Registration Rights Agreement



 Exhibit 10.33 
  
 EXECUTION VERSION 
  
 REGISTRATION RIGHTS AGREEMENT 
  
 THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made and entered into as of September 23, 2003, by and among CONSOL
Energy Inc., a Delaware corporation (the “Company”), on the one hand, and Friedman, Billings, Ramsey & Co., Inc., a Delaware corporation (“FBR”) for the benefit of the Holders (as hereinafter defined), on the
other hand. 
  
 THE PARTIES ENTER INTO THIS AGREEMENT on
the basis of the following facts, understandings and intentions: 
  
 A. The Company, RWE Rheinbraun AG, a stock corporation organized under the laws of The Federal Republic of Germany (“RWE”) and FBR entered into that certain Placement Agreement dated as of September 18, 2003 (the
“Placement Agreement”) pursuant to which (i) the Company agreed to sell 11,000,000 newly issued shares (the “Primary Shares”) of its common stock, par value $0.01 (the “Common Stock”), and (ii) RWE
agreed to sell 14,100,000 shares of Common Stock (the “Secondary Shares”) to the investors listed on Schedule A hereto (the “Initial Holders”), with FBR acting as placement agent. 
  
 B. In order to induce the Initial Holders to purchase the shares of
Common Stock sold pursuant to the Placement Agreement and FBR to enter into the Placement Agreement, the Company has agreed to provide the registration rights provided for in this Agreement for the holders of Registrable Shares (as defined below).

  
 C. The execution of this Agreement is a condition to
the closing of the transactions contemplated by the Placement Agreement. 
  
 NOW, THEREFORE, in consideration of the premises and the mutual covenants of the parties hereto, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows: 
  
 1. Definitions. As used in this
Agreement, the following terms shall have the following meanings: 
  
 Additional Shares: Shares or other securities issued in respect of the Shares by reason of or in connection with any stock dividend, stock distribution, stock split or similar issuance. 
  
 Agreement: As defined in the Introductory Paragraph of this Agreement.

  
 Affiliate: As to any specified Person, (i) any Person
that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the specified Person, (ii) any executive officer, director, trustee or general partner of the specified Person and (iii)
any legal entity for which the specified Person acts as an executive officer, director, trustee or general partner. For purposes of this definition, “control” (including the correlative meanings of the terms “controlled by” and
“under common control with”), as used with respect to any Person, shall mean the possession, directly, or indirectly through one or more 

  









 
intermediaries, of the power to direct or cause the direction of the management and policies of such Person, whether by contract, through the ownership of
voting securities, partnership interests or other equity interests or otherwise. An indirect relationship shall include circumstances in which a Person’s spouse, children, parents, siblings or mother-, father-, sister- or brother-in-law is or
has been associated with a Person. 
  
 Business Day: With
respect to any act to be performed hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in New York, New York are authorized or obligated by applicable law, regulation or executive order to
close. 
  
 Closing Time: September 23, 2003. 
  
 Commission: The Securities and Exchange Commission. 
  
 Common Stock: As defined in Recital A hereof. 
  
 Company: As defined in the Introductory Paragraph of this Agreement,
and any successor thereto. 
  
 Controlling Person: As
defined in Section 6(a) hereof. 
  
 End of Suspension Notice:
As defined in Section 5(b) hereof. 
  
 Exchange Act:
The Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the Commission pursuant thereto. 
  
 FBR: As defined in the Introductory Paragraph of this Agreement, and any successor thereto. 
  
 Holder: Each record owner of any Registrable Shares from time to time,
other than RWE. 
  
 Indemnified Party: As defined in
Section 6(c) hereof. 
  
 Indemnifying Party: As defined in
Section 6(c) hereof. 
  
 Liabilities: As defined in Section
6(a) hereof. 
  
 Mandatory Registration Statement: The
Mandatory Shelf Registration Statement, as defined in Section 2(a) hereof, or any Subsequent Shelf Registration Statement. 
  
 NASD: The National Association of Securities Dealers, Inc. 
  

Option Agreement: The Option Agreement dated as of September 23, 2003 among RWE, FBR and the Company. 
  

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 Placement Agreement: As defined in Recital A of this Agreement. 
  
 Person: An individual, limited liability company, partnership,
corporation, trust, unincorporated organization, government or agency or political subdivision thereof, or any other legal entity. 
  
 Piggyback Registration Statement: As defined in Section 2(b) hereof. 
  
 Primary Shares: As defined in Recital A of this Agreement. 
  
 Proceeding: An action, claim, suit or proceeding (including without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or, to the knowledge of the Person subject thereto, threatened. 
  
 Prospectus: The prospectus included in any Registration Statement, including any preliminary prospectus, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference, if any, in such prospectus. 
  
 Purchaser Indemnitee: As defined in Section 6(a) hereof. 
  
 Registrable Shares: Each of the Shares and any Additional Shares in
respect thereof, upon original issuance thereof, and at all times subsequent thereto, including upon the transfer thereof by the original holder or any subsequent holder, until, in the case of any such Shares or Additional Shares, as applicable, the
earliest to occur of 
  
 (i) the second
anniversary of the initial effective date of the Mandatory Shelf Registration Statement (subject to extension pursuant to Section 5(c)), 
  
 (ii) the date on which they have been sold pursuant to a Registration Statement or sold pursuant to Rule 144, 
  
 (iii) the date on which they are saleable, in the opinion of
counsel to the Company, without registration under the Securities Act pursuant to subparagraph (k) of Rule 144, 
  
 (iv) the date on which they are saleable, without restriction, pursuant to an available exemption from registration under the Securities
Act, or 
  
 (v) the date on which they are sold
to the Company or its subsidiaries. 
  
