UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
ROCHESTER & PITTSBURGH COAL COMPANY
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(Name of Issuer)
Common Stock, no par value per share
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(Title of Class of Securities)
771333101
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(CUSIP Number)
John W. Kauffman, Esquire
Duane, Morris & Heckscher LLP
One Liberty Place
Philadelphia, Pennsylvania 19103-7396
(215) 979-1227
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 30, 1998
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box |_|.
Note: Schedules filed in paper format shall include a signed original and
five copies of the Schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP No. 771333101
Page 1 of 8 pages
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SCHEDULE 13D
CUSIP No. 771333101 Page 2 of 8
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1 NAME OF REPORTING PERSONS
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS (Entities Only)
Urling I. Searle
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a)
(b) X
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3 SEC USE ONLY
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4 SOURCE OF FUNDS (See Instructions)
OO
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5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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7 SOLE VOTING POWER
NUMBER OF 16,240
SHARES ---------------------------------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
EACH 1,630,692
REPORTING ---------------------------------------------------------------
PERSON 9 SOLE DISPOSITIVE POWER
WITH
16,240
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10 SHARED DISPOSITIVE POWER
1,630,692
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,646,932
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions)
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
47.9%
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14 TYPE OF REPORTING PERSON (See Instructions)
IN
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CUSIP No. 771333101 Page 3 of 8
SCHEDULE 13D
Item 1. Security and Issuer.
This Schedule 13D relates to the Common Stock, no par value, of Rochester &
Pittsburgh Coal Company (the "Issuer"). The address of Issuer's principal office
is 655 Church Street, Indiana, Pennsylvania 15701.
Item 2. Identity and Background.
(a) The name of the person filing this Schedule 13D is Urling I. Searle
(the "Reporting Person").
(b) The address of the Reporting Person is 66 Old Church Road, Greenwich,
CT 06830.
(c) The principal occupation of the Reporting Person is as trustee of the
family trusts reported in this Schedule 13D.
(d) During the last five years, the Reporting Person has not been convicted
in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, the Reporting Person was not a party to a
civil proceeding of a judicial or administrative body of competent jurisdiction
as a result of which the Reporting Person was or is subject to a judgment,
decree or final order enjoining future violations of, or prohibiting or
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
(f) the Reporting Person is a citizen of the United States.
Item 3. Source of Amount of Funds or Other Consideration.
This Schedule 13D reflects acquisition by the Reporting Person of
beneficial ownership of shares as a result of her appointment in April 1998 as a
trustee of certain family trusts as more fully described in Item 5 hereof. No
consideration was paid or received with respect to these appointments.
Item 4. Purpose of Transaction.
The Reporting Person is filing this Schedule 13D to report her acquisition
of beneficial ownership of shares resulting from her appointment in April 1998
as a trustee of certain family trusts described in Item 5 hereof.
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CUSIP No. 771333101 Page 4 of 8
On May 28, 1998, CONSOL Inc. ("Parent"), CONSOL Commonwealth Inc. ("Merger
Sub") and the Issuer entered into an Agreement and Plan of Merger (the "Merger
Agreement") providing that, among other things, Merger Sub will be merged (the
"Merger") with and into the Issuer, with the Issuer as the surviving corporation
and an indirect wholly owned subsidiary of Parent. The Merger Agreement provides
that, upon consummation of the Merger, each outstanding share of the Issuer's
Common Stock, other than shares held by shareholders who perfect their statutory
dissenters rights, will be cancelled and converted automatically into the right
to receive an amount in cash, equal to $43.50 per share of Common Stock.
