STOCKHOLDERS AGREEMENT
May 28, 1998
The parties to this Stockholders Agreement (the "Agreement") are
CONSOL Inc., a Delaware corporation ("Parent"), CONSOL Commonwealth Inc., a
Pennsylvania corporation and a direct or indirect subsidiary of Parent
("Merger Sub"), and the other parties to this Agreement (each, a
"Stockholder," and collectively, the "Stockholders").
Parent, Merger Sub and Rochester & Pittsburgh Coal Company, a
Pennsylvania corporation (the "Company") are simultaneously with the
execution and delivery of this Agreement entering into an agreement and
plan of merger, which may be amended from time to time (the "Merger
Agreement"), pursuant to which Merger Sub would merge with and into the
Company (the "Merger").
The parties agree as follows:
1. No Solicitation. Until the termination of the Merger Agreement in
accordance with its terms, no Stockholder shall, in that Stockholder's
capacity as such, directly or indirectly, initiate, solicit or knowingly
encourage, including by way of furnishing non-public information or
assistance, or take any other action knowingly to facilitate, any inquiries
or the making of any proposal that constitutes, or reasonably may be
expected to lead to a "competitive proposal," or enter into or maintain or
continue discussions or negotiate with any person or entity in furtherance
of such inquiries or to obtain, or agree to or endorse a competitive
proposal, or authorize or permit any person or entity acting on behalf of
that Stockholder to do any of the foregoing. If any Stockholder receives
any inquiry or proposal regarding any competitive proposal, that
Stockholder shall provide reasonable notice to Parent of that inquiry or
proposal. For purposes of this Agreement, "competitive proposal" shall mean
any tender or exchange offer involving the Company, any proposal for a
merger, consolidation, business combination or similar transaction
involving the Company or its subsidiaries, any proposal or offer to acquire
in any manner more than 10% of the Common Stock of the Company or a
substantial portion of the business or assets of the Company or its
subsidiaries, other than immaterial or insubstantial assets or inventory in
the ordinary course of business or assets held for sale, any proposal or
offer with respect to any recapitalization or restructuring with respect to
the Company or its subsidiaries or any proposal or offer with respect to
any other transaction similar to any of the foregoing with the Company
other than pursuant to the transactions to be effected pursuant to the
Merger Agreement.
2. Representations and Warranties of the Stockholders. Each
Stockholder represents and warrants to Parent as follows:
(a) Ownership of Shares. That Stockholder is the beneficial
owner of the number of shares of Common Stock, no par value of the Company
(the "Shares") set forth opposite that Stockholder's name on Schedule 1.
The Shares set forth opposite that Stockholder's name on Schedule 1
constitute all the Shares beneficially owned by the Stockholder and such
Stockholder does not have any option to purchase or right to subscribe for
or otherwise acquire any securities of the Company and has no other
interest in or voting rights with respect to any other securities of the
Company. That Stockholder's Shares are held by that Stockholder or by a
nominee or custodian for the benefit of that Stockholder, free and clear of
all liens, claims, security interests and other encumbrances, except for
encumbrances arising under this Agreement.
(b) Power; Binding Agreement. That Stockholder has the legal
capacity to enter into and perform all of that Stockholder's obligations
under this Agreement. The execution, delivery and performance of this
Agreement by that Stockholder will not violate any other agreement to which
that Stockholder is a party, including, without limitation, any voting
agreement, stockholders agreement or voting trust. This Agreement has been
duly and validly executed and delivered by that Stockholder and constitutes
a valid and binding obligation of that Stockholder, enforceable against
that Stockholder in accordance with its terms. There is no other person or
entity not a party to this Agreement whose consent is required for the
execution and delivery of this Agreement by that Stockholder or the
consummation by that Stockholder of the transactions contemplated by this
Agreement. If that Stockholder is married and that Stockholder's Shares
constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding obligation
of, that Stockholders's spouse, enforceable against that spouse in
accordance with its terms.
(c) Consents and Approvals; No Violation. Neither the execution
and delivery of this Agreement by that Stockholder nor the consummation by
that Stockholder of the transactions contemplated by this Agreement will: (i)
require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority ("Governmental
Entity"), except in connection with the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), or pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"); (ii) result
in a default, or give rise to a right of termination, cancellation or
acceleration, under any of the terms, conditions or provisions of any note,
license, agreement or other instrument or obligation to which that
Stockholder is a party or by which that Stockholder or any of that
Stockholder's assets may be bound or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to that
Stockholder or by which any of that Stockholder's assets are bound.
(d) Brokers. No broker, finder or other investment bank is
entitled to any broker's, finder's or other similar fee or commission in
connection with this Agreement or the transactions contemplated by this
Agreement based upon agreements made by or on behalf of that Stockholder.
3. Representations and Warranties of Parent.
(a) The representations and warranties of Parent contained in
Article 4 of the Merger Agreement are hereby incorporated herein by
reference in their entirety as if made on the date hereof.
