EXHIBIT 10.14
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SHARE PURCHASE AGREEMENT
among
E.I. DU PONT DE NEMOURS AND COMPANY,
DU PONT ENERGY COMPANY,
RHEINBRAUN A.G., and
CONSOL ENERGY INC.
Dated September 17, 1998
SHARE PURCHASE AGREEMENT dated as of September 14, 1998, among E.I. DU
PONT DE NEMOURS AND COMPANY ("Du Pont"), a Delaware corporation, DU PONT ENERGY
COMPANY ("DEC"), a Delaware corporation, RHEINBRAUN A.G. ("Rheinbraun"), a
corporation organized under the laws of the Federal Republic of Germany, and
CONSOL ENERGY INC. ("CEI"), a Delaware corporation.
WHEREAS, DEC is a wholly-owned subsidiary of Du Pont and owns 50,000
Class A shares of Consol Energy Inc., a Delaware Corporation ("CEI"),
constituting 50% of the issued and outstanding shares of common stock of CEI
(the "Class A Shares");
WHEREAS, Rheinbraun (and an affiliate of Rheinbraun) owns 50,000 Class
B shares of CEI, constituting 50% of the issued and outstanding shares of common
stock of CEI; and
WHEREAS, DEC desires to sell, and Du Pont intends to cause DEC to
sell, 47,000 of the Class A Shares to CEI, which CEI has elected to purchase
pursuant to the Option Agreement (as hereinafter defined);
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, and agreements herein contained, the parties hereto
agree as follows:
TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS............................................................. 2
ARTICLE II - PURCHASE OF SHARES; CONTROL OF CEI...................................... 5
2.1 Shares to be Purchased.................................................... 5
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2.2 Method of Payment......................................................... 5
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2.4. Effective Date............................................................ 5
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ARTICLE III - THE CLOSING............................................................ 6
ARTICLE IV - REPRESENTATIONS OF DU PONT.............................................. 6
4.1 Organization, Standing and Power.......................................... 6
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4.2 Ownership of Class A Shares............................................... 6
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4.3 Authority; Non-contravention.............................................. 7
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4.4 Brokers................................................................... 9
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ARTICLE V - REPRESENTATIONS OF CEI................................................... 9
5.1 Organization and Corporate Power.......................................... 9
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5.2 Authority; Non-contravention.............................................. 9
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5.3 Securities Laws........................................................... 11
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5.4 Brokers................................................................... 11
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ARTICLE VI - GOVERNMENT FILINGS...................................................... 11
ARTICLE VII - CONDITIONS TO OBLIGATIONS OF RHEINBRAUN................................ 12
7.1 Obligations Performed..................................................... 12
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7.2 Representations True...................................................... 13
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7.3 Opinions of Counsel....................................................... 13
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7.4 Authorization............................................................. 13
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7.5 All Proceedings Satisfactory.............................................. 14
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7.6 Injunctions............................................................... 14
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7.7 No Governmental Prohibitions.............................................. 14
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7.8 Governmental Approvals.................................................... 15
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7.9 Casualty and Changes...................................................... 17
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ARTICLE VIII - CONDITIONS TO OBLIGATIONS OF DU PONT.................................. 18
8.1 Obligations Performed..................................................... 18
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8.2 Representations True...................................................... 18
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8.3 Opinions of Counsel....................................................... 18
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8.4 Authorization............................................................. 19
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8.5 All Proceedings Satisfactory.............................................. 19
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8.6 Injunctions............................................................... 19
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8.7 No Governmental Prohibitions.............................................. 19
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8.8 Governmental Approvals.................................................... 20
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8.9 Rheinbraun Counter-Guaranty............................................... 21
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ARTICLE IX - INDEMNIFICATION......................................................... 22
9.1 Indemnification by Du Pont................................................ 22
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9.2 Rules of Construction..................................................... 25
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9.3 Notice of Claim for Indemnification....................................... 25
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9.4 Indemnity Notice Periods.................................................. 26
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9.5 Exclusive Remedies........................................................ 28
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9.6 Coexistence of SEA Agreement.............................................. 28
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9.7 Knowledge of Claims....................................................... 29
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9.8 Notice to Du Pont of Common Loss Settlements.............................. 29
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ARTICLE X - TERMINATION.............................................................. 30
ARTICLE XI - EXPENSES................................................................ 30
ARTICLE XII - ASSIGNMENT............................................................. 31
ARTICLE XIII- SURVIVAL OF CONDITIONS, WARRANTIES, ETC................................ 31
ARTICLE XIV - NOTICES................................................................ 31
ARTICLE XV - MISCELLANEOUS........................................................... 33
15.1 Entire Agreement.......................................................... 33
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15.2 Counterparts.............................................................. 33
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15.3 Partial Invalidity........................................................ 33
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15.4 Interpretation............................................................ 33
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15.5 Amendments, Waivers and Consents.......................................... 34
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15.6 Publicity................................................................. 34
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15.7 Further Assurances........................................................ 35
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ARTICLE XVI - GOVERNING LAW; ARBITRATION............................................. 35
16.1 Governing Law............................................................. 35
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16.2 Arbitration............................................................... 35
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ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms have the meanings
indicated:
"CLASS A SHARES" means all of the authorized, issued, and outstanding
shares of Class A Common stock of CEI, $1.00 par value each.
"CLOSING" means the closing specified in Article III of this
Agreement.
"CLOSING DATE" means the date of the Closing specified in Article III
of this Agreement.
"COAL GROUP" means CEI and its Subsidiaries, and a "member of the Coal
Group" shall be any one of CEI or such Subsidiaries.
"DU PONT LIABILITY" shall mean any Loss incurred by Du Pont or DEC
other than a reduction in the value of the Coal Group by reason of a Loss
incurred by the Coal Group.
"ENVIRONMENTAL LAWS" shall mean all applicable federal, state,
regional and local laws, statutes, ordinances, judgments, rulings, and
regulations relating to any matters of pollution, protection of the environment
(including, without limitation, any matters relating to land subsidence or
reclamation) or environmental regulation or control.
"HAZARDOUS ITEMS" shall mean anything included within the definition
of "hazardous waste" under the Resource Conservation and Recovery Act, 42 U.S.C.
(S) 6901 et seq. and the
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regulations promulgated thereunder, and each of the following: polychlorinated
biphenyls, petroleum and petroleum products or derivatives, asbestos and
radioactive materials.
"LOSS" shall mean any and all liability, loss, damage or deficiency
and any costs or expenses incident thereto (including accounting and legal fees
and expenses).
"OPTION AGREEMENT" shall mean the Option (Class A Shares) Agreement
dated as of September __, 1998, among Du Pont, DEC, Rheinbraun, and CEI.
