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AGREEMENT AND PLAN OF MERGER
Among
CONSOL COMMONWEALTH INC.
and
ROCHESTER & PITTSBURGH COAL COMPANY
Dated as of May 28, 1998
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TABLE OF CONTENTS
ARTICLE I
THE MERGER
Page
1.01 The Merger....................................................2
1.02 Closing.......................................................2
1.03 Effective Time................................................2
1.04 Articles of Incorporation and By-laws of the Surviving
Corporation...................................................2
1.05 Directors.....................................................3
1.06 Officers......................................................3
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
2.01 Capital Stock of Merger Sub...................................3
2.02 Cancellation of Treasury Stock and Parent Owned Stock.........3
2.03 Conversion of Company Common Stock............................4
2.04 Shares of Dissenting Shareholders.............................4
2.05 Exchange of Certificates......................................5
2.06 Stock Transfer Books..........................................7
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
3.01 Organization..................................................8
3.02 Capitalization................................................8
3.03 Authority.....................................................9
3.04 Noncontravention; Filings and Consents........................9
3.05 Company SEC Documents; Financial Statements..................11
3.06 Information Supplied.........................................11
3.07 Absence of Certain Changes or Events.........................12
3.08 Litigation...................................................12
3.09 Tax Matters..................................................13
3.10 Compliance with Applicable Laws..............................14
3.11 Voting Requirements..........................................14
3.12 Opinion of Financial Advisor.................................14
3.13 Brokers......................................................14
3.14 Disclosure...................................................15
3.15 CERCLA Notice................................................15
3.16 Environmental Matters........................................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
4.01 Organization.................................................15
4.02 Capitalization of Merger Sub.................................16
4.03 Authority....................................................16
4.04 Noncontravention; Filings and Consents.......................16
4.05 Information Supplied.........................................17
4.06 Brokers......................................................18
4.07 Disclosure...................................................18
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.01 Conduct of Business of the Company...........................18
5.02 Conduct of Business of Parent................................21
5.03 Other Actions................................................22
ARTICLE VI
ADDITIONAL AGREEMENTS
6.01 Company Shareholders' Meeting................................22
6.02 Proxy Statement..............................................23
6.03 Information; Confidentiality.................................23
6.04 Approvals and Consents; HSR Filings..........................24
6.05 Company Benefit Plans........................................25
6.06 Fees and Expenses............................................26
6.07 Notification.................................................27
6.08 Obligations of Merger Sub....................................27
6.09 Public Announcements.........................................27
ARTICLE VII
CONDITIONS TO THE MERGER
7.01 Conditions to the Obligations of Each Party..................27
7.02 Conditions to the Obligations of Parent and Merger Sub.......28
7.03 Conditions to the Obligations of the Company.................29
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.01 Termination..................................................30
8.02 Effect of Termination........................................31
8.03 Amendment....................................................31
8.04 Extension; Waiver............................................31
ARTICLE IX
GENERAL PROVISIONS
9.01 Nonsurvival of Representations...............................32
9.02 Exclusive Remedy.............................................32
9.03 Notices......................................................33
9.04 Definitions..................................................34
9.05 Interpretation...............................................35
9.06 Counterparts.................................................35
9.07 Entire Agreement; Third-Party Beneficiaries..................35
9.08 Assignment...................................................35
9.09 Governing Law................................................36
9.10 Enforcement..................................................36
Schedules
3.01 Subsidiaries
3.02 Pledged Shares
3.04 Consents
3.07 Certain Changes or Events
3.08 Litigation
3.09 Tax Matters
5.01(f) Properties for Sale
5.01(i) Discharge of Liabilities
5.01(l) Capital Expenditures
AGREEMENT AND PLAN OF MERGER, dated as of May 28, 1998 among
CONSOL Inc., a Delaware corporation ("Parent"), CONSOL Commonwealth Inc., a
Pennsylvania corporation, a direct or indirect wholly owned subsidiary of
Parent ("Merger Sub"), both of 0000 Xxxxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 and Rochester & Pittsburgh Coal Company, a Pennsylvania
corporation (the "Company") of 000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxx
000000
WITNESSETH:
WHEREAS, the respective Boards of Directors of Parent, Merger
Sub and the Company have approved the acquisition of the Company by Parent
upon the terms and subject to the conditions set forth in this Agreement
and Plan of Merger (this "Agreement");
WHEREAS, the respective Boards of Directors of Parent, Merger
Sub and the Company have approved the merger of Merger Sub with and into
the Company (the "Merger") upon the terms and subject to the conditions set
forth in this Agreement, whereby each issued and outstanding share of
common stock, no par value, of the Company ("Company Common Stock"), other
than shares owned directly or indirectly by Parent or by the Company, will
be converted into the right to receive cash, and
WHEREAS, Parent, Merger Sub and the Company desire to make
certain representations, warranties, covenants and agreements in connection
with the Merger and also to prescribe certain conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements herein contained, and intending to be
legally bound hereby, Parent, Merger Sub and the Company hereby agree as
follows:
ARTICLE I
THE MERGER
1.01 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the Pennsylvania Business
Corporation Law of 1988, as amended (the "PBCL"), Merger Sub shall be
merged with and into the Company at the Effective Time (as defined in
Section 1.03) of this Agreement. Following the Merger, the separate
corporate existence of Merger Sub shall cease, and the Company shall
continue as the surviving corporation (the "Surviving Corporation") and
shall succeed to and assume all the rights, assets, liabilities and
obligations of Merger Sub in accordance with the PBCL.
1.02 Closing. The closing of the Merger (the "Closing") shall take
place at 10:00 a.m. on a date to be specified by the parties which shall be
no later than the second business day after the satisfaction or waiver of
the conditions set forth in Article VII (the "Closing Date") at the offices
of Duane, Morris & Heckscher LLP, 0000 Xxx Xxxxxxx Xxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, unless another date or place is agreed to in writing by
the parties hereto.
1.03 Effective Time. On the Closing Date, or as soon as practicable
thereafter, the parties shall execute and file in the offices of the
Corporation Bureau of the Commonwealth of Pennsylvania appropriate articles
of merger or other appropriate documents (in any such case, the "Articles
of Merger") executed in accordance with the relevant provisions of the PBCL
and shall make all other filings or recordings required under the PBCL. The
"Effective Time" or "Effective Date" shall be the date of filing the
Articles of Merger, or the effective date specified therein, whichever is
later.
1.04 Articles of Incorporation and By-laws of the Surviving
Corporation.
(a) The Articles of Incorporation of Merger Sub as in effect
immediately prior to the Effective Time shall become the Articles of
Incorporation of the Surviving Corporation after the Effective Time, and
thereafter may be amended as provided therein and as permitted by law and
this Agreement.
(b) The By-laws of Merger Sub as in effect immediately prior to
the Effective Time shall become the By-laws of the Surviving Corporation after
the Effective Time, and thereafter may be amended as provided therein and
as permitted by law and this Agreement.
1.05 Directors. The directors of Merger Sub immediately prior to the
Effective Time shall become the directors of the Surviving Corporation on
the Effective Time, until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the
case may be.
1.06 Officers. The officers of Merger Sub immediately prior to the
Effective Time shall become the officers of the Surviving Corporation on
the Effective Time, until the earlier of their resignation or removal or
until their respective successors are duly elected and qualified, as the
case may be.
ARTICLE II
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
2.01 Capital Stock of Merger Sub. As of the Effective Time, by virtue
of the Merger and without any action on the part of the holder of any
shares of Company Common Stock or any shares of capital stock of Merger
Sub, each share of common stock, par value $.01 per share, of Merger Sub
issued and outstanding immediately prior to the Effective Time shall be
converted into and become one fully paid and nonassessable share of common
stock, par value $.01 per share, of the Surviving Corporation.
2.02 Cancellation of Treasury Stock and Parent Owned Stock. As of the
Effective Time, by virtue of the Merger and without any action on the part
of the holder of any shares of Company Common Stock or any shares of
capital stock of Merger Sub, each share of Company Common Stock issued and
held immediately prior to the Effective Time in the Company's treasury or
by any of the Company's direct or indirect wholly owned subsidiaries and
each share of Company Common Stock that is owned by Parent, Merger Sub or
any other subsidiary of Parent shall automatically be canceled and retired
and shall cease to exist, and no consideration shall be delivered in
exchange therefor.
