AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 3, 2001
REGISTRATION NO. 333-______
===============================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
PEABODY ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 13-4004153
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Address of principal executive offices) (Zip Code)
----------------------
PEABODY HOLDING COMPANY, INC.
EMPLOYEE RETIREMENT ACCOUNT
AND
LEE RANCH COAL COMPANY RETIREMENT AND
SAVINGS PLAN FOR SALARIED EMPLOYEES
AND
LEE RANCH COAL COMPANY RETIREMENT AND
SAVINGS PLAN FOR HOURLY EMPLOYEES
AND
WESTERN SURFACE AGREEMENT-UMWA 401(k) PLAN
(Full titles of the Plans)
JEFFERY L. KLINGER, ESQ.
PEABODY ENERGY CORPORATION
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
PHONE: (314) 342-3400
----------------------
Copy to:
THOMAS A. LITZ, ESQ.
THOMPSON COBURN LLP
ONE FIRSTAR PLAZA
ST. LOUIS, MISSOURI 63101
PHONE: (314) 552-6000
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Offering Amount of Registration
Registered Registered(1) Per Share(2) Price(2) Fee
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Common Stock, $0.01 par
value . . . . 200,000 shares $23.60 $4,720,000 $1,180
===========================================================================================================================
(1) Includes an indeterminate amount of plan interests pursuant to Rule 416(c).
(2) Estimated solely for purposes of computing the Registration Fee pursuant
to the provisions of Rule 457(h), 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 September 27, 2001.
===============================================================================
The undersigned Registrant hereby files this Registration Statement
on Form S-8 (this "Registration Statement") with respect to making available
for investment by participants under the Peabody Holding Company, Inc.
Employee Retirement Account, the Lee Ranch Coal Company Retirement and
Savings Plan for Salaried Employees, the Lee Ranch Coal Company Retirement
and Savings Plan for Hourly Employees and the Western Surface Agreement-UMWA
401(k) Plan (collectively, the "Plans") up to 200,000 shares of Peabody
Energy Corporation (the "Registrant") common stock, $0.01 par value (the
"Common Stock"), to be purchased in the open market.
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 March 31, 2001, as amended by Form 10-K/A,
dated July 3, 2001;
(ii) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended June 30, 2001;
(iii) The Registrant's Current Report on Form 8-K filed on July
31, 2001; and
(iv) The description of the Registrant's Common Stock contained
in the Registrant's Registration Statement on Form S-1,
filed on February 12, 2001, 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 any of the Plans 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 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
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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 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
Eleven of the Registrant's amended and restated certificate of incorporation
includes such a provision.
Item 8. Exhibits.
--------
See Exhibit Index on page 9 hereof.
Item 9. Undertakings.
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(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;
(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;
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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.
(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 28th day of September, 2001.
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 Peabody Holding Company, Inc. Employee Retirement Account,
the Lee Ranch Coal Company Retirement and Savings Plan for Salaried
Employees, the Lee Ranch Coal Company Retirement and Savings Plan for Hourly
Employees and the Western Surface Agreement-UMWA 401(k) Plan, 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.
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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 September 28, 2001
--------------------------------- Officer and Director
Irl F. Engelhardt (PRINCIPAL EXECUTIVE OFFICER)
/s/ Richard M. Whiting President, Chief Operating September 28, 2001
--------------------------------- Officer and Director
Richard M. Whiting
/s/ Richard A. Navarre Executive Vice President and September 28, 2001
--------------------------------- Chief Financial Officer
Richard A. Navarre (PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER)
/s/ Henry E. Lentz Vice President, Assistant September 28, 2001
--------------------------------- Secretary and Director
Henry E. Lentz
/s/ Roger H. Goodspeed Director September 28, 2001
---------------------------------
Roger H. Goodspeed
/s/ Alan H. Washkowitz Director September 28, 2001
---------------------------------
Alan H. Washkowitz
/s/ Bernard J. Duroc-Banner Director September 28, 2001
---------------------------------
Bernard J. Duroc-Banner
/s/ William E. James Director September 28, 2001
---------------------------------
William E. James
/s/ Charles W. Mueller Director September 28, 2001
---------------------------------
Charles W. Mueller
/s/ Felix Herlihy Director September 28, 2001
---------------------------------
Felix Herlihy
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The Plans. Pursuant to the requirements of the Securities Act of
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1933, as amended, the administrators of the Peabody Holding Company, Inc.
Employee Retirement Account have duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized,
as of the 3rd day of October, 2001.
PEABODY HOLDING COMPANY, INC.
EMPLOYEE RETIREMENT ACCOUNT
By: /s/ Richard M. Whiting
--------------------------------------
Richard M. Whiting, Administrator
By: /s/ Roger B. Walcott, Jr.
--------------------------------------
Roger B. Walcott, Jr., Administrator
By: /s/ Jeffery L. Klinger
--------------------------------------
Jeffery L. Klinger, Administrator
By: /s/ Sharon D. Fiehler
--------------------------------------
Sharon D. Fiehler, Administrator
Pursuant to the requirements of the Securities Act of 1933, as
amended, the administrators of the Lee Ranch Coal Company Retirement and
Savings Plan for Salaried Employees have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, as of the 3rd day of October, 2001.
