amendment or supplement thereto to such person at or prior to the written confirmation of the sale of Shares to such person, unless such failure resulted from noncompliance by the Company or the Seller with their obligations under this Agreement. If any claim or action is brought against, or any loss, expense, liability or damage (including the reasonable cost of investigation) is incurred by, [ ], the Seller or any controlling person in respect of which indemnity may be sought against the Company pursuant to the preceding paragraph, [ ] or the Seller, as the case may be, shall promptly notify the Company in writing of the institution of such claim or action or the incurrence of such loss, expense, liability or damage, and the Company shall assume the defense of such claim or action or the response to such loss, expense, liability or damage, including the employment of counsel and payment of reasonable fees and expenses associated therewith, provided, however, that any failure or delay to so notify the Company will not relieve the Company of any obligation hereunder, except to the extent that its ability to defend such claim or action or mitigate such loss, expense, liability or damage is materially prejudiced by such failure or delay. [ ], the Seller or any controlling person shall have the right to employ its or their own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of [ ], the Seller or such controlling person unless the employment of such counsel shall have been authorized in writing by the Company or the 18 Company shall not have employed counsel to have charge of the defense of or response to such claim, action, loss, expense, liability or damage, within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to the Company (in which case the Company shall not have the right to direct the defense of such claim or action on behalf of the indemnified party or parties), in any of which events such reasonable fees and expenses shall be borne by the Company and paid as incurred (it being understood, however, that the Company shall not be liable for the expenses of more than one separate firm of attorneys for each of [ ], the Seller or their respective controlling persons in any one action or series of related actions in the same jurisdiction representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, the Company shall not be liable for any settlement of any such claim or action effected without its written consent. (b) Seller agrees to indemnify, defend and hold harmless [ ], the Company and any person who controls [ ] or the Company (other than Seller) within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any loss, expense, liability, damage or claim (including the reasonable cost of investigation) which, jointly or severally, [ ], the Company or such controlling person may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon any untrue statement of a material fact contained in the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum (or such as amended or supplemented by the Company), or arise out of or are based upon the omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or omission was made in the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum (or such as amended or supplemented by the Company) in reliance upon and in conformity with written information furnished to the Company by the Seller expressly for use therein. The statements specified in the final sentence of Section 2(a) constitute the only information furnished by or on behalf of the Seller to the Company for purposes of Section 2(a) and this Section 8. If any claim or action is brought against [ ] or the Company or any such person in respect of which indemnity may be sought against the Seller pursuant to the foregoing paragraph, [ ], the Company or such person shall promptly notify the Seller in writing of the institution of such action and the Seller shall assume the defense of such action, including the employment of counsel and payment of reasonable fees and expenses associated therewith. [ ], the Company or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of [ ], the Company or such person unless the employment of such counsel shall have been authorized in writing by the Seller in connection with the defense of such action or the Seller shall not have employed counsel to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to the Seller (in which case the Seller shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such reasonable fees and expenses shall be borne by the Seller and paid as incurred (it being understood, however, that the Seller shall not 19 be liable for the expenses of more than one separate firm of attorneys in any one action or series of related actions in the same jurisdiction representing the indemnified parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, the Seller shall not be liable for any settlement of any such claim or action effected without the written consent of the Seller. (c) [ ] agrees to indemnify, defend and hold harmless the Company, its directors and any person who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act from and against (i) any loss, expense, liability, damage or claim (including the reasonable cost of investigation) which, jointly or severally, the Company or any such person may incur under the Securities Act, the Exchange Act or otherwise, insofar as such loss, expense, liability, damage or claim arises out of or is based upon any breach of any representation, warranty or covenant of [ ] contained in the first sentence of Section 4(a) and in Section 4(b) or (ii) any loss, expense, liability, damage or claim (including the reasonable cost of investigation) which jointly or severally, the Company, the Seller or any such person may incur under the Securities Act, the Exchange Act or otherwise insofar as such loss, expense, liability, damage or claim arises out of or is based on any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information furnished in writing by [ ] to the Company expressly for use in the Preliminary Private Placement Memorandum or the Final Private Placement Memorandum (or such as amended or supplemented by the Company), or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information or necessary to make such information, in the light of the circumstances under which they were made, not misleading. [ ] agrees to indemnify, defend and hold harmless the Seller, its directors and any person who controls the Seller within the meaning of Section 15 of the Securities Act or Section 2 of the Exchange Act as to any loss, expense, liability, damage or claim of the Seller or any such person referenced in clause (ii) of the preceding sentence. The statements set forth under Section 20 hereinbelow constitute the only information furnished by or on behalf of [ ] to the Company for purposes of Section 3(a) above and this Section 8. If any claim or action is brought against the Company, the Seller or any such person in respect of which indemnity may be sought against [ ] pursuant to the foregoing paragraph, the Company, the Seller or such person shall promptly notify [ ] in writing of the institution of such action and [ ] shall assume the defense of such action, including the employment of counsel and payment of reasonable fees and expenses associated therewith. The