"PRE-CLOSING COAL GROUP LITIGATION" means (i) all judicial,
administrative or arbitral actions, claims, suits, proceedings or investigations
pending as of the Closing Date against any member of the Coal Group (other than
any such actions, claims, suits, proceedings or investigations under statutorily
mandated state worker's compensation laws or state and federal occupational
disease laws), and (ii) to the knowledge of Du Pont, all such actions, claims,
suits, proceedings or investigations threatened against any member of the Coal
Group in which there has been asserted a claim for more than One Million Dollars
($1,000,000) or a claim for monetary damages in an unspecified amount in which,
although no claim for monetary damages has yet been made, such claim would
reasonably be expected to be for more than One Million Dollars ($1,000,000). The
term "to the knowledge of Du Pont" means matters known to any officer or
director of Du Pont, DEC, and any member of the Coal Group (excluding those
directors of a member of the Coal Group nominated exclusively by
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Rheinbraun) or that should have been known to such officers and directors in the
ordinary course of fulfilling their duties.
"RHEINBRAUN LIABILITY" shall mean any Loss incurred by Rheinbraun,
other than a reduction in the value of the Coal Group by reason of a Loss
incurred by the Coal Group, to which Rheinbraun succeeds or which Rheinbraun
incurs as a result of the sale by DEC of 47,000 Class A Shares pursuant to this
Agreement.
"SEA AGREEMENT" means the Share Exchange and Acquisition Agreement
among Du Pont, DEC, Rheinbraun, and others dated December 6, 1991, as amended.
"SHAREHOLDERS' AGREEMENT" means the Shareholders' Agreement among Du
Pont, DEC, Rheinbraun, and others dated December 6, 1991, as amended.
"SHAREHOLDERS AMENDATORY AGREEMENT" means Amendatory Agreement No. 3
dated as of October 1, 1997, as amended, among Du Pont, DEC, Rheinbraun, an
affiliate of Rheinbraun, and CEI, amending the Shareholders' Agreement.
"SUBSIDIARY" means, with respect to another person, a corporation,
partnership, trust, or other legal entity controlled by such other person,
directly or indirectly. An entity shall be deemed subject to the control of
another person when such person, directly or indirectly, has the power to direct
or cause the direction of the management and policies of such entity.
"TAXES" means the taxes specified in section 9.1(d).
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ARTICLE II
PURCHASE OF SHARES; CONTROL OF CEI
2.1 Shares to be Purchased. Subject to the terms and conditions of
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this Agreement, CEI shall at the Closing pay to DEC $500 Million (Five Hundred
Million Dollars) for 47,000 Class A Shares, and, in consideration of such
payment, Du Pont shall cause DEC at the Closing to sell and transfer to CEI (or
nominee of CEI), and DEC shall sell and transfer to CEI (or nominee of CEI), all
of DEC's right, title, and interest in 47,000 Class A Shares. Certificates
representing all such Class A Shares shall be duly endorsed for transfer or
accompanied by duly executed transfer forms. CEI shall deliver to DEC at the
Closing a new share certificate representing the remaining 3,000 Class A Shares
owned by DEC.
2.2 Method of Payment. Subject to the terms and conditions of this
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Agreement, the payment to be made to DEC pursuant to section 2.1 shall be
effected by the transfer (by wire transfer or intrabank transfer) of immediately
available funds to such bank account as DEC shall designate by written notice to
CEI not less than ten (10) days prior to the date when due.
2.3. Effective Date. This Agreement shall come into force when CEI
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shall give written notice of exercise of the option granted by the Option
Agreement in accordance with its terms.
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ARTICLE III
THE CLOSING
Subject to the terms and conditions of this Agreement, the Closing of
the transaction described in section 2.1 shall take place at 10:00 a.m. on the
tenth business day following the fulfillment or waiver of the conditions stated
in Articles VII and VIII of this Agreement, which shall be the "Closing Date,"
at the offices of XX Xxxxxxxxxx, a Division of BT Securities Corporation, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or at such other date or place as may be
mutually agreed upon in writing by the parties.
ARTICLE IV
REPRESENTATIONS OF DU PONT
Du Pont represents and warrants to CEI as follows:
4.1 Organization, Standing and Power. Each of Du Pont and DEC is a
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corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it is incorporated and has the requisite corporate
power and authority to carry on its business as currently conducted.
4.2 Ownership of Class A Shares. DEC is the record and beneficial
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owner of all of the Class A Shares, free and clear of any lien, claim, charge or
encumbrance of any kind (other than such restrictions as may be imposed by the
Shareholders Agreement and the Option Agreement). All the Class A Shares have
been duly authorized and validly issued, and are fully paid and nonassessable.
Except as provided in this Agreement, or by
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federal or state securities laws, or as may be provided by the Shareholders
Agreement or the Option Agreement, the Class A Shares are not subject to any
restrictions, contractual or otherwise, relating to their disposition, nor to
any right or obligation of CEI or any other person to purchase them. Upon
delivery of, and payment for, the Class A Shares at the Closing as provided in
this Agreement, CEI will acquire good and valid title to 47,000 Class A Shares,
free and clear of any lien, claim, charge or encumbrance of any kind.
4.3 Authority; Non-contravention.
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(a) Du Pont has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. The
execution and delivery of, and the performance of its obligations under, this
Agreement have been duly authorized by all necessary corporate action of Du
Pont. Du Pont has duly executed and delivered this Agreement, and this Agreement
is the legal, valid, and binding obligation of Du Pont, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws generally applicable to creditors'
rights and remedies and to the exercise of judicial discretion in accordance
with general principles of equity.
(b) DEC has all requisite corporate power and authority to
execute and deliver this Agreement and to perform its obligations hereunder. DEC
has taken all necessary corporate action duly to authorize the execution and
delivery of, and the
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performance of its obligations under, this Agreement. The sale of Class A Shares
by DEC as provided herein has been duly authorized by all necessary corporate
action of DEC, DEC has duly executed and delivered this Agreement, and this
Agreement are its legal, valid and binding obligations, enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and other laws generally applicable to creditors'
rights and remedies and the exercise of judicial discretion in accordance with
general principles of equity.
(c) The execution and delivery by Du Pont and DEC of this
Agreement do not, and the performance by each of Du Pont and DEC of their
respective obligations under this Agreement and the consummation of the
transactions contemplated hereunder will not, violate, conflict with, or result
(with or without the giving of notice or the lapse of time or both) in the
breach or termination of, or default under, or result in the creation of any
material lien, security interest, charge or encumbrance under, any provision of
(i) the certificate of incorporation or by-laws of Du Pont or DEC or of any law,
rule or regulation of any governmental body or any order, judgment or decree
applicable to either of them or any of their respective assets, or (ii) any
material loan or credit agreement, note, bond, lease, license, franchise,
mortgage, indenture or other agreement, obligation or instrument to which Du
Pont or DEC is a party or by which either of them may be bound or under which
either of them enjoys any rights or privileges. No consent, approval, order or
authorization of, or registration,
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declaration or filing with, any court, administrative agency or commission or
other governmental authority or agency, domestic or foreign, is required by or
with respect to Du Pont or DEC in connection with the execution and delivery of
this Agreement by Du Pont or DEC or the consummation of the transactions
contemplated hereunder, except for such approvals, filings and the like as are
referred to in Article VI.
4.4 Brokers. Du Pont is not liable for any fee, commission or other
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compensation to any agent, broker, investment banker or other person acting on
behalf or under the authority of Du Pont or any of its affiliates in connection
with the making, execution, delivery or performance of this Agreement other than
to XX Xxxxxxxxxx, a Division of BT Securities Corporation, for which Du Pont
alone is liable.