In connection with the Merger Agreement, Merger Sub and Parent have entered
into the Stockholders Agreement, dated as of May 28, 1998 (the "Stockholders
Agreement"), with certain of the Issuer's shareholders (the "Stockholders"),
including the Reporting Person, pursuant to which the Stockholders have, among
other things, agreed not to sell or transfer any of their shares of Common
Stock, representing approximately 50.6% of the outstanding voting power with
respect to the Issuer (the "Subject Shares"), prior to the effective time of the
Merger or termination of the Stockholders Agreement. In addition, pursuant to
the Stockholders Agreement, the Stockholders, including the Reporting Person,
have granted to Merger Sub and Parent a proxy to vote the Subject Shares in
favor of the approval and adoption of the Merger Agreement, which proxy is
irrevocable during the term of the Stockholders Agreement and coupled with an
interest. The Stockholders have also agreed to waive any rights of appraisal
available in the Merger and to take or refrain from taking certain other
actions.
The preceding summary of certain provisions of the Stockholders Agreement
is not intended to be complete and is qualified in its entirety by reference to
the full text of the Stockholders Agreement, a copy of which is filed as Exhibit
1 hereto, and which is incorporated herein by reference.
Other than as described above, the Reporting Person does not have any plans
or proposals that relate to or would result in any of the actions described in
subparagraphs (a) through (j) of Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer.
(a) As of the date hereof, the Reporting Person might be deemed to have
beneficial ownership of 1,646,932 shares or 47.9% of the Issuer's outstanding
shares of corporate stock.
(b) The Reporting Person has:
(1) Sole power to vote or direct the vote, or sole power to dispose or
to direct the disposition of 16,240 shares; and
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CUSIP No. 771333101 Page 5 of 8
(2) Shared power to vote or to direct the vote of 1,630,692 shares as
follows:
(i) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth A of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Peter Iselin whose shares
total 243,982;
(ii) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth A of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o O'Donnell Iselin II whose
shares total 55,551;
(iii) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth A of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Maud Iselin Welles whose
shares total 55,551;
(iv) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth A of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Urling Iselin Searle whose
shares total 55,551;
(v) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth B of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Emilie I. Wiggin whose
shares total 218,780;
(vi) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth B of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Anne Whelpley Shaw whose
shares total 47,753;
(vii) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth B of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Patricia Whelpley Barton
whose shares total 47,753;
(viii) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth B of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Gordon B. Whelpley, Jr.,
whose shares total 47,753;
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CUSIP No. 771333101 Page 6 of 8
(ix) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Eighth B of the Last Will and Testament of O'Donnell
Iselin dated July 27, 1970 f/b/o Katharine W. Draper whose
shares total 47,753;
(x) Co-trustee (with Emilie I. Wiggin) of the trust under
Article Sixth of the Last Will and Testament of Urling S.
Iselin dated March 5, 1948 f/b/o Peter Iselin and Emilie I.
Whelpley (n/k/a Emilie I. Wiggin) whose shares total
118,141;
(xi) Co-trustee (with Emilie I. Wiggin) of the Agreement dated
July 6, 1964 by and between O'Donnell Iselin, as Settlor,
and Emilie I. Whelpley and Peter Iselin, as Trustees, whose
shares total 667,178;
(xii) 4,148 shares as Co-Trustee (with Gordon B. Whelpley, Jr.)
of the E.I. Wiggin Trust No. 1.
(xiii) 8,325 shares as Co-Trustee (with Gordon B. Whelpley, Jr.)
of the E.I. Wiggin Trust No. 2.
(xiv) 4,148 shares as Co-Trustee (with Emilie I. Wiggin) of the
Peter Iselin Trust No. 1.
(xv) 8,325 shares as Co-Trustee (with Emilie I. Wiggin) Of the
Peter Iselin Trust No. 2.
The shares of the Issuer's Common Stock referenced in (b)(1) and (b)(2)(i)
through (xi) of this Item 5 are subject to the Stockholders Agreement described
in Item 4 of this Schedule 13D.
Emilie I. Wiggin has her residence address at 106 Pear Tree Point Road,
Darien Connecticut, 06820. The principal occupation of Emilie I. Wiggin is as
trustee of the trusts reported in this Schedule 13D, other than the trusts
referenced in (b)(2)(xii) and (b)(2)(xiii) of this Item 5. To the knowledge of
the Reporting Person, during the last five years, Emilie I. Wiggin has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). To the knowledge of the Reporting Person, during the last five
years, Emilie I. Wiggin was not a party to a civil proceeding of a judicial or
an administrative body of a competent jurisdiction as a result of which Emilie
I. Wiggin was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
Emilie I. Wiggin is a citizen of the United States.