2.03 Conversion of Company Common Stock.
(a) As of the Effective Time, by virtue of the Merger and
without any action on the part of the holder of any shares of Company
Common Stock or any shares of capital stock of Merger Sub, subject to the
provisions of Section 2.04 with respect to dissenters' rights, if any, each
share of the Company Common Stock issued and outstanding immediately prior
to the Effective Time other than (x) Dissenting Shares (as defined in
Section 2.04) and (y) shares to be canceled in accordance with Section 2.02
("Canceled Shares") shall be converted into the right to receive in cash
from Parent, without interest, an amount equal to $43.50 (the "Merger
Consideration").
(b) As of the Effective Time, all such shares of Company Common
Stock shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares of Company Common Stock shall cease to have
any rights with respect thereto, except the right to receive the Merger
Consideration.
2.04 Shares of Dissenting Shareholders. Notwithstanding anything in
this Agreement to the contrary, any shares of Company Common Stock that are
issued and outstanding as of the Effective Time and that are held by a
shareholder who has exercised and has not failed to perfect or effectively
withdrawn or lost his right (to the extent such right is available by law)
to demand and to receive the "fair value" of such shares (the "Dissenting
Shares") under the PBCL shall not be converted into the right to receive
the Merger Consideration unless and until the holder shall have failed to
perfect, or shall have effectively withdrawn or lost, his right to dissent
from the Merger under the PBCL and to receive such consideration as may be
determined to be due with respect to such Dissenting Shares pursuant to and
subject to the requirements of the PBCL. If any such holder shall have so
failed to perfect or have effectively withdrawn or lost such right, each
share of such holder's Company Common Stock shall thereupon be deemed to
have been converted into and to have become, as of the Effective Time, the
right to receive, without any interest thereon, the Merger Consideration.
The Company shall give Parent (i) prompt notice of any notice or demand for
appraisal or payment for shares of Company Common Stock received by the
Company and (ii) the opportunity to participate in and direct all
negotiations and proceedings with respect to any such demands or notices.
The Company shall not, without the prior written consent of Parent, make
any payment with respect to, or settle, offer to settle or otherwise
negotiate, any such demands.
2.05 Exchange of Certificates.
(a) Exchange Agent. From and after the Effective Time, Parent
shall make available to a bank or trust company designated by Parent and
satisfactory to the Company (the "Exchange Agent") cash for the benefit of
the holders of shares of Company Common Stock (other than Dissenting Shares
and Canceled Shares) in the amount required to be exchanged for shares of
Company Common Stock in the Merger pursuant to Section 2.03 (such cash
hereinafter referred to as the "Exchange Fund"). The Exchange Agent shall,
pursuant to irrevocable instructions, deliver the cash pursuant to Section
2.03 out of the Exchange Fund. Except as contemplated by Section 2.05(g),
the Exchange Fund shall not be used for any other purpose.
(b) Exchange Procedures. As promptly as practicable after the
Effective Time, Parent shall cause the Exchange Agent to mail to each
holder of a certificate or certificates (to the extent such certificates
have not already been submitted to the Exchange Agent) which immediately
prior to the Effective Time represented outstanding shares of Company
Common Stock other than Dissenting Shares and Canceled Shares (the
"Certificates") (i) a letter of transmittal which shall be in customary
form and shall specify that delivery shall be effected, and risk of loss
and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for cash.
(c) Exchange of Certificates. Upon surrender to the Exchange
Agent of a Certificate for cancellation, together with such letter of
transmittal, duly executed and completed in accordance with the
instructions thereto, and such other documents as may be reasonably
required pursuant to such instructions, the holder of such Certificate
shall be entitled to receive in exchange therefor a check in the amount
equal to the cash which such holder has the right to receive pursuant to
the provisions of this Article II and the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of shares of
Company Common Stock which is not registered in the transfer records of the
Company, the Merger Consideration may be issued to a transferee if the
Certificate representing such shares of Company Common Stock is presented
to the Exchange Agent, accompanied by all documents required to evidence
and effect such transfer and evidence that any applicable stock transfer
taxes have been paid. Until surrendered as contemplated by this Section
2.05, each Certificate shall be deemed at all times after the Effective
Time to represent only the right to receive upon such surrender the Merger
Consideration with respect to the shares of Company Common Stock formerly
represented thereby.
(d) No Further Rights in Company Common Stock. All cash paid
upon conversion of the shares of Company Common Stock in accordance with
the terms hereof shall be deemed to have been issued in full satisfaction
of all rights pertaining to such shares of Company Common Stock.
(e) Termination of Exchange Fund. To the extent permitted by
applicable law, any portion of the Exchange Fund which remains
undistributed to the holders of Company Common Stock on the second
anniversary of the Effective Time shall be delivered to Parent, upon
demand, and any holders of Company Common Stock who have not theretofore
complied with this Article II shall thereafter look only to Parent for the
Merger Consideration. Any portion of the Exchange Fund remaining unclaimed
by holders of shares of Company Common Stock as of a date which is
immediately prior to such time as such amounts would otherwise escheat to
or become property of any government entity shall, to the extent permitted
by applicable law, become the property of Parent free and clear of any
claims or interest of any person previously entitled thereto.
(f) No Liability. None of the Exchange Agent, Parent nor the
Surviving Corporation shall be liable to any holder of shares of Company
Common Stock for any cash delivered to a public official pursuant to any
abandoned property, escheat or similar law.
(g) Withholding Rights. The Exchange Agent shall be entitled to
deduct and withhold from the consideration otherwise payable pursuant to
this Agreement to any holder of shares of Company Common Stock such amounts
as it is required to deduct and withhold with respect to the making of such
payment under the Internal Revenue code of 1986, as amended (the "Code") or
any provisions of state or local tax law. To the extent that amounts are so
withheld by the Surviving Corporation or Parent, as the case may be, such
withheld amounts shall be treated for all purposes of this Agreement as
having been paid to the holder of the shares of Company Common Stock in
respect of which such deduction and withholding was made by the Surviving
Corporation or Parent, as the case may be.
(h) Lost Certificates. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Certificate to be lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such person of a
bond, in such reasonable amount as the Surviving Corporation may direct, as
indemnity against any claim that may be made against it with respect to
such Certificate, the Exchange Agent will issue in exchange for such lost,
stolen or destroyed Certificate the Merger Consideration.
(i) Further Assurances. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any
deeds, bills of sale, assignments, assurances or any other actions or
things are necessary or desirable to vest, perfect or confirm or record or
otherwise in the Surviving Corporation its right, title or interest in, to
or under any of the rights, properties or assets of either of the Merger
Sub or the Company acquired or to be acquired by the Surviving Corporation
as a result of, or in connection with, the Merger or otherwise to carry out
this Agreement, the officers of the Surviving Corporation shall be
authorized to execute and deliver, in the name and on behalf of each of the
Merger Sub and the Company or otherwise, all such deeds, bills of sale,
assignments and assurances and to take and do, in such names and on such
behalves or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title
and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out the purposes of this
Agreement.
2.06 Stock Transfer Books. At the Effective Time, the stock transfer
books of the Company shall be closed and there shall be no further
registration of transfers of shares of Company Common Stock thereafter on
the records of the Company. From and after the Effective Time, the holders
of Certificates representing shares of Company Common Stock outstanding
immediately prior to the Effective Time shall cease to have any rights with
respect to such shares of Company Common Stock, except as otherwise
provided herein or by law. On or after the Effective Time, any Certificates
presented to the Exchange Agent or Parent for any reason shall be converted
into cash as provided herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Parent and Merger Sub
as follows:
3.01 Organization. Each of the Company and its subsidiaries is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority and all necessary government approvals to
own, lease and operate its properties and to carry on its business as now
being conducted, except where the failure to be so organized, existing and
in good standing or to have such power, authority and governmental
approvals would not have a material adverse effect. The Company and each of
its subsidiaries is duly qualified or licensed to do business and in good
standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification or licensing necessary, except where the failure to be so
duly qualified or licensed and in good standing would not have a material
adverse effect. The Company has made available to Parent complete and
correct copies of its Restated Articles of Incorporation, as amended, and
By-laws and the articles of incorporation and by-laws or other comparable
charter or organizational documents of its subsidiaries, in each case as
amended to the date of this Agreement. All of the outstanding shares of
capital stock of each material subsidiary of the Company are owned by the
Company or by another wholly owned subsidiary of the Company, and, except
as set forth in the Company SEC documents (as hereafter defined), free and
clear of all liens and are duly authorized, validly issued, fully paid and
nonassessable. A list of all subsidiaries of the Company is attached hereto
as Schedule 3.01.