ARTICLE V
CEI represents and warrants to Du Pont as follows:
5.1 Organization and Corporate Power. CEI is a corporation duly
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organized, validly existing and in good standing under the laws of the
jurisdiction in which it is incorporated and has the requisite corporate power
and authority to carry on its business as currently conducted.
5.2 Authority; Non-contravention. CEI has all requisite corporate
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power and authority to execute and deliver this Agreement and to perform its
obligations hereunder. The
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execution and delivery of this Agreement and the performance of its obligations
hereunder have been duly authorized by all necessary corporate action. CEI has
duly executed and delivered this Agreement and this Agreement is its legal,
valid and binding obligation, enforceable in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium, and other laws
generally applicable to creditors' rights and remedies and to the exercise of
judicial discretion in accordance with general principles of equity. The
execution and delivery of this Agreement by CEI does not, and the performance of
its obligations and the consummation of the transactions contemplated hereunder
will not, violate, conflict with, or result (with or without the giving of
notice or the lapse of time or both) in the breach or termination of, or default
under, or result in the creation of any material lien, security interest, charge
or encumbrance under, any provision of (i) the Certificate of Incorporation or
By-Laws of CEI or of any law, rule or regulation of any governmental body or any
order, judgment or decree applicable to it or to any of its assets, or (ii) any
material loan or credit agreement, note, bond, lease, license, franchise,
mortgage, indenture or other agreement, obligation or instrument to which it is
a party or by which it may be bound or under which it enjoys any rights or
privileges. No consent, approval, order or authorization of, or registration,
declaration or filing with, any court, administrative agency or commission or
other governmental authority or agency, domestic or foreign, is required by or
with respect to CEI in connection with
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the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereunder, except for such approvals, filings and the
like as are referred to in Article VIII.
5.3 Securities Laws. CEI understands that the Class A Shares have not
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been registered under the Securities Act of 1933, as amended, or any applicable
state securities laws, and that CEI cannot dispose of any or all of the Class A
Shares unless such Class A Shares are subsequently registered under said Act or
applicable state securities laws, or unless an exemption from such registration
requirements is available. CEI understands that each certificate representing
any Class A Shares bears a legend reflecting the foregoing.
5.4 Brokers. CEI is not liable for any fee, commission or other
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compensation to any agent, broker, investment banker or other person acting on
behalf or under its authority or any of its affiliates in connection with the
making, execution, delivery or performance of this Agreement other than to Xxxxx
Brothers Xxxxxxxx & Co., for which Rheinbraun alone is liable.
ARTICLE VI
GOVERNMENT FILINGS
The parties agree to prepare and file as soon as practicable all such
applications or notifications to governmental authorities in the United States,
Canada, and the European Community as may be required by law in order to permit
the
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consummation of the transactions contemplated by this Agreement. Such
applications and notifications shall include (i) application of the parties to
the Commission of the European Communities, (ii) if required, joint notice to
the Committee on Foreign Investment in the United States ("CFIUS") pursuant to
(S)721 of the Defense Production Act of 1950 (the "Exon-Xxxxxx Amendment"), and
(iii) if required, notice by CEI to Investment Canada under the Investment
Canada Act of the acquisition by Rheinbraun, which owns 50% of the outstanding
shares of CEI, of an additional indirect interest in CEI and Canadian
subsidiaries of XXX. Xx Xxxx, Xxxxxxxxxx and CEI agree to cooperate in preparing
and filing such applications and notifications.
ARTICLE VII
CONDITIONS TO OBLIGATIONS OF CEI
The obligations of CEI under Article II of this Agreement are subject
to the fulfillment at or before the Closing (or at or before such other date as
may be specified in this Article) of each of the following conditions unless
such condition is waived in writing:
7.1 Obligations Performed. Du Pont and DEC shall have timely
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performed all of their respective obligations under this Agreement required to
be performed at or before the Closing, and there shall have been delivered to
CEI a certificate of an executive officer of Du Pont and DEC, respectively,
dated the Closing Date to such effect.
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7.2 Representations True. The representations and warranties of Du
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Pont and DEC contained in Article IV of this Agreement shall be true, as of the
Closing Date, with the same force and effect as though such representations and
warranties had been made as of the Closing Date (except to the extent that such
representations and warranties shall not be true because of transactions
provided for in this Agreement), and there shall have been delivered to CEI a
certificate of an executive officer of Du Pont and DEC, respectively, dated the
Closing Date to such effect.
7.3 Opinions of Counsel. There shall have been delivered to CEI the
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opinion of the General Counsel of Du Pont and the ancillary opinions of special
foreign counsel, which counsel shall be acceptable to CEI, each dated the
Closing Date, with respect to such matters relating to this Agreement as CEI may
reasonably request, in form substantially similar to opinions of counsel
delivered pursuant to section 9.3 of the SEA Agreement.
7.4 Authorization. The Board of Directors (or any authorized
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committee thereof) of Du Pont, and the Board of Directors and stockholders of
DEC, shall have duly adopted resolutions in form and substance reasonably
satisfactory to CEI authorizing each of them to consummate the Closing and the
other transactions contemplated hereby in accordance with the terms and
conditions hereof, and there shall have been delivered to CEI copies of all such
resolutions, in each case certified by the Secretary or an Assistant Secretary
of Du Pont or DEC, as the case may be.
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7.5 All Proceedings Satisfactory. Du Pont shall have furnished to CEI
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at the Closing all such other certificates and other documents as CEI may
reasonably request in order to evidence the performance by Du Pont of its
obligations under this Agreement or as may be necessary to carry out the
purposes of this Agreement.
7.6 Injunctions. No injunction or restraining order against any
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transaction contemplated by this Agreement shall be in effect, and no judicial
or administrative action or proceeding to enjoin any such transaction shall have
been instituted or threatened which, in the opinion of counsel to CEI, could
result in the issuance of such an injunction.
7.7 No Governmental Prohibitions. There shall not be any statute,
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rule, decree, order or injunction of the United States, the European Community
or the Federal Republic of Germany (or any of their respective states or other
jurisdictions, or the respective courts of such countries, states or other
jurisdictions), interpreted, promulgated, enacted, entered into or enforced by
the United States, the European Community or the Federal Republic of Germany (or
any of their respective states or other jurisdictions) or by any governmental
agency, authority or court thereof, that (i) restrains or prohibits the making
or consummation of this Agreement or restrains or prohibits the performance of
this Agreement and the transactions contemplated hereby, (ii) in connection with
the transactions contemplated by this Agreement, prohibits or materially limits
the ownership or
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operation by Rheinbraun or CEI of all or any material portion of the business or
assets of CEI or any of its Subsidiaries or compels any of them to dispose of or
hold separate all or any material portion of such business or assets, or imposes
any material limitation on the ability of CEI or any of its Subsidiaries to
conduct such business or own such assets, or (iii) imposes material limitations
on the ability of CEI to pay for, to acquire or hold or to exercise ownership of
Class A Shares.
7.8 Governmental Approvals.
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(a) Neither the Antitrust Division of the Department of Justice
nor the Federal Trade Commission shall have filed suit, which suit remains
pending, to prevent any transaction provided for in this Agreement.
