SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 3)*
CONSOL Energy Inc.
(Name of Issuer)
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Common Stock, par value $.01 per share
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(Title of Class of Securities)
20854P 10 9
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(CUSIP Number)
Dr. Georg Muller
General Counsel
RWE Aktiengesellschaft
Opernplatz 1
D-45128 Essen, Federal Republic of Germany
011 49-201-12-00
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
With a copy to:
Peter S. Wilson, Esq.
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
(212) 474-1000
September 18, 2003
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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 that is the subject of this Schedule 13D, and is filing
this schedule because of SS 240.13d-1(e), 240.13d-1(f) or 240.13d-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 240.13d-7 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).
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CUSIP No.20854P 10 9 13D
________________________________________________________________________________
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
RWE AKTIENGESELLSCHAFT
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [_]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS*
AF
________________________________________________________________________________
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [_]
________________________________________________________________________________
6 CITIZENSHIP OR PLACE OF ORGANIZATION
THE FEDERAL REPUBLIC OF GERMANY
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 0
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
57,997,357
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
57,997,357
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
57,997,357
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
73.6%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
HC
________________________________________________________________________________
*SEE INSTRUCTIONS
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This Amendment No. 3 amends and restates in its entirety the
Statement on Schedule 13D initially filed on June 7, 1999, with the Securities
and Exchange Commission (the "SEC") by RWE Aktiengesellschaft, a corporation
organized under the laws of the Federal Republic of Germany ("RWE"), as
previously amended by Amendment No. 1 filed with the SEC by RWE on September
5, 2001, and Amendment No. 2 filed with the SEC by RWE on June 2, 2003 (such
Schedule 13D as previously amended, the "Schedule 13D"), which Schedule 13D
relates to the common stock, par value $.01 per share, of CONSOL Energy Inc.
Item 1. Security and Issuer
The title of the class of equity securities to which this statement
relates is common stock, par value $.01 per share, of CONSOL Energy Inc. (the
"Common Stock"), a Delaware corporation (the "Issuer"). The address of the
principal executive offices of the Issuer is Consol Plaza, 1800 Washington
Road, Pittsburgh, Pennsylvania 15241.
Item 2. Identity and Background
The person filing this statement is RWE Aktiengesellschaft, a
corporation organized under the laws of the Federal Republic of Germany
("RWE"). The principal business of RWE is that of a holding company of a group
of companies active mainly in the energy, water and environmental businesses.
The address of RWE's principal business and principal office is Opernplatz 1,
45128 Essen, Federal Republic of Germany.
The (i) name, (ii) residence or business address, (iii) present
principal occupation or employment and the name, principal business and
address of any corporation or other organization in which such employment is
conducted, and (iv) citizenship of each member of the Executive Board and each
member of the Supervisory Board of RWE are set forth on Schedule A attached
hereto.
During the last five years, neither RWE nor, to the best of its
knowledge, any natural person identified on Schedule A (a) has been convicted
in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (b) was a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to,
United States federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
This statement presently only relates to the disposition of Common
Stock.
Item 4. Purpose of Transaction
The initial acquisition of Common Stock by subsidiaries of RWE was
solely for investment purposes. On May 28, 2003, RWE announced that, in
connection with its review of its existing investments, RWE was considering
the disposition of some or all of the Common Stock owned by RWE's wholly owned
subsidiary, RWE Rheinbraun Aktiengesellschaft
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("Rheinbraun"). On September 18, 2003, Rheinbraun, through which RWE
beneficially owns all of its Common Stock, agreed to sell 14,100,000 shares at
a price of $17.82 per share to a number of investors in a private placement
that is scheduled to close on September 23, 2003. Rheinbraun will pay a
placement fee of 50 cents per share to the placement agent. The Placement
Agreement dated September 18, 2003 (the "Placement Agreement"), covering this
transaction is filed as Exhibit 1 hereto and is incorporated herein by
reference. At the closing, pursuant to an Option Agreement between Rheinbraun
and the placement agent for the private placement, Rheinbraun will grant to
the placement agent the right (the "Placement Right") to place all or a
portion of Rheinbraun's remaining Common Stock for a period beginning on the
date of closing of the private placement and ending on the earlier of (i) 90
days thereafter or (ii) 30 days following the date of effectiveness of the
registration statement the Issuer has agreed to file under a registration
rights agreement entered into for the benefit of the private investors,
subject to extension in certain events. Should the exercise of the Placement
Right result in shares being sold at a purchase price in excess of $17.82,
Rheinbraun has granted to the investors in the initial private placement a pro
rata right to receive the amount by which such purchase price exceeds $17.82.