Company, the Seller or such person shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of the Company, the Seller or such person unless the employment of such counsel shall have been authorized in writing by [ ] in connection with the defense of such action or [ ] shall not have employed counsel to have charge of the defense of such action within a reasonable time or such indemnified party or parties shall have reasonably concluded (based on the advice of counsel) that there may be defenses available to it or them which are different from or additional to those available to [ ] (in which case [ ] shall not have the right to direct the defense of such action on behalf of the indemnified party or parties), in any of which events such fees and expenses shall be borne by [ ] and paid as incurred (it being understood, however, that [ ] shall not be liable for the expenses of more than one separate firm of attorneys for each of the Company, the Seller or their respective controlling persons in any one action or series of related actions in the same jurisdiction representing the indemnified 20 parties who are parties to such action). Anything in this paragraph to the contrary notwithstanding, [ ] shall not be liable for any settlement of any such claim or action effected without the written consent of [ ]. (d) If the indemnification provided for in this Section 8 is unavailable to an indemnified party under subsections (a), (b) and (c) of this Section 8 in respect of any losses, expenses, liabilities, damages or claims referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, expenses, liabilities, damages or claims (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, the Seller and [ ] from the offering of the Shares or (ii) if (but only if) the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, the Seller and [ ] in connection with the statements or omissions which resulted in such losses, expenses, liabilities, damages or claims, as well as any other relevant equitable considerations. The relative benefits received by the Company, the Seller and [ ] shall be deemed to be in the same proportion as the total proceeds from the offering received by the Company and the Seller bear to the Placement Fee received by [ ] provided that, as between the Company and [ ], or the Seller and [ ], benefits received by [ ] shall be limited to the Placement Fee received by [ ] from the sale of shares by the Company or by the Seller, respectively, and not the aggregate Placement Fee. The relative fault of the Company, the Seller and [ ] shall be determined by reference to, among other things, whether the untrue statement or alleged untrue statement of a material fact or omission or alleged omission relates to information supplied by the Company or by the Seller or by [ ] and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any claim or action. The Company, the Seller and [ ] agree that it would not be just and equitable if contribution pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in subsection (c)(i) and, if applicable (ii), above. Notwithstanding the provisions of this Section 8, [ ] shall not be required to contribute any amount in excess of the Placement Fee applicable to the Shares purchased by the Purchasers. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 9. Survival: The respective representations, warranties, agreements, covenants, indemnities and other statements of the Company, the Seller, their respective officers, the Purchasers and [ ] set forth in or delivered in connection with this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement shall remain in full force and effect, regardless of (i) any investigation made by or on behalf of the Company, the Seller, any of their respective officers or directors, the Purchasers, [ ] and each person, if any, who controls [ ] within the meaning of the Securities Act or the Exchange Act and their respective trustees, directors, officers, employees, agents and controlling persons referred to in Section 8 hereof and (ii) delivery of and payment for the Shares. The respective agreements, covenants, indemnities 21 and other statements set forth in Sections 5(a)(viii) and 8 hereof shall remain in full force and effect, regardless of any termination or cancellation of this Agreement. 10. Notices: All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery: (a) if to the Company: CONSOL Energy Inc. Attn: Stephen E. Williams, Esq. Consol Plaza 1800 Washington Road Pittsburgh, Pennsylvania 15241-1421 Telephone: (412) 831-4000 Facsimile: (412) 831-4635 with a copy to: Piper Rudnick LLP Attn: Steven L. Wasserman, Esq. 1251 Avenue of the Americas New York, New York 10020 Telephone: (212) 835-6000 Facsimile: (212) 835-6001 (b) if to the Seller: RWE Rheinbraun AG Attn: General Counsel, Dr. Rolf Schoenewerk Stuettgenweg 2 D-50935 Cologne Federal Republic of Germany Telephone: 49 (0) 221/480-23266 Facsimile: 49 (0) 221/480-1345 with a copy to: Cravath, Swaine & Moore LLP Attn: Peter S. Wilson, Esq. Worldwide Plaza 825 Eight Avenue New York, New York 10019 Telephone: (212) 474-1000 Facsimile: (212) 474-3700 22 (c) if to [ ]: [ ] Attn: [ ] [ ] [ ] [ ] [ ] [ ] with a copy to: Hunton & Williams LLP Attn: Daniel M. LeBey, Esq. Riverfront Plaza, East Tower 951 E. Byrd Street Richmond, Virginia 23219 Telephone: (804) 788-8200 Facsimile: (804) 788-8218 (d) if to the Purchasers: To each Purchaser at its address specified in its Purchaser Letter All such notices and communications shall be deemed to have been duly given when received. Any party by notice to the other party may designate additional or different addresses for subsequent notices or communications. 11. Governing Law; Consent to Jurisdiction: THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The parties hereto agree to be subject to, and hereby irrevocably submit to, the nonexclusive jurisdiction of the United States District Court for the Southern District of New York or the Supreme Court of the State of New York sitting in New York County, in respect of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated herein, and irrevocably agree that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. 12. Waiver of Jury Trial: TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN 23 INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 13. Parties in Interest: The Agreement herein set forth has been and is made solely for the benefit of the Purchasers, [ ], the Company, the Seller and the controlling persons, trustees, directors and officers referred to in Sections 8 and 9 hereof, and their respective successors, assigns, executors and administrators. No other person, partnership, association or corporation shall acquire or have any right under or by virtue of this Agreement. The parties hereto agree that Purchasers shall be third party beneficiaries to the agreements made by the Seller in Sections 1(d) and 1(e) of the Agreement, and each Purchaser shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder. 14. Amendments and Waivers: Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. 15. Successors: This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. The rights and obligations of any party hereto may not be assigned by such party without the express written consent of each other party hereto, and any attempted assignment without such consent shall be invalid. 