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Title: |
Master Separation Agreement |
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Entities: |
Bank of Nova Scotia; Citicorp North America, Inc.; Citigroup Global Markets Inc.; CONSOL Energy Inc.; Fleet National Bank; PNC Bank, NA; PNC Capital Markets, Inc.; Union Bank of California, NA |
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Date: |
2005 |
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Size: |
Preview shows 31KB of 122KB total |
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Price: |
$46 |
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ID: |
#810394 |
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MASTER SEPARATION AGREEMENT
Dated as of August 1, 2005
by and among
CONSOL ENERGY INC.
And certain of the CEI Subsidiaries
AND
CNX GAS CORPORATION
And certain of the GasCo Subsidiaries
Execution Copy
TABLE OF CONTENTS
| 1. | DEFINITIONS | 2 | ||||
| 2. | CONTRIBUTION AND ASSUMPTION | 9 | ||||
| 2.1 | Contribution of Gas Operations Assets | 9 | ||||
| 2.2 | Assumption of Liabilities | 10 | ||||
| 2.3 | Effective Date; Deliveries | 10 | ||||
| 2.4 | No Representations or Warranties | 10 | ||||
| 2.5 | Transfers Not Effected On the Effective Date | 11 | ||||
| 3. | PRIVATE PLACEMENT | 12 | ||||
| 3.1 | Proceeds of the Private Placement | 12 | ||||
| 3.2 | Conditions Precedent to Consummation of the Private Placement | 12 | ||||
| 4. | FINANCIAL AND OTHER COVENANTS | 13 | ||||
| 4.1 | Financial Information | 13 | ||||
| 4.2 | Other Covenants | 17 | ||||
| 4.3 | Options | 18 | ||||
| 4.4 | Distribution | 19 | ||||
| 4.5 | Issuance of Additional Equity | 20 | ||||
| 5. | ACCESS TO INFORMATION | 20 | ||||
| 5.1 | Restrictions on Disclosure of Information | 20 | ||||
| 5.2 | Legally Required Disclosure of Information | 21 | ||||
| 5.3 | Access to Information | 21 | ||||
| 5.4 | Record Retention | 22 | ||||
| 5.5 | Production of Witnesses | 22 | ||||
| 5.6 | Reimbursement | 22 | ||||
| 5.7 | Other Agreements Regarding Access to Information | 22 | ||||
| 5.8 | Acquisition of GasCo by another Person | 22 | ||||
| 6. | ADDITIONAL COVENANTS AND OTHER MATTERS | 23 | ||||
| 6.1 | Further Assurances | 23 | ||||
| 6.2 | Performance | 23 | ||||
| 6.3 | Existing Litigation Matters | 23 | ||||
| 6.4 | Employee Matters | 24 | ||||
| 6.5 | Export Control Compliance | 24 | ||||
| 6.6 | Conduct of Gas Operations between the Date Hereof and the Effective Date | 24 | ||||
| 6.7 | Conduct of Gas Operations Post Effective Date | 25 | ||||
| 7. | INDEMNIFICATION | 25 | ||||
| 7.1 | Indemnification by GasCo and Affiliates | 25 | ||||
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7.2 |
Indemnification by CONSOL Energy | 26 | ||||
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7.3 |
Claim Procedure | 26 | ||||
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7.4 |
Survival; Limitations | 28 | ||||
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8. |
MISCELLANEOUS |
29 | ||||
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8.1 |
Bulk Transfer Laws | 29 | ||||
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8.2 |
Incorporation of Miscellaneous Terms | 29 | ||||
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8.3 |
Termination | 29 | ||||
Master Separation Agreement
MASTER SEPARATION AGREEMENT
THIS MASTER SEPARATION AGREEMENT (the Agreement) is made and entered into as of August 1, 2005, by and among (a) CONSOL Energy Inc., a Delaware corporation (CEI) and each subsidiary of CEI which is or becomes a party to this Agreement other than CNX and its subsidiaries (CEI, together with its subsidiaries which are or become parties to this Agreement other than CNX and its subsidiaries are collectively referred to as CONSOL Energy), and (b) CNX Gas Corporation, a Delaware corporation (CNX) and each subsidiary of CNX which is or becomes a party to this Agreement (CNX together with its subsidiaries are collectively referred to as GasCo). Capitalized terms used and not otherwise defined in this Agreement have the meanings ascribed to such terms in Article 1 of this Agreement.
Recitals
A. CONSOL Energy has determined that it would be appropriate, desirable and in the best interests of CONSOL Energy and CONSOL Energys stockholders to separate the Gas Operations from CONSOL Energy;
B. In connection with the separation of the Gas Operations from CONSOL Energy, CONSOL Energy desires to contribute or otherwise transfer certain assets and Liabilities associated with the Gas Operations, including the stock or other equity interests of CONSOL Energys Subsidiaries dedicated to the Gas Operations set forth on Schedule 1 hereto, to GasCo (collectively, the Contribution);
C. CNX intends to offer and sell for its own account a limited number of shares of GasCo Common Stock pursuant to a private placement (the Private Placement) of such shares;
D. In connection with the Contribution and in exchange for the Gas Operations contributed by CONSOL Energy directly to GasCo, CNX intends to (i) declare a dividend to CONSOL Energy of the Private Placement proceeds, and (ii) assume the Gas Operations Liabilities;
E. CONSOL Energy wishes to retain the option of, after the Private Placement, distributing to holders of shares of CONSOL Energy common stock the outstanding shares of GasCo Common Stock then owned by CONSOL Energy in a manner in which no gain or loss will be recognized by CONSOL Energy (the Distribution);
F. CONSOL Energy and GasCo intend that the contribution of assets by CONSOL Energy to GasCo pursuant to Section 2.1 of this Agreement, will qualify as a transfer to a controlled corporation for U.S. federal income tax purposes pursuant to which no gain or loss will be recognized by CONSOL Energy under Section 351 and related provisions of the Code, except to the extent provided in Sections 351(b) and 357 of the Code; and
G. The parties intend in this Agreement and the Ancillary Agreements to set forth the principal arrangements between them regarding the Contribution and the Private Placement:
Master Separation Agreement
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants and agreements contained and intending to be legally bound, the parties hereby agree as follows:
1. Definitions
The following terms, as used in this Agreement, have the following meanings:
Action means any suit, arbitration, inquiry, proceeding or investigation by or before any court, governmental or other regulatory or administrative agency or commission or any arbitration tribunal asserted by a Person.
Agreement has the meaning set forth in the preamble to this Agreement.
Ancillary Agreements means each of the Contribution Agreements, the Services Agreement, the Master Cooperation and Safety Agreement, the Registration Rights Agreement, the Tax Sharing Agreement, the Intercompany Loan Agreement, and the Master Lease, including any exhibits, schedules, attachments, tables or other appendices thereto, and each agreement and other instrument contemplated herein or therein.
Annual Financial Statements has the meaning set forth in Section 4.1(a)(v) of this Agreement.
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