(b) Each of the representations and warranties of Parent
incorporated herein by reference that is qualified by materiality shall be
true and correct on and as of the Closing Date (as defined in the Merger
Agreement) as if made on and as of such date, other than representations
and warranties which address matters only as of a certain date which shall
be true and correct as of such date, and each of the representations and
warranties that is not so qualified shall be true and correct in all
material respects on and as of the Closing Date as if made on and as of
such date, other than representations and warranties which address matters
only as of a certain date which shall be true and correct in all material
respects as of such certain date, in each case except as contemplated or
permitted by the Merger Agreement.
4. Grant of Proxy. Each Stockholder hereby revokes any and all
proxies previously granted by such Stockholder with respect to the Shares
and each Stockholder hereby appoints each of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇ as such Stockholder's attorney and proxy, with full power of
substitution, to attend any and all meeting of the stockholders of the
Company and to vote the Shares and any voting securities hereafter issued
in exchange therefor or in respect thereof, and to represent and otherwise
to act for such Stockholder in the same manner and with the same effect as
if such Stockholder were personally present, when any matter, including,
but not limited to any proposed merger or other transaction, is submitted
to the stockholders of the Company for a vote. The foregoing appointment
shall (a) be irrevocable, (b) remain in effect until September 30, 1998 and
(c) be deemed to be coupled with an interest in that Parent has the right
to purchase the Shares hereunder and is also a party to the Merger
Agreement.
5. Option to Purchase the Shares.
(a) Each Stockholder hereby grants to Parent an irrevocable
option, exercisable as provided herein (the "Option"), to purchase all
Shares owned by such Stockholder (the "Option Shares") at a price per share
payable in cash of $43.50 (the "Exercise Price").
(b) Each Option may be exercised by Parent at any time, in
whole but not in part, from the date of this Agreement, until September 30,
1998. If Parent exercises any Option hereunder, it must exercise all
Options granted hereunder. If Parent wishes to exercise the Option, Parent
shall give written notice to the Stockholders of its intention to exercise
the Options, specifying a place, time and date not earlier than one day and
not later than 20 days from the date such notice is given for the closing
of such purchase, which shall be the same for all Options being exercised
simultaneously as required by the provisory clause in the preceding
sentence (the "Closing"). The Closing shall be held on the date specified
in such notice unless, on such date, there shall be any preliminary or
permanent injunction or other order by any court of competent jurisdiction
or any other legal restraint or prohibition preventing the consummation of
such purchase, in which event such Closing shall be held as soon as
practicable following the lifting, termination or suspension of such
injunction, order, restraint or prohibition preventing the consummation of
such purchase, but in any event within two days thereof. The obligation of
the Stockholders to sell, transfer and deliver the Option Shares upon
exercise of any Option is subject to the conditions that (i) any waiting
period under the HSR Act applicable to the purchase of the Option Shares
shall have expired or been terminated and (ii) there shall be no
preliminary or permanent injunction or other order preventing or
restricting the purchase of the Option Shares.
(c) At the Closing hereunder (i) Parent shall deliver or cause
to be delivered a certified or bank cashier's check payable to the order of
each Stockholder in such amount as equals the Exercise Price times the number
of Option Shares being purchased hereunder from such Stockholder and (ii) the
Stockholders shall deliver to or cause to be delivered to Parent a
certificate or certificates, representing the number of Option Shares so
purchased accompanied by duly executed blank stock transfer powers.
(d) Parent shall, with respect to each of the Option Shares so
purchased, vote in favor of the Merger Agreement.
6. Restrictions on Transfer, Etc. Except as provided in this
Agreement and prior to the termination of the Merger Agreement in
accordance with its terms, (i) no Stockholder shall, directly or
indirectly, offer for sale, sale, transfer, tender, pledge, encumber,
assign or otherwise dispose of or enter into any agreement, arrangement or
understanding with respect to, or consent to the offer for sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all
of that Stockholder's Shares or any interest in those Shares; (ii) grant
any proxies or powers of attorney with respect to any Shares, deposit any
Shares into a voting trust or enter into a voting agreement with respect to
any Shares or (iii) take any action that would make any representation or
warranty of that Stockholder in this Agreement untrue or have the effect of
preventing or disabling that Stockholder from performing that Stockholder's
obligations under this Agreement.
7. Waiver of Appraisal Rights. Each Stockholder waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may
have.
8. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term of this Agreement a director of the Company makes
any agreement in his or her capacity as a director. Each Stockholder is
executing and delivering this Agreement solely in that Stockholder's
capacity as the record and beneficial owner of that Stockholder's Shares.
Notwithstanding anything to the contrary in this Agreement, no action or
inaction by a Stockholder in his capacity as a director of the Company
shall be deemed to contravene this Agreement.