16. Counterpart and Facsimile Signatures: This Agreement may be in signed counterparts, each of which shall be an original and all of which together shall constitute one and the same agreement, and may be executed by facsimile. 17. Headings: The section headings in this Agreement have been inserted as a matter of convenience of reference and are not a part of this Agreement. 18. Severability: In the event that any one or more of the provisions contained herein is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, but only to the extent that giving effect to such provision and the remaining provisions hereof is in accordance with the intent of the parties as reflected in this Agreement. 19. Entire Agreement: This Agreement (including the Exhibits hereto) constitutes the entire agreement and understanding of the parties hereto with respect to the matters and transactions contemplated hereby supersedes all prior agreements and understanding whatsoever relating to such matters and transactions. 20. Furnished Information: The Company and [ ] hereby confirm and agree that the only information furnished to the Company by [ ] expressly for use in the Private Placement Memorandum is the information set forth in the last sentence of the second paragraph under the heading "Private Placement." 21. Default by Any Purchaser: In the event that any Purchaser shall default in its obligation to purchase and pay for any Shares hereunder, the proportion of Primary Shares and 24 Secondary Shares in the aggregate number of Shares being purchased by each other Purchaser hereunder shall be reallocated in such proportion (as determined by [ ] in consultation with the Seller and the Company) so that the aggregate number of Primary Shares being purchased by all Purchasers hereunder shall in all events be 11,000,000. [SIGNATURE PAGE FOLLOWS] 25 Please acknowledge and accept the foregoing provisions hereof by signing this Agreement in the space indicated below. Very truly yours, RWE RHEINBRAUN AG, a stock corporation organized under the laws of The Federal Republic of Germany By: /s/ Dr. Rolf Zimmerman ------------------------------------ Name: Rolf Zimmerman Title: Vice President By: /s/ Walter Froehling ------------------------------------ Name: Walter Froehling Title: Senior Counsel CONSOL ENERGY INC., a Delaware corporation By: /s/ William J. Lyons ------------------------------------ Name: William J. Lyons Title: Senior Vice President ACKNOWLEDGED AND ACCEPTED: [ ], By: /s/ [ ] -------------------------------- Name: Title: 26 SCHEDULE 1 PURCHASERS 27 EXHIBIT A FORM OF PURCHASER'S LETTER/SUBSCRIPTION AGREEMENT A-1 EXHIBIT B FORM OF REGISTRATION RIGHTS AGREEMENT B-1 EXHIBIT C FORM OF OPTION AGREEMENT C-1 EXHIBIT D FORM OF ESCROW AGREEMENT D-1 EXHIBIT E FORM OF OPINION OF COMPANY COUNSEL E-1 EXHIBIT F FORM OF OPINION OF CRAVATH, SWAINE & MOORE LLP F-1 EXHIBIT G FORM OF OPINION OF SELLER'S GENERAL COUNSEL G-1 EX-2 4 ex2.txt FORM OF OPTION AGREEMENT Exhibit 2 OPTION AGREEMENT THIS OPTION AGREEMENT (this "Agreement") is made and entered into as of September 23, 2003, by and among RWE Rheinbraun AG, a stock corporation organized under the laws of The Federal Republic of Germany ("RWE"), [ ] ("[ ]"), and CONSOL Energy Inc., a Delaware corporation (the "Company"). THE PARTIES ENTER INTO THIS AGREEMENT on the basis of the following facts, understandings and intentions: A. RWE owns 57,997,357 shares (the "Secondary Shares") of the common stock of the Company. B. RWE, the Company, and [ ] entered into a Placement Agreement, dated September 18, 2003, pursuant to which (i) RWE agreed to sell 14,100,000 Secondary Shares and (ii) the Company agreed to sell 11,000,000 newly issued shares of its common stock (the "Primary Shares" and, together with the Secondary Shares, the "Shares") to the investors listed on Schedule 1 to the Placement Agreement (the "Initial Purchasers"), with [ ] acting as placement agent (such transactions, the "Initial Offering"). In addition, the Initial Purchasers were granted registration rights with respect to the Shares pursuant to the Registration Rights Agreement. C. The purchase price for the Shares sold in the Initial Offering was $17.82 per Share (the "Initial Purchase Price"). D. RWE has agreed to give [ ] the option to place all or any part of RWE's remaining Secondary Shares not purchased by the Initial Purchasers (the "Option Shares") upon the terms and conditions set forth below. E. The execution of this Agreement is a condition to the closing of the transactions contemplated by the Placement Agreement. F. Any capitalized terms used but not otherwise defined herein shall have the same meanings as ascribed to such terms in the Placement Agreement. NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Placement Option. (a) Option. RWE hereby grants to [ ] an exclusive option to place all or any part of the Option Shares (the "Option"). The Option may be exercised in whole or in part by [ ] on one or more occasions at any time during the period ending the sooner of (i) 90 days following the consummation of the Initial Offering, or (ii) 30 days following the date that the registration statement relating to the Shares purchased in the Initial Offering becomes effective in accordance with the Registration Rights Agreement (the "Option Period"), as it may be extended as described below, upon written notice by [ ] to RWE and the Company (each, an "Option Notice"), which notice shall be provided no later than five (5) business days prior to the date on which the placement agreement described in Section 1(b) below is to be executed and delivered. [ ] agrees to use, during the Option Period, as it may be extended as described below, subject to the terms hereof and applicable law, rules and regulations, commercially reasonable efforts to place all of the Option Shares as promptly as reasonably practicable on the terms provided herein. [ ] shall not be required to use efforts to place, and shall not be entitled to exercise the Option to place, any Option Shares (i) in a private offering (a "Private Offering") that is not registered under the Securities Act of 1933, as amended (the "Act"), during any period of time or in any manner that would, in the reasonable and good faith judgment of RWE or the Company, upon advice of their counsel, after consulting with and considering the advice of counsel to [ ], create a risk that the Private Offering would be required to be registered under the Act or would not otherwise comply with applicable securities laws or New York Stock Exchange regulations and that makes it inadvisable to proceed with a Private Offering at such time or in such manner, (ii) in a public offering (a "Public Offering") that is registered under the Act during any period of time or in any manner that would, in the reasonable and good faith judgment of RWE or the Company, upon advice of their counsel, after consulting with and considering the advice of counsel to [ ], (A) create a risk that a previous or concurrent Private Offering or attempted Private Offering of securities of the Company would be required to be registered under the Act or (B) not otherwise comply with applicable securities laws or New York Stock Exchange regulations and that, in the case of each of clauses (A) and (B), makes it