 Registration Expenses:
Any and all expenses incident to the performance of or compliance with this Agreement, including, without limitation: (i) all Commission, securities exchange, NASD registration, listing, inclusion and filing fees, (ii) all fees and expenses
incurred 

  

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in connection with compliance with international, federal or state securities or blue sky laws (including, without limitation, any registration, listing and
filing fees and reasonable fees and disbursements of counsel in connection with blue sky qualification of any of the Registrable Shares and the preparation of a blue sky memorandum and compliance with the rules of the NASD), (iii) all expenses of
any Persons in preparing or assisting in preparing, word processing, duplicating, printing, delivering and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales
agreements, certificates and any other documents relating to the performance under and compliance with this Agreement, (iv) all fees and expenses incurred in connection with the listing or inclusion of any of the Registrable Shares on the New York
Stock Exchange pursuant to Section 4(n) of this Agreement, (v) the fees and disbursements of counsel for the Company and of the independent public accountants of the Company (including, without limitation, the expenses of any special audit and
“cold comfort” letters required by or incident to such performance), and (vi) any fees and disbursements customarily paid in issues and sales of securities (including the fees and expenses of any experts retained by the Company in
connection with any Registration Statement), provided, however, that Registration Expenses shall exclude brokers’ or underwriters’ discounts and commissions and transfer taxes, if any, relating to the sale or disposition of
Registrable Shares by a Holder and the fees and disbursements of any counsel to the Holders other than as provided for in subparagraph (v) above. 
  
 Registration Statement: Any Mandatory Registration Statement or Piggyback Registration Statement. 
  
 Rule 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  
 Rule 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  
 Rule 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  
 Rule 174: Rule 174 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  
 Rule 415: Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  

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 Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  
 Rule 429: Rule 429 promulgated by the Commission pursuant to the Securities Act, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the Commission as a replacement thereto having substantially the same effect as such rule. 
  

Secondary Shares: As defined in Recital A of this Agreement. 
  
 Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission
thereunder. 
  
 Shares: The Primary Shares, the Secondary
Shares and any Option Shares (as defined in the Option Agreement) following the sale thereof by RWE in a Private Offering (as defined in the Option Agreement) pursuant to an exercise by FBR of its Option (as defined in the Option Agreement) under
the Option Agreement. 
  
 Subsequent Shelf Registration
Statement: As defined in Section 2(c) hereof. 
  
 Suspension Event: As defined in Section 5(b) hereof. 
  
 Suspension Notice: As defined in Section 5(b) hereof. 
  
 Underwritten Offering: A sale of securities of the Company to an underwriter or underwriters for reoffering to the public. 
  
 2. Registration Rights. 
  
 (a) Mandatory Shelf Registration. As set forth in Section 4 hereof, the Company agrees to file with the Commission as soon as reasonably
practicable, but in no event later than thirty (30) days following the Closing Time, a shelf Registration Statement on Form S-3 or such other form under the Securities Act then available to the Company providing for the resale pursuant to Rule 415
from time to time by the Holders of any and all Registrable Shares (including for the avoidance of doubt any Additional Shares that are issued prior to the effectiveness of such shelf registration statement) (including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration
statement, the “Mandatory Shelf Registration Statement”). The Company shall use its commercially reasonable efforts to cause such Mandatory Shelf Registration Statement to be declared effective by the Commission as soon as
reasonably practicable following such filing. Any Mandatory Shelf Registration Statement shall provide for the resale from time to time, and pursuant to any method or combination of methods legally available (including, without limitation, an
Underwritten Offering, a direct sale to purchasers, a sale through brokers or agents, or a sale over the internet) by the Holders of any and all Registrable Shares. The Company may include any shares of Common Stock that RWE owns in any Mandatory
Shelf Registration Statement. 
  

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 (i) Underwriting. In the event that any Holder proposes to conduct an Underwritten
Offering under a Mandatory Shelf Registration Statement, such Holder shall advise the Company, all other Holders and RWE of the managing underwriters for such proposed Underwritten Offering. All Holders proposing to distribute their Registrable
Shares through such Underwritten Offering and, if RWE elects to distribute its shares of Common Stock through such Underwritten Offering, RWE, shall enter into an underwriting agreement in customary form with the managing underwriters selected for
such underwriting and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the terms of such underwriting, and furnish to the Company such information in
writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, that neither any Holder nor RWE shall be required to make any representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements as are customary and reasonably requested by the underwriters. Notwithstanding any other provision of this Agreement, if the managing underwriters determine in good faith that
marketing factors require a limitation on the number of shares to be included in such Underwritten Offering, then the managing underwriters may exclude shares (including Registrable Shares) from the Underwritten Offering and any shares of Common
Stock included in the Underwritten Offering shall be allocated first to each of the Holders requesting inclusion of their Registrable Shares in such Underwritten Offering on a pro rata basis based on the total number of Registrable
Shares then held by each such Holder which is requesting inclusion and second, if RWE is requesting inclusion of its shares in such Underwritten Offering, to RWE. 
  
 (b) Piggyback Registration. If, after the date hereof, the Company proposes to file a registration statement on Form
S-3 or such other form under the Securities Act providing for a public offering of shares of Common Stock (other than (i) a registration statement on Form S-8 or Form S-4 or any similar form hereafter adopted by the Commission as a replacement
therefor, or (ii) a registration statement filed by the Company for RWE pursuant to the exercise of its demand right pursuant to the agreement dated as of February 1, 1999, as amended) (including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, the
“Piggyback Registration Statement”), the Company will notify each Holder of the proposed filing and afford each Holder an opportunity to include in such Piggyback Registration Statement all or any part of the Registrable Shares then
held by such Holder. Each Holder desiring to include in any such Piggyback Registration Statement all or part of the Registrable Shares held by such Holder shall, within ten (10) days after delivery of the above-described notice by the Company, so
notify the Company in writing, and in such notice shall inform the Company of the number of Registrable Shares such Holder wishes to include in such Piggyback Registration Statement and provide, as a condition to such inclusion, such information
regarding itself, the Registrable Shares held by it and the intended method of disposition of such securities as is required pursuant to Regulation S-K promulgated under the Securities Act to effect the registration of the Registrable Shares. Any
election by any Holder to include any Registrable Shares in such Piggyback Registration Statement will not affect the inclusion of such Registrable Shares in the Mandatory Shelf Registration Statement until such Registrable Shares have been sold
under the Piggyback Registration Statement; provided, however, that at such time, the 

  

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Company shall have the right to remove from the Mandatory Shelf Registration Statement the Registrable Shares sold pursuant to the Piggyback Registration
Statement. 
  