3.02 Capitalization. The authorized capital stock of the Company
consists of 5,000,000 shares of Company Common Stock. As of the date of
this Agreement, (i) 3,440,984 shares of Company Common Stock were issued
and outstanding and (ii) 548,137 shares of Company Common Stock were held
in the treasury of the Company. All the outstanding shares of Company
Common Stock are duly authorized, validly issued, fully paid and
nonassessable and free of any pre-emptive rights in respect thereof. As of
the date hereof, no bonds, debentures, notes or other indebtedness of the
Company convertible into voting securities of the Company are issued or
outstanding and, except as set forth above, (i) no shares of capital stock
or other voting securities of the Company are outstanding, (ii) no equity
equivalents, interests in the ownership or earnings of the Company or other
similar rights are outstanding and (iii) there are no existing options,
warrants, calls, subscriptions or other rights or agreements or commitments
relating to the capital stock of the Company or any of its subsidiaries or
obligating the Company or any of its subsidiaries to issue, transfer or
sell any shares of capital stock or other equity interest in the Company or
any of its subsidiaries or obligating the Company or any of its
subsidiaries to grant, extend or enter into any such option, warrant, call,
subscription or other right, agreement or commitment. As of the date of
this Agreement, there are no outstanding contractual obligations of the
Company or any of its subsidiaries to repurchase, redeem or otherwise
acquire any shares of capital stock of the Company or any of its
subsidiaries, except for the pledge of shares of capital stock of certain
of the Company's subsidiaries listed on Schedule 3.02 hereto.
3.03 Authority. The Company has the requisite corporate power and
authority to execute and deliver this Agreement and, subject to the
requisite approval of this Agreement by the holders of the outstanding
shares of Company Common Stock, to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby have
been duly authorized by all necessary corporation action on the part of the
Company, subject to the requisite approval of this Agreement by the holders
of the outstanding shares of Company Common Stock. This Agreement has been
duly executed and delivered by the Company and, assuming this Agreement
constitutes the valid and binding obligation of Parent and Merger Sub,
constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and similar
laws, now or hereafter in effect, affecting creditors' rights and remedies
and to general principles of equity.
3.04 Noncontravention; Filings and Consents.
(a) Except as set forth in Schedule 3.04 hereto, the execution and
delivery of this Agreement by the Company do not, and the consummation of
the transactions contemplated by this Agreement and compliance with the
provisions of this Agreement will not, conflict with, or result in any
violation of, or default (with or without notice of lapse of time, or both)
under, or give rise to a right of termination, cancellation, or
acceleration of any obligation or to loss of a material benefit under, or
result in the creation of any lien upon any of the properties or assets of
the Company or any of its subsidiaries under (i) the Restated Articles of
Incorporation, as amended, or By-laws of the Company or the comparable
charter or organizational documents of any of its subsidiaries, (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable
to the Company or any of its subsidiaries or their respective properties or
assets or (iii) subject to the governmental filings and other matters
referred to in paragraph (b) below, any judgment, order, decree, statute,
law, ordinance, rule or regulation applicable to the Company or any of its
subsidiaries or their respective properties or assets, other than, in the
case of clauses (ii) and (iii), any such conflicts, violations, defaults,
rights or liens that individually or in the aggregate would not (x) impair
any material respect the ability of the Company to perform its obligations
under this Agreement or (y) prevent or impede, in any material respect, the
consummation of the transactions contemplated by this Agreement.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with, any federal, state or local
government or any court, administrative or regulatory agency or commission
or other governmental authority or agency (a "Governmental Entity") is
required by the Company or any of its subsidiaries in connection with the
exception and delivery of this Agreement by the Company or the consummation
by the Company of the transactions contemplated by this Agreement, except
for (i) the filing of a premerger notification and report form by the
Company under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), (ii) the filing with the Securities and Exchange
Commission (the "SEC") of (x) the Proxy Statement (as defined in Section
6.02) and (y) such reports under Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), as may be required in
connection with this Agreement and the transactions contemplated by this
Agreement, (iii) the filing of the Articles of Merger with the Corporation
Bureau of the Commonwealth of Pennsylvania and the Certificate of Merger
with the Secretary of State of the State of Delaware and appropriate
documents with the relevant authorities of other states in which the
Company is qualified to do business, (iv) such as may be required by any
applicable state securities or "blue sky" laws, (v) notice of consummation
of the merger to the Pennsylvania Department of Environmental Protection
(the "DEP") and (vi) such other consents, approvals, orders,
authorizations, registrations, declarations and filings the failure of
which to be obtained or made would not, individually or in the aggregate,
(x) impair in any material respect the ability of the Company to perform its
obligations under this Agreement or (y) prevent or impede, in any material
respect, the consummation of the transactions contemplated by this Agreement.
3.05 Company SEC Documents; Financial Statements. The Company has
filed all required reports, proxy statements, forms, and other documents,
including any amendments thereto, with the SEC since December 31, 1994 and
prior to the date of this Agreement (the "Company SEC Documents"). As of
their respective dates, (i) the Company SEC Documents complied, and all
similar documents filed prior to the Closing Date will comply, in all
material respects with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), or the Exchange Act, as the case may be,
and the rules and regulations of the SEC promulgated thereunder applicable
to such Company SEC Documents and (ii) none of the Company SEC Documents
contained, nor will any similar document filed after the date of this
Agreement contain, any untrue statement of a material fact or omitted, or
will omit, to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the Company SEC Documents (including
any similar documents filed after the date of this Agreement): (i) comply
as to form in all material respects with applicable accounting requirements
and the published rules and regulations of the SEC with respect thereto,
(ii) have been prepared in accordance with generally accepted accounting
principles (except, in the case of unaudited statements, as permitted by
Form 10-Q of the SEC) applied on a consistent basis during the periods
involved except as may be indicated in the notes thereto and (iii) fairly
present the consolidated financial position of the Company and its
consolidated subsidiaries as of the dates thereof and the consolidated
results of their operations and cash flows for the periods then ended.
Neither the Company nor any of its subsidiaries has any liabilities or
obligations of any nature (whether accrued, absolute, contingent or
otherwise) required by generally accepted accounting principles to be set
forth on a consolidated balance sheet or financial statement of the Company
and its subsidiaries or in the notes thereto which have not been so noted
or disclosed to Parent.
3.06 Information Supplied. None of the information to be supplied by
the Company expressly for inclusion or incorporation by reference in the
Proxy Statement will, (i) on the date the Proxy Statement (as hereafter
defined) is first mailed to the shareholders of the Company and (ii) at the
time of the Company Shareholders' Meeting (as hereafter defined), contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement will comply as to form in all material
respect with the requirements of the Exchange Act and the rules and
regulations thereunder.
3.07 Absence of Certain Changes or Events. Except as disclosed in the
Company SEC or in Schedule 3.07 hereto or as contemplated by this
Agreement, since February 28, 1998, the Company and its subsidiaries have
conducted their respective businesses only in the ordinary course, and
there has not been (i) any material adverse change in the Company, (ii) any
declaration, setting aside or payment of any dividend or other distribution
with respect to, or repurchase or redemption of, the Company's capital
stock other than the dividends on the shares of Company Common Stock not in
excess of the amount of dividends declared, paid or set aside in the
comparable year-earlier period, (iii) any split, combination or
reclassification of any of the Company's capital stock or any issuance or
the authorization of any issuance of any other securities in respect of, in
lieu of or in substitution for shares of its capital stock, (iv) (A) any
granting by the Company or any of its subsidiaries to any officer of the
Company or any of its subsidiaries of any increase in compensation, except
in the ordinary course of business consistent with past practice, (B) any
granting by the Company or any of its subsidiaries to any such officer any
increase in severance or termination pay, except as part of a standard
employment package to any person promoted or hired, (C) except termination
arrangements in the ordinary course of business consistent with past
practice with employees other than any executive officer of the Company,
any entry by the Company or any of its subsidiaries into any employment,
severance or termination agreement with any such officer or (D) any
material modification to any existing Company Benefit Plans (as hereafter
defined) other than such modifications required by law, except as listed on
Schedule 3.07 hereto, (v) any damage, destruction or loss, whether or not
covered by insurance, that has or reasonably would be expected to have a
material adverse effect on the Company or (vi) any change in accounting
methods, principles or practices by the Company materially affecting its
assets, liabilities or business, except insofar as may have been required
by a change in generally accepted accounting principles. Since September
30, 1996, the Company's dividends to shareholders have not been in excess
of $.15 per share of Company Common Stock per quarter.