Should Rheinbraun still own any Common Stock at the time of expiration of the
Placement Right, RWE intends, subject to market conditions, to seek to dispose
of all or as much of such remaining Common Stock as reasonably practicable
thereafter through open market or private sales, underwritten offerings or
otherwise. It is possible that Rheinbraun may not sell any Common Stock in the
future and, while it has no present intention to do so, RWE or one of its
subsidiaries may decide to purchase Common Stock. The Form of Option Agreement
is attached as Exhibit 2 hereto and is incorporated herein by reference.
The current board of directors of the Issuer consists of eight
members. Four of those members are representatives of Rheinbraun. After the
closing of the private placement described above, the placement agent will
select one additional director to be nominated to the Issuer's board of
directors. It is further contemplated that following the private placement
described above, and the sale of Common Stock by exercise of the Placement
Right, Rheinbraun's representatives on the Issuer's board of directors shall
be reduced as follows: (i) one representative of Rheinbraun will resign from
the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall
to 39% or below but remain in excess of 25% of all outstanding Common Stock,
(ii) a cumulative total of two representatives of Rheinbraun will resign from
the Issuer's board of directors if Rheinbraun's holdings of Common Stock fall
to 25% or below but remain in excess of 15% of all outstanding Common Stock,
(iii) a cumulative total of three representatives of Rheinbraun will resign
from the Issuer's board of directors if Rheinbraun's holdings of Common Stock
fall to 15% or below but remain in excess of 5% of all outstanding Common
Stock, and (iv) all representatives of Rheinbraun will resign from the
Issuer's board of directors if Rheinbraun's holdings of Common Stock fall to
5% or below of all outstanding Shares.
Other than as set forth in this statement, Rheinbraun has no current
plans which relate to or would result in any of the events described in Items
(a) through (j) of the instructions to this Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
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(a) As of the date of this statement, the aggregate amount of Common Stock
beneficially owned by RWE is 57,997,357 shares, representing approximately
73.6% of the total number of shares of Common Stock outstanding (based on the
78,762,586 shares represented by the Issuer as outstanding as of April 30,
2003 in its Quarterly Report on Form 10-Q/A for the period ended March 31,
2001). RWE beneficially owns the 57,997,357 shares through its wholly owned
subsidiary, Rheinbraun. Upon closing of the private placement described above
in Item 4, RWE expects to beneficially own 43,897,357 shares, representing
approximately 48.9% of the total amount of Common Stock anticipated to be
outstanding at the time (based on an aggregation of the 78,762,586 shares
represented by the Issuer as outstanding on April 30, 2003 and the 11,000,000
shares expected to be issued by the Issuer concurrently with the closing of
RWE's sale of Common Stock in the private placement).
(b) Rheinbraun has sole power to vote or direct the vote and to dispose or
direct the disposition of the shares that are the subject of this Schedule
13D. By reason of its ownership of Rheinbraun, RWE may be deemed to have the
power to vote or direct the vote and to dispose or direct the disposition of
the shares that are the subject of this Schedule 13D. By reason of its
Placement Right, the placement agent may be deemed to share the power to
dispose or direct the disposition of the shares that are the subject of this
Schedule 13D.
(c) Other than the agreement to sell 14,100,000 shares and the granting of the
Placement Right in connection with the private placement described in Item 4,
there has been no transaction in the Common Stock effected by RWE or its
subsidiaries within the past sixty days. To the best knowledge of RWE, no
natural person identified on Schedule A has engaged in any transaction in the
Common Stock within the past sixty days.
