EXHIBIT 2
STOCKHOLDERS AGREEMENT
May 28, 1998
The parties to this Stockholders Agreement (this "Agreement") are
CONSOL Inc., a Delaware corporation ("Parent"), CONSOL Commonwealth Inc., a
Pennsylvania corporation and a direct or indirect subsidiary of Parent ("Merger
Sub"), and the other parties to this Agreement (each, a "Stockholder," and
collectively, the "Stockholders").
Parent, Merger Sub and Rochester & Pittsburgh Coal Company, a
Pennsylvania corporation (the "Company") are simultaneously with the execution
and delivery of this Agreement entering into an agreement and plan of merger,
which may be amended from time to time (the "Merger Agreement"), pursuant to
which Merger Sub would merge with and into the Company (the "Merger").
The parties agree as follows:
1. No Solicitation. Until the termination of the Merger Agreement in
accordance with its terms, no Stockholder shall, in that Stockholder's capacity
as such, directly or indirectly, initiate, solicit or knowingly encourage,
including by way of furnishing non-public information or assistance, or take any
other action knowingly to facilitate, any inquiries or the making of any
proposal that constitutes, or reasonably may be expected to lead to a
"competitive proposal", or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain, or agree to or endorse a competitive proposal, or authorize or permit
any person or entity acting on behalf of that Stockholder to do any of the
foregoing. If any Stockholder receives any inquiry or proposal regarding any
competitive proposal, that Stockholder shall provide reasonable notice to Parent
of that inquiry or proposal. For purposes of this Agreement, "competitive
proposal" shall mean any tender or exchange offer involving the Company, any
proposal for a merger, consolidation, business combination or similar
transaction involving the Company or its subsidiaries, any proposal or offer to
acquire in any manner more than 10% of the Common Stock of the Company or a
substantial portion of the business or assets of the Company or its
subsidiaries, other than immaterial or insubstantial assets or inventory in the
ordinary course of business or assets held for sale, any proposal or offer with
respect to any recapitalization or restructuring with respect to the Company or
its subsidiaries or any proposal or offer with respect to any other transaction
similar to any of the foregoing with the Company other than pursuant to the
transactions to be effected pursuant to the Merger Agreement.
2. Representations and Warranties of the Stockholders. Each Stockholder
represents and warrants to Parent as follows:
(a) Ownership of Shares. That Stockholder is the beneficial
owner of the number of shares of Common Stock, no par value, of the Company (the
"Shares") set forth opposite that Stockholder's name on Schedule 1. The Shares
set forth opposite that
Stockholder's name on Schedule 1 constitute all the Shares beneficially owned by
the Stockholder and such Stockholder does not have any option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company. That Stockholder's Shares are held by that Stockholder or by a
nominee or custodian for the benefit of that Stockholder, free and clear of all
liens, claims, security interests and other encumbrances, except for
encumbrances arising under this Agreement.
(b) Power; Binding Agreement. That Stockholder has the legal
capacity to enter into and perform all of that Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
that Stockholder will not violate any other agreement to which that Stockholder
is a party, including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by that Stockholder and constitutes a valid and binding obligation of
that Stockholder, enforceable against that Stockholder in accordance with its
terms. There is no other person or entity not a party to this Agreement whose
consent is required for the execution and delivery of this Agreement by that
Stockholder or the consummation by that Stockholder of the transactions
contemplated by this Agreement. If that Stockholder is married and that
Stockholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
obligation of, that Stockholder's spouse, enforceable against that spouse in
accordance with its terms.
(c) Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by that Stockholder nor the
consummation by that Stockholder of the transactions contemplated by this
Agreement will: (i) require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority
("Governmental Entity"), except in connection with the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, (the "HSR Act") or pursuant to
the Securities Exchange Act of 1934, as amended, (the "1934 Act"); (ii) result
in a default, or give rise to a right of termination, cancellation or
acceleration, under any of the terms, conditions or provisions of any note,
license, agreement or other instrument or obligation to which that Stockholder
is a party or by which that Stockholder or any of that Stockholder's assets may
be bound or (iii) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to that Stockholder or by which any of that Stockholder's
assets are bound.