3.08 Litigation. Except as set forth on Schedule 3.08 hereto, there
are no suits, actions or proceedings pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries that
would reasonably be expected to have, individually or in the aggregate, a
material adverse effect. Except as set forth on Schedule 3.08 hereto,
neither the Company nor any of its subsidiaries is subject to any
outstanding order, writ, injunction or decree that would reasonably be
expected to have a material adverse effect.
3.09 Tax Matters.
(a) Except as set forth on Schedule 3.09 hereto, each of the
Company and each of its subsidiaries has (i) filed, or caused to be filed,
with the appropriate taxing authorities all Tax Returns required to be
filed on or before the date hereof, and such Tax Returns are true, correct
and complete in all material respects and (ii) paid, or caused to be paid,
all Taxes shown to be due and payable on such Tax Returns or established
adequate reserves in accordance with generally accepted accounting
principles for the payment of all such Taxes.
(b) Except as set forth on Schedule 3.09 hereto, neither the
Company nor any of its subsidiaries has (i) received any notice of
deficiency or assessment from any taxing authorities with respect to
liability for Taxes that have not been fully paid or finally settled or
(ii) granted any requests, agreements, consents or waivers to extend the
statutory period of limitations applicable to the assessment of any Taxes.
(c) Except as set forth on Schedule 3.09 hereto, no taxing
authority is now asserting, or to the knowledge of the Company is
threatening to assert, any deficiency or assessment for additional Taxes of
the Company or any of its subsidiaries.
(d) No payment which will, or may, be made to any employee,
director, officer or agent of the Company or any of its subsidiaries will
constitute an "excess parachute payment" within the meaning of Section 280G
of the Code.
For purposes of this Agreement, "Taxes" means all federal, state,
foreign and local taxes, levies and other assessments, including, without
limitation, all income, sales, use, transfer, profits, capital gains,
withholding, payroll, severance and reclamation, black lung, real property
and personal property and any other taxes, assessments and similar charges
in the nature of a tax (including interest and penalties attributable
thereto) imposed by any governmental authority; "Tax Returns" means any
return, report, information return or other document (including relating or
supporting information) relating to Taxes.
3.10 Compliance with Applicable Laws. Except as disclosed in the
Company SEC Documents, to the knowledge of the Company, since January 1,
1996 neither the Company nor any of its subsidiaries has violated or failed
to comply with any statute, law, permit, regulation, rule, judgment, decree
or order of any Governmental Entity applicable to its business or
operations, except for violations and failures to comply that would not,
individually or in the aggregate, reasonably be expected to result in a
material adverse effect. The conduct of the business of the Company and its
subsidiaries is in conformity with all federal, state and local
governmental and regulatory requirements applicable to its business and
operations, except where such nonconformities would not, in the aggregate,
reasonably be expected to result in a material adverse effect. The Company
and its subsidiaries have all permits, licenses and franchises from
governmental agencies required to conduct their businesses as now being
conducted, except for such permits, licenses and franchises the absence of
which would not, in the aggregate, reasonably be expected to result in a
material adverse effect.
3.11 Voting Requirements. The affirmative vote of the holders of a
majority of the outstanding shares of Company Common Stock entitled to vote
approving this Agreement is the only vote of the holders of any class of
the Company's capital stock necessary to approve this Agreement and the
transactions contemplated by this Agreement.
3.12 Opinion of Financial Advisor. The Company has received an
opinion from X.X. Xxxxxx Securities Inc. to the effect that, as of the date
of this Agreement, the consideration to be received in the Merger by the
holders of the Company Common Stock is fair to the holders of Company
Common Stock from a financial point of view.
3.13 Brokers. No broker, investment banker, financial advisor or
other person, other than X.X. Xxxxxx Securities Inc., the fees and expenses
of which will be paid by the Company, is entitled to any broker's,
finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of the Company.
3.14 Disclosure. No representation or warranty hereunder or
information contained in the financial statements referred to in Section
3.05, the Schedules or any certificate, statement, or other document
delivered by the Company hereunder contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements contained therein or herein, in light of the circumstances
in which they were made, not misleading.
3.15 CERCLA Notice. Neither the Company nor any of its subsidiaries
has received any request for information with respect to or has been
notified that it is a potentially responsible party for any contaminated
site under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), or any similar state statute.
3.16 Environmental Matters. To the knowledge of the Company, neither
the Company nor any of its subsidiaries has stored, disposed of or released
any hazardous or toxic substance in violation of CERCLA, the Toxic
Substances Control Act, the Resource Conservation and Recovery Act or any
other federal or state law, rule or regulation which protects the
environment.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Parent and Merger Sub hereby jointly and severally represent and
warrant to the Company as follows:
4.01 Organization. Each of Parent and Merger Sub and Parent's
subsidiaries is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has
all requisite corporate power and authority and all necessary government
approvals to own, lease and operate its properties and to carry on its
business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power, authority
and governmental approvals would not have a material adverse effect. Each
of Parent and Merger Sub and each of Parent's subsidiaries is duly
qualified or licensed to do business and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the
nature of the business conducted by it makes such qualification or
licensing necessary, except where the failure to be so duly qualified or
licensed and in good standing would not have a material adverse effect. All
outstanding shares of capital stock of each subsidiary of Parent are owned
by Parent or by another direct or indirect wholly owned subsidiary of
Parent, free and clear of all liens and are duly authorized, validly
issued, fully paid and nonassessable.
4.02 Capitalization of Merger Sub. The authorized capital stock of
Merger Sub consists of 1,000 shares of common stock, par value $.01 per
share, all of which are duly authorized, validly issued, fully paid and
nonassessable and free of any pre-emptive rights in respect thereof and
all of which are owned directly or indirectly by Parent.
4.03 Authority. Each of Parent and Merger Sub has the requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated by this Agreement. The execution
and delivery of this Agreement by Parent and Merger Sub and the
consummation by Parent and Merger Sub of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the
part of Parent and Merger Sub and does not require the approval of the
shareholders of Parent. This Agreement has been duly executed and delivered
by Parent and Merger Sub and, assuming this Agreement constitutes the valid
and binding obligation of the Company, constitutes the valid and binding
obligation of Parent and Merger Sub, enforceable against Parent and Merger
Sub in accordance with its terms, subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium and similar laws, now or
hereafter in effect, affecting creditors' rights and remedies and to
general principles of equity.
4.04 Noncontravention; Filings and Consents.
(a) The execution and delivery of this Agreement by either Parent
or Merger Sub do not, and the consummation of the transactions contemplated
by this Agreement and compliance with the provisions of this Agreement will
not, conflict with, or result in any violation of, or default (with or
without notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation, or acceleration of any obligation or to loss of
a material benefit under, or result in the creation of any lien upon any of
the properties or assets of Parent or Merger Sub or any of Parent's other
subsidiaries under (i) the Certificate or Articles of Incorporation or
By-laws of either Parent or Merger Sub or the comparable charter or
organizational documents of any of Parent's other subsidiaries, (ii) any
loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable
to Parent or Merger Sub or any of Parent's other subsidiaries or their
respective properties or assets or (iii) subject to the governmental
filings and other matters referred to in paragraph (b) below, any judgment,
order, decree, statute, law, ordinance, rule or regulation applicable to
Parent or Merger Sub or any of Parent's other subsidiaries or their
respective properties or assets, other than, in the case of clauses (ii)
and (iii), any such conflicts, violations, defaults, rights or liens that
individually or in the aggregate would not (x) impair in any material
respect the ability of Parent or Merger Sub to perform their respective
obligations under this Agreement or (y) prevent or impede, in any material
respect, the consummation of the transactions contemplated by this
Agreement.