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CUSIP No. 771333101 Page 7 of 8
Gordon B. Whelpley, Jr. has his residence address at 24 Old Field Lane,
West Redding, Connecticut, 06896. Mr. Whelpley is President of Goodman &
Whelpley, Inc., a residential building company, and is a director of the Issuer.
To the knowledge of the Reporting Person, during the last five years, Mr.
Whelpley has not been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors). To the knowledge of the Reporting Person,
during the last five years, Mr. Whelpley was not a party to a civil proceeding
of a judicial or an administrative body of a competent jurisdiction as a result
of which Mr. Whelpley was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws. Mr. Whelpley is a citizen of the United States.
(3) Shared power to dispose or direct the disposition of 1,630,692
shares held in the trusts described under b(2) of this Item 5.
(c) This Schedule 13D is being filed to report the following changes in
beneficial ownership which have occurred in the past sixty days:
(1) During April 1998, the Reporting Person was appointed as a trustee
of each of the trusts described under b(2) of this Item 5.
(2) On May 28, 1998, the Reporting Person executed the Stockholders
Agreement as described in Item 4 of this Schedule 13D.
(d) The Reporting Person and other co-trustees named (b)(2) of this Item 5
have certain powers relating to distributions on shares held in the respective
trusts, which distributions may be made from time to time in accordance with the
terms of such instruments.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
The Reporting Person is a party to the Stockholders Agreement described
in Item 4 of this Schedule 13D, which description is incorporated by
reference into this Item 6.
Item 7. Material to be filed as Exhibits.
1. Stockholders Agreement, dated May 28, 1998, among CONSOL Inc., CONSOL
Commonwealth Inc. and Rochester & Pittsburgh Coal Company and the Stockholders
listed therein.
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CUSIP No. 771333101 Page 8 of 8
Signature
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: July 14, 1998
/s/ Urling I. Searle
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Urling I. Searle
EXHIBIT 1
STOCKHOLDERS AGREEMENT
May 28, 1998
The parties to this Stockholders Agreement (this "Agreement") are
CONSOL Inc., a Delaware corporation ("Parent"), CONSOL Commonwealth Inc., a
Pennsylvania corporation and a direct or indirect subsidiary of Parent ("Merger
Sub"), and the other parties to this Agreement (each, a "Stockholder," and
collectively, the "Stockholders").
Parent, Merger Sub and Rochester & Pittsburgh Coal Company, a
Pennsylvania corporation (the "Company") are simultaneously with the execution
and delivery of this Agreement entering into an agreement and plan of merger,
which may be amended from time to time (the "Merger Agreement"), pursuant to
which Merger Sub would merge with and into the Company (the "Merger").
The parties agree as follows:
1. No Solicitation. Until the termination of the Merger Agreement in
accordance with its terms, no Stockholder shall, in that Stockholder's capacity
as such, directly or indirectly, initiate, solicit or knowingly encourage,
including by way of furnishing non-public information or assistance, or take any
other action knowingly to facilitate, any inquiries or the making of any
proposal that constitutes, or reasonably may be expected to lead to a
"competitive proposal", or enter into or maintain or continue discussions or
negotiate with any person or entity in furtherance of such inquiries or to
obtain, or agree to or endorse a competitive proposal, or authorize or permit
any person or entity acting on behalf of that Stockholder to do any of the
foregoing. If any Stockholder receives any inquiry or proposal regarding any
competitive proposal, that Stockholder shall provide reasonable notice to Parent
of that inquiry or proposal. For purposes of this Agreement, "competitive
proposal" shall mean any tender or exchange offer involving the Company, any
proposal for a merger, consolidation, business combination or similar
transaction involving the Company or its subsidiaries, any proposal or offer to
acquire in any manner more than 10% of the Common Stock of the Company or a
substantial portion of the business or assets of the Company or its
subsidiaries, other than immaterial or insubstantial assets or inventory in the
ordinary course of business or assets held for sale, any proposal or offer with
respect to any recapitalization or restructuring with respect to the Company or
its subsidiaries or any proposal or offer with respect to any other transaction
similar to any of the foregoing with the Company other than pursuant to the
transactions to be effected pursuant to the Merger Agreement.