inadvisable to proceed with a Public Offering at such time or in such manner, (iii) during any period of time (but in no event to exceed 60 days in the aggregate) that the Company reasonably and in good faith determines that it would be impracticable or inadvisable to proceed with an offering of Option Shares at such time because of any pending discussions relating to, or the consummation of, a transaction or the occurrence of an event (x) that would require additional disclosure of material information by the Company to the purchasers of such Option Shares and which has not been so disclosed, (y) as to which the Company has a bona fide business purpose for preserving confidentiality, or (z) that renders the Company unable to comply with its disclosure obligations under the United States securities laws; provided, however, that (1) if [ ] at any time delivers an Option Notice to RWE and the Company and either RWE or the Company determines pursuant to clause (i) or (ii) above that it is inadvisable to proceed with the offering at such time or in the manner [ ] proposes to conduct such offering in such Option Notice, and the determination of RWE or the Company is based on factors other than actions taken or proposed to be taken by [ ] and [ ] reasonably believes that the basis for such determination can be cured, then the parties hereto agree to use their commercially reasonable efforts to cure the basis of such determination and the Option Period shall be extended by the number of days from the date the Option Notice is delivered to RWE and the Company to the date of cure to the reasonable satisfaction of the Company, RWE and [ ], but in no event shall the Option Period be extended by more than an aggregate of 60 days pursuant to this clause (1), and (2) if [ ] at any time delivers an Option Notice to RWE and the Company and the Company determines pursuant to clause (iii) above that it would be impracticable or inadvisable to proceed with the offering at such time for any of the reasons set forth in subclauses (x), (y) or (z) of clause (iii), then the Option Period shall be extended by the number of days from the date that [ ] delivers the Option Notice to RWE and the Company to the date on which the Company notifies [ ] in writing that the Company has determined that it is no longer impracticable or inadvisable to proceed with such offering but in 2 no event shall the Option Period be extended by more than an aggregate of 60 days pursuant to this clause (2). (b) Offering. The Option Shares to be placed by [ ] upon its exercise of the Option shall be offered and sold by RWE pursuant to a placement agreement to be negotiated in good faith among the Company, RWE and [ ] in substantially the same form as the Placement Agreement (with such appropriate modifications as are necessary to reflect the absence of a primary offering and to accommodate a secondary placement in a Public Offering if the Option Shares have been registered under the Act at the time of exercise). If [ ] determines during the Option Period to place the Option Shares in a Public Offering, then, if [ ] so requests in writing, RWE shall exercise any registration rights pursuant to which RWE is entitled to register the Option Shares for resale with the Securities and Exchange Commission. RWE and the Company each agrees to use its commercially reasonable efforts to cause such Option Shares to become registered with the Securities and Exchange Commission as described above as promptly as reasonably practicable following the receipt of such written request. (c) Share Price. If [ ] exercises the Option, the Option Shares shall be offered and sold to purchasers at a price (the "Market Price") determined in good faith by [ ] taking into account the then-current trading price of common stock of the Company on the New York Stock Exchange, the number of Option Shares to be placed and the impact of the sale on the trading price of the common stock of the Company on the New York Stock Exchange, but in no event will the Option Shares be offered or sold to purchasers at a price lower than $17.82 per share. The total proceeds received by [ ] from purchasers of Option Shares at any settlement time shall be allocated and distributed as follows: (i) RWE shall receive the Market Price, less the Placement Fee (as defined in subparagraph (d) below), for each Option Share sold; (ii) [ ] shall receive the Placement Fee for each Option Share sold; and (iii) RWE shall distribute to the Initial Purchasers in accordance with the requirements of Section 1(e) of the Placement Agreement the amount, if any, by which the Market Price per Option Share sold exceeds the Initial Purchase Price. (d) Placement Fee. RWE shall pay [ ] a placement fee of $0.50 (the "Placement Fee") for each Option Share sold by it pursuant to any exercise by [ ] of the Option, payable at the time of sale of each Option Share. (e) Registration Rights. Any Option Shares sold pursuant to a Private Offering will be deemed to be Registrable Shares under the Registration Rights Agreement and the holders thereof shall have all of the same rights with respect to all Option Shares held by them that the Initial Purchasers have under the Registration Rights Agreement with respect to the Initial Shares. (f) Termination. Upon the expiration of the Option Period, as it may be extended pursuant to Section 1(a) above, the Option shall terminate and [ ] shall have no further rights to place any Option Shares as to which RWE and the Company have not received an Option Notice. 2. Placement Restrictions. Each purchaser of Option Shares will be required to represent that (a) such purchaser does not, and will not following the purchase of Option Shares, beneficially own (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")), individually or together with any of such purchaser's affiliates, more than ten percent (10%) of the Company's issued and outstanding shares of common stock, and (b) is not, and will not be following the purchase of Option Shares, a member of a "group" (as defined in Rule 13d-5 under the Exchange Act) beneficially owning more than ten percent (10%) of the Company's outstanding shares of Common Stock. 3. Notices. All notices and other communications, provided for or permitted hereunder shall be made in writing and delivered by facsimile (with receipt confirmed), overnight courier or registered or certified mail, return receipt requested. (a) if to [ ], at the offices of [ ] at [ ], Attention: General Counsel; with a copy to Hunton & Williams LLP, 951 East Byrd Street, Richmond, Virginia 23219, Attention: Daniel M. LeBey, Esq., (facsimile (804) 788-8218). (b) if to RWE, at the offices of RWE at Stuettgonweg 2, D-50935 Cologne, Federal Republic of Germany, Attention: General Counsel, Dr. Rolf Schoenewerk (facsimile: 49 (0) 221/480-1345; with a copy to Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eight Avenue, New York, New York 10019, Attention: Peter S. Wilson, Esq. (facsimile: (212) 474-3700); and (c) if to the Company, at the offices of the Company at Consol Plaza, 1800 Washington Road, Pittsburgh, Pennsylvania 15241-1421, Attention: Stephen E. Williams, Esq., (facsimile (412) 831-4635); with a copy to Piper Rudnick LLP, 1251 Avenue of the Americas, New York, New York 10020, Attention: Steven L. Wasserman, Esq., (facsimile (212) 835-6001). 