(b) No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Entity, is
required by Parent or Merger Sub or any of Parent's other subsidiaries in
connection with the execution and delivery of this Agreement by Parent or
Merger Sub or the consummation by Parent or Merger Sub of the transactions
contemplated by this Agreement, except for (i) the filing of a premerger
notification and report form by Parent and Merger Sub under the HSR Act,
(ii) the filing of the Articles of Merger with the Corporation Bureau of
the Commonwealth of Pennsylvania and appropriate documents with the
relevant authorities of other states in which Parent is qualified to do
business, (iii) such as may be required by any applicable state securities
or "blue sky" laws, (iv) notice of consummation of the Merger to the DEP
and (v) such other consents, approvals, orders, authorizations,
registrations, declarations and failings the failure of which to be
obtained or made would not, individually or in the aggregate, (x) impair in
any material respect the ability of Parent or Merger Sub to perform their
respective obligations under this Agreement or (y) prevent or impede, in
any material respect, the consummation of the transactions contemplated by
this Agreement.
4.05 Information Supplied. None of the information supplied or to be
supplied by Parent or Merger Sub expressly for inclusion or incorporation
by reference in the Proxy Statement will, (i) on the date the Proxy
Statement is first mailed to the shareholders of the Company and (ii) at
the time of the Company Shareholders' Meeting, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not misleading.
4.06 Brokers. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial advisor's or
other similar fee or commission in connection with the transactions
contemplated by this Agreement based upon arrangements made by or on behalf
of Parent or Merger Sub.
4.07 Disclosure. No representation or warranty hereunder or
information contained in any certificate, statement, or other document
delivered by Parent hereunder contains any untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements contained therein or herein, in light of the circumstances in
which they were made, not misleading.
ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
5.01 Conduct of Business of the Company. Prior to the Effective Time,
the Company agrees (except as expressly contemplated or permitted by this
Agreement, as set forth herein or to the extent that Parent shall otherwise
consent in writing) as follows:
(a) Ordinary Course. The Company and its subsidiaries shall
carry on their respective businesses in the usual, regular and ordinary
course in substantially the same manner as heretofore conducted, shall
preserve intact their present business organizations and shall use
commercially reasonable efforts to keep available the services of their
present officers and employees and preserve their relationships with
customers, suppliers and others having business dealings with the Company
and its subsidiaries.
(b) Dividends; Changes in Stock. Except for the payment on June
1, 1998 of a cash dividend of $.15 per share declared on May 4, 1998, the
Company shall not (i) declare or pay any quarterly dividends on or make
other distributions in respect of any of its capital stock, (ii) split,
combine or reclassify any of its capital stock or issue or authorize or
propose the issuance of any other securities in respect of, in lieu of or
in substitution for shares of its capital stock or (iii) repurchase, redeem
or otherwise acquire, or permit any subsidiary to repurchase, redeem or
otherwise acquire, any shares of capital stock.
(c) Issuance of Securities. The Company shall not, and it shall
not permit any of its subsidiaries to, issue, deliver or sell or authorize
or propose the issuance, delivery or sale of, any shares of its capital
stock of any class or any securities convertible into, or any rights,
warrants, calls, subscriptions or options to acquire, any such shares or
convertible securities, or any other ownership interest other than
issuances by a wholly owned subsidiary of the Company of its capital stock
to the Company.
(d) Governing Documents. The Company shall not amend or propose to
amend its Restated Articles of Incorporation, as amended, or By-laws.
(e) No Acquisitions. The Company shall not, and it shall not
permit any of its subsidiaries to, acquire or agree to acquire by merging
or consolidating with, or by purchasing a substantial equity interest in or
substantial portion of the assets of, or by any other manner, any business
or any corporation, partnership, association or other business organization
or division thereof.
(f) No Dispositions. The Company shall not, and it shall not
permit any of its subsidiaries to, sell, lease, encumber or otherwise
dispose of, or agree to sell, lease, encumber or otherwise dispose of, any
of its assets, other than (i) sales of equipment between the Company and
its subsidiaries that do not result in the generation of taxable income on
a consolidated basis in the ordinary course of business, (ii) assets having
an aggregate book value of not more than $100,000 it being understood that
this clause (ii) shall not permit the sale or other disposition of Helvetia
Coal Company and (iii) those properties listed on Schedule 5.01(f) hereto.
(g) Indebtedness. With the exception of indebtedness between the
Company and its subsidiaries, the Company shall not, and it shall not
permit any of its subsidiaries to, incur (which shall include entering into
credit agreements, lines of credit or similar arrangements) any
indebtedness for borrowed money or guarantee any such indebtedness or issue
or sell any debt securities or warrants or rights to acquire any debt
securities of the Company or any of its subsidiaries or guarantee any debt
securities of others, other than (i) indebtedness outstanding on February
28, 1998 and (ii) take downs under the Company's and its subsidiaries'
existing credit facilities; provided, however, that at the Closing Date the
sum of the Company's indebtedness and current liabilities (excluding the
current portion of the Company's long-term indebtedness) less the Company's
current assets determined in accordance with generally accepted accounting
principles shall not be greater than the amount thereof at February 28,
1998 plus $12,000,000. For the purpose of this Section 5.01(g), the
Company's current liabilities shall exclude deferred compensation and
severance pay payable to employees of the Company and its subsidiaries in
connection with the Merger.
(h) Tax Matters. The Company shall not make, and will not
permit any of its subsidiaries to make, any tax election or settle or
compromise any income tax liability of the Company or of any of its
subsidiaries for an amount in excess of $25,000. The Company shall, before
filing or causing to be filed any material Tax Return of the Company or any
of its subsidiaries, consult with Parent and its advisors as to the
positions and elections that may be taken or made with respect to such
return.
(i) Discharge of Liabilities. The Company shall not, and it
shall not permit any of its subsidiaries to, pay, discharge, settle or
satisfy any claim, liabilities or obligations (absolute, asserted or
unasserted, contingent or otherwise) for an amount in excess of $100,000 in
the aggregate (other than settlement of the litigation matters set forth on
Schedule 5.01(i) hereto, payments of accounts payable and accrued
liabilities and reductions of indebtedness in the ordinary course of
business of the Company and its subsidiaries and payments for goods and
services under the written agreements in effect on the date hereof and
listed on Schedule 5.01(i) hereto), or waive the benefit of, or agree to
modify in any manner, any confidentiality, standstill or similar agreement
to which the Company or any of its subsidiaries is a party.
(j) Contracts. Without the consent of Parent, the Company shall
not, and shall not permit any of its subsidiaries to, enter into, modify,
amend or terminate any contract to which the Company or such subsidiary is
a party or waive, release or assign any material rights or claims
thereunder other than spot purchases of supplies necessary for the
operation of the business of the Company and its subsidiaries in the
ordinary course which do not result in the Company's acquisition of
supplies in excess of those that would be consumed in 30 days of operations
in the ordinary course of business. Parent agrees to respond in not more
than two full business days to any request from the Company to enter into,
modify, amend or terminate any contract or to waive, release or assign any
material rights or claims thereunder.
(k) Employee Benefits. The Company shall not, and shall not
permit any of its subsidiaries to, (i) grant any increase in the
compensation of any of its directors, officers or key employees, (ii) pay
or agree to pay any pension, retirement allowance or other employee benefit
not required or contemplated by any of the existing Company Benefit Plans
as in effect on the date hereof to any director, officer or key employee,
(iii) enter into any new employment, severance or termination agreement
with any such director, officer or key employee or (iv) except as may be
required to comply with applicable law, become obligated under any Company
Benefit Plan which was not in existence on the date hereof or amend any
such plan in existence on the date hereof to enhance the benefits
thereunder. As used herein, "Company Benefit Plans" shall mean all
"employee pension benefit plans" (as defined in Section 3(2) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
sometimes referred to herein as "Company Pension Plans"), "employee welfare
benefit plans" (as defined in Section 3(1) of ERISA and sometimes referred
to herein as "Welfare Plans"), and each other plan, arrangement or policy
(written or oral) relating to stock options, stock purchases, compensation,
deferred compensation, severance, fringe benefits or other employee
benefits, in each case maintained, or contributed to, by the Company or any
of its subsidiaries or any other person or entity that, together with the
Company is treated as a single employer under Section 414(b), (c), (m) or
(o) of the Code (each, together with the Company, a "Commonly Controlled
Entity"), for the benefit of any current or former employees, officers,
agents or directors of the Company or any of its subsidiaries.
