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
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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
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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
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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.
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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.
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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.
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(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
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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.
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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
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: President
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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.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
CONSOL ENERGY INC.
By:
/s/ J. Xxxxx Xxxxxx
------------------------------
Name:
Title:
RHEINBRAUN AG
By: By:
/s/ Xx. Xxxxxxx /s/ Bonekemp
----------------------------------- ---------------------------------
Name: Xx. Xxxxxxx Name: Xxxxxxxx
Title: Vorsitzender des Vorstandes Title: Mitglied des Vorstandes
RHEINBRAUN US GMBH
By:
/s/ Xxxxxx
------------------------------
Name: Xx. Xxxxxx
Title: Geschaeftsfuehrer
/s/ ppa. Xxxxx
------------------------------
Name: Xxxxx
Title: Prokurist