4. Governing Law; Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The parties hereto agree to be subject to, and hereby irrevocably submit to, the nonexclusive jurisdiction of the United States District Court for the Southern District of New York or the Supreme Court of the State of New York sitting in New York County, in respect of any suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated herein, and irrevocably agree that all claims in respect of any such suit, action or proceeding may be heard and determined in any such court. Each of the parties hereto irrevocably waives, to the fullest extent permitted by applicable law, any objection to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum. 6. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. 5. Amendments and Waivers. Neither this Agreement nor any term hereof may be changed, waived, discharged or terminated orally, but only by an instrument in writing signed by the party against whom enforcement of the change, waiver, discharge or termination is sought. 6. Successors and Assigns; No Assignment without Consent. (a) This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. (b) The rights and obligations of any party hereto may not be assigned by such party without the express written consent of each other party hereto and any attempted assignment without such consent shall be invalid. 7. Counterpart and Facsimile Signatures. This Agreement may be in signed counterparts, each of which shall be an original and all of which together shall constitute one and the same agreement, and may be executed by facsimile. 8. Severability. In the event that any one or more of the provisions contained herein is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, but only to the extent that giving effect to such provision and the remaining provisions hereof is in accordance with the intent of the parties as reflected in this Agreement. 9. Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire agreement and understanding of the parties hereto with respect to the matters and transactions contemplated hereby supersedes all prior agreements and understanding whatsoever relating to such matters and transactions. 10. Survival. This Agreement is intended to survive the consummation of the transactions contemplated by the Placement Agreement. [Remainder of this page intentionally left blank] 5 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. RWE RHEINBRAUN AG, a stock corporation organized under the laws of The Federal Republic of Germany By: ------------------------------------ Name: Title: By: ------------------------------------ Name: Title: [ ] By: ------------------------------------ Name: Title: CONSOL ENERGY INC., a Delaware corporation By: ------------------------------------ Name: Title: 6 EX-3 5 ex3.txt REGISTRATION RIGHTS AGREEMENT Exhibit 3 REGISTRATION RIGHTS AGREEMENT made as of this 1st day of February, 1999, by and between CONSOL ENERGY INC., a Delaware corporation (the "Company"), and RHEINBRAUN AG and RHEINBRAUN US GMBH, both German corporations (the "Stockholders"). The Company has issued and outstanding 53,000 shares of Common Stock. The Stockholders, in the aggregate, own 50,000 such shares, which are not registered under the Securities Act. The Company is expected to register and make an initial public offering of its Common Stock in 1999. The Stockholders desire to ensure that they may cause the Company to register their shares of Common Stock upon the terms and conditions of this Agreement, to which the Company is agreeable. NOW, THEREFORE, the parties hereto hereby agree as follows: 1. Definitions: As used in this Agreement, the following capitalized terms shall have the following meanings: "Common Stock" shall mean the shares of the Company's Common Stock, par value $1.00 per share (or such other par or no-par value as may be established hereafter), as the same may be constituted from time to time. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Person" shall mean an individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. "Prospectus" shall mean the prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by the Registration Statement and all other amendments and supplements to the Prospectus, including post-effective amendments and all material incorporated by reference in such Prospectus. "Registrable Securities" shall mean (i) the Shares and (ii) any securities issued or issuable with respect to the Shares by way of a stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation, reorganization or otherwise. "Registration Statement" shall mean any registration statement of the Company which covers Registrable Securities pursuant to the provisions of this Agreement, including the Prospectus, amendments (including post-effective amendments) and supplements to such Registration Statement, all exhibits and all material incorporated by reference in such Registration Statement. "SEC" shall mean the U.S. Securities and Exchange Commission. "Securities Act" shall mean the Securities Act of 1933, as amended from time to time. "Shares" shall mean the aggregate of 50,000 shares of Common Stock owned by the Stockholders and any additional shares of Common Stock of the Company acquired by the Stockholders independently of the original Shares. "Underwritten Offering" shall mean a registration in which securities of the Company are sold at a fixed price pursuant to a firm commitment underwriting to an underwriter for reoffering or pursuant to agency or best efforts arrangements with an underwriter. 2. Demand Registrations (a) Notice and Demand. At any time that the Stockholders shall own shares of Common Stock of the Company, the Stockholders may, from time to time, notify the Company in writing that they demand that the Company file a Registration Statement under the Act covering the registration of all or part of the Registrable Securities. Upon receipt of such notice, the Company shall, within sixty (60) days of the 2 receipt of such request, file as soon as practicable a Registration Statement under the Act covering the number of Registrable Securities specified in such request. (b) Underwritten Offerings. If the Stockholders intend to distribute the Registrable Securities covered by their request by means of an Underwritten Offering, they shall so advise the Company as part of their request. The Stockholders shall select the managing underwriter for such offering. If the Stockholders enter into an underwriting agreement in customary form with such managing underwriter, and such agreement is reasonably acceptable to the Company, the Company shall join such agreement as a party thereto. 