(d) Brokers. No broker, finder or other investment bank is
entitled to any broker's, finder's or other similar fee or commission in
connection with this Agreement or the transactions contemplated by this
Agreement based upon agreements made by or on behalf of that Stockholder.
3. Representations and Warranties of Parent.
(a) The representations and warranties of Parent contained in
Article 4 of the Merger Agreement are hereby incorporated herein by reference in
their entirety as if made on the date hereof;
-2-
(b) Each of the representations and warranties of Parent
incorporated herein by reference that is qualified by materiality shall be true
and correct on and as of the Closing Date (as defined in the Merger Agreement)
as if made on and as of such date, other than representations and warranties
which address matters only as of a certain date which shall be true and correct
as of such date, and each of the representations and warranties that is not so
qualified shall be true and correct in all material respects on and as of the
Closing Date as if made on and as of such date, other than representations and
warranties which address matters only as of a certain date which shall be true
and correct in all material respects as of such certain date, in each case
except as contemplated or permitted by the Merger Agreement.
4. Grant of Proxy. Each Stockholder hereby revokes any and all proxies
previously granted by such Stockholder with respect to the Shares and each
Stockholder hereby appoints each of Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxx as
such Stockholder's attorney and proxy, with full power of substitution, to
attend any and all meetings of the stockholders of the Company and to vote the
Shares and any voting securities hereafter issued in exchange therefor or in
respect thereof, and to represent and otherwise to act for such Stockholder in
the same manner and with the same effect as if such Stockholder were personally
present, when any matter, including, but not limited to any proposed merger or
other transaction, is submitted to the stockholders of the Company for a vote.
The foregoing appointment shall (a) be irrevocable, (b) remain in effect until
September 30, 1998 and (c) be deemed to be coupled with an interest in that
Parent has the right to purchase the Shares hereunder and is also a party to the
Merger Agreement.
5. Option to Purchase the Shares.
(a) Each Stockholder hereby grants to Parent an irrevocable
option, exercisable as provided herein (the "Option"), to purchase all Shares
owned by such Stockholder (the "Option Shares") at a price per share payable in
cash of $43.50 (the "Exercise Price").
(b) Each Option may be exercised by Parent at any time, in
whole but not in part, from the date of this Agreement, until September 30,
1998. If Parent exercises any Option hereunder, it must exercise all Options
granted hereunder. If Parent wishes to exercise the Option, Parent shall give
written notice to the Stockholders of its intention to exercise the Options,
specifying a place, time and date not earlier than one day and not later than 20
days from the date such notice is given for the closing of such purchase, which
shall be the same for all Options being exercised simultaneously as required by
the provisory clause in the preceding sentence (the "Closing"). The Closing
shall be held on the date specified in such notice unless, on such date, there
shall be any preliminary or permanent injunction or other order by any court of
competent jurisdiction or any other legal restraint or prohibition preventing
the consummation of such purchase, in which event such Closing shall be held as
soon as practicable following the lifting, termination or suspension of such
injunction, order, restraint or prohibition preventing the consummation of such
purchase, but in any event within two days thereof. The obligation of the
Stockholders to sell, transfer and deliver the Option Shares upon exercise of
any Option is subject to the conditions that (i) any waiting period under the
HSR Act applicable to the
-3-
purchase of the Option Shares shall have expired or been terminated and (ii)
there shall be no preliminary or permanent injunction or other order preventing
or restricting the purchase of the Option Shares.