2. Representations and Warranties of the Stockholders. Each Stockholder
represents and warrants to Parent as follows:
(a) Ownership of Shares. That Stockholder is the beneficial
owner of the number of shares of Common Stock, no par value, of the Company (the
"Shares") set forth opposite that Stockholder's name on Schedule 1. The Shares
set forth opposite that
<PAGE>
Stockholder's name on Schedule 1 constitute all the Shares beneficially owned by
the Stockholder and such Stockholder does not have any option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company. That Stockholder's Shares are held by that Stockholder or by a
nominee or custodian for the benefit of that Stockholder, free and clear of all
liens, claims, security interests and other encumbrances, except for
encumbrances arising under this Agreement.
(b) Power; Binding Agreement. That Stockholder has the legal
capacity to enter into and perform all of that Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by
that Stockholder will not violate any other agreement to which that Stockholder
is a party, including, without limitation, any voting agreement, stockholders
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by that Stockholder and constitutes a valid and binding obligation of
that Stockholder, enforceable against that Stockholder in accordance with its
terms. There is no other person or entity not a party to this Agreement whose
consent is required for the execution and delivery of this Agreement by that
Stockholder or the consummation by that Stockholder of the transactions
contemplated by this Agreement. If that Stockholder is married and that
Stockholder's Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
obligation of, that Stockholder's spouse, enforceable against that spouse in
accordance with its terms.
(c) Consents and Approvals; No Violation. Neither the
execution and delivery of this Agreement by that Stockholder nor the
consummation by that Stockholder of the transactions contemplated by this
Agreement will: (i) require any consent, approval, authorization or permit of,
or filing with or notification to, any governmental or regulatory authority
("Governmental Entity"), except in connection with the Hart-Scott-Rodino
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;
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(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 Michael F. Nemser and Samuel P. Skeen as
such Stockholder's attorney and proxy, with full power of substitution, to
attend any and all meetings of the stockholders of the Company and to vote the
Shares and any voting securities hereafter issued in exchange therefor or in
respect thereof, and to represent and otherwise to act for such Stockholder in
the same manner and with the same effect as if such Stockholder were personally
present, when any matter, including, but not limited to any proposed merger or
other transaction, is submitted to the stockholders of the Company for a vote.
The foregoing appointment shall (a) be irrevocable, (b) remain in effect until
September 30, 1998 and (c) be deemed to be coupled with an interest in that
Parent has the right to purchase the Shares hereunder and is also a party to the
Merger Agreement.
5. Option to Purchase the Shares.
(a) Each Stockholder hereby grants to Parent an irrevocable
option, exercisable as provided herein (the "Option"), to purchase all Shares
owned by such Stockholder (the "Option Shares") at a price per share payable in
cash of $43.50 (the "Exercise Price").
(b) Each Option may be exercised by Parent at any time, in
whole but not in part, from the date of this Agreement, until September 30,
1998. If Parent exercises any Option hereunder, it must exercise all Options
granted hereunder. If Parent wishes to exercise the Option, Parent shall give
written notice to the Stockholders of its intention to exercise the Options,
specifying a place, time and date not earlier than one day and not later than 20
days from the date such notice is given for the closing of such purchase, which
shall be the same for all Options being exercised simultaneously as required by
the provisory clause in the preceding sentence (the "Closing"). The Closing
shall be held on the date specified in such notice unless, on such date, there
shall be any preliminary or permanent injunction or other order by any court of
competent jurisdiction or any other legal restraint or prohibition preventing
the consummation of such purchase, in which event such Closing shall be held as
soon as practicable following the lifting, termination or suspension of such
injunction, order, restraint or prohibition preventing the consummation of such
purchase, but in any event within two days thereof. The obligation of the
Stockholders to sell, transfer and deliver the Option Shares upon exercise of
any Option is subject to the conditions that (i) any waiting period under the
HSR Act applicable to the
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purchase of the Option Shares shall have expired or been terminated and (ii)
there shall be no preliminary or permanent injunction or other order preventing
or restricting the purchase of the Option Shares.
