AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 21, 2003
REGISTRATION NO. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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PEABODY ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-4004153
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Address of principal executive offices) (Zip Code)
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1998 STOCK PURCHASE AND OPTION PLAN FOR KEY EMPLOYEES
OF PEABODY ENERGY CORPORATION
(Full title of the Plan)
JEFFERY L. KLINGER, ESQ.
PEABODY ENERGY CORPORATION
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (314) 342-3400
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CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Title of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of Registration
be Registered Offering Price Per Aggregate Offering Fee
Registered Share(1) Price(1)
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Common Stock, $0.01
par value . . . . 5,261,073 shares $30.31 $159,463,123 $12,901
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Preferred Stock
Purchase Rights(2) 5,261,073 shares $30.31 $159,463,123 $12,901
===========================================================================================================================
(1) Estimated solely for purposes of computing the Registration Fee
pursuant to the provisions of Rule 457(h)(1), based upon the average of
the high and low sale prices of the common stock, $0.01 par value, of
the Registrant, as reported on the New York Stock Exchange on May 19,
2003.
(2) The preferred stock purchase rights initially will trade together with
the common stock. The value attributable to the preferred stock
purchase rights, if any, is reflected in the offering price of the
common stock.
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement also covers an indeterminate amount of
interests to be offered pursuant to the plan described herein.
The undersigned Registrant and the 1998 Stock Purchase and Option Plan
for Key Employees of Peabody Energy Corporation hereby file this Registration
Statement on Form S-8 to register 5,261,073 shares of Peabody Energy Corporation
common stock, $0.01 par value per share, and the related preferred share
purchase rights, for issuance to participants under the 1998 Stock Purchase and
Option Plan for Key Employees of Peabody Energy Corporation.
PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference:
(i) the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 2002, filed with the SEC on March 7,
2003;
(ii) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2003, filed with the SEC on May 13, 2003;
(iii) the Registrant's Current Reports on Form 8-K filed with the
SEC on January 17, 2003, February 27, 2003, March 10, 2003,
March 17, 2003, April 10, 2003 and May 5, 2003;
(iv) the Registrant's Definitive Proxy Statement on Schedule 14A,
filed with the SEC on April 2, 2003; and
(v) the description of the Registrant's Capital Stock contained in
the Registrant's Registration Statement on Form S-3, filed
with the SEC on January 15, 2003, and any amendment or report
filed for the purposes of updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, after the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be made a part
hereof from the date of filing of such documents. Any statements contained
herein or in a document incorporated herein by reference shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in a subsequently filed document incorporated herein
by reference modifies or supersedes such document. Any statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
Where any document or part thereof is incorporated by reference in this
Registration Statement, the Registrant will provide without charge to each
person to whom a Prospectus with respect to the Plan is delivered, upon written
or oral request of such person, a copy of any and all of the information
incorporated by reference in this Registration Statement, excluding exhibits
unless such exhibits are specifically incorporated by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Jeffery L. Klinger, esq. is also an executive officer of the Registrant
and is an owner of the Registrant's common stock in an amount in excess of
$50,000.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that, among
other things, a corporation may indemnify directors and officers as well as
other employees and agents of the corporation against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement in connection
with specified actions, suits or proceedings, whether civil, criminal,
administrative or investigative (other than action by or in the right of the
corporation, a "derivative action"), if they acted in good faith and in a manner
they reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
Article Sixth of the Registrant's third amended and restated
certificate of incorporation and Article IV of the Registrant's amended and
restated by-laws require indemnification to the fullest extent permitted by
Delaware law. The Registrant has also obtained officers' and directors'
liability insurance which insures against liabilities that officers and
directors of the Registrant, in such capacities, may incur. The Registrant's
amended and restated certificate of incorporation requires the advancement of
expenses incurred by officers or directors in relation to any action, suit or
proceeding.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duties as a director,
except for liability (i) for any transaction from which the director derives an
improper personal benefit, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law (certain illegal
distributions) or (iv) for any breach of a director's duty of loyalty to the
corporation or its stockholders. Article Sixth of the Registrant's third amended
and restated certificate of incorporation includes such a provision.
In connection with the Registrant's existing indemnification procedures
and policies and the rights provided for by its third amended and restated
certificate of incorporation and amended and restated by-laws, the Registrant
has executed indemnification agreements with its directors and certain senior
executive officers. Pursuant to those agreements, to the fullest extent
permitted by the laws of the State of Delaware, the Registrant has agreed to
indemnify those persons against any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that the indemnified person is or was or has agreed to serve
at the request of the Registrant as a director, officer, employee or agent of
the Registrant, or while serving as a director or officer of the Registrant, is
or was serving or has agreed to serve at the request of the Registrant as a
director, officer, employee or agent (which, for purposes of the indemnification
agreements, includes a trustee, partner, manager or a position of similar
capacity) of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, or by reason of any action alleged to have
been taken or omitted in such capacity. The indemnification provided by these
agreements is from and against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the
indemnified person or on his or her behalf in connection with the action, suit
or proceeding and any appeal therefrom, but shall only be provided if the
indemnified person acted in good faith and in a manner the indemnified person
reasonably believed to be in or not opposed to the best interests of the
Registrant, and with respect to any criminal action, suit or proceeding, had no
reasonable cause to believe the indemnified person's conduct was unlawful.
3
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index on page 8 hereof.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers and
sales are being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this
registration statement (or the most recent post-effective
amendment thereof), which, individually or in the aggregate,
represent a fundamental change in the information set forth in
this registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with
respect to the plan of distribution previously disclosed in
this registration statement or any material change to such
information in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if this
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating
to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of St. Louis, State of
Missouri, as of the 21st day of May, 2003.