3. Piggyback Registrations (a) Notice and Request to Piggyback. Whenever the Company proposes to register any of its securities under the Securities Act (other than pursuant to a registration on Forms S-4 or S-8 or comparable forms), the Company shall give written notice to the Stockholders of its intention to effect such a registration not later than 35 days prior to the anticipated filing date. Subject to the provisions of Section 3(c) of this Agreement, the Company shall include in such registration all Registrable Securities with respect to which the Company has received from the Stockholders a written request to include Registrable Securities therein ("Piggyback Registration") within twenty-five (25) days after the receipt by the Stockholders of the Company's notice. The Stockholders shall be permitted to withdraw all or any part of the Registrable Securities from a Piggyback Registration at any time prior to the effective date of such Piggyback Registration. (b) Selection of Underwriters. If any Piggyback Registration is an Underwritten Offering, the Company, with the prior written consent of the Stockholders (which shall not be unreasonably withheld), shall have the right to select the managing underwriter for such offering. (c) Registration Riqhts Inapplicable to Acquisitions. Notwithstanding Section 3(a) hereof, the right of the Stockholders to require Piggyback Registration of 3 Registrable Securities shall not apply to a Registration Statement relating to an offering solely of securities issued or to be issued by the Company in connection with the acquisition of the stock or assets of another corporation or the merger or consolidation of another corporation or corporations by or with the Company. 4. Mechanics of Filing, Blue Sky, etc. Whenever the Company is required by the provisions of this Agreement to include any Registrable Securities in any registration, the Company shall, as expeditiously as possible: (a) Filing of Registration Statement. Prepare and file with the SEC a Registration Statement with respect to the Registrable Securities and use its best efforts to cause such Registration Statement to become and remain effective, and prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for the shorter of (i) 90 days or (ii) the completion of the distribution, and to comply with the provisions of the Securities Act with respect to the disposition of all Registrable Securities covered by such Registration Statement in accordance with the intended method of disposition of the Registrable Securities as set forth in such Registration Statement for such period; (b) Copies of Prospectus. Furnish to the Stockholders such number of copies of the Prospectus contained in such Registration Statement (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and such other documents as the Stockholders may reasonably request in order to facilitate the disposition of the securities owned by them; (c) Blue Sky Registration. (i) Register or qualify the Registrable Securities covered by such Registration Statement under the securities or Blue Sky laws of such jurisdictions as shall be requested by the Stockholders, and do any and all other acts and things which may be reasonably necessary or advisable to enable the Stockholders to consummate the disposition of the Registrable Securities in such 4 jurisdictions during the period provided in Section 4(a) above at the Company's sole expense, and (ii) use its best efforts to register or qualify such Registrable Securities under the securities or Blue Sky laws of such other jurisdictions in addition to those in clause (i) above as the Stockholders shall request and do any and all acts which may be reasonably necessary or advisable to enable the Stockholders to consummate the disposition of the Registrable Securities in such other additional jurisdictions during the period provided in Section 4(a) above at the Stockholders' sole expenses: provided, that the Company shall not be required to qualify to do business as a foreign corporation or consent to or file a general consent to service of process in any state; (d) Information Provided to Stockholders. Notify the Stockholders of the happening of any event as a result of which the Prospectus contained in such Registration Statement, as then in effect, includes any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing, and prepare and furnish to the Stockholders a reasonable number of copies of any supplement to or amendment of such Prospectus that may be necessary so that, as thereafter delivered to purchasers of the Registrable Securities, such Prospectus shall not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading in the light of the circumstances then existing; and (e) Agreements of Stockholders. If the method of disposition of the Registrable Securities involves a continuous offering at the market, a best efforts offering, or other method whereby all of the Registrable Securities are not distributed and sold over a period of time not exceeding one (1) business day, the Stockholders agree to execute such other agreements that may be reasonably requested by the Company to ensure compliance with applicable Exchange Act Rules. 5 5. Furnishing of information; Sales Suspension The obligations of the Company and the rights of the Stockholders under this Agreement shall be subject to the following additional terms, conditions and limitations: (a) Information Provided by Stockholders. Following any demand or request for registration hereunder, the Stockholders shall be required to furnish to the Company and to its counsel all relevant information concerning the proposed method of sale or other distribution by the Stockholders of the Registrable Securities, and such other information as the Company and its counsel reasonably may require to prepare and file a Registration Statement in accordance with the applicable provisions of the Securities Act and the rules and regulations promulgated by the SEC thereunder. If requested by the Company, such information shall be furnished in writing. (b) Suspension of Sales by Stockholders. If, at any time when the Company is required to maintain a Registration Statement effective and current with respect to Registrable Securities included therein, as then amended or supplemented, any event or events shall occur that would cause the Prospectus therein (as then amended or supplemented) to be other than in compliance with the requirements of Section 10 of the Securities Act, the Company will promptly give notice thereof to the Stockholders and, upon receipt of such notice, the Stockholders shall immediately cease and desist from effecting any sales of the Registrable Securities until the Stockholders shall have received notice from the Company that such sales again may be effected together with copies of a Prospectus which has been amended or supplemented so as to conform to the requirements of said Section 10. Upon the occurrence of any such event, the Company promptly shall use its best efforts to prepare and file with the SEC a post-effective amendment to the Registration Statement, or a post-effective amendment or supplement to the Prospectus, so that the Prospectus, as so amended or supplemented, will comply with the requirements of Section 10 of the Securities Act. 6 6. Registration Expenses Whenever the Company includes Registrable Securities in any offering, the Company shall pay all expenses arising out of or related to the preparation, filing, distribution, printing, amendment and supplementing of a Registration Statement under Section 2 or 3 hereof (and to the extent provided in Section 4(c) hereof, any Blue Sky registration and qualification expenses) including, without limitation, all legal and accounting fees, the fees of other experts, and any reasonable expenses or other compensation paid to the underwriters (other than legal fees and disbursements of the Stockholders' counsel in connection with such registration); provided, that each Stockholder shall pay its pro rata share of underwriting commissions and discounts and taxes with respect to the transfer of such Stockholder's Registrable Securities. 