(c) At the Closing hereunder (i) Parent shall deliver or cause
to be delivered a certified or bank cashier's check payable to the order of each
Stockholder in such amount as equals the Exercise Price times the number of
Option Shares being purchased hereunder from such Stockholder and (ii) the
Stockholders shall deliver to or cause to be delivered to Parent a certificate
or certificates, representing the number of Option Shares so purchased
accompanied by duly executed blank stock transfer powers.
(d) Parent shall, with respect to each of the Option Shares so
purchased, vote in favor of the Merger Agreement.
6. Restrictions on Transfer, Etc. Except as provided in this Agreement
and prior to the termination of the Merger Agreement in accordance with its
terms, (i) no Stockholder shall, directly or indirectly, offer for sale, sell,
transfer, tender, pledge, encumber, assign or otherwise dispose of or enter into
any agreement, arrangement or understanding with respect to, or consent to the
offer for sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of that Stockholder's Shares or any interest in those
Shares; (ii) grant any proxies or powers of attorney with respect to any Shares,
deposit any Shares into a voting trust or enter into a voting agreement with
respect to any Shares or (iii) take any action that would make any
representation or warranty of that Stockholder in this Agreement untrue or have
the effect of preventing or disabling that Stockholder from performing that
Stockholder's obligations under this Agreement.
7. Waiver of Appraisal Rights. Each Stockholder waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
8. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term of this Agreement a director of the Company makes any
agreement in his or her capacity as a director. Each Stockholder is executing
and delivering this Agreement solely in that Stockholder's capacity as the
record and beneficial owner of that Stockholder's Shares. Notwithstanding
anything to the contrary in this Agreement, no action or inaction by a
Stockholder in his capacity as a director of the Company shall be deemed to
contravene this Agreement.
9. Further Assurances. Each Stockholder shall use its reasonable
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, and to assist and cooperate with Parent in doing, all things necessary,
proper or advisable to consummate and make effective, in the most expeditious
manner practicable, the Merger and the other transactions contemplated by the
Merger Agreement and this Agreement, including (i) obtaining all necessary
actions and nonactions, waivers, consents and approvals from Governmental
Entities and the making of all necessary registrations and filings and the
taking of all reasonable steps as may be necessary to obtain an approval or
waiver from, or to avoid any action or proceeding by, any Governmental Entity,
(ii) the obtaining of all
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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 1934 Act.
(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
4200 One Liberty Place
Philadelphia, PA 19103
Attention: Frederick W. Dreher, Esq.
If to Parent or Merger Sub:
CONSOL Inc.
Consol Plaza
1800 Washington Road
Pittsburgh, PA 15241-1421
Attention: Michael F. Nemser, Senior Vice President
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<PAGE>
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above,
provided that notice of any change of address shall be effective only upon
receipt of notice of the change.
(e) Severability. If any provision of this Agreement is
invalid, illegal or unenforceable, the invalidity, illegality or
unenforceability shall not affect any other provision.
(f) Special Performance. Each party agrees that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which they are entitled at law or in equity.
(g) No Waiver. The failure of any party to exercise any right,
power or remedy under this Agreement or otherwise available in respect of this
Agreement at law or in equity, or to insist upon compliance by any other party
with that party's obligations under this Agreement, shall not constitute a
waiver of any right to exercise any such or other rights, power or remedy or to
demand such compliance.
(h) Governing Law. This Agreement shall be governed and
construed in accordance with the law of the Commonwealth of Pennsylvania,
regardless of the law that might otherwise govern under principles of conflicts
of laws applicable thereto.
(i) Headings. The headings in this Agreement are for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement.