 (i) Right to Terminate
Piggyback Registration. At any time, the Company shall have the right to terminate or withdraw any Piggyback Registration Statement referred to in this Section 2(b), and without any obligation to any such Holder whether or not any Holder has
elected to include Registrable Shares in such registration. The Company shall also have the right to suspend the effectiveness and use of any Piggyback Registration Statement at any time for an unlimited amount of time whether or not any Holder has
elected to include Registrable Shares in such registration. 
  
 (ii) Underwriting. The Company shall advise the Holders of the managing underwriters for the Underwritten Offering proposed under the Piggyback Registration Statement. The right of any such Holder’s
Registrable Shares to be included in any Piggyback Registration Statement pursuant to this Section 2(b) shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable
Shares in the Underwritten Offering to the extent provided herein. All Holders proposing to distribute their Registrable Shares through such Underwritten Offering shall enter into an underwriting agreement in customary form with the managing
underwriters selected for such underwriting and complete and execute any questionnaires, powers of attorney, indemnities, securities escrow agreements and other documents reasonably required under the terms of such underwriting, and furnish to the
Company such information in writing as the Company may reasonably request for inclusion in the Registration Statement; provided, however, that no Holder shall be required to make any representations or warranties to or agreements with the
Company or the underwriters other than representations, warranties or agreements as are customary and reasonably requested by the underwriters. Notwithstanding any other provision of this Agreement, if the managing underwriters determine in good
faith that marketing factors require a limitation on the number of shares to be included, then the managing underwriters may exclude shares (including Registrable Shares) from the Piggyback Registration Statement and the Underwritten Offering and
any Shares included in the Piggyback Registration Statement and the Underwritten Offering shall be allocated, first, to the Company and RWE, as they shall agree between themselves, and second, to each of the Holders requesting
inclusion of their Registrable Shares in such Piggyback Registration Statement on a pro rata basis based on the total number of Registrable Shares then held by each such Holder which is requesting inclusion. If any Holder disapproves of the
terms of any Underwritten Offering, such Holder may elect to withdraw therefrom by written notice to the Company and the underwriter, delivered at least ten (10) Business Days prior to the effective date of the Piggyback Registration Statement. Any
Registrable Shares excluded or withdrawn from such Underwritten Offering shall be excluded and withdrawn from the Piggyback Registration Statement. 
  
 (iii) Hold-Back Agreement. By electing to include Registrable Shares in the Piggyback Registration Statement, if any, the Holder
shall be deemed to have agreed not to effect any sale or distribution of securities of the Company of the same or similar class or classes of the securities included in the Registration Statement or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 under the Securities Act, during such periods as reasonably requested (but in no event for a period longer than sixty (60) days following the effective date of the Piggyback
Registration Statement, 

  

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provided each of the executive officers and directors of the Company that hold shares of Common Stock of the Company or securities convertible into or
exchangeable or exercisable for shares of Common Stock of the Company are subject to the same restriction for the entire time period required of the Holders hereunder) by the representatives of the underwriters, if an Underwritten Offering.

  
 (iv) Mandatory Shelf Registration not
Impacted by Piggyback Registration Statement. The Company’s obligation to file any Mandatory Shelf Registration Statement shall not be affected by the filing or effectiveness of the Piggyback Registration Statement. 
  
 (c) Subsequent Shelf Registration for Additional Shares Issued after
Effectiveness of the Mandatory Shelf Registration Statement. If any Additional Shares are issued or distributed to Holders after the effectiveness of the Mandatory Shelf Registration Statement, or such Additional Shares were otherwise not
included in a prior Shelf Registration Statement, then the Company shall as soon as practicable file an additional shelf registration statement (including the Prospectus, amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all material incorporated by reference or deemed to be incorporated by reference, if any, in such registration statement, a “Subsequent Shelf Registration
Statement”) covering such Additional Shares on behalf of the Holders thereof in the same manner, and subject to the same provisions in this Agreement as the Mandatory Shelf Registration Statement, provided that the provisions of Section
2(a), 2(b) and 9 hereof will not apply to any such Subsequent Shelf Registration Statement. 
  
 (d) Expenses. The Company shall pay all Registration Expenses in connection with the registration of the Registrable Shares pursuant to this Agreement. Each Holder participating in a registration pursuant to
this Section 2 shall bear such Holder’s proportionate share (based on the total number of Registrable Shares sold in such registration) of all discounts and commissions payable to underwriters or brokers and all transfer taxes in connection
with a registration of Registrable Shares pursuant to this Agreement and any other expense of the Holders not specifically allocated to the Company pursuant to this Agreement relating to the sale or disposition of such Holder’s Registrable
Shares pursuant to any Registration Statement. 
  
 3. Rule 144 Reporting.

  
 With a view to making available the benefits of certain rules
and regulations of the Commission that may permit the sale of the Registrable Shares to the public without registration, the Company agrees to, so long as any Holder owns any Registrable Shares: 
  
 (a) make and keep public information available, as those terms are understood
and defined in Rule 144(c) under the Securities Act; 
  
 (b) use
its commercially reasonable efforts to file with the Commission in a timely manner all reports and other documents required to be filed by the Company under the Securities Act and the Exchange Act; and 
  
 (c) furnish to any Holder promptly upon request a written statement by the
Company as to its compliance in all material respects with the reporting requirements of Rule 144 and of 

  

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the Exchange Act a copy of the most recent annual or quarterly report of the Company, and such other reports and documents of the Company, and take such
reasonable further actions consistent with this Section, as a Holder may reasonably request in availing itself of any rule or regulation of the Commission allowing a Holder to sell any such Registrable Shares without registration. Notwithstanding
anything to the contrary herein contained, the foregoing shall not preclude or limit in any way the Company from engaging in any transaction that would result in its or its equity securities no longer being subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act. 
  