(c) At the Closing hereunder (i) Parent shall deliver or cause
to be delivered a certified or bank cashier's check payable to the order of each
Stockholder in such amount as equals the Exercise Price times the number of
Option Shares being purchased hereunder from such Stockholder and (ii) the
Stockholders shall deliver to or cause to be delivered to Parent a certificate
or certificates, representing the number of Option Shares so purchased
accompanied by duly executed blank stock transfer powers.
(d) Parent shall, with respect to each of the Option Shares so
purchased, vote in favor of the Merger Agreement.
6. Restrictions on Transfer, Etc. Except as provided in this Agreement
and prior to the termination of the Merger Agreement in accordance with its
terms, (i) no Stockholder shall, directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of or enter into
any agreement, arrangement or understanding with respect to, or consent to the
offer for sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of that Stockholder's Shares or any interest in those
Shares; (ii) grant any proxies or powers of attorney with respect to any Shares,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares or (iii) take any action that would make any
representation or warranty of that Stockholder in this Agreement untrue or have
the effect of preventing or disabling that Stockholder from performing that
Stockholder's obligations under this Agreement.
7. Waiver of Appraisal Rights. Each Stockholder waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
8. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term of this Agreement a director of the Company makes any
agreement in his or her capacity as a director. Each Stockholder is executing
and delivering this Agreement solely in that Stockholder's capacity as the
record and beneficial owner of that Stockholder's Shares. Notwithstanding
anything to the contrary in this Agreement, no action or inaction by a
Stockholder in his capacity as a director of the Company shall be deemed to
contravene this Agreement.
9. Further Assurances. Each Stockholder shall use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with Parent in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other transactions contemplated by the
Merger Agreement and this Agreement, including (i) obtaining all necessary
actions and nonactions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings and the
taking of all reasonable steps as may be necessary to obtain an approval or
waiver from, or to avoid any action or proceeding by, any Governmental Entity,
(ii) the obtaining of all
-4-
necessary consents, approvals or waivers from third parties, (iii) the defending
of any lawsuits or other legal proceedings, whether judicial or administrative,
challenging the Merger Agreement or this Agreement, including seeking to have
any stay or temporary restraining order entered by any court or Governmental
Entity vacated or reversed and (iv) the execution and delivery of any additional
instruments necessary or advisable to consummate the transactions contemplated
by, and to fully carry out the purpose of, the Merger Agreement and this
Agreement.
10. Miscellaneous.
(a) Definition. The terms "beneficially own" and "beneficial
ownership" with respect to any securities shall have the same meaning as in, and
shall be determined in accordance with, Rule 13d-3 under the 0000 Xxx.
(b) Liability After Transaction. Each Stockholder agrees that,
notwithstanding any transfer of the Shares in accordance with Section 5, that
Stockholder shall remain liable for its performance of all obligations under
this Agreement.
(c) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated with
respect to any one or more Stockholders, except upon the execution and delivery
of a written agreement executed by the party to be charged, it being understood,
however, that Schedule 1 may be supplemented unilaterally by Parent adding the
name and other relevant information concerning any stockholder of the Company
who agrees to be bound by this Agreement, and thereafter the added stockholder
shall be treated as a "Stockholder" for all purposes of this Agreement.
(d) Notices. All notices, requests, claims, demands and other
communications in this Agreement shall be in writing and shall be deemed to have
been duly given when delivered in person, by facsimile transmission with
confirmation of receipt or by registered or certified mail, postage prepaid,
return receipt requested, to the respective parties as follows:
If to a Stockholder:
Duane, Morris & Heckscher LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
If to Parent or Merger Sub:
CONSOL Inc.
Consol Plaza
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Senior Vice President
-5-
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above,
provided that notice of any change of address shall be effective only upon
receipt of notice of the change.
(e) Severability. If any provision of this Agreement is
invalid, illegal or unenforceable, the invalidity, illegality or
unenforceability shall not affect any other provision.
(f) Special Performance. Each party agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity.