(l) Capital Expenditures. Except as listed in Schedule 5.01(1)
hereto for the month of June 1998 or as otherwise approved in advance by
Parent, the Company shall not, and shall not permit any of its subsidiaries
to, authorize or make any capital expenditures (excluding capital
expenditures for which commitments exist as of the date of this Agreement)
which in the aggregate exceed $250,000, except for repairs and rebuilding
expenditures of less than $250,000 each necessary to keep existing mining
equipment in operation. Parent agrees to respond in not more than two full
business days to any request received from the Company to make or authorize
any capital expenditures which in the aggregate exceed $250,000 and, in
emergency situations, Parent shall reply to any such request within two
hours of Parent's receipt of notification thereof.
5.02 Conduct of Business of Parent. Prior to the Effective Time,
Parent agrees (except as expressly contemplated or permitted by this
Agreement, or to the extent that the Company shall otherwise consent in
writing) as
follows:
(a) Material Acquisitions. CONSOL Energy, Inc. ("CEI") shall
not, and shall not permit any of its subsidiaries other than in conjunction
with the sale of capital stock of CEI held directly or indirectly by DuPont
to, acquire or agree to acquire by merging or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or by any
other manner, any business or any corporation, partnership, association or
other business organization or division thereof, or otherwise acquire or
agree to acquire any assets if the entering into of a definitive agreement
relating to or the consummation of such acquisition, merger or
consolidation would (A) impose any material delay in the obtaining of, or
increase the risk of not obtaining, any authorizations, consents, orders,
declarations or approvals of any Governmental Entity necessary to
consummate the Merger or the expiration or termination of any applicable
waiting period, (B) increase the risk of any Governmental Entity entering
an order prohibiting the consummation of the Merger or (C) increase the
risk of not being able to remove any such order on appeal or otherwise.
(b) Other Actions. CEI shall not, and shall not permit any of
its subsidiaries to take other than in conjunction with the sale of capital
stock of CEI held directly or indirectly by DuPont, or fail to take, any
other action which would, or would reasonably be expected to, impede,
interfere with, prevent or materially delay the Merger.
5.03 Other Actions. Each of Parent, Merger Sub and the Company shall
not and shall not permit any of its subsidiaries to, take any action that
would, or that would reasonably be expected to, result in (i) any of its
representations and warranties set forth in this Agreement that are
qualified as to materiality becoming untrue, (ii) any of such
representations and warranties that are not so qualified becoming untrue in
any material respect or (iii) any of the conditions to the Merger set forth
in Article VII not being satisfied.
ARTICLE VI
ADDITIONAL AGREEMENTS
6.01 Company Shareholders' Meeting. As soon as practicable after the
date hereof, the Company shall call a meeting of its shareholders (the
"Company Shareholders' Meeting") to consider and vote upon the approval of
this Agreement and the Company shall take all reasonable lawful action to
solicit such approval, including, without limitation, timely mailing the
Proxy Statement.
6.02 Proxy Statement. As promptly as practicable after the execution
of this Agreement, the Company shall mail a proxy statement to its
shareholders relating to the Company Shareholders' Meeting (the "Proxy
Statement"). The Company will cause the Proxy Statement to comply as to
form in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the rules and regulations thereunder.
6.03 Information; Confidentiality.
(a) From the date of this Agreement until the mailing of the
Proxy Statement to the Company's shareholders to the extent permitted by
law, the Company shall afford to Parent, and to Parent's officers,
employees, accountants, counsel, financial advisors and other
representatives, full and complete access to all the officers, employees,
properties, books, contracts, commitments and records of the Company and
its subsidiaries as Parent may request in its sole discretion; provided,
however, that Parent and its representatives shall not interfere materially
with the operation of the business of the Company and such investigation
and examination shall be conducted at all times during normal business
hours and under reasonable circumstances. From the date of this Agreement
until the Effective Date, the Company shall furnish promptly to Parent (i)
a copy of each report, schedule, registration statement and other document
filed by it or its subsidiaries during such period pursuant to the
requirements of applicable federal or state securities laws and (ii) all
other material information concerning its business, properties and current
and former personnel as Parent may reasonably request. Parent will keep
such information provided to it by the Company confidential, except to the
extent such information (i) is or becomes generally available to the public
other than as a result of a disclosure by Parent, (ii) was available to
Parent on a nonconfidential basis prior to disclosure by the Company to
Parent or (iii) becomes available to Parent on a nonconfidential basis from
a source other than the Company which is entitled to disclose it, and
except as required by law or as otherwise agreed to by the Company.
(b) Only to the extent required by law, Parent shall provide to
the Company, and to the Company's officers, employees, accountants,
counsel, financial advisors and other representatives, all information
which is necessary in connection with preparing the Proxy Statement, and
during the period prior to the Effective Time, Parent shall furnish
promptly to the Company a copy of each report, schedule, registration
statement and other document filed by it or its subsidiaries during such
period pursuant to the requirements of federal or state securities laws.
The Company will keep such information provided to it by Parent
confidential, except to the extent such information (i) is provided to the
Company for its use in connection with the preparation of the Proxy
Statement, (ii) is or becomes generally available to the public other than
as a result of a disclosure by the Company, (iii) was available to the
Company on a nonconfidential basis prior to disclosure by Parent to the
Company or (iv) becomes available to the Company on a nonconfidential basis
from a source other than Parent which is entitled to disclose it, and
except as required by law or as otherwise agreed to by Parent.
6.04 Approvals and Consents; HSR Filings.
(a) Upon the terms and subject to the conditions set forth in
this Agreement, each of the parties agrees to use all commercially
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 the other parties in
doing, all things necessary, proper or advisable to consummate and make
effective the Merger and the other transactions contemplated by this
Agreement, including (i) the obtaining of all necessary actions or
nonactions, waivers, consents and approvals from Governmental Entities and
the making of all necessary registrations and filings (including filings
with Governmental Entities) and the taking of all reasonable steps as may
be necessary to obtain an approval or waiver from, or to avoid an action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, including consents under
all of the sales contracts of the Company and its subsidiaries, (iii) the
defending of any lawsuits or other legal proceedings, whether judicial or
administrative, investigating or challenging this Agreement or the
consummation of any of the transactions contemplated by this Agreement,
including seeking to have any stay or temporary restraining order entered
by any court or other Governmental Entity vacated or reversed and (iv) the
execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the
purposes of, this Agreement.
(b) Parent and the Company shall file as soon as practicable
after the date of this Agreement notifications under the HSR Act and shall
respond as promptly as practicable to all inquiries or requests received
from the Federal Trade Commission or the Antitrust Division of the
Department of Justice for additional information or documentation and shall
respond as promptly as practicable to all inquiries and requests received
from any State Attorney General or other Governmental Entity in connection
with antitrust matters. The parties shall cooperate with each other in
connection with the making of all such filings or responses, including
providing copies of all such documents to the other party and its advisors
prior to filing or responding. Parent and Merger Sub agree to use their
respective reasonable efforts to avoid the entry of (or, if entered, to
lift, vacate or reverse) any order, decree, judgment or ruling of any court
of Governmental Entity restraining or preventing the consummation of the
Merger on the basis of any federal, state or local antitrust laws or
regulations.