 4. Registration Procedures.

  
 In connection with the obligations of the Company with respect
to any registration pursuant to this Agreement, the Company shall: 
  
 (a) prepare and file with the Commission, as specified in this Agreement, each Registration Statement, which Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include
all financial statements required by the Commission to be filed therewith, and use its commercially reasonable efforts to cause such Registration Statement to become effective as soon as practicable after filing and, in the case of a Mandatory
Registration Statement, to remain effective, subject to Section 5 hereof, until the date on which no Holders hold Registrable Shares, provided, however, that the Company shall not be required to cause any Piggyback Registration Statement to
become or remain effective; 
  
 (b) subject to Section 4(i)
hereof, (i) prepare and file with the Commission such amendments and post-effective amendments to each such Registration Statement as may be necessary to keep such Registration Statement effective for the period described in Section 4(a) hereof,
(ii) cause each Prospectus contained therein to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 or any similar rule that may be adopted under the Securities Act, and (iii) comply in all
material respects with the provisions of the Securities Act with respect to the disposition of all securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by
the selling Holders thereof; 
  
 (c) furnish to the Holders,
without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Shares; the Company consents to the use of such Prospectus, including each preliminary Prospectus, by the Holders, if any, in connection with the offering and sale of the Registrable Shares covered by any such
Prospectus; 
  
 (d) use its commercially reasonable efforts to
register or qualify, or obtain exemption from registration or qualification for, all Registrable Shares by the time the applicable Registration Statement is declared effective by the Commission under all applicable state securities or “blue
sky” laws of such domestic jurisdictions as FBR or any Holder covered by a Registration Statement shall reasonably request in writing, keep each such registration or qualification or exemption effective during the period such Registration
Statement is required to 

  

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be kept effective pursuant to Section 4(a) and do any and all other acts and things that may be reasonably necessary or advisable to enable such Holder to
consummate the disposition in each such jurisdiction of such Registrable Shares owned by such Holder; provided, however, that the Company shall not be required to (i) qualify generally to do business in any jurisdiction or to register as a
broker or dealer in such jurisdiction where it would not otherwise be required to qualify but for this Section 4(d) and except as may be required by the Securities Act, (ii) subject itself to taxation in any such jurisdiction, or (iii) submit to the
general service of process in any such jurisdiction; 
  
 (e) use
its commercially reasonable efforts to cause all Registrable Shares covered by such Registration Statement to be registered and approved by such other domestic governmental agencies or authorities, if any, as may be necessary to enable the Holders
thereof to consummate the disposition of such Registrable Shares; 
  
 (f) notify FBR and each Holder with Registrable Shares covered by a Registration Statement promptly and, if requested by FBR or any such Holder, confirm such advice in writing (i) when such Registration Statement has become effective and
when any post-effective amendments and supplements thereto become effective, (ii) of the issuance by the Commission or any state securities authority of any stop order suspending the effectiveness of such Registration Statement or the initiation of
any proceedings for that purpose, (iii) of any request by the Commission or any other federal or state governmental authority for amendments or supplements to such Registration Statement or related Prospectus or for additional information, and (iv)
of the happening of any event during the period such Registration Statement is effective as a result of which such Registration Statement or the related Prospectus or any document incorporated by reference therein contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading (which information shall be accompanied by an instruction to suspend the use of the Registration Statement and
the Prospectus until the requisite changes have been made); 
  
 (g) during the period of time referred to in Section 4(a) above, use its commercially reasonable efforts to avoid the issuance of, or if issued, to obtain the withdrawal of, any order enjoining or suspending the use or effectiveness of a
Registration Statement or suspending the qualification (or exemption from qualification) of any of the Registrable Shares for sale in any jurisdiction, as promptly as practicable; 
  
 (h) upon request, furnish to each requesting Holder with Registrable Shares covered by a Registration Statement, without
charge, at least one conformed copy of such Registration Statement and any post-effective amendment or supplement thereto (without documents incorporated therein by reference or exhibits thereto, unless requested); 
  
 (i) except as provided in Section 5, upon the occurrence of any event
contemplated by Section 4(f)(iv) hereof, use its commercially reasonable efforts to promptly prepare a supplement or post-effective amendment to a Registration Statement or the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the purchasers of the Registrable Shares, such Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which 

  

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they were made, not misleading, and, upon request, promptly furnish to each requesting Holder a reasonable number of copies of each such supplement or
post-effective amendment; 
  
 (j) if requested by the
representative of the underwriters, if any, or any Holders of Registrable Shares being sold in connection with an Underwritten Offering, (i) promptly incorporate in a Prospectus supplement or post-effective amendment such material information as the
representative of the underwriters, if any, or such Holders indicate relates to them or otherwise reasonably request be included therein and (ii) make all required filings of such Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be incorporated in such Prospectus supplement or post-effective amendment; 
  
 (k) in the case of an Underwritten Offering, use its commercially reasonable efforts to furnish or caused to be furnished to each Holder of Registrable
Shares covered by such Registration Statement and the underwriters a signed counterpart, addressed to each such Holder and the underwriters, of: (i) an opinion of counsel for the Company, dated the date of each closing under the underwriting
agreement, reasonably satisfactory to the underwriters; and (ii) a “comfort” letter, dated the effective date of such Registration Statement and the date of each closing under the underwriting agreement, signed by the independent public
accountants who have certified the Company’s financial statements included in such Registration Statement (except to the extent that it is not commercially reasonable to obtain a comfort letter with respect to historical financial statements of
the Company audited by independent public accounts who at such time as the comfort letter is required no longer have a relationship with the Company), covering substantially the same matters with respect to such Registration Statement (and the
Prospectus included therein) and with respect to events subsequent to the date of such financial statements, as are customarily covered in accountants’ letters delivered to underwriters in underwritten public offerings of securities and such
other financial matters as the underwriters may reasonably request and customarily obtained by underwriters in underwritten offerings; provided that, in order to be an addressee of the comfort letter, each Holder may be required to confirm that it
is in the category of persons to whom a comfort letter may be delivered in accordance with applicable accounting literature; 
  