(b) CEI (i) shall have received an opinion of counsel
satisfactory to it stating that the acquisition by Rheinbraun of an additional
indirect interest in CEI and the Canadian Subsidiaries of CEI pursuant to this
Agreement is not subject to notification or review under the Investment Canada
Act or (ii) shall have filed notification under Section 12 of the Investment
Canada Act and shall have received a receipt under Section 13(1) of such Act (A)
certifying the date on which the complete notice or the information required to
complete the notice required under such Act was received by Investment Canada
and (B) advising CEI that (X) the investment is not reviewable under such Act or
(Y) unless Investment Canada sends CEI a notice for review within 21 days after
such certified date, the investment is not
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reviewable, and, if such receipt contains the language set forth in this clause,
21 days shall have elapsed and no notice for review shall have been sent to CEI;
provided, that if a notice for review is sent to CEI within such 21 day period,
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then CEI also shall have received notice under Section 21 or 23 of such Act that
the Minister (as defined in said Act) is satisfied, or is deemed to be
satisfied, that the acquisition by Rheinbraun of further indirect control of
such Canadian Subsidiaries pursuant to this Agreement is likely to be of net
benefit to Canada, or CEI shall have received from Investment Canada official
advice in writing that such a notice will be sent by the Minister in due course
on the basis of the undertakings theretofore made or proposed by CEI.
(c) The CFIUS (as defined in Article VI) shall have determined
not to investigate the transactions contemplated by this Agreement under the
Exon-Xxxxxx Amendment.
(d) CEI or Rheinbraun and Du Pont shall have received notice from
the Commission of the European Communities stating that such Commission (i) does
not object to, or does not propose to take any action in respect of, the
transactions contemplated by this Agreement, or (ii) proposes to impose
conditions or restrictions on such transactions that CEI, Rheinbraun, and Du
Pont, each in its absolute discretion, find acceptable; provided, that, if any
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party finds such conditions or restrictions unacceptable it shall notify the
other parties of the fact and, at the request of either such party hereto, the
parties shall enter into negotiations with a view to amending this
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Agreement in a mutually satisfactory manner (in the absolute discretion of each
of them) that complies with such conditions or restrictions; provided, further,
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that CEI undertakes to Rheinbraun that, if Rheinbraun finds such conditions or
restrictions unacceptable, CEI shall comply with instructions of Rheinbraun in
respect thereof.
(e) There shall have been obtained all approvals or
authorizations by any government agency in the United States or elsewhere (other
than the authorizations contemplated by this section 7.8(b)-(d), inclusive)
which are required to be obtained before the Closing in order to permit CEI to
acquire all of the Class A Shares.
7.9 Casualty and Changes. Since the date of this Agreement, there
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shall not have occurred any event or condition (whether or not covered by
insurance) which has had, or which is likely to have, either individually or in
the aggregate with other such events or conditions, a materially adverse effect
on the assets, business, or financial condition of the Coal Group taken as a
whole, including (without limitation) any fire, accident or other casualty,
labor disturbance or act of God or the public enemy affecting in a material way
the Coal Group and the properties used therein taken as a whole.
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ARTICLE VIII
CONDITIONS TO OBLIGATIONS OF DU PONT
The obligations of Du Pont under Article II of this Agreement are
subject to the fulfillment at or before the Closing (or at or before such other
date as may be specified in this Article) of each of the following conditions
unless such condition is waived in writing:
8.1 Obligations Performed. CEI shall have timely performed all of its
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obligations under this Agreement required to be performed at or before the
Closing, and there shall have been delivered to Du Pont a certificate of an
executive officer of CEI, dated the Closing Date, to such effect.
8.2 Representations True. The representations and warranties of CEI
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contained in Article V of this Agreement shall be true, as of the Closing Date,
with the same force and effect as though such representations and warranties had
been made as of the Closing Date (except to the extent that such representations
and warranties shall not be true because of transactions provided for in this
Agreement), and there shall have been delivered to Du Pont a certificate of an
executive officer of CEI, dated the Closing Date, to such effect.
8.3 Opinions of Counsel. There shall have been delivered to Du Pont
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the opinion of Messrs. Becker, Glynn, Xxxxxxx & Xxxxxx LLP and the ancillary
opinions of special foreign counsel, which foreign counsel shall be acceptable
to Du Pont, each dated the Closing Date, with respect to such matters relating
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to this Agreement as Du Pont may reasonably request, in form substantially
similar to opinions of counsel delivered pursuant to section 10.3 of the SEA
Agreement.
8.4 Authorization. The Board of Directors of CEI shall have duly
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adopted resolutions in form and substance reasonably satisfactory to Du Pont
authorizing CEI to consummate the Closing and the other transactions
contemplated hereby in accordance with the terms hereof, and there shall have
been delivered to Du Pont copies of all such resolutions, certified by the
general counsel of CEI.
8.5 All Proceedings Satisfactory. CEI shall have furnished to Du Pont
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at the Closing all such other certificates and other documents as Du Pont may
reasonably request in order to evidence the performance by CEI of its
obligations under this Agreement or as may be necessary to carry out the
purposes of this Agreement.
8.6 Injunctions. No injunction or restraining order against any
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transaction contemplated by this Agreement shall be in effect and no judicial or
administrative action or proceeding to enjoin any such transaction shall have
been instituted or threatened which, in the opinion of counsel to Du Pont, could
result in the issuance of such an injunction.
8.7 No Governmental Prohibitions. There shall not be any statute,
rule, decree, order or injunction of the United States, the European Community
or the Federal Republic of Germany (or any of their respective states or other
jurisdictions or the
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respective courts of such countries, states or other jurisdictions),
interpreted, promulgated, enacted, entered into or enforced by the United
States, the European Community or the Federal Republic of Germany (or any of
their respective states or other jurisdictions) or any governmental agency or
authority or court thereof, that restrains or prohibits the performance of this
Agreement and the transactions contemplated hereby.
8.8 Governmental Approvals.
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(a) Neither the Antitrust Division of the Department of Justice
nor the Federal Trade Commission shall have filed suit, which suit remains
pending, to prevent any transaction provided for in this Agreement.
(b) Du Pont and CEI or Rheinbraun shall have received notice
from the Commission of the European Communities stating that such Commission (i)
does not object to, or does not propose to take any action in respect of, the
transactions contemplated by this Agreement, or (ii) proposes to impose
conditions or restrictions on such transactions that Du Pont, CEI, and
Rheinbraun, each in its absolute discretion, find acceptable; provided, that, if
--------
any party finds such conditions or restrictions unacceptable it shall notify the
other parties of the fact and, at the request of either such party hereto, the
parties shall enter into negotiations with a view to amending this Agreement in
a mutually satisfactory manner (in the absolute discretion of each of them) that
complies with such conditions or restrictions; provided, further, that CEI
--------
undertakes to Rheinbraun that, if
-20-
Rheinbraun finds such conditions or restrictions unacceptable, CEI shall comply
with instructions of Rheinbraun in respect thereof.
(c) There shall have been obtained all approvals or authorizations by
any government agency in the United States or elsewhere (other than the
authorizations contemplated by Sections 8.8 (b)) which are required to be
obtained before the Closing in order to permit DEC to sell the Class A Shares
pursuant to Article II.