(d) The investors purchasing shares in the private placement described in Item
4 have the right to receive a portion of the proceeds of the sale of RWE's
shares subject to the Placement Right as described in Item 4.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to
Securities of the Issuer
RWE has certain registration rights pursuant to an agreement (the
"Registration Rights Agreement") among the Issuer, Rheinbraun and Rheinbraun
U.S. GmbH (subsequently merged into Rheinbraun). The Registration Rights
Agreement, as amended by the First Amendment (by letter agreement) and Second
Amendment thereto is attached as Exhibits 3, 4 and 5, respectively, hereto and
is incorporated herein by reference.
Effective July 1, 2001, RWE instituted a new policy concerning
compensation received by employees of RWE and of its subsidiaries (the "RWE
Group") for their service as directors of any member company of the RWE Group.
To the extent that the compensation received by any such director exceeds a
specified level, he or she must turn over the excess to the RWE Group company
that is his or her principal employer. The value of stock options received by
any such director, as measured on the date of exercise, is considered to be
part of his or her
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total compensation and is therefore subject to the policy. Thus, under certain
circumstances, RWE may have a pecuniary interest in the stock options of the
Issuer held from time to time by those directors of the Issuer who are
employed by RWE or an RWE Group company. Under no circumstances, however, does
the policy result in any RWE Group company acquiring the right to vote or
dispose (or to direct the voting or disposition) of any such stock option or
the Common Stock that may be acquired upon exercise of the option. Directors
of the Issuer who are principally employed by the Issuer are not subject to
the policy.
In connection with the private placement described in Item 4,
Rheinbraun has entered into the Placement Agency Agreement with the Issuer and
the placement agent and expects to enter into the Option Agreement with the
placement agent.
Other than as set forth in this Item 6, there are no contracts,
arrangements, understandings or relationships with respect to any securities
of the Issuer to which RWE or any of the natural persons identified on
Schedule A is a party.
Item 7. Materials to be Filed as Exhibits
Exhibit 1 Placement Agreement dated September 18, 2003.
Exhibit 2 Form of Option Agreement.
Exhibit 3 Registration Rights Agreement dated February 1, 1999, among the
Issuer, Rheinbraun and Rheinbraun U.S. GmbH (subsequently
merged into Rheinbraun),
Exhibit 4 First Amendment (by letter agreement) dated May 23, 2003 to
Registration Rights Agreement.
Exhibit 5 Second Amendment dated September 18, 2003 to Registration
Rights Agreement.
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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: September 19, 2003
RWE AKTIENGESELLSCHAFT,
By /s/ Dr. Georg Muller
-------------------------------------
Name: Dr. Georg Muller
Title: General Counsel
By /s/ Andreas Zetzsche
-------------------------------------
Name: Andreas Zetzsche
Title: Senior Vice President Mergers &
Acquisitions
Schedule A
RWE's business is managed by an Executive Board currently consisting
of four members. Under German law, the Executive Board has management
responsibility for RWE and broad authority to take actions in the name of RWE,
subject to the authority expressly reserved by the German Stock Corporation
Act and by RWE's Articles of Association to the Shareholders Meeting or the
Supervisory Board of RWE. The following list sets forth the (i) name and (ii)
citizenship of the current members of RWE's Executive Board. In each case, the
present principal occupation or employment and the name, principal business
and the address of the corporation or other organization in which such
employment is conducted is: Member of the Executive Board, RWE
Aktiengesellschaft, holding company, Opernplatz 1, D-45128 Essen, Federal
Republic of Germany (this is also these individuals' business address).
Harry Roels
Mr. Roels' country of citizenship is the Netherlands.
Dr. Gert Maichel
Dr. Maichel's country of citizenship is the Federal Republic of
Germany.
Dr. Klaus Sturany
Dr. Sturany's country of citizenship is Austria.
Jan Zilius
Mr. Zilius' country of citizenship is the Federal Republic of
Germany.
The Supervisory Board supervises the management of RWE by the
Executive Board. The following list sets forth the (i) name, (ii) business
address, (iii) present principal occupation or employment and the name,
address and principal business (where applicable) of the corporation or
organization in which such employment is conducted and (iv) citizenship of
each member of RWE's Supervisory Board.