LEE RANCH COAL COMPANY
RETIREMENT AND SAVINGS PLAN FOR
SALARIED EMPLOYEES
By: /s/ Steven W. Dylla
--------------------------------------
Steven W. Dylla, Administrator
By: /s/ Sharon D. Fiehler
--------------------------------------
Sharon D. Fiehler, Administrator
By: /s/ Janis K. Johnston
--------------------------------------
Janis K. Johnston, Administrator
By: /s/ Edward L. Sullivan
--------------------------------------
Edward L. Sullivan, Administrator
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Pursuant to the requirements of the Securities Act of 1933, as
amended, the administrators of the Lee Ranch Coal Company Retirement and
Savings Plan for Hourly Employees have duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, as of the 3rd day of October, 2001.
LEE RANCH COAL COMPANY
RETIREMENT AND SAVINGS PLAN FOR
HOURLY EMPLOYEES
By: /s/ Steven W. Dylla
---------------------------------------
Steven W. Dylla, Administrator
By: /s/ Sharon D. Fiehler
---------------------------------------
Sharon D. Fiehler, Administrator
By: /s/ Janis K. Johnston
---------------------------------------
Janis K. Johnston, Administrator
By: /s/ Edward L. Sullivan
---------------------------------------
Edward L. Sullivan, Administrator
Pursuant to the requirements of the Securities Act of 1933, as
amended, the administrators of the Western Surface Agreement-UMWA 401(k)
Plan have duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, as of the 3rd day of October,
2001.
WESTERN SURFACE AGREEMENT-UMWA
401(k) PLAN
By: Peabody Western Coal Company,
Administrator
By: /s/ Steven F. Schaab
--------------------------------------
Steven F. Schaab, Vice President
By: Seneca Coal Company,
Administrator
By: /s/ Steven F. Schaab
--------------------------------------
Steven F. Schaab, Vice President
By: Big Sky Coal Company,
Administrator
By: /s/ Steven F. Schaab
--------------------------------------
Steven F. Schaab, Vice President
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EXHIBIT INDEX
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EXHIBIT NO.
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4.1 Third Amended and Restated Certificate of Incorporation of
Peabody Energy Corporation (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 Peabody Energy Corporation
(Incorporated by reference to Exhibit 3.2 of the
Registrant's Form S-1 Registration Statement No. 333-55412).
4.3 Senior Note Indenture dated as of May 18, 1998 between the
Registrant and State Street Bank and Trust Company, as
Senior Note Trustee (Incorporated by reference to Exhibit
4.1 of the Registrant's Form S-4 Registration Statement
No. 333-59073).
4.4 Senior Subordinated Note Indenture dated as of May 18, 1998
between the Registrant and State Street Bank and Trust
Company, as Senior Subordinated Note Trustee (Incorporated
by reference to Exhibit 4.2 of the Registrant's Form S-4
Registration Statement No. 333-59073).
4.5 First Supplemental Senior Note Indenture dated as of May 19,
1998 among the Guaranteeing Subsidiary (as defined therein),
the Registrant, the other Senior Note Guarantors (as defined
in the Senior Note Indenture) and State Street Bank and
Trust Company, as Senior Note Trustee (Incorporated by
reference to Exhibit 4.3 of the Registrant's Form S-4
Registration Statement No. 333-59073).
4.6 First Supplemental Senior Subordinated Note Indenture dated
as of May 19, 1998 among the Guaranteeing Subsidiary (as
defined therein), the Registrant, the other Senior
Subordinated Note Guarantors (as defined in the Senior
Subordinated Note Indenture) and State Street Bank and
Trust Company, as Senior Subordinated Note Trustee
(Incorporated by reference to Exhibit 4.4 of the
Registrant's Form S-4 Registration Statement No. 333-59073).
4.7 Notation of Senior Subsidiary Guarantee dated as of May 19,
1998 among the Senior Note Guarantors (as defined in the
Senior Note Indenture) (Incorporated by reference to Exhibit
4.5 of the Registrant's Form S-4 Registration Statement No.
333-59073).
4.8 Notation of Subordinated Subsidiary Guarantee dated as of
May 19, 1998 among the Senior Note Guarantors (as defined in
the Senior Subordinated Note Indenture) (Incorporated by
reference to Exhibit 4.6 of the Registrant's Form S-4
Registration Statement No. 333-59073).
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EXHIBIT NO.
-----------
4.9 Senior Note Registration Rights Agreement dated as of May
18, 1998 between the Registrant and Lehman Brothers Inc.
(Incorporated by reference to Exhibit 4.7 of the
Registrant's Form S-4 Registration Statement No. 333-59073).
4.10 Senior Subordinated Note Registration Rights Agreement dated
as of May 18, 1998 between the Registrant and Lehman
Brothers Inc. (Incorporated by reference to Exhibit 4.8 of
the Registrant's Form S-4 Registration Statement No.
333-59073).
4.11 Second Supplemental Senior Note Indenture dated as of
December 31, 1998 among the Guaranteeing Subsidiary (as
defined therein), the Registrant, the other Senior Note
Guarantors (as defined in the Senior Note Indenture) and
State Street Bank and Trust Company, as Senior Note Trustee
(Incorporated by reference to Exhibit 4.9 of the
Registrant's Form 10-Q for the quarter ended December 31,
1999).
4.12 Second Supplemental Senior Subordinated Note Indenture dated
as of December 31, 1998 among the Guaranteeing Subsidiary
(as defined therein), the Registrant, the other Senior
Subordinated Note Guarantors (as defined in the Senior
Subordinated Note Indenture) and State Street Bank and Trust
Company, as Senior Subordinated Note Trustee (