8.9 Rheinbraun Counter-Guaranty. Rheinbraun shall have executed and
---------------------------
delivered to Du Pont a counter-guaranty in favor of Du Pont in the form of
Exhibit A in respect of any liability Du Pont may incur as a result of
guarantees and indemnities heretofore given by Du Pont and its Affiliates not
within the Coal Group of those obligations of members of the Coal Group set
forth in a list that CEI shall promptly furnish to Du Pont and Rheinbraun after
the date hereof. Such list shall set forth all guarantees and indemnities
theretofore given by Du Pont and its Affiliates not within the Coal Group of
relevant obligations of the members of the Coal Group, and shall be prepared in
the same manner and in accordance with the same principles used in preparing
Schedule 10.12 of the SEA Agreement. Such list, when confirmed by Du Pont and
Rheinbraun, which confirmation shall not be unreasonably withheld by either
party, shall then be deemed Exhibit B to this Agreement.
-21-
ARTICLE IX
INDEMNIFICATION
9.1 Indemnification by Du Pont. Subject to Section 9.2, if the
--------------------------
Closing shall take place, Du Pont will defend, indemnify and hold harmless each
of Rheinbraun and CEI, severally, against and in respect of:
(a) General: Any Rheinbraun Liability, any Loss incurred by CEI as an
-------
entity separate and apart from the Coal Group and 47% of any and all Loss which
any member of the Coal Group incurs resulting from any misrepresentation, breach
of warranty or nonfulfillment of any agreement of Du Pont, or from any
misrepresentation in or omission from any certificate or other instrument
furnished or to be furnished to CEI in connection with the transactions
contemplated hereby;
(b) Environmental Matters: Any Rheinbraun Liability and forty-seven
---------------------
(47%) of any and all Loss which any member of the Coal Group incurs, arising or
resulting from or relating to (i) the failure of any member of the Coal Group
(A) to have received as of the Closing Date all permits and authorizations of
any kind, and to have filed all notifications of any kind on or prior to the
Closing Date, required for the generation, handling, storage, transportation,
disposal or remediation of Hazardous Items, or (B) to have complied at any time
prior to the Closing Date with all laws and regulations governing the
generation, handling, storage, transportation, disposal or remediation of
Hazardous Items; and
-22-
(ii) the presence, at any time prior to the Closing Date, of Hazardous Items on,
at or under any property of any member of the Coal Group or any other property,
or the migration, at any time prior to the Closing Date, of any Hazardous Items
from any properties of any member of the Coal Group to any other property, or
the release, discharge, transportation, or disposal, at any time prior to the
Closing Date, of any Hazardous Items by or on behalf of any member of the Coal
Group (the foregoing being hereinafter referred to as "Environmental Matters"),
excluding the first fifty million dollars ($50,000,000) in the aggregate of Loss
(calculated on a pre-tax basis) incurred by any of Rheinbraun and any member of
the Coal Group arising or resulting from or relating to any Environmental
Matters;
(c) Pre-Closing Coal Group Litigation: Any Rheinbraun Liability and
---------------------------------
forty-seven percent (47%) of any and all Loss which any member of the Coal Group
incurs, arising from or relating to Pre-Closing Coal Group Litigation, excluding
the first forty million dollars ($40,000,000) in the aggregate of Loss
(calculated on a pre-tax basis) incurred by any of Rheinbraun and any member of
the Coal Group arising from or relating to Pre-Closing Coal Group Litigation;
(d) Taxes. Any Rheinbraun Liability and forty-seven percent (47%) of
-----
any and all Loss which any member of the Coal Group incurs that may result if
the liabilities accrued for any Taxes in the accounts of the Coal Group, as at
the date of the Option Agreement or as at the Closing Date, shall be inadequate
-23-
to cover all material liability of the Coal Group for Taxes (excluding, for
purposes of determining such adequacy, interest and penalties) for any taxable
year or tax period ending, respectively, on or before the date of the Option
Agreement or the Closing Date. As used herein, the term "Taxes" means all
federal, state, local, and foreign income, profits, franchise, sales, use,
occupation, property, severance, production, excise payroll, and other taxes
(including interest and penalties thereon).
(e) Conoco Minerals: Any Rheinbraun Liability and forty-seven percent
---------------
(47%) of any and all Loss which any member of the Coal Group incurs, arising
from or relating to the properties of Conoco Inc. or its Minerals Divisions,
including but not limited to those properties constituting or known as the
Conquista Project;
(f) Limitation: Notwithstanding the foregoing, Du Pont shall not be
----------
required so to indemnify Rheinbraun or CEI in respect of any of the matters
referred to in paragraphs (a), (b), (c), and (d) (except the matter described in
section 4.4, above) until the aggregate amount of all such Rheinbraun Liability
and Loss incurred by members of the Coal Group (calculated on a pre-tax basis)
exceeds twenty million dollars ($20,000,000), in which case Du Pont shall so
indemnify Rheinbraun or CEI, as the case may be, from and against all such
Rheinbraun Liability and Loss, including the first twenty million dollars
($20,000,000) thereof (but such amount of Loss shall be calculated on an after-
tax basis and
-24-
subject to the provisions of Section 9.2.(b)), but in no event shall the
obligations of Du Pont under this Article in the aggregate exceed Five Hundred
Million United States Dollars ($500,000,000).
9.2 Rules of Construction.
---------------------
(a) If a claim for indemnification shall appear to fall under
paragraph (a) of section 9.1 and any other paragraph thereof, the paragraph
other than paragraph (a) of the greatest particularity in relation to such claim
shall govern exclusively. If a claim for indemnification shall appear to fall
under both paragraph (b) of Section 9.1 and paragraph (c) thereof, the former
paragraph shall govern exclusively.
(b) Any amount indemnifiable under Section 9.1 shall be reduced
by the amount by which the income tax liability of the Coal Group or Rheinbraun,
as the case may be, is reduced as a result of the relevant Loss; provided, that
the prompt payment when due of the entire indemnifiable amount (as adjusted to
reflect any good faith estimate of such reduction in income tax liability) shall
not be affected or delayed unless such actual reduction in income tax liability
shall have been finally determined prior to such due date. When such actual
reduction in income tax liability shall be finally determined after payment of
the entirety of such adjusted indemnifiable amount, there shall be an
appropriate reconciling payment.
9.3 Notice of Claim for Indemnification. Upon receipt by Rheinbraun
-----------------------------------
or CEI of notice or the obtaining by Rheinbraun or
-25-
CEI of evidence of any claim upon which indemnification may be sought hereunder,
it shall give written notice of the same to Du Pont. Such notice shall describe
the nature of the claim and, wherever possible, contain an estimate of the
amount of such claim. If any such claim relates to claims asserted by a third
party against Rheinbraun or against any member of the Coal Group (the
"defendant"), and if Du Pont desires to contest the same, Du Pont shall within
ten days after the receipt of a notice pursuant to Section 9.4(a) so notify the
defendant, failing which the defendant shall have the right to undertake the
defense, compromise or settlement of the same (acting in good faith) on behalf
of and for the account and risk of Du Pont. If Du Pont so notifies the defendant
that Du Pont elects to contest the claim, then Du Pont shall be entitled to
control the defense thereof by counsel of its own selection (the identity of
which counsel shall be subject to the consent of the other party, which consent
shall not be unreasonably withheld) and at its own expense. Du Pont and the
defendant shall give each other all information and assistance which each may
reasonably request in defending any matter hereunder.