6.05 Company Benefit Plans.
(a) Parent shall cause the Surviving Corporation to maintain the
Company's existing compensation, severance, welfare and pension benefit
plans, programs and arrangements for the benefit of current and former
employees of the Company and its subsidiaries (subject to such modification
as may be required by applicable law or to maintain the tax exempt status
of any such plan which is intended to be qualified under Section 401(a) of
the Code); provided, however, that nothing herein shall prohibit Parent
from (i) replacing any such existing plans, programs or arrangements with
plans, programs or arrangements ("Replacement Plans") which provide current
active or inactive employees or former employees with benefits which, in
the reasonable opinion of Parent, are not less favorable in the aggregate
than the benefits that would have been provided under such existing plans,
programs or arrangements to the extent such replacement is permitted under
the terms of the applicable plans, programs or arrangements; provided, that
Parent may not subsequently replace such Replacement Plans with other
plans, programs or arrangements, unless such plans, programs or
arrangements provide such employees with benefits which, in the reasonable
opinion of Parent, are not less favorable in the aggregate than the
benefits provided under Parent's plans, programs or arrangements or (ii)
including current active or inactive employees or former employees of the
Company in the plans, programs and arrangements generally available to
employees of Parent and its subsidiaries other than the Surviving
Corporation in lieu of participation in any Company plan, program or
arrangement; provided, that such Parent plans, programs and arrangements
(A) provide such employees with benefits which, in the reasonable opinion
of Parent, are not less favorable in the aggregate than the benefits that
would have been provided under the Company plans, programs or arrangements
and (B) do not discriminate against such employees compared to other
employees of Parent and its subsidiaries.
(b) All service credited to each employee by the Company or its
subsidiaries through the Effective Time shall be recognized by Parent for
all purposes, including for purposes of eligibility, vesting and benefit
accruals under any employee benefit plan provided by Parent for the benefit
of the employees; provided, however, that, to the extent necessary to avoid
duplication of benefits, amounts payable under employee benefit plans
provided by Parent may be reduced by amounts payable under similar Company
plans with respect to the same periods of service. Any benefits accrued by
employees of the Company and its subsidiaries prior to the Effective Time
under any of the Company's defined benefit pension plans that employ a
final average pay formula shall be calculated based on such employees'
final average pay with the Surviving Corporation or any successor to the
Surviving Corporation or other affiliate of Parent employing such
employees. In addition, with respect to any welfare benefit plan
established or maintained by Parent or its subsidiaries for the benefit of
employees of the Company, Parent shall, or shall cause the relevant
subsidiary to, waive any pre-existing condition exclusions other than any
pre-existing condition that was not waived by a Company plan and provide
that any covered expenses incurred on or before the Effective Time in
respect of the current plan year by any employee of the Company (or any
covered dependent of such an employee) shall be taken into account for
purposes of satisfying applicable deductible, coinsurance and maximum
out-of-pocket provisions after the Effective Time in respect of such
current plan year.
(c) Parent hereby agrees to cause the Surviving Corporation to
honor (without modification) and assume the severance policies, employment
agreements, executive termination agreements and individual benefit
arrangements previously disclosed to Parent.
(d) The provisions of this Section 6.05 shall not apply to any
employee subject to the terms of a collective bargaining plan.
6.06 Fees and Expenses. All fees and expenses incurred in connection
with this Agreement and the Merger and any other transaction contemplated
by this Agreement shall be paid by the party incurring such fees or
expenses, whether or not the Merger is consummated.
6.07 Notification. Each of the Company and Parent shall give prompt
notice to the other of (i) any representation or warranty made by it
contained in this Agreement that is qualified as to materiality becoming
untrue or inaccurate in any respect or any such representation or warranty
that is not so qualified becoming untrue or inaccurate in any material
respect or (ii) the failure by it to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or
satisfied by it under this Agreement; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the
parties under this Agreement.
6.08 Obligations of Merger Sub. Parent shall take all action
necessary to cause Merger Sub to perform its obligations under this
Agreement and to consummate the Merger on the terms and subject to the
conditions set forth in this Agreement.
6.09 Public Announcements. Unless otherwise required by applicable
law or the requirements of any listing agreement with any applicable stock
exchange, Parent and the Company shall each use their reasonable efforts to
consult with each other before issuing any press release or otherwise
making any public statements with respect to this Agreement or any
transaction contemplated by this Agreement and shall not issue any such
press release or make any such public statement prior to such consultation.
ARTICLE VII
CONDITIONS TO THE MERGER
7.01 Conditions to the Obligations of Each Party. The obligations of
the Company, Parent and Merger Sub to consummate the merger are subject to
the satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(a) Company Shareholder Approval. This Agreement shall have
been approved by the requisite affirmative vote of the shareholders of the
Company in accordance with the Company's Restated Articles of
Incorporation, as amended, By-laws and the PBCL.
(b) No Injunction or Restraint. No Governmental Entity shall
have enacted, issued, promulgated, enforced or entered any law, rule,
regulation or order which is then in effect and has the effect of making
the Merger illegal or otherwise prohibiting consummation of the Merger.
(c) HSR Act. Any waiting period and any extension thereof
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated.
(d) Consents and Approvals. All consents, approvals and
authorizations legally required to be obtained to consummate the Merger
shall have been obtained from all Governmental Entities, except for such
consents, approvals and authorizations the failure of which to obtain would
not have a material adverse effect on Parent, Merger Sub or the Company
assuming for purposes of this paragraph (d) that the Merger shall have been
effected.
7.02 Conditions to the Obligations of Parent and Merger Sub. The
obligations of Parent and Merger Sub to consummate the Merger are subject
to the satisfaction or waiver by Parent on or prior to the Closing Date of
the following further conditions:
(a) Company Representations and Warranties. Each of the
representations and warranties of the Company contained in this Agreement
that is qualified by materiality shall be true and correct 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 as of such certain 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 this Agreement, and Parent shall have received
a certificate of the President or Chief Financial Officer of the Company to
such effect.
(b) Company Agreements and Covenants. The Company shall have
performed or complied in all material respects with all material agreements
and covenants required by this Agreement to be performed or complied with
by it on or prior to the Closing Date, and Parent shall have received a
certificate of the President or Chief Financial officer of the Company to
that effect.
(c) Permits; Authorizations. All permits, authorizations,
licenses, approvals and notifications of Governmental Entities that are
necessary for the Company and its subsidiaries to conduct their businesses
after the Effective Date in the same manner as such businesses are
conducted as of the Effective Date, including, but not limited to,
Environmental Permits, shall have been provided, issued, obtained,
transferred or reissued, to the extent necessary under applicable law,
except for such permits, authorizations, licenses, approvals and
notifications the failure of which to provide, issue, obtain, transfer or
reissue would not have a material adverse effect on the Company and its
subsidiaries taken as a whole.
7.03 Conditions to the Obligations of the Company. The obligations of
the Company to consummate the Merger are subject to the satisfaction or
waiver by the Company on or prior to the Closing Date of the following
further conditions:
(a) Parent Representations and Warranties. Each of the
representations and warranties of each of Parent and Merger Sub contained
in this Agreement that is qualified by materiality shall be true and
correct 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 as of such certain 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 this Agreement, and the Company
shall have received a certificate of the President or Chief Financial
Officer of each of Parent and Merger Sub to such effect.
(b) Parent Agreements and Covenants. Each of Parent and Merger
Sub shall have performed or complied in all material respects with all
material agreements and covenants required by this Agreement to be
performed or complied with by it on or prior to the Closing Date, and the
Company shall have received a certificate of the President or Chief
Financial Officer of each of Parent and Merger Sub to that effect.
(c) Fairness Opinion. The Company shall have received the
written opinion of its financial advisor, X.X. Xxxxxx Securities, Inc.,
dated as of the date of this Agreement, that the consideration to be
received in the Merger by the holders of Company Common Stock is fair to
the holders of Company Common Stock from a financial point of view.
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
8.01 Termination. This Agreement may be terminated and the Merger and
the other transactions contemplated by this Agreement may be abandoned at
any time prior to the Effective Time, whether before or after approval
thereof by shareholders of the Company, as follows:
(a) by mutual written consent of Parent and the
Company;
(b) by either Parent or the Company if the Effective Time shall
not have occurred on or before September 30, 1998; provided, however, that
the right to terminate this Agreement under this Section 8.01(b) shall not
be available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of, or resulted in, the failure of the
Effective Time to occur on or before September 30, 1998;
(c) by either Parent or the Company if any Governmental Entity
shall have issued an order, decree or ruling or taken any other action
permanently enjoining, restraining or otherwise prohibiting the Merger and
such order, decree or ruling or other action shall have become final and
nonappealable; provided, however, that the party seeking to terminate this
Agreement under this Section 8.01(c) shall have used its commercially
reasonable efforts to remove such injunction, order or decree;
(d) by Parent in the event of a breach by the Company of any
representation, warranty, covenant or other agreement contained in this
Agreement which (A) would give rise to the failure of a condition set forth
in Section 7.02 and (B) cannot be or has not been cured within 20 days
after the giving by Parent of written notice to the Company;
(e) by the Company in the event of a breach by Parent or Merger
Sub of any representation, warranty, covenant or other agreement contained
in this Agreement which (A) would give rise to the failure of a condition
set forth in Section 7.03 or (B) cannot be or has not been cured within 20
days after the giving by the Company of written notice to Parent or Merger
Sub, as applicable; or
(f) by Parent or the Company if the shareholders of the Company
do not approve this Agreement at the Company Shareholders' Meeting or any
adjournment or postponement thereof.