 (l) enter into customary agreements (including in the case of an Underwritten Offering, an underwriting agreement in customary form) and take all other
action in connection therewith in order to expedite or facilitate the distribution of the Registrable Shares included in such Registration Statement and, in the case of an Underwritten Offering, make representations and warranties to the
underwriters in such form and scope as are customarily made by issuers to underwriters in underwritten offerings consistent with representations and warranties made by the Company in public or private offerings and confirm the same to the extent
customary if and when requested; 
  
 (m) in connection with an
Underwritten Offering, use its commercially reasonable efforts to make available for inspection by the representative of any underwriters participating in any disposition pursuant to a Registration Statement, all financial and other records,
pertinent corporate documents and properties of the Company and cause the respective officers, directors and employees of the Company to supply all information reasonably requested by any such representatives, the representative of the underwriters,
counsel thereto or accountants in 

  

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connection with a Registration Statement; provided, however, that such records, documents or information that the Company determines, in good faith,
to be confidential and notifies such representatives, representative of the underwriters, counsel thereto or accountants are confidential shall not be disclosed by the representatives, representative of the underwriters, counsel thereto or
accountants unless (i) the disclosure of such records, documents or information is necessary to avoid or correct a misstatement or omission in a Registration Statement or Prospectus, (ii) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent jurisdiction, or (iii) such records, documents or information have been generally made available to the public; provided further, that to the extent practicable, the
foregoing inspection and information gathering shall be coordinated on behalf of the Holders and the other parties entitled thereto by one counsel designated by and on behalf of the Holders and the other parties, which counsel the Company determines
in good faith is reasonably acceptable; 
  
 (n) use its
commercially reasonable efforts (including, without limitation, seeking to cure in the Company’s listing or inclusion application any deficiencies cited by the exchange or market) to list or include all Registrable Shares on any securities
exchange or the Nasdaq Stock Market on which the Common Stock is then listed or included; 
  
 (o) prepare and file in a timely manner all documents and reports required by the Exchange Act and, to the extent the Company’s obligation to file such reports pursuant to Section 15(d) of the Exchange Act
expires prior to the expiration of the effectiveness period of the Registration Statement as required by Section 4(a) hereof, the Company shall register the Registrable Shares under the Exchange Act and shall maintain such registration through the
effectiveness period required by Section 4(a) hereof; 
  
 (p) (i)
otherwise use its commercially reasonable efforts to comply in all material respects with all applicable rules and regulations of the Commission, (ii) make generally available to its stockholders, as soon as reasonably practicable, earnings
statements covering at least twelve (12) months that satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 (or any similar rule promulgated under the Securities Act ) thereunder, no later than forty-five (45) days after the end
of each fiscal year of the Company and (iii) delay filing any Registration Statement or Prospectus or amendment or supplement to such Registration Statement or Prospectus to which any Holder of Registrable Shares covered by any Registration
Statement shall have reasonably objected on the grounds that such Registration Statement or Prospectus or amendment or supplement does not comply in all material respects with the requirements of the Securities Act, such Holder having been furnished
with a copy thereof at least two (2) Business Days prior to the filing thereof, provided that the Company may file such Registration Statement or Prospectus or amendment or supplement following such time as the Company shall have made a good faith
effort to resolve any such issue with the objecting Holder and shall have advised the Holder in writing of its reasonable belief that such filing complies in all material respects with the requirements of the Securities Act; 
  
 (q) cause to be maintained a registrar and transfer agent for all Registrable
Shares covered by any Registration Statement from and after a date not later than the effective date of such Registration Statement; and 
  

 12 








 (r) in connection with any sale or transfer of the Registrable Shares (whether or not pursuant to a
Registration Statement) that will result in the securities being delivered no longer being Registrable Shares, cooperate with the Holders and the representative of the underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Shares to be sold, which certificates shall not bear any transfer restrictive legends (other than as required by the Company’s charter) and to enable such Registrable Shares to be in such denominations
and registered in such names as the representative of the underwriters, if any, or the Holders may request at least three (3) Business Days prior to any sale of the Registrable Shares. 
  
 The Company may require the Holders to furnish to the Company such information regarding the proposed distribution by such
Holder as the Company may from time to time reasonably request in writing or as shall be required to effect the registration of the Registrable Shares, and no Holder shall be entitled to be named as a selling stockholder in any Registration
Statement and no Holder shall be entitled to use the Prospectus forming a part thereof if such Holder does not provide such information to the Company. Each Holder further agrees to furnish promptly to the Company in writing all information required
from time to time to make the information previously furnished by such Holder not misleading. 
  
 Each Holder agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 4(f)(ii), 4(f)(iii) or 4(f)(iv) hereof, such Holder will immediately discontinue
disposition of Registrable Shares pursuant to a Registration Statement until (i) any such stop order is vacated or (ii) if an event described in Section 4(f)(iii) or 4(f)(iv) occurs, such Holder’s receipt of the copies of the supplemented or
amended Prospectus. If so directed by the Company, such Holder will deliver to the Company (at the reasonable expense of the Company) all copies in its possession, other than permanent file copies then in such Holder’s possession, of the
Prospectus covering such Registrable Shares current at the time of receipt of such notice. 
  