9.4 Indemnity Notice Periods.
------------------------
(a) Save as otherwise provided in this section 9.4, any claim
for indemnification under section 9.1(a) shall be sufficiently and timely
asserted by Rheinbraun or CEI, as the case may be, if asserted by written notice
pursuant to Section 9.3 to Du Pont not later than August 31, 2000.
-26-
(b) Any claim for indemnification under section 9.1(b) shall be
sufficiently and timely asserted by Rheinbraun or CEI, as the case may be, if
asserted by written notice pursuant to section 9.3 at any time not later than
the fourth anniversary of the Closing.
(c) Any claim for indemnification under section 9.1(c) shall be
sufficiently and timely asserted by Rheinbraun or CEI, as the case may be, if
asserted by written notice pursuant to section 9.3 within ninety (90) days after
all administrative and judicial proceedings in respect of all matters the
subject of such section shall have been settled or shall have concluded by the
entry of a final judgment, issuance of an arbitral award or otherwise.
(d) Any claim for indemnification with respect to a liability
for Taxes (as defined in section 9.1(d)) shall be sufficiently and timely
asserted by Rheinbraun or CEI, as the case may be, if asserted by written notice
pursuant to section 9.3 within ninety (90) days after all administrative and any
judicial proceedings have concluded and there has been a final determination of
the Taxes due which are the subject of such claim, and shall be barred unless so
asserted.
(e) Any claim for indemnification under section 9.1(e) may be
asserted at any time.
(f) Notwithstanding any other provision of this Article, any
claim for indemnification by a party based upon a willful and fraudulent
misrepresentation by the other party may be
-27-
asserted by the party seeking indemnification by written notice pursuant to
section 9.3 within one hundred and eighty (180) days after such party receives
or obtains actual knowledge of such misrepresentation.
9.5 Exclusive Remedies. Following the Closing, except in the case of
------------------
fraud, the indemnities set forth in this Article shall be the only remedies
available to a party entitled to indemnification with respect to the matters
giving rise to such indemnification.
9.6 Coexistence of SEA Agreement. Neither this Article nor any
---------------------------
indemnification made under this Article shall affect or lessen the obligations
of any party as indemnitor under the SEA Agreement, and neither the SEA
Agreement nor any indemnification made under the SEA Agreement shall affect or
lessen the obligations of any party as indemnitor under this Article; provided,
--------
that, for purposes of administering claims under the SEA Agreement and this
----
Agreement, the following rules shall apply:
(a) a Loss any portion of which may be indemnifiable under both
Agreements (a "Common Loss") shall first be charged only against any applicable
exclusion in the SEA Agreement (set forth in Section 11.1 (d), (e) or (f) of the
SEA Agreement, as the case may be) and thereafter shall be indemnified by Du
Pont to the extent required by the SEA Agreement, subject to the $20,000,000
threshold set forth in the last paragraph of Section 11.1 of the SEA Agreement
if not yet satisfied;
-28-
(b) once any applicable exclusion or threshold under the SEA
Agreement has been satisfied, any Common Loss incurred thereafter shall, to the
extent not charged against any exclusion or threshold or indemnified by Du Pont
under the SEA Agreement, be treated as a Loss indemnifiable under this
Agreement, subject to any applicable exclusions or threshold under this
Agreement; and
(c) a Loss indemnifiable under only one of the SEA Agreement and this
Agreement shall be indemnified only under, and to the extent required by, the
applicable Agreement, subject to the exclusions and threshold of such Agreement;
it is understood that no Loss which might have been indemnifiable under the SEA
Agreement but is not because of a failure to give timely notice thereof in
accordance with the provisions of the SEA Agreement shall be treated as a Common
Loss.
9.7 Knowledge of Claims. Each representation and warranty made by a
-------------------
party to this Agreement is made with the intention that the recipient thereof
may rely upon the accuracy thereof, and the effect of each such representation
and warranty shall not be lessened by any investigation independently conducted
by such recipient.
9.8 Notice to Du Pont of Common Loss Settlements. Prior to settling
--------------------------------------------
any proceeding or claim (including without limitation any tax dispute,
arbitration or claim) for an amount in excess of $1,000,000 (in respect of any
tax claim) or in excess of $5,000,000 (in respect of any other claim) that is
-29-
subject to the indemnification provisions hereof (without regard to the
exclusion and threshold amounts specified herein) and that would give rise to a
Common Loss, CEI shall give Du Pont as much notice of such settlement as is
reasonably practicable in the circumstances and opportunity to comment thereon.
ARTICLE X
TERMINATION
If the Closing shall not have taken place on or before the 120th day
following the effective date of this Agreement, then this Agreement may be
terminated at any time thereafter by any party upon written notice delivered to
all other parties hereto; provided, that, this Article does not confer on any
--------
party the right to terminate this Agreement if all conditions to the performance
by such party of its obligations under this Agreement have been fulfilled or
waived on or before such 120th day, and a party may not terminate this Agreement
on the ground of non-fulfillment of a condition if such non-fulfillment was
itself caused by such party. Termination of this Agreement shall not affect
rights or obligations of any party accruing before the effective date of
termination.
ARTICLE XI
EXPENSES
Each of the parties to this Agreement shall bear all costs and
expenses incurred by it in connection with this
-30-
Agreement and the transactions contemplated hereby, including fees and expenses
of counsel.
ARTICLE XII
ASSIGNMENT
12.1 Du Pont and DEC may assign rights under this Agreement only with
the prior written consent of CEI. Any purported assignment without such consent
shall be void. CEI may freely assign this Agreement, in whole or in part.
12.2 The terms and conditions of this Agreement shall be binding on
the parties and their respective successors and permitted assigns.
ARTICLE XIII
SURVIVAL OF CONDITIONS, WARRANTIES, ETC.
All the terms, conditions, warranties, representations, and guarantees
set forth in this Agreement shall survive the Closing of the transactions
provided for in this Agreement.
ARTICLE XIV
NOTICES
All notices, consents, requests, instructions, approvals, and other
communications provided for herein (other than legal process) shall be validly
given if in writing and delivered personally or by confirmed telefax or express
mail (requiring a return receipt) to the address set forth below or to
-31-
such other address as any party may from time to time designate in a written
notice given in like manner. Notices and such other communications shall be
deemed delivered upon actual receipt:
(i) if to Du Pont or DEC, to each at:
E.I. Du Pont de Nemours and Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
X.X.X.
Attention: Vice President - Treasury
Telefax: (000) 000-0000
(ii) if to Rheinbraun, at:
Rheinbraun AG
Xxxxxxxxxxx 0
X-00000 Xxxx
Xxxxxxx Xxxxxxxx of Germany
Attention: Vorstand
Telefax: 011-49-221-480-1354
(iii) if to CEI, at:
Consol Energy Inc.
