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:
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"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.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
CONSOL ENERGY, INC.
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
RWE RHEINBRAUN AG
By: /s/ Xx. Xxxx Xxxxxxxxx
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Name: Xx. Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Senior Counsel
