SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
____________________
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 5)*
CONSOL Energy Inc.
_____________________________________________________________
(Name of Issuer)
Common Stock, par value $.01 per share
_____________________________________________________________
(Title of Class of Securities)
20854P 10 9
_____________________________________________________________
(CUSIP Number)
Jens Gemmecke
Head Legal Acquisitions and Divestments
RWE Aktiengesellschaft
Opernplatz 1
D-45128 Essen, Federal Republic of Germany
011 49-201-12-00
_____________________________________________________________
(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
February 13, 2004
_____________________________________________________________
(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 Sections 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 Section
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).
2
CUSIP No. 20854P 10 9
________________________________________________________________________________
1 NAME 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 (SEE INSTRUCTIONS)
(a) [_]
(b) [_]
________________________________________________________________________________
3 SEC USE ONLY
________________________________________________________________________________
4 SOURCE OF FUNDS (SEE INSTRUCTIONS)
AF
________________________________________________________________________________
5 CHECK BOX 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
16,622,932
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 0
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
16,622,932
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
16,622,932
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (SEE INSTRUCTIONS)
[_]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
18.5%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
HC
3
This Amendment No. 5 amends and supplements 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;
Amendment No. 2 filed with the SEC by RWE on June 2, 2003; Amendment No. 3
filed with the SEC by RWE on September 19, 2003; and Amendment No. 4 filed
with the SEC by RWE on October 3, 2003 (such Schedule 13D as so amended and
restated, the "Schedule 13D"), which Schedule 13D relates to the common stock,
par value $.01 per share (the "Common Stock"), of CONSOL Energy Inc. (the
"Issuer"). Unless otherwise defined herein, capitalized terms used herein have
the respective meanings ascribed thereto in the Schedule 13D.
Item 4. Purpose of Transaction
Item 4 of the Schedule 13D is hereby amended and supplemented by
inserting the following paragraph as the next to last paragraph of such item:
In connection with an exercise of the Placement Right (granted to
the placement agent under an option agreement (the "Option Agreement") entered
into in connection with the transaction reported on by Amendment No. 3 to the
Schedule 13D), on February 13, 2004, RWE Power Aktiengesellschaft (formerly
named RWE Rheinbraun Aktiengesellschaft and hereinafter "Power"), through
which RWE beneficially owns all of its Common Stock of the Issuer, agreed to
sell all of its remaining Common Stock of the Issuer, 16,622,932 shares, at a
price of $21.75 per share to a number of investors in a private placement that
is scheduled to close on February 20, 2004. Power will pay a placement fee of
50 cents per share to the placement agent. The excess of the purchase price
per share in this transaction over $17.82 will be paid to the investors that
purchased shares under the Placement Agreement dated September 18, 2003
(relating to the transaction reported on by Amendment No. 3 to the Schedule
13D), on a pro rata basis based on the number of shares purchased by each such
purchaser. The placement agreement dated February 13, 2004 (the "Third
Placement Agreement") among Power, the Issuer and the placement agent relating
to the transaction reported on by this Amendment No. 5 is filed as Exhibit 7
hereto and is incorporated herein by reference.
Item 5. Interest in Securities of the Issuer
Paragraph (a) of Item 5 of the Schedule 13D is hereby amended and
supplemented by deleting such paragraph and replacing such paragraph with the
following:
(a) As of the date of this Amendment No. 5, the aggregate amount of Common Stock
of the Issuer beneficially owned by RWE is 16,622,932 shares, representing
approximately 18.5% of the total number of shares of the Issuer's Common Stock
outstanding (based on the 89,803,864 shares represented by the Issuer as
outstanding as of October 31, 2003, in its Quarterly Report on Form 10-Q/A for
the period ended September 30, 2003). RWE beneficially owns the 16,622,932
shares through its wholly-owned subsidiary Power. Upon closing of the private
placement reported on by this Amendment No. 5, RWE does not expect to
beneficially own any shares of the Issuer's Common Stock.
4
Paragraph (c) of Item 5 of the Schedule 13D is hereby amended and
supplemented by deleting the first sentence of such paragraph and replacing
such sentence with the following:
Other than the agreement to sell Power's remaining 16,622,932 shares
of the Issuer's Common Stock in conjunction with the private placement
reported on by this Amendment No. 5, there has been no transaction in the
Common Stock effected by RWE or its subsidiaries within the past sixty days.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer
Item 6 of the Schedule 13D is hereby amended and supplemented by
deleting the third paragraph of such Item and replacing such paragraph with
the following:
In connection with the private placements described in Item 4,
including the private placement reported on by this Amendment No. 5, Power has
entered into the Placement Agreement, the Option Agreement, the Second
Placement Agreement and the Third Placement Agreement.
Item 7. Materials to be Filed as Exhibits
Item 7 of the Schedule 13D is hereby amended and supplemented by
adding the following Exhibit to such Item:
Exhibit 7 Third Placement Agreement dated February 13, 2004, among Power, the
Issuer and the placement agent.
5
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: February 13, 2004
RWE AKTIENGESELLSCHAFT,
By ____________________________________
Name: Georg Lambertz
Title: Vice President Finance
By ____________________________________
Name: Andreas G. Zetzsche
Title: Vice President Mergers and Acquisitions