8.02 Effect of Termination. In the event of termination of this
Agreement by either the Company or Parent as provided in Section 8.01, this
Agreement shall forthwith become void and have no effect, without any
liability or obligation on the part of Parent, Merger Sub or the Company,
other than the provisions of Section 3.14, Section 4.06, this Section 8.02
and Article IX, and except to the extent that such termination results from
the willful and material breach by a party of any of its representations,
warranties, covenants or agreements set forth in this Agreement.
8.03 Amendment. This Agreement may be amended by the parties at any
time before or after any required approval of this Agreement by the
shareholders of the Company; provided, however, that after any such
approval, there shall not be made any amendment that by law requires
further approval by such shareholders without the further approval of such
shareholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
8.04 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties, (b) waive any inaccuracies
in the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement or (c) subject to the
provision of Section 8.03, waive compliance with any of the agreements or
conditions contained in this Agreement. Any agreement on the part of a
party to any such extension or waiver shall be valid only if set forth in
an instrument in writing signed on behalf of such party. The failure of any
party to this Agreement to assert any of its rights under this Agreement or
otherwise shall not constitute a waiver of those rights.
ARTICLE IX
GENERAL PROVISIONS
9.01 Nonsurvival of Representations. None of the representations and
warranties in this Agreement or in any instrument delivered pursuant to
this Agreement shall survive the Effective Time. This Section 9.01 shall
not limit any covenant or agreement of the parties which by its terms
contemplated performance after the Effective Time. In the event of a breach
of any of such covenants or agreements, the party to whom such covenants or
agreements have been made shall have all rights and remedies for such
breach available to it under applicable law and the provisions of this
Agreement, regardless of any disclosure to, or investigation made by or on
behalf of, such party.
9.02 Exclusive Remedy.
(a) Parent acknowledges and agrees that (i) other than the
representations and warranties of the Company specifically contained in
this Agreement, there are no representations or warranties of the Company
or any of its subsidiaries or any other person either expressed or implied
with respect to the Company or any of its subsidiaries or their respective
assets, liabilities and businesses and (ii) neither Parent nor the
Surviving Corporation shall have any claim or right to damages or
indemnification from the Company or any of its subsidiaries or any current
or former officer, director or shareholder of the Company or any of its
subsidiaries acting in their capacities as such based upon a breach of such
representations and warranties with respect to any information (whether
written or oral), documents or material furnished by the Company or any of
its subsidiaries or any of their respective officers, directors, employees,
agents, counsel, accountants or advisors to Parent with respect to the
transactions contemplated by this Agreement, including any information,
documents or material made available to Parent in certain "data rooms,"
management presentations or in any other form in expectation of the
transactions contemplated by this Agreement.
(b) The Company acknowledges and agrees that (i) other than the
representations and warranties of Parent and Merger Sub specifically
contained in this Agreement, there are no representations or warranties of
Parent or Merger Sub or any other person either expressed or implied with
respect to Parent or Merger Sub and (ii) it shall not have any claim or
right to damages or indemnification from Parent or Merger Sub or any
current or former officer, director or shareholder of Parent or Merger Sub
based upon a breach of such representations or warranties with respect to
any information (whether written or oral), documents or material furnished
by Parent or Merger Sub or any of their respective officers, directors,
employees, agents, counsel, accountants or advisors to the Company.
9.03 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or sent by overnight courier (providing proof
of delivery) to the parties at the following addresses (or at such address
for a party as shall be specified by like notice):
(a) if to Parent or Merger Sub, to:
CONSOL Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Vice President and General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
CONSOL Inc.
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Senior Vice President - Administration
Facsimile No.: (000) 000-0000
(b) if to the Company, to:
Rochester & Pittsburgh Coal Company
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxx 00000
AttentionThomas X. Xxxxxx, Xx.
President and Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Duane, Morris & Heckscher LLP
0000 Xxx Xxxxxxx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
9.04 Definitions. For purposes of this Agreement:
(a) an "affiliate" of any person means another person that
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such first person;
(b) "control" (including the terms "controlled by" and "under
common control with") means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting securities, by contract or
otherwise;
(c) "knowledge" or "known" means, with respect to the matter in
question, if any of the officers of the Company or any of its subsidiaries
or Parent, as the case may be, has actual knowledge of such matter;
(d) "lien" means any encumbrance, hypothecation, infringement,
lien, mortgage, pledge, restriction, security interest, title retention or
other security arrangement, or any adverse right or interest, charge or
claim of any nature whatsoever of, on, or with respect to any asset,
property or property interest; provided, however, that the term "lien"
shall not include (i) liens for water and sewer charges and current taxes
not yet due or being contested in good faith, (ii) mechanics', carriers',
workers', repairers', materialmen's, warehousemen's and other similar liens
arising or incurred in the ordinary course of business or (iii) all liens
approved in writing by the other party hereto;
(e) "material adverse change" or "material adverse effect"
means, when used in connection with the Company or Parent, any charge or
effect or any development that is likely to result in any change or effect
that xxxx impair the business, financial condition or results or operations
of such party and its subsidiaries in an amount of $5,000,000 or more.
(f) "person" means an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity; and
(g) a "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a majority
of its Board of Directors or other governing body of, if there are no such
voting interests, 50% or more of the equity interests of which is owned
directly or indirectly by such first person.
9.05 Interpretation. When a reference is made in this Agreement to a
Section, Exhibit or Schedule, such reference shall be to a Section of, or
an Exhibit or Schedule to, this Agreement unless otherwise indicated. The
table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes"
or "including" are used in this Agreement, they shall be deemed to be
followed by the words "without limitation."
9.06 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same Agreement
and shall become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
9.07 Entire Agreement; Third-Party Beneficiaries. This Agreement
constitutes the entire agreement, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement provided, however, that the provisions
of the Confidentiality Agreement between the Company and Parent dated
December 18, 1997 shall remain valid and in effect and, except for the
provisions of Article II of which the shareholders of the Company shall be
third-party beneficiaries, is not intended to confer upon any person other
than the parties any rights or remedies hereunder.
9.08 Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole
or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties, except that Merger Sub may
assign, in its sole discretion, any or all rights, interests and
obligations under this Agreement to Parent or to Parent's parent entity or
to any direct or indirect wholly owned subsidiary of Parent but no such
assignment shall be permitted if it would materially impede or delay the
Merger.
9.09 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Pennsylvania,
without regard to any applicable conflicts of law, except to the extent
that the PBCL and the DGCL shall be held to govern the terms of the Merger.
9.10 Enforcement. The parties agree 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 in any
court of the United States located in the Commonwealth of Pennsylvania or
in Pennsylvania state court, this being in addition to any other remedy to
which they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the personal jurisdiction
of any federal court located in the Commonwealth of Pennsylvania or any
Pennsylvania state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated by this Agreement, (b)
agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and
9c) agrees that it will not bring any action relating to this Agreement or
any of the transactions contemplated by this Agreement in any court other
than a federal or state court sitting in the Commonwealth of Pennsylvania.
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused
this Agreement to be signed by their respective officers thereunto duly
authorized, all as of the date first written above.
CONSOL INC.
By:----------------------------------------
Xxxxxxx X. Xxxxxx, Senior Vice
President
CONSOL COMMONWEALTH INC.
By:----------------------------------------
Xxxxxxx X. Xxxxxx, Vice President
ROCHESTER & PITTSBURGH COAL COMPANY
By:---------------------------------------
Xxxxxx X. Xxxxxx, Xx., President
and Chief Executive Officer