9. Further Assurances. Each Stockholder shall use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, and to assist and cooperate with Parent in doing, all things
necessary, proper and advisable to consummate and make effective, in the
most expeditious manner practicable, the Merger and the other transactions
contemplated by the Merger Agreement and this Agreement, including (i)
obtaining all necessary actions and nonactions, waivers, consents and
approvals from Governmental Entities and the making of all necessary
registrations and filings and the taking of all reasonable steps as may be
necessary to obtain an approval or waiver from, or to avoid any action or
proceeding by, any Governmental Entity, (ii) the obtaining of all necessary
consents, approvals or waivers from third parties, (iii) the defending of
any lawsuits or other legal proceedings, whether judicial or
administrative, challenging the Merger Agreement or this Agreement,
including seeking to have any stay or temporary restraining order entered
by any court or Governmental Entity vacated or reversed and (iv) the
execution and delivery of any additional instruments necessary or advisable
to consummate the transactions contemplated by, and to fully carry out the
purpose of, the Merger Agreement and this Agreement.
10. Miscellaneous.
(a) Definition. The terms "beneficially own" and "beneficial
ownership" with respect to any securities shall have the same meaning as
in, and shall be determined in accordance with, Rule 13d-3 under the ▇▇▇▇
▇▇▇.
(b) Liability After Transaction. Each Stockholder agrees that,
notwithstanding any transfer of the Shares in accordance with Section 5,
that Stockholder shall remain liable for its performance of all obligations
under this Agreement.
(c) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated
with respect to any one or more Stockholders, except upon the execution and
delivery of a written agreement executed by the party to be charged, it
being understood, however, that Schedule 1 may be supplemented unilaterally
by Parent adding the name and other relevant information concerning any
stockholder of the Company who agrees to be bound by this Agreement, and
thereafter the added stockholder shall be treated as a "Stockholder" for
all purposes of this Agreement.
(d) Notices. All notices, requests, claims, demands and other
communications in this Agreement shall be in writing and shall be deemed to
have been duly given when delivered in person, by facsimile transmission
with confirmation of receipt or by registered or certified mail, postage
prepaid, return receipt requested, to the respective parties as follows:
If to a Stockholder:
Duane, Morris & Heckscher LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to Parent or Merger Sub:
CONSOL Inc.
Consol Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Vice President
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above, provided that notice of any change of address shall be effective
only upon receipt on notice of the change.
(e) Severability. If any provision of this Agreement is
invalid, illegal or unenforceable, the invalidity, illegality or
unenforceability shall not affect any other provision.
(f) Special Performance. Each party agrees that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which they are
entitled at law or in equity.
(g) No Waiver. The failure of any party to exercise any right,
power or remedy under this Agreement or otherwise available in respect of
this Agreement at law or in equity, or to insist upon compliance by any
other party with that party's obligations under this Agreement, shall not
constitute a waiver of any right to exercise any such or other rights,
power or remedy or to demand such compliance.
(h) Governing Law. This Agreement shall be governed and
construed in accordance with the law of the Commonwealth of Pennsylvania,
regardless of the law that might otherwise govern under principles of
conflicts of laws applicable thereto.
(i) Headings. The headings in this Agreement are for convenience
of reference only and are not intended to be part of or to affect the meaning
or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same agreement.
(k) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to its subject matter and
supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to that subject matter.
(l) Successors and Assigns. The provisions of this Agreement
shall be binding and inure to the benefit of the parties hereto and their
respective legal successors and permitted assigns; provided, however, that
no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party.
CONSOL INC.
By:------------------------------------
Title:---------------------------------
STOCKHOLDERS:
On behalf of the Trusts listed on
Schedule A hereto:
By:-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
--------------------------------------
Columbus O'▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
STOCKHOLDERS:
On behalf of the Trusts listed on
Schedule A hereto:
By:-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Co-Trustee
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
--------------------------------------
Columbus O'▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
E>
SCHEDULE A
LIST OF STOCKHOLDERS
----------------------------------------------------------------------------------------------
NUMBER OF SHARES OF
ROCHESTER & PITTSBURGH CURRENTLY ACTING
NAME OF TRUST OR INDIVIDUAL COAL COMPANY TRUSTEES
----------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 243,982 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇ ▇▇▇▇▇▇
Trust Under Article EIGHTH A of the Last 55,551 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o O'▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇
Trust Under Article EIGHTH A of the Last 55,551 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Under Article EIGHTH A of the Last 55,551 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Under Article EIGHTH B of the Last 218,780 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Trust Under Article EIGHTH B of the Last 47,753 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
Trust Under Article EIGHTH B of the Last 47,753 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Trust Under Article EIGHTH B of the Last 47,753 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇.
Trust Under Article EIGHTH B of the Last 47,753 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated July 27, 1970 f/b/o ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Trust Under Article SIXTH of the Last 118,141 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
Will and Testament of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 8/31/97 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
dated March 5, 1948 f/b/o ▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (n/k/a ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇)
Trust Under Agreement dated July 6, 1964 667,178 shares as of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
by and between O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇, as ------- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Settlor, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and 7/31/97
▇▇▇▇▇ ▇▇▇▇▇▇, as Trustees
Subtotal 1,605,756 shares
=========
▇▇▇▇▇ ▇▇▇▇▇▇ 62,751 shares
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 15,942 shares
O'▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 20,552 shares
Columbus O'▇. ▇▇▇▇▇▇ 14,908 shares
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. 21,796 shares
---------
Subtotal 135,949 shares
=========
1,741,705 shares
Total =========