 5. Black-Out Period. 
  
 (a) Subject to the provisions of this Section 5 and a good faith determination by a majority of the Board of Directors of the Company that it is in the best interests of the Company to suspend the use of any Mandatory Registration
Statement, following the effectiveness of such Mandatory Registration Statement (and the filings with any international, federal or state securities commissions), the Company, by written notice to FBR and the Holders, may direct the Holders to
suspend sales of the Registrable Shares pursuant to such Mandatory Registration Statement for such times as the Company reasonably may determine is necessary and advisable (but in no event for more than an aggregate of sixty (60) days in any twelve
(12)-month period commencing on the Closing Time or more than sixty (60) days in any ninety (90)-day period), if any of the following events shall occur: (i) an Underwritten Offering of primary shares by the Company where the Company is advised by
the representative of the underwriters for such Underwritten Offering that the sale of Registrable Shares pursuant to the Mandatory Registration Statement would have a material adverse effect on the Company’s primary offering; or (ii) pending
discussions relating to, or the consummation of, a transaction or the occurrence of an event (x) that would require additional disclosure of material information by the Company in the Mandatory Registration Statement (or such filings) and which has
not been so disclosed, (y) as to 

  

 13 








 
which the Company has a bona fide business purpose for preserving confidentiality, or (z) that renders the Company unable to comply with Commission
requirements, in each case under circumstances that would make it impractical or inadvisable to promptly amend or supplement the Mandatory Registration Statement on a post-effective basis, as applicable. Upon the earlier to occur of (i) the Company
delivering to the Holders and FBR an End of Suspension Notice, as hereinafter defined, or (ii) the end of the sixty (60) days, the Company shall use its commercially reasonable efforts to promptly amend or supplement the Mandatory Registration
Statement on a post-effective basis, if necessary, or to take such action as is necessary to make resumed use of the Mandatory Registration Statement compatible with the Company’s best interests, as applicable, so as to permit the Holders to
resume sales of the Registrable Shares as soon as possible. The Company shall have the right to suspend the effectiveness and use of any Piggyback Registration Statement at any time for an unlimited amount of time. 
  
 (b) In the case of an event that causes the Company to suspend the use of a
Registration Statement (a “Suspension Event”), the Company shall give written notice (a “Suspension Notice”) to the Holders to suspend sales of the Registrable Shares and such notice shall state that such suspension
shall continue only for so long as the Suspension Event or its effect is continuing and the Company is taking all reasonable steps to terminate suspension of the effectiveness of the Registration Statement as promptly as possible. The Holders shall
not effect any sales of the Registrable Shares pursuant to such Registration Statement (or such filings) at any time after it has received a Suspension Notice from the Company and prior to receipt of an End of Suspension Notice (as defined below).
If so directed by the Company, each Holder will deliver to the Company (at the expense of the Company) all copies other than permanent file copies then in such Holder’s possession of the Prospectus covering the Registrable Shares at the time of
receipt of the Suspension Notice. The Holders may recommence effecting sales of the Registrable Shares pursuant to the Registration Statement (or such filings) following further notice to such effect (an “End of Suspension Notice”)
from the Company, which End of Suspension Notice shall be given by the Company to the Holders and FBR in the manner described above promptly following the conclusion of any Suspension Event and its effect. 
  
 (c) Notwithstanding any provision herein to the contrary, if the Company
shall give a Suspension Notice pursuant to this Section 5 with respect to any Mandatory Registration Statement, the Company agrees that it shall extend the period of time during which such Mandatory Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period from the date of the giving of the Suspension Notice to and including the date when Holders shall have received the End of Suspension Notice and copies of the supplemented
or amended Prospectus necessary to resume sales; provided such period of time shall not be extended beyond the date that Shares or Additional Shares are not Registrable Shares. 
  
 6. Indemnification and Contribution. 
  
 (a) The Company agrees to indemnify and hold harmless (i) FBR and each Holder, (ii) each Person, if any, who controls (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act), any of the foregoing (any of the Persons referred to in this clause (ii) being hereinafter referred to as a “Controlling Person”), and (iii) the respective officers,
directors, partners, employees, representatives and agents of FBR and each Holder or 

  

 14 








 
any Controlling Person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an “Purchaser Indemnitee”)
from and against any and all losses, claims, damages, judgments, actions, reasonable out-of-pocket expenses, and other liabilities (the “Liabilities”), including, without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing or defending any claim or action, or any investigation or proceeding by any governmental agency or body, commenced or threatened, including the reasonable fees and expenses of outside counsel to any
Purchaser Indemnitee, joint or several, directly or indirectly related to, based upon, arising out of or in connection with any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus (as
amended or supplemented if the Company shall have furnished to such Purchaser Indemnitee any amendments or supplements thereto), or any preliminary Prospectus or any other document prepared by the Company used to sell the Registrable Shares, or any
omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, except insofar as such Liabilities
arise out of or are based upon (i) any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with information relating to any Purchaser Indemnitee furnished to the Company or any underwriter in
writing by such Purchaser Indemnitee expressly for use therein, (ii) any untrue statement contained in or omission from a preliminary Prospectus if a copy of the Prospectus (as then amended or supplemented, if the Company shall have furnished to or
on behalf of the Holder participating in the distribution relating to the relevant Registration Statement any amendments or supplements thereto) was not sent or given by or on behalf of such Holder to the Person asserting any such Liabilities who
purchased Shares, if such Prospectus (or Prospectus as amended or supplemented) is required by law to be sent or given at or prior to the written confirmation of the sale of such Shares to such Person and the untrue statement contained in or
omission from such preliminary Prospectus was corrected in the Prospectus (or the Prospectus as amended or supplemented), or (iii) any sales by any Holder after the delivery by the Company, to such Holder of a Suspension Notice and before the
delivery by the Company of an End of Suspension Notice. The indemnity provided for herein shall remain in full force and effect regardless of any investigation made by or on behalf of any Purchaser Indemnitee. 
  