(g) No Waiver. The failure of any party to exercise any right,
power or remedy under this Agreement or otherwise available in respect of this
Agreement at law or in equity, or to insist upon compliance by any other party
with that party's obligations under this Agreement, shall not constitute a
waiver of any right to exercise any such or other rights, power or remedy or to
demand such compliance.
(h) Governing Law. This Agreement shall be governed and
construed in accordance with the law of the Commonwealth of Pennsylvania,
regardless of the law that might otherwise govern under principles of conflicts
of laws applicable thereto.
(i) Headings. The headings in this Agreement are for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
(k) Entire Agreement. This Agreement constitutes the enter
agreement among the parties with respect to its subject matter and supersedes
all other prior agreements and understandings, both written and oral, among the
parties with respect to that subject matter.
-6-
(l) Successors and Assigns. The provisions of this Agreement
shall be binding and inure to the benefit of the parties hereto and their
respective legal successors and permitted assigns; provided, however, that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party.
CONSOL INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Title: Senior Vice President
STOCKHOLDERS:
On behalf of the Trusts
listed on Schedule A
hereto:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx, Co-Trustee
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx, Co-Trustee
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
/s/ O'Xxxxxxx Xxxxxx XX
----------------------------------------
O'Xxxxxxx Xxxxxx XX
/s/ Columbus O'X. Xxxxxx
----------------------------------------
Columbus O'X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx, Xx.
----------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
-7-
SCHEDULE A
LIST OF STOCKHOLDERS
Number of Shares of
Rochester & Pittsburgh Currently Acting
Name of Trust or Individual Coal Company Trustees
--------------------------- ---------------------- ----------------
Trust Under Article EIGHTH A of the Last 243,982 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o O'Xxxxxxx Xxxxxx XX
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxx Xxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxxx Xxxxxx Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 218,780 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxxx X. Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxx Xxxxxxxx
Xxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxxxxx Xxxxxxxx
Xxxxxx
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxxx X.
Xxxxxxxx, Xx.
---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
Will and Testament of O'Xxxxxxx Xxxxxx Xxxxxx X. Xxxxxx
dated July 27, 1970 f/b/o Xxxxxxxxx X.
Xxxxxx
---------------------------------------------------------------------------------------------------------------------
-8-
Number of Shares of
Rochester & Pittsburgh Currently Acting
Name of Trust or Individual Coal Company Trustees
--------------------------- --------------------- ----------------
Trust Under Article SIXTH of the Last Will 118,141 shares as of 8/31/97 Xxxxxx X. Xxxxxx and
and Testament of Xxxxxx X. Xxxxxx dated Xxxxxx X. Xxxxxx
March 5, 1948 f/b/o Xxxxx Xxxxxx and Xxxxxx
X. Xxxxxxxx (n/k/a Xxxxxx X. Xxxxxx)
----------------------------------------------------------------------------------------------------------------------
Trust Under Agreement dated July 6, 1964 667,178 shares as of 7/31/97 Xxxxxx X. Xxxxxx and
by and between O'Xxxxxxx Xxxxxx, as Settlor, -------- Xxxxxx X. Xxxxxx
and Xxxxxx X. Xxxxxxxx and Xxxxx Xxxxxx, as
Trustees
----------------------------------------------------------------------------------------------------------------------
Subtotal 1,605,746 shares
=========
----------------------------------------------------------------------------------------------------------------------
Xxxxx Xxxxxx 62,751 shares
----------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxx 15,942 shares
----------------------------------------------------------------------------------------------------------------------
O'Xxxxxxx Xxxxxx XX 20,552 shares
----------------------------------------------------------------------------------------------------------------------
Columbus O'X. Xxxxxx 14,908 shares
----------------------------------------------------------------------------------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx. 21,796 shares
---------
----------------------------------------------------------------------------------------------------------------------
Subtotal 135,949 shares
=========
----------------------------------------------------------------------------------------------------------------------
Total 1,741,695 shares
=========
----------------------------------------------------------------------------------------------------------------------
-9-