(k) Entire Agreement. This Agreement constitutes the enter
agreement among the parties with respect to its subject matter and supersedes
all other prior agreements and understandings, both written and oral, among the
parties with respect to that subject matter.
-6-
<PAGE>
(l) Successors and Assigns. The provisions of this Agreement
shall be binding and inure to the benefit of the parties hereto and their
respective legal successors and permitted assigns; provided, however, that no
party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the consent of the other party.
CONSOL INC.
By: /s/ Michael F. Nemser
-------------------------------------
Title: Senior Vice President
STOCKHOLDERS:
On behalf of the Trusts
listed on Schedule A
hereto:
By: /s/ Emilie I. Wiggin
------------------------------------
Emilie I. Wiggin, Co-Trustee
/s/ Urling I. Searle
----------------------------------------
Urling I. Searle, Co-Trustee
/s/ Peter Iselin
----------------------------------------
Peter Iselin
/s/ Emilie I. Wiggin
----------------------------------------
Emilie I. Wiggin
/s/ O'Donnell Iselin II
----------------------------------------
O'Donnell Iselin II
/s/ Columbus O'D. Iselin
----------------------------------------
Columbus O'D. Iselin
/s/ Gordon B. Whelpley, Jr.
----------------------------------------
Gordon B. Whelpley, Jr.
-7-
<PAGE>
SCHEDULE A
LIST OF STOCKHOLDERS
<TABLE>
<CAPTION>
Number of Shares of
Rochester & Pittsburgh Currently Acting
Name of Trust or Individual Coal Company Trustees
--------------------------- ---------------------- ----------------
<S> <C> <C>
Trust Under Article EIGHTH A of the Last 243,982 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Peter Iselin
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o O'Donnell Iselin II
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Maud Iselin Welles
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH A of the Last 55,551 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Urling Iselin Searle
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 218,780 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Emilie I. Wiggin
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Anne Whelpley
Shaw
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Patricia Whelpley
Barton
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Gordon B.
Whelpley, Jr.
- ---------------------------------------------------------------------------------------------------------------------
Trust Under Article EIGHTH B of the Last 47,753 shares as of 8/31/97 Emilie I. Wiggin and
Will and Testament of O'Donnell Iselin Urling I. Searle
dated July 27, 1970 f/b/o Katharine W.
Draper
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
-8-
<PAGE>
<TABLE>
<CAPTION>
Number of Shares of
Rochester & Pittsburgh Currently Acting
Name of Trust or Individual Coal Company Trustees
--------------------------- --------------------- ----------------
<S> <C> <C>
Trust Under Article SIXTH of the Last Will 118,141 shares as of 8/31/97 Emilie I. Wiggin and
and Testament of Urling S. Iselin dated Urling I. Searle
March 5, 1948 f/b/o Peter Iselin and Emilie
I. Whelpley (n/k/a Emilie I. Wiggin)
- ----------------------------------------------------------------------------------------------------------------------
Trust Under Agreement dated July 6, 1964 667,178 shares as of 7/31/97 Emilie I. Wiggin and
by and between O'Donnell Iselin, as Settlor, -------- Urling I. Searle
and Emilie I. Whelpley and Peter Iselin, as
Trustees
- ----------------------------------------------------------------------------------------------------------------------
Subtotal 1,605,746 shares
=========
- ----------------------------------------------------------------------------------------------------------------------
Peter Iselin 62,751 shares
- ----------------------------------------------------------------------------------------------------------------------
Emilie I. Wiggin 15,942 shares
- ----------------------------------------------------------------------------------------------------------------------
O'Donnell Iselin II 20,552 shares
- ----------------------------------------------------------------------------------------------------------------------
Columbus O'D. Iselin 14,908 shares
- ----------------------------------------------------------------------------------------------------------------------
Gordon B. Whelpley, Jr. 21,796 shares
---------
- ----------------------------------------------------------------------------------------------------------------------
Subtotal 135,949 shares
=========
- ----------------------------------------------------------------------------------------------------------------------
Total 1,741,695 shares
=========
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
-9-