7. Indemnification (a) Indemnification by the Company. The Company agrees to indemnify, to the fullest extent permitted by law, each Stockholder of Registrable Securities, its officers, directors, employees and agents and each Person who controls such Stockholder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) against all losses, claims, damages, liabilities and expenses caused by any untrue or alleged untrue statement of a material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any omission or alleged omission to state therein a material fact required to be stated therein to make it not misleading, except insofar as the same are caused by or contained in any information furnished in writing to the Company by such Stockholder expressly for use therein or by such Stockholder's failure to deliver or cause to be delivered a copy of the Registration Statement or Prospectus after the Company has furnished such Stockholder or any Underwriter (with respect to an Underwritten Offering) with a sufficient number of copies of the same. The Company will also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of the Securities Act) to the same extent as provided above with respect to the indemnification of the Stockholders. 7 (b) Indemnification by Stockholders of Registrable Securities. In connection with any Registration Statement in which a Stockholder is participating, each such Stockholder will furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in connection with any Registration Statement or Prospectus and agrees to indemnify, to the full extent permitted by law, the Company, its directors and officers and each Person who controls the Company (within the meaning of the Securities Act) against all losses, claims, damages, liabilities, and expenses resulting from any untrue or alleged untrue statement of a material fact or any omission or alleged omission of a material fact required to be stated in the Registration Statement or Prospectus or preliminary Prospectus or necessary to make the statements therein not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information or affidavit so furnished in writing by or on behalf of such Stockholder to the Company specifically for inclusion in such Registration Statement or Prospectus. The Company may separately require and arrange to receive indemnities from underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, to the same extent as provided above with respect to information so furnished in writing by such Persons specifically for inclusion in any Prospectus or Registration. (c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party; provided, that any Person entitled to indemnification hereunder shall have the right to employ separate counsel and to participate in the defense of such claim, but the fees and expenses of such counsel shall be at the expense of such Person unless (A) the indemnifying party has agreed to pay such fees or expenses, or (B) the indemnifying party shall have failed to assure the defense of such claim and employ counsel reasonably satisfactory to such Person, or (C) in the reasonable judgment of any such Person, based upon advice of counsel, a conflict of interest may exist between such Person and the indemnifying party with respect to such claims (in which case, if the 8 Person notifies the indemnifying party in writing that such Person elects to employ separate counsel at the expense of the indemnifying party, the indemnifying party shall not have the right to assume the defense of such claims on behalf of such Person). If such defense is not assumed by the indemnifying party, the indemnifying party will not be subject to any liability for any settlement made without its consent (but such consent shall not be unreasonably withheld). No indemnified party will be required to consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel (together with local counsel where required) for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the fees and expenses of such additional counsel or counsels. 8. Company Compliance with Rule 144 The Company covenants that it will file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder, and it will take such further action as any Stockholder may reasonably request, to the extent required from time to time to enable such Stockholder to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the SEC. Upon the request of any Stockholder, the Company will deliver to such Stockholder a written statement as to whether it has complied with such information and requirements. 9 9. Miscellaneous (a) Remedies. (i) Each Stockholder, in addition to being entitled to exercise all rights provided herein or granted by law, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. (ii) Rheinbraun U.S. GmbH hereby appoints Rheinbraun AG as its agent and attorney-in-fact for purposes of taking any action or asserting any claim under this Agreement. (b) Suspension and Termination. The Stockholders agree that they will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus used by the Company in an initial public offering of Common Stock, exercise any registration rights granted under Sections 2 and 3 hereof. The registration rights granted under Sections 2 and 3 shall terminate on the fifth anniversary of this Agreement. (c) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, telex, telecopier or air courier guaranteeing overnight delivery: (1) if to a Stockholder, at the most current address given by such Stockholder to the Company; and (2) if to the Company, c/o Consol Inc. Consol Plaza 1800 Washington Road Pittsburgh, PA 15241 Attention: President 10 All such notices and communications shall be deemed to have been duly given when received by the addressee thereof. (d) Successors and Assigns. With the consent of the Company (which shall not be unreasonably withheld), the registration rights granted to the Stockholders hereunder may be transferred in whole or in part to a transferee who acquires at least 20% of the issued and outstanding shares of Common Stock of the Company. (e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. (f) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected or impaired thereby. (g) Entire Agreement. This Agreement is intended to be a complete and exclusive statement of the agreement and understanding of the parties thereto in respect of the subject matter. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein with respect to the registration rights granted by the Company hereunder. This Agreement supersedes all prior agreements and understanding between the parties with respect to such subject matter. 