Dr. Paul Achleitner
Allianz Aktiengesellschaft
Koeniginstrasse 28
80802 Muenchen
Federal Republic of Germany
Dr. Achleitner is an Executive Vice-President of Allianz
Aktiengesellschaft, Koeniginstrasse 28, 80802 Muenchen, Federal Republic of
Germany (insurance business). Dr. Achleitner's country of citizenship is
Austria.
Carl-Ludwig von Boehm-Bezing
Deutsche Bank Aktiengesellschaft
2
Taunusanlage 12
60325 Frankfurt am Main
Federal Republic of Germany
Mr. von Boehm-Bezing is a former Member of the Executive Board of
Deutsche Bank Aktiengesellschaft, Taunusanlage 12, 60325 Frankfurt am Main,
Federal Republic of Germany (banking business). Mr. von Boehm-Bezing's country
of citizenship is the Federal Republic of Germany.
Frank Bsirske
ver.di Vereinte Dienstleistungsgewerkschaft e. V.
Potsdamer Platz 10
10785 Berlin
Federal Republic of Germany
Mr. Bsirske is the Chairman of ver.di Vereinte
Dienstleistungsgewerkschaft e. V., Potsdamer Platz 10, 10785 Berlin, Federal
Republic of Germany (labor union). Mr. Bsirske's country of citizenship is the
Federal Republic of Germany.
Burkhard Drescher
Stadt Oberhausen
Schwartzstr. 72
46042 Oberhausen
Federal Republic of Germany
Mr. Drescher is the Lord Mayor of the City of Oberhausen, Stadt
Oberhausen, Schwartzstr. 72, 46042 Oberhausen, Federal Republic of Germany.
Mr. Drescher's country of citizenship is the Federal Republic of Germany.
Ralf Hiltenkamp
RWE Umwelt Aktiengesellschaft
Hegestuck 20
58640 Iserlohn
Federal Republic of Germany
Mr. Hiltenkamp is the Chairman of the General Works Council of RWE
Umwelt Westfalen GmbH & Co. KG, Hegestuck 20, 58640 Iserlohn, Federal Republic
of Germany (service business). Mr. Hiltenkamp's country of citizenship is the
Federal Republic of Germany.
Heinz-Eberhard Holl
Landkreis Osnabrueck
Am Scholerberg 1
49082 Osnabrueck
Federal Republic of Germany
Mr. Holl is the former Chief Administrative Officer of Landkreis
(Rural District) Osnabrueck, Landkreis Osnabrueck, Am Scholerberg 1, 49082
Osnabrueck, Federal Republic of
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Germany. Mr. Holl's country of citizenship is the Federal Republic of Germany.
Berthold Huber
IG Metall
Stuttgarter Str. 23
70469 Stuttgart
Federal Republic of Germany
Mr. Huber is the Deputy Chairman of IG Metall Trade Union, IG
Metall, Stuttgarter Str. 23, 70469 Stuttgart, Federal Republic of Germany
(labor union). Mr. Huber's country of citizenship is the Federal Republic of
Germany.
Berthold Krell
RWE Net Aktiengesellschaft
Netzregion Sued
Friedrichstrasse 60
57072 Siegen
Federal Republic of Germany
Mr. Krell is the Chairman of the General Works Council of RWE Net
Aktiengesellschaft, Flamingoweg 1, 44139 Dortmund, Federal Republic of Germany
(energy business). Mr. Krell's country of citizenship is the Federal Republic
of Germany.
Dr. Gerhard Langemeyer
Stadt Dortmund
Rathaus
Friedensplatz 1
44135 Dortmund
Federal Republic of Germany
Dr. Langemeyer is the Lord Mayor of the City of Dortmund, Stadt
Dortmund, Friedensplatz 1, 44135 Dortmund, Federal Republic of Germany. Dr.
Langemeyer's country of citizenship is the Federal Republic of Germany.
Dr. h.c. Friedel Neuber
Albertusbogen
Heerdter Lohweg 35
40549 Duesseldorf
Federal Republic of Germany
Dr. Neuber is the former President and CEO of Westdeutsche
Landesbank Girozentrale, Herzogstrasse 15, 40217 Duesseldorf, Federal Republic
of Germany (banking business). Dr. Neuber's country of citizenship is the
Federal Republic of Germany.