0000 Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
Telefax: 000-000-0000
with a copy, in respect of notices to
Rheinbraun or CEI, to:
Becker, Glynn, Xxxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Telefax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
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ARTICLE XV
MISCELLANEOUS
15.1 Entire Agreement.
----------------
(a) This Agreement constitutes the entire agreement between the
parties on the subject matter hereof, and supersedes any and all prior
agreements and undertakings between the parties hereto with respect to the
subject matter hereof.
(b) Nothing in this Agreement shall affect or lessen the rights
and obligations of the parties (including indemnification obligations) under the
SEA Agreement.
15.2 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to constitute an original of the
same Agreement, and all counterparts together shall constitute one single
agreement, which shall be effective upon the execution hereof by all the parties
hereto. A complete set of counterparts shall be made available to each party
hereto.
15.3 Partial Invalidity. In the event that one or more of the
------------------
provisions of this Agreement shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be construed as if such invalid or illegal or unenforceable
provision had never been contained herein.
15.4 Interpretation. The Table of Contents and the headings of the
--------------
Articles and Sections of this Agreement are
-33-
included for convenience of reference only and shall not affect the
interpretation of any provision of this Agreement. The assumption of
responsibility for the drafting of this Agreement or any portion hereof by a
party hereto shall not result in any inference or presumption that this
Agreement shall be construed against such party.
15.5 Amendments, Waivers and Consents. For the purposes of this
--------------------------------
Agreement, except as otherwise specifically set forth herein, no course of
dealing between any of the parties and no delay on the part of any party hereto
in exercising any rights hereunder shall operate as a waiver of the rights
hereof. No covenant or other provision hereof may be waived otherwise than by a
written instrument signed by the party so waiving such covenant or other
provision; provided, that, except as otherwise stated herein, changes in or
--------
additions to, and any consents required by, this Agreement may be made, and
compliance with any term, covenant, condition or provision set forth herein may
be omitted or waived (either generally or in a particular instance and either
retroactively or prospectively), by a consent or consents in writing by the
party charged with the omission or waiver thereof.
15.6 Publicity. Subject to applicable securities laws and
---------
regulations (including regulations of a securities exchange) of the United
States, any state thereof or the Federal Republic of Germany, no public release
or announcement concerning the transactions contemplated hereby shall be issued
by any party hereto without the prior written consent of the other parties. If
-34-
such release or announcement shall be required by any such laws or regulations,
the party required to make the release or announcement shall allow the other
parties reasonable time to comment on such release or announcement in advance of
its issuance.
15.7 Further Assurances. Each party will execute and deliver such
------------------
further instruments, shall obtain all necessary consents, and shall take such
further actions as may be reasonably requested by the other parties to confirm
and carry out the transactions contemplated by this Agreement.
ARTICLE XVI
GOVERNING LAW; ARBITRATION
16.1 Governing Law. The validity, performance, interpretation and
-------------
other incidents of this Agreement shall be governed by the internal law of the
State of New York.
16.2 Arbitration
-----------
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the interpretation, breach, termination or
invalidity thereof, shall be finally settled by arbitration in London, England,
in accordance with the Rules of the London Court of International Arbitration
("LCIA") as in force on the date hereof by three arbitrators as hereinafter
provided. The language of any arbitral proceeding shall be English. For the
purposes of this section 16.2, Du Pont and DEC shall be deemed a single party,
Rheinbraun and CEI shall be deemed a single party,
-35-
and all procedural rights and obligations of such party shall be exercised and
discharged, respectively, by Du Pont and Rheinbraun.
(b) The arbitral tribunal shall be composed of three
arbitrators appointed as follows:
(i) Each party shall nominate an arbitrator, and the two
arbitrators so nominated shall appoint a third arbitrator
who shall act as president of the tribunal;
(ii) if either party shall fail to nominate an arbitrator
within thirty (30) days after receiving notice of the
nomination of an arbitrator by the other party, such
arbitrator shall, at the written request of such other
party, be appointed by the LCIA;
(iii) if the two arbitrators so nominated shall fail to agree
upon a third arbitrator within thirty (30) days after the
appointment of the second arbitrator, the third arbitrator
shall, at the written request of either party, be
appointed by the LCIA;
(iv) should a vacancy arise because any arbitrator dies,
resigns, refuses to act, or becomes incapable of
performing his functions, the vacancy shall be filled by
the method by which that arbitrator was originally
appointed.
-36-
(c) Any arbitration proceeding hereunder may include claims or
counterclaims, if any, arising under and chargeable against a party to this
Agreement who is also a party to the Shareholders Agreement, the Shareholders
Amendatory Agreement, the SEA Agreement, or all said agreements. If more than
one arbitration proceeding shall be pending hereunder concurrently, then, upon
the written agreement of all parties engaged in such proceedings, the several
proceedings may be consolidated by the LCIA into one proceeding upon the terms
of such agreement and the Rules of the LCIA.
(d) The parties agree that irreparable damage would occur if any
provision of this Agreement were not performed in accordance with its specific
terms or were otherwise breached, and that the arbitral tribunal shall
consequently have power to grant injunctions (preliminary and permanent) and
specific performance in addition to other relief. The arbitral tribunal shall
also grant to any party, upon its request, broad discovery of relevant,
unprivileged documents controlled by the other party. Nothing herein shall limit
the right of any party, before and during any such arbitration proceeding, to
have recourse to such provisional judicial remedies, including preliminary
injunction and attachment, as would be available in the absence of this Section;
provided, that any legal action seeking such provisional judicial remedies shall
be brought in state or federal courts in Wilmington, Delaware, if brought
against a domiciliary of the United States, or in the courts of Cologne,
Germany, if brought
-37-
against a domiciliary of Germany, or in the courts of England (irrespective of
the domiciles of the parties). Judgment upon any arbitral award may be entered
in any court having jurisdiction. The parties agree to exclude the right of
appeal to any court in England from any award of the arbitral tribunal, and to
exclude the right to apply to any court in England for the determination of any
question of law arising in the arbitration.
(e) During the pendency of an arbitration proceeding hereunder, any
party to the proceeding may continue to perform its obligations hereunder
without prejudice to its claims, defenses, counterclaims, or any resulting
award, and such party shall continue to perform such obligations unless its
claims, defenses, or counterclaims assert in such proceeding that, in
consequence of a material breach of this Agreement by another party to such
proceeding or the failure of a condition of such obligations, it is excused from
continued performance of this Agreement.
(f) Each party agrees that any request for arbitration, answer
thereto or other paper for such arbitration, or complaint, answer thereto or
other paper for such judicial proceeding, shall be sufficiently served on a
party if delivered personally or by express mail (return receipt requested) to
the address specified for such party in this Agreement, such delivery to be
effective only upon actual receipt.
-38-
IN WITNESS WHEREOF, DU PONT, DEC, RHEINBRAUN AND CEI have caused this
Agreement to be duly executed all as of the day and year first above written.