11 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. CONSOL ENERGY INC. By: /s/ J. Brett Harvey ------------------------------ Name: Title: RHEINBRAUN AG By: By: /s/ Dr. Henning /s/ Bonekemp ----------------------------------- --------------------------------- Name: Dr. Henning Name: Bonekamp Title: Vorsitzender des Vorstandes Title: Mitglied des Vorstandes RHEINBRAUN US GMBH By: /s/ Kausch ------------------------------ Name: Dr. Kausch Title: Geschaeftsfuehrer /s/ ppa. Rueth ------------------------------ Name: Rueth Title: Prokurist EX-4 6 ex4.txt FIRST AMENDMENT (BY LETTER AGREEMENT) Exhibit 4 [Letterhead of] CONSOL ENERGY INC. May 23, 2003 RWE Rheinbraun AG Stuettgenweg 2 D-50935, Koln, Germany Attention: Walter Froehling Gentlemen: Re: Registration Rights Agreement Dated February 1, 1999; Waiver of Notice Period As you are aware, Consol Energy, Inc., (the "Company") and RWE Rheinbraun AG, formerly named Rheinbraun AG and as successor to Rheinbraun US GmbH, ("Stockholder") are parties to that certain Registration Rights Agreement dated February 1, 1999 (the "Agreement"). Section 3(a) of the Agreement provides that (i) the Company shall give written notice to Stockholder of its intention to effect the registration of any of its securities under the Securities Act of 1933, as amended, not later than 35 days prior to the anticipated date of the filing of such registration; and (ii) the Company shall include in such registration all Registrable Securities that Stockholder requests be included, subject to compliance with the requirements of section 3(a) and exceptions set forth in section 3(c). As we have discussed, the Company desires to register certain securities under the Securities Act, and intends to do so on or about May 27, 2003. Specifically, the Company intends to file with the Securities and Exchange Commission, on Form S-3, a "shelf" registration with respect to the offer by the Company for its own account, from time to time, in one or more offerings of, debt securities, shares of the Company's common stock, shares of the Company's preferred stock, depositary shares, stock purchase units, stock purchase contracts, or warrants to purchase the Company's debt securities, common stock, or preferred stock, at a maximum aggregate offering price of $800,000,000 (the "Shelf Registration"). The purpose of this letter agreement is to confirm and record our understanding that Stockholder has agreed to waive, and hereby does waive, on the terms and conditions set forth in this agreement its right under section 3(a) of the Agreement to receive notice of the filing of the Shelf Registration. The Company and Stockholder further agree that (i) the Company shall give Stockholder written notice 10 days prior to requesting acceleration of effectiveness of the Shelf Registration, it being understood that during that 10-day period Stockholder may request that the Company amend the 2 Shelf Registration to increase the amount of securities being registered to include Registrable Securities or to allocate a portion of the securities being registered to sales of Registrable Securities by Stockholder under the Shelf Registration and to reflect the inclusion in the Shelf Registration of Registrable Securities by Stockholder and (ii) in the event that Stockholder determines not to include Registrable Securities in the Shelf Registration but elects to request a separate registration statement under section 2(a) of the Agreement, the Company will expedite the filing of such a registration statement without regard to the 60-day time limit set forth in section 2(a) of the Agreement. Except as specifically provided herein, the provisions of the Agreement shall remain in full force and effect. Please evidence your agreement with the foregoing by executing both counterpart originals of this agreement in the space provided and return one fully executed original to the undersigned. Respectfully submitted, CONSOL ENERGY, INC /s/ William J. Lyons ---------------------------- By William J. Lyons Its Vice President and Chief Financial Officer Accepted and Agreed to This 27 day of May, 2003 RWE RHEINBRAUN AG By: /s/ R. Zimmermann /s/ Walter Froehling - ----------------------------- ----------------------------- Its Senior Vice President Its Senior Legal Counsel Rolf Zimmermann Walter Froehling EX-5 7 ex5.txt SECOND AMENDMENT Exhibit 5 SECOND AMENDMENT, dated as of September 18, 2003 (this "Second Amendment") to the Registration Rights Agreement, dated as of February 1, 1999 (as previously amended by a letter agreement dated May 23, 2003, the "Registration Rights Agreement") by and between CONSOL ENERGY INC., a Delaware corporation (the "Company"), and RWE RHEINBRAUN AG (formerly Rheinbraun AG) and RHEINBRAUN US GMBH (which has since merged with and into RWE Rheinbraun AG), both German corporations (the "Stockholders"). WHEREAS the Company has granted to the Stockholders the right to cause the Company to register their shares of Common Stock (such term and each other capitalized term used but not defined herein having the meaning assigned to it in the Registration Rights Agreement) upon the terms and conditions of the Registration Rights Agreement; WHEREAS, Rheinbraun US GmbH has merged with and into RWE Rheinbraun AG ("RWE"), with RWE as the surviving corporation; WHEREAS, the parties hereto desire to amend the Registration Rights Agreement as set forth herein. NOW, THEREFORE, in consideration of these premises, the parties hereto agree as follows: 1. Amendments. Effective as of the date hereof, the Registration Rights Agreement is hereby amended as follows: (a) The following new definition is added to Section 1 in appropriate alphabetical position: "Second Amendment" means the second amendment to this Agreement dated as of September 18, 2003. (b) Section 2(a) is amended by inserting a new sentence therein immediately following the first sentence thereof which shall read as follows: "In such notice, the Stockholders may specify that the Registration Statement shall be a shelf registration statement providing for the resale pursuant to Rule 415 under the Securities Act from time to time by the Stockholders of Registrable Securities." (c) Section 9(b) is amended by deleting the final sentence thereof and substituting in lieu thereof the following sentence: 2 "The registration rights granted under Sections 2 and 3 shall terminate on the date on which all shares of Common Stock owned by the Stockholders are eligible for sale by them without registration under the Securities Act pursuant to paragraph (k) of Rule 144 under the Securities Act." (d) A new Section 9(h) is inserted immediately following Section 9(g) and shall read as follows: "(h) Information. The Company agrees to provide to the Stockholders all information they reasonably request in connection with the Stockholders' financial, tax, accounting and other similar record keeping and reporting obligations." 2. Applicable Law. THIS SECOND AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK. 3. Counterparts. This Second Amendment may be executed in two or more counterparts, each of which shall constitute an original, but all of which when taken together shall constitute but one contract. Delivery of an executed counterpart of a signature page of this Second Amendment by facsimile transmission shall be as effective as delivery of a manually executed counterpart of this Second Amendment. 3 IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above. CONSOL ENERGY, INC. By: /s/ William Lyons ------------------------------------ Name: William Lyons Title: Vice President RWE RHEINBRAUN AG By: /s/ Dr. Rolf Zimmerman ------------------------------------ Name: Dr. Rolf Zimmerman Title: Vice President By: /s/ Walter Froehling ------------------------------------ Name: Walter Froehling Title: Senior Counsel -----END PRIVACY-ENHANCED MESSAGE-----