Dr. Wolfgang Reiniger
Stadt Essen
Rathaus
4
45121 Essen
Federal Republic of Germany
Dr. Reiniger is the Lord Mayor of the City of Essen, Stadt Essen,
Rathaus, 45121 Essen, Federal Republic of Germany. Dr. Reiniger's country of
citizenship is the Federal Republic of Germany.
Guenter Reppien
RWE Power Aktiengesellschaft
Erlenweg 3
49808 Lingen
Federal Republic of Germany
Mr. Reppien is the Chairman of the General Works Council of RWE
Power Aktiengesellschaft, Huyssenallee 2, 45128 Essen, Federal Republic of
Germany (energy business). Mr. Reppien's country of citizenship is the Federal
Republic of Germany.
Bernhard von Rothkirch
RWE Rheinbraun Aktiengesellschaft
Verwaltung Niederaussem
Auenheimer Strasse
50129 Bergheim
Federal Republic of Germany
Mr. von Rothkirch is a chief engineer at RWE Rheinbraun
Aktiengesellschaft, Verwaltung Niederaussem Auenheimer Strasse, 50129 Bergheim,
Federal Republic of Germany (lignite business). Mr. von Rothkirch's country of
citizenship is the Federal Republic of Germany.
Dr. Manfred Schneider
Bayer Aktiengesellschaft
51368 Leverkusen
Federal Republic of Germany
Dr. Schneider is the Chairman of the Supervisory Board of Bayer AG,
51368 Leverkusen, Federal Republic of Germany (chemical business). Dr.
Schneider's country of citizenship is the Federal Republic of Germany.
Klaus-Dieter Suedhofer
IG Bergbau, Chemie, Energie
Koenigsworther Platz 6
30167 Hannover
Federal Republic of Germany
Mr. Suedhofer is the Deputy Chairman of IG Bergbau, Chemie, Energie,
Koenigsworther Platz 6, 30167 Hannover, Federal Republic of Germany (labor
union). Mr.
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Suedhofer's country of citizenship is the Federal Republic of Germany.
Dr. Dietmar Kuhnt
Opernplatz 1
45128 Essen
Federal Republic of Germany
Dr. Dietmar Kuhnt is the former President and CEO of RWE
Aktiengesellschaft, Opernplatz 1, 45128 Essen, Federal Republic of Germany
(energy business). Dr. Kuhnt's country of citizenship is the Federal Republic
of Germany.
Prof. Karel Van Miert
Puttestraat 10
B-1650 Bersel
The Netherlands
Mr. Van Miert is the former President of the University Nyenrode,
Puttestraat 10, B-1650 Bersel, The Netherlands (education). Mr. Van Miert's
country of citizenship is Belgium.
Erwin Winkel
RWE Rheinbraun Aktiengesellschaft
Tagebau Hambach
Heideweg
52382 Niederzier
Federal Republic of Germany
Mr. Winkel is the Chairman of the General Works Council of RWE
Rheinbraun Aktiengesellschaft, Stuettgenweg 2, 50935 Koeln, Federal
Republic of Germany (lignite business). Mr. Winkel's country of citizenship is
the Federal Republic of Germany.
Wilfried Eickenberg
RWE Plus Aktiengesellschaft
Neue Juelicher Strasse 60
52353 Dueren
Cologne
Federal Republic of Germany
Mr. Eickenberg is the Chairman of the General Works Council of RWE
Plus Aktiengesellschaft, Kruppstrasse 5, 45128 Essen, Federal Republic of
Germany (energy business). Mr. Eickenberg's country of citizenship is the
Federal Republic of Germany.
Josef Pitz
Heidelberger Druckmaschinen Aktiengesellschaft
Gutenbergstrasse 2
69168 Wiesloch
Federal Republic of Germany
6
Mr. Pitz is the Chairman of the General Works Council of
Heidelberger Druckmaschinen Aktiengesellschaft, Gutenbergstrasse 2, 69168
Wiesloch (printing systems business). Mr. Pitz's country of citizenship is the
Federal Republic of Germany.