 (b) In connection with any Registration Statement in which a Holder is
participating, such Holder agrees, severally and not jointly, to indemnify and hold harmless FBR, the Company, each Person who controls the Company or FBR within the meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange Act
and the respective partners, directors, officers, members, representatives, employees and agents of such Person or Controlling Person to the same extent as the foregoing indemnity from the Company to each Purchaser Indemnitee, but only with
reference to (i) untrue statements or omissions or alleged untrue statements or omissions made in reliance upon and in strict conformity with information relating to such Holder furnished to the Company in writing by such Holder expressly for use in
any Registration Statement or Prospectus, any amendment or supplement thereto, or any preliminary Prospectus and (ii) any sales by any Holder after the delivery by the Company to such Holder of a Suspension Notice and before the delivery by the
Company of an End of Suspension Notice. The liability of any Holder pursuant to clause (i) of the immediately preceding sentence in this paragraph shall in no event exceed the net proceeds received by such Holder from sales of Registrable Shares
giving rise to such obligations. If the Holder elects to include Registrable Shares in an Underwritten Offering, the Holder shall be required to agree to such customary 

  

 15 








 
indemnification provisions as may reasonably be required by the underwriter in connection with such Underwritten Offering. 
  
 (c) If any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person in respect of which indemnity may be sought pursuant to paragraph (a) or (b) above, such Person (the “Indemnified Party”), shall promptly notify the
Person against whom such indemnity may be sought (the “Indemnifying Party”), in writing of the commencement thereof (but the failure to so notify an Indemnifying Party shall not relieve it from any liability which it may have under
this Section 6, except to the extent the Indemnifying Party is materially prejudiced by the failure to give notice), and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Indemnifying Party may reasonably designate in such proceeding and shall assume the defense of such proceeding and pay the fees and expenses actually incurred by such counsel related to
such proceeding. Notwithstanding the foregoing, in any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party, unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed in writing to the contrary, (ii) the Indemnifying Party failed within a reasonable time after notice of commencement of the action to assume the defense and employ counsel
reasonably satisfactory to the Indemnified Party, (iii) the Indemnifying Party and its counsel do not pursue in a reasonable manner the defense of such action or (iv) the named parties to any such action (including any impleaded parties), include
both such Indemnified Party and the Indemnifying Party, or any affiliate of the Indemnifying Party, and such Indemnified Party shall have been reasonably advised by counsel that, either (x) there may be one or more legal defenses available to it
which are different from or additional to those available to the Indemnifying Party or such affiliate of the Indemnifying Party or (y) a conflict may exist between such Indemnified Party and the Indemnifying Party or such affiliate of the
Indemnifying Party, then the Indemnifying Party shall not have the right to assume or direct the defense of such action on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party shall not, in connection with any
one such action or separate but substantially similar or related actions arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one (1) separate firm of attorneys (in addition to any local
counsel), for all such Indemnified Parties, which firm shall be designated in writing by those Indemnified Parties who sold a majority of the Registrable Shares sold by all such Indemnified Parties and any such separate firm for the Company, the
directors, the officers and such control Persons of the Company as shall be designated in writing by the Company. The Indemnifying Party shall not be liable for any settlement of any proceeding effected without its written consent, which consent
shall not be unreasonably withheld or delayed, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Party agrees to indemnify any Indemnified Party from and against any loss or liability by reason of
such settlement or judgment to the extent provided in this Section 6 without reference to this sentence. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding. 
  

 16 








 (d) If the indemnification provided for in paragraphs (a) and (b) of this Section 6 is for any reason
held to be unavailable to an Indemnified Party in respect of any Liabilities referred to therein (other than by reason of the exceptions provided therein) or is insufficient to hold harmless a party indemnified thereunder, then each Indemnifying
Party under such paragraphs, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Liabilities (i) in such proportion as is appropriate to reflect the
relative benefits of the Indemnified Party on the one hand and the Indemnifying Parties on the other in connection with the statements or omissions that resulted in such Liabilities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Indemnifying Parties and the Indemnified Party, as well as any other
relevant equitable considerations. The relative fault of the Company, on the one hand, and any Purchaser Indemnitees, on the other, shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by such Purchaser Indemnitees and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. 
  
 (e) The parties agree that
it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if such indemnified parties were treated as one entity for such purpose), or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph 6(d) above. The amount paid or payable by an Indemnified Party as a result of any Liabilities referred to paragraph 6(d) shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses actually incurred by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, in no event
shall a Purchaser Indemnitee be required to contribute any amount in excess of the amount by which proceeds received by such Purchaser Indemnitee from sales of Registrable Shares exceeds the amount of any damages that such Purchaser Indemnitee has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. For purposes of this Section 6, each Person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of
the Exchange Act) FBR or a Holder shall have the same rights to contribution as FBR or such Holder, as the case may be, and each Person, if any, who controls (within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) the
Company, and each officer, director, partner, employee, representative, agent or manager of the Company shall have the same rights to contribution as the Company. Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of which a claim for contribution may be made against another party or parties, notify each party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom contribution may be sought from any obligation it or they may have under this Section 6 or otherwise, except to the extent that any party is materially prejudiced by the
failure to give notice. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act), shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

  

 17 








 (f) The indemnity and contribution agreements contained in this Section 6 will be in addition to any
liability which the indemnifying parties may otherwise have to the indemnified parties referred to above. Each Purchaser Indemnitee’s obligations to contribute pursuant to this Section 6 are not joint but are several in the proportion that the
number of Shares sold by such Purchaser Indemnitee bears to the number of Shares sold by all Purchaser Indemnities. 
  
 7. Market Stand-off Agreement. 
  
 Each Holder hereby agrees that it shall not, to the extent requested by the Company or an underwriter of securities of the Company, directly or indirectly
sell, offer to sell (including without limitation any short sale), grant any option or otherwise transfer or dispose of any Registrable Shares or other shares of Common Stock of the Company or any securities convertible into or exchangeable or
exercisable for shares of Common Stock of the Company then owned by such Holder (other than to donees or partners of the Holder who agree to be similarly bound) within (60) days following either (x) the effective date of the Piggyback Registration
Statement of the Company filed under the Securities Act or (y) the date of an Underwritten Offering by the Company pursuant to a shelf registration statement of the Company filed under the Securities Act; provided, however, that: 

 
 (a) with respect to the up to 60-day restriction that follows the
effective date of the Piggyback Registration Statement, such agreement shall not be applicable to Registrable Shares sold pursuant to such Piggyback Registration Statement; 
  
 (b) each of the executive officers and directors of the Company then holding shares of Common Stock or securities
convertible into or exchangeable or exercisable for shares of Common Stock of the Company enter into similar agreements for not less than the entire time period required of the Holders hereunder; and 
  
 (c) the Holders shall be allowed any concession or proportionate release
allowed to any executive officer or director that entered into similar agreements. 
  