PEABODY ENERGY CORPORATION
By /s/ Irl F. Engelhardt
------------------------
Irl F. Engelhardt
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Irl F. Engelhardt, Richard A.
Navarre and Jeffery L. Klinger, and each of them, the undersigned's true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the undersigned and in the undersigned's name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8 with
respect to the 1998 Stock Purchase and Option Plan for Key Employees of Peabody
Energy Corporation, and to file the same, with exhibits and any and all other
documents filed with respect thereto, with the Securities and Exchange
Commission (or any other governmental or regulatory authority), granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to
do and to perform each and every act and thing requisite and necessary to be
done in ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their substitute or substitutes may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Irl F. Engelhardt Chairman, Chief Executive Officer May 21, 2003
--------------------------------- and Director
Irl F. Engelhardt (PRINCIPAL EXECUTIVE OFFICER)
/s/ Richard A. Navarre Executive Vice President and Chief May 21, 2003
--------------------------------- Financial Officer
Richard A. Navarre (PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER)
/s/ Bernard J. Duroc-Danner Director May 21, 2003
---------------------------------
Bernard J. Duroc-Danner
/s/ Roger H. Goodspeed Director May 21, 2003
---------------------------------
Roger H. Goodspeed
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ William E. James Director May 21, 2003
---------------------------------
William E. James
/s/ Robert B. Karn III Director May 21, 2003
---------------------------------
Robert B. Karn III
/s/ Henry E. Lentz Director May 21, 2003
---------------------------------
Henry E. Lentz
/s/ William C. Rusnack Director May 21, 2003
---------------------------------
William C. Rusnack
/s/ Blanche M. Touhill Director May 21, 2003
---------------------------------
Blanche M. Touhill
/s/ Sandra Van Trease Director May 21, 2003
---------------------------------
Sandra Van Trease
/s/ Alan H. Washkowitz Director May 21, 2003
---------------------------------
Alan H. Washkowitz
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EXHIBIT INDEX
EXHIBIT NO.
4.1 Third Amended and Restated Certificate of Incorporation of the
Registrant (Incorporated by reference to Exhibit 3.1 of the
Registrant's Form S-1 Registration Statement No. 333-55412).
4.2 Amended and Restated By-Laws of the Registrant (Incorporated
by reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended September 30, 2002,
filed on November 14, 2002).
4.3 Certificate of Designations of Series A Junior Participating
Preferred Stock of the Registrant, filed with the Secretary of
State of the State of Delaware on July 24, 2002 (Incorporated
by reference to Exhibit 3.1 to the Registrant's Registration
Statement on Form 8-A, filed on July 24, 2002).
4.4 Specimen of stock certificate representing the Registrant's
common stock, $.01 par value (Incorporated by reference to
Exhibit 4.13 of the Registrant's Form S-1 Registration
Statement No. 333-55412).
4.5 Stockholders' Agreement dated as of May 19, 1998 among the
Registrant, Lehman Brothers Merchant Banking Partners II L.P.,
Lehman Brothers Offshore Investment Partners II L.P., LB I
Group Inc., Lehman Brothers Capital Partners III, L.P., Lehman
Brothers Capital Partners IV, L.P., Lehman Brothers MBG
Partners 1998 (A) L.P. and certain members of the Registrant's
management (Incorporated by reference to Exhibit 4.14 of the
Registrant's Form S-1 Registration Statement No. 333-55412).
4.6 Stockholders' Agreement dated as of July 23, 1998 among the
Registrant, Lehman Brothers Merchant Banking Partners II L.P.,
Lehman Brothers Offshore Investment Partners II L.P., LB I
Group Inc., Lehman Brothers Capital Partners III, L.P., Lehman
Brothers Capital Partners IV, L.P., Lehman Brothers MBG
Partners 1998 (A) L.P., Co-Investment Partners, L.P., The
Mutual Life Insurance Company of New York and Finlayson
Investments Pte Ltd. (Incorporated by reference to Exhibit
4.15 of the Registrant's Form S-1 Registration Statement No.
333-55412).
4.7 Registration Rights Agreement, dated as of December 2001,
among the Registrant, Lehman Brothers Merchant Banking
Partners II L.P., Lehman Brothers Offshore Investment Partners
II L.P., LB I Group Inc., Lehman Brothers Capital Partners III
L.P., Lehman Brothers Capital Partners IV L.P., Lehman
Brothers MBG Partners (A) L.P., Lehman Brothers MBG Partners
(B) L.P. and Lehman MBG Partners (C) L.P. (Incorporated by
reference to Exhibit 4.16 of the Registrant's Form 10-K for
the nine months ended December 31, 2001).
4.8 Rights Agreement, dated as of July 24, 2002, between the
Registrant and EquiServe Trust Company, N.A., as Rights Agent
(which includes the form of Certificate of Designations of
Series A Junior Preferred Stock of the Registrant as Exhibit
A, the form of Right Certificate as Exhibit B and the Summary
of Rights to Purchase Preferred Shares as Exhibit C)
(Incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form 8-A, filed on July 24, 2002).
4.9 1998 Stock Purchase and Option Plan for Key Employees of the
Peabody Energy Corporation.
5.1 Opinion of Jeffery L. Klinger, Esq. as to the legality of the
securities being registered.
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EXHIBIT NO.
23.1 Consent of Jeffery L. Klinger, Esq. (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Power of Attorney (set forth on signature page hereto).
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