E.I. DU PONT DE NEMOURS AND COMPANY
By: /s/ X. X. Xxxxxxxxxx ATTEST:
-----------------------------------
Name: X. X. Xxxxxxxxxx
Title: Vice president and Treasurer
/s/ ^[SIGNATURE ILLEGIBLE]^
-----------------------------
Assistant Secretary
DU PONT ENERGY COMPANY
By: /s/ X. X. Xxxxxxxxxx ATTEST:
-----------------------------------
Name: X. X. Xxxxxxxxxx
Title: President
/s/ ^SIGNATURE ILLEGIBLE^
-----------------------------
Assistant Secretary
RHEINBRAUN AG
By: /s/ Xxxxx X. Breloer By: /s/ Berthold Bonokamp
----------------------------------- --------------------------
Name: Xxxxx X. Breloer Name: Berthold Bonokamp
Title: Mitglied des Vorstandes Title: Mitglied des
Vorstandes
CONSOL ENERGY INC.
By:/s/ J. Xxxxx Xxxxxx ATTEST:
------------------------------------
Name: J. Xxxxx Xxxxxx
Title: President
/s/ X. X. Xxxxxx
------------------------------
Secretary
-39-
Exhibit A to Share Purchase Agreement
Form of Counter-Guaranty
------------------------
COUNTER-GUARANTY made as of __________________ by RHEINBRAUN AG, a
corporation duly organized and existing under the laws of Germany (hereinafter
the "Guarantor").
WITNESSETH:
WHEREAS, Consol Energy Inc. and E.I. du Pont de Nemours and Company ("Du
Pont") and an Affiliate, have entered into a Share Purchase Agreement dated
________________ (the "Agreement"); and
WHEREAS, Section 8.9 of the Agreement contemplates that the Guarantor shall
execute and deliver in favor of Du Pont a counter-guaranty in respect of any
liability Du Pont may incur as a result of guaranties or indemnities heretofore
given by Du Pont or certain of its Affiliates not within the Coal Group (as
defined in the Agreement) of certain obligations of members of the Coal Group,
as set forth in Exhibit B of the Agreement;
NOW, THEREFORE, the Guarantor, for and in consideration of Du Pont's
entering into the Agreement and for U.S. $1.00 and other good and valuable
consideration, agrees as follows:
1. As used in this Counter-Guaranty, (i) the term "Reimbursable Payment"
shall mean a payment made by Du Pont (or such Affiliate) to the beneficiary of a
guaranty or indemnity set forth in Exhibit B of the Agreement ("Beneficiary"),
up to the maximum amount of such guaranty or indemnity shown on said Exhibit,
that is made in discharge of (a) a final judgment or order of a court of
competent jurisdiction in favor of such Beneficiary respecting the claims of
such Beneficiary under such guaranty or indemnity, or (b) a written agreement
between Du Pont (or such Affiliate) and such Beneficiary settling with finality,
and releasing Du Pont (or such Affiliate) from further obligations respecting
such claims of such Beneficiary under such guaranty or indemnity to which
agreement Rheinbraun shall have consented in writing prior to the execution
thereof (which consent shall not be unreasonably withheld), and (ii) the term
"Expenditures" shall mean all reasonable expenses of Du Pont (or such Affiliate)
paid to any third party that are incidental to a claim referred to in (i) above,
provided however that Du Pont (or such Affiliate) shall have consulted with
Rheinbraun prior to incurring such expenses. Any other term not defined herein
shall have the same meaning given it in the Agreement.
2. Within 30 days after Du Pont (or such Affiliate) shall have received
written notice of a claim, or threatened claim, by a Beneficiary, Du Pont (or
such Affiliate) shall give written
2
notice thereof to Rheinbraun together with a photocopy of such notice. Within 30
days after Du Pont (or such Affiliate) shall have made a Reimbursable Payment to
such Beneficiary and/or shall have incurred Expenditures, it shall give written
notice to Rheinbraun stating the amount paid or incurred and shall furnish to
Rheinbraun documentary evidence of the making of such Reimbursable Payment
and/or the incurring of such Expenditures, or if no such documentary evidence
exists, a certificate signed by an officer of Du Pont (or of such Affiliate)
attesting to the making of such Reimbursable Payment or the incurring of such
Expenditures. In the case of a payment of the character described in
subparagraph 1(i)(a), above, Du Pont (or such Affiliate) shall also furnish to
Rheinbraun a photocopy of the relevant judgment or order, and, in the case of a
payment of the character described in subparagraph 1(i)(b), above, Du Pont (or
such Affiliate) shall also furnish to Rheinbraun a photocopy of the relevant
written agreement as executed by Du Pont (or such Affiliate) and such
Beneficiary.
3. Within 30 days after the receipt by Rheinbraun of documents specified
in and conforming to paragraph (2), above, Rheinbraun shall pay to Du Pont (or
such Affiliate) the amount of the Reimbursable Payment and/or Expenditures made
or incurred by Du Pont (or such Affiliate), and Du Pont (or such Affiliate)
shall, within 10 days of receipt of such payment from Rheinbraun,
3
assign to Rheinbraun, absolutely, by written instrument satisfactory to
Rheinbraun, all rights, by way of subrogation or otherwise, that Du Pont (or
such Affiliate) shall acquire against the principal debtor by reason of such
Reimbursable Payment or Expenditures.
4. No Beneficiary shall, by reason of this Counter-Guaranty, acquire
rights against Rheinbraun as a third-party beneficiary hereof or otherwise.
5. Subject to Section 7 hereof, Du Pont (for itself and all such
Affiliates) and Rheinbraun each hereby agree that, in respect of any rights
either of them may acquire by subrogation or otherwise, it shall not, without
the consent of the other, proceed against any member of the Coal Group by reason
of any Reimbursable Payment or Expenditures made or incurred by Du Pont (or such
Affiliate) or by reason of any payment made by Rheinbraun to Du Pont (or such
Affiliate) pursuant to paragraph 3 hereof.
6. The following provisions of the Agreement are incorporated by reference
as if fully set forth herein: Article XIV (Notices) and Sections 16.1
(Governing Law) and 16.2 (Arbitration).
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7. Rheinbraun understands and agrees that Du Pont (or such Affiliate) will
continue to follow its standard practice of billing back to the Coal Group 100%
of all Reimbursable Payments, Expenditures and insurance, surety or other
premiums or expenses paid to maintain in effect the guaranties and indemnities
set forth in Exhibit B of the Agreement. To the extent such xxxxxxxx are paid by
the Coal Group, Du Pont (and each such Affiliate) shall not be entitled to make
a claim for the amount of such xxxxxxxx against Rheinbraun hereunder, and if any
such xxxxxxxx are paid by the Coal Group after payment of the same by Rheinbraun
to Du Pont hereunder, Du Pont shall promptly refund to Rheinbraun the amount of
such payment.
8. This Counter-Guaranty is made and given in replacement of that certain
Counter-Guaranty dated as of December 31, 1991 (the "Prior Counter-Guaranty")
made by the Guarantor in favor of Du Pont. The parties agree that the prior
Counter-Guaranty is hereby terminated and declared to be void as of the date
thereof.
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IN WITNESS WHEREOF, the Guarantor has executed this Counter-Guaranty as of
the day and year first above written.
RHEINBRAUN AG
By:_______________________________
__________________________________
E.I. DU PONT NEMOURS AND COMPANY
By:_______________________________
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