 In order to enforce the foregoing covenant, the Company shall have the right to place restrictive legends on the certificates representing the securities subject to this Section 7 and to impose stop transfer
instructions with respect to the Registrable Shares and such other securities of each Holder (and the securities of every other Person subject to the foregoing restriction) until the end of such period. 
  
 8. Termination of the Company’s Obligations. 
  
 The Company shall have no further obligations pursuant to this Agreement at
such time as no Registrable Shares are outstanding, provided, however, that the Company’s obligations under Sections 3, 6 and 10(a) through and including 10(j) of this Agreement shall remain in full force and effect following such time.

  
 9. Limitations on Subsequent Registration Rights. 
  
 From and after the date of this Agreement, the Company shall not, without the
prior written consent of the Holders of a majority of the then outstanding Registrable Shares, enter into 

  

 18 








 
any agreement with any holder or prospective holder of any securities of the Company that would allow such holder or prospective holder to include such
securities in the Mandatory Shelf Registration Statement or Piggyback Registration Statement, if any, filed pursuant to the terms hereof, unless under the terms of such agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will not reduce the amount of Registrable Shares of the Holders that is included. This Section 9 shall not restrict the Company from entering into an agreement with RWE to
amend or modify, or extend the term of, the registration rights agreement between the Company and RWE dated February 1, 1999, as amended (the “RWE Agreement”), provided that no such amendment, modification or extension shall have
the effect of (i) reducing the amount of Registrable Shares of the Holders that may be included in the Mandatory Shelf Registration Statement or (ii) reducing the amount of Registrable Shares of the Holders that may be included in a Piggyback
Registration Statement except as contemplated in Section 2(b)(ii) herein. 
  
 10.
Miscellaneous. 
  
 (a) Amendments and Waivers. The
provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, without the written consent of the Company
and Holders beneficially owning a majority of the then outstanding Registrable Shares; provided, however, that for purposes of this Agreement, Registrable Shares that are owned, directly or indirectly, by an Affiliate of the Company shall not
be deemed to be outstanding. Notwithstanding the foregoing, a waiver or consent to or departure from the provisions hereof with respect to a matter that relates exclusively to the rights of a Holder whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair, limit or compromise the rights of other Holders may be given by such Holder; provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately preceding sentence. 
  
 (b) Notices. All notices and other communications, provided for or permitted hereunder shall be made in writing by delivered by facsimile (with receipt confirmed), overnight courier or registered or certified
mail, return receipt requested, or by telegram 
  
 (i) if to a Holder, at the most current address given by the transfer agent and registrar of the Shares to the Company; 
  
 (ii) if to the Company at the offices of the Company at Consol Plaza, 1800 Washington Road, Pittsburgh, Pennsylvania 15241-1421,
Attention: Stephen E. Williams, Esq., (facsimile (412) 831-4635); with a copy to Piper Rudnick LLP, 1251 Avenue of the Americas, New York, New York 10020, Attention: Steven L. Wasserman, Esq., (facsimile (212) 835-6001); and 
  
 (iii) if to FBR, at the offices of FBR at 1001 Nineteenth
Street North, Arlington, Virginia 22209, Attention: William Ginivan, Esq. (facsimile (703) 312-9698); with a copy to Hunton & Williams LLP, 951 East Byrd Street, Richmond, Virginia 23219, Attention: Daniel M. LeBey, Esq., (facsimile (804)
788-8218). 
  

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 (c) Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto and shall inure to the benefit of each Holder. The Company agrees that the Holders shall be third party beneficiaries to the agreements made hereunder by FBR and the
Company, and each Holder shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder; provided, however, that such Holder fulfills all of its
obligations hereunder. 
  
 (d) Counterparts. This Agreement
may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

  
 (e) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK OR THE SUPREME COURT OF THE STATE OF NEW YORK OR SITTING IN NEW YORK COUNTY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 
  
 (f)
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties hereto that they would have executed the remaining terms, provisions,
covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. 
  
 (g) Entire Agreement. This Agreement, together with the Placement Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein and therein. 
  

 20 








 (h) Registrable Shares Held by the Company or its Affiliates. Whenever the consent or approval of
Holders of a specified percentage of Registrable Shares is required hereunder, Registrable Shares held by the Company or its Affiliates shall not be counted in determining whether such consent or approval was given by the Holders of such required
percentage. 
  
 (i) Survival. This Agreement is intended to
survive the consummation of the transactions contemplated by the Placement Agreement. The indemnification and contribution obligations under Section 6 of this Agreement shall survive the termination of the Company’s obligations under Section 2
of this Agreement. 
  
 (j) Headings. The headings in this
Agreement are for convenience of reference only and shall not limit or otherwise affect the provisions of this Agreement. All references made in this Agreement to “Section” refer to such Section of this Agreement, unless expressly stated
otherwise. 
  
 [Remainder of this Page Intentionally Left Blank]

  

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 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.

  

	CONSOL ENERGY INC.
		
	By:	 	 /s/    William J. Lyms        

	 	

	 Name:
	 	William J. Lyms
	 Title:
	 	Senior Vice President and Chief Financial Officer


  
  

	FRIEDMAN, BILLINGS, RAMSEY & CO.,
INC. (for the benefit of the Holders)
		
	By:	 	 /s/    Emanual Friedman        

	 	

	 Name:
	 	Emanual Friedman
	 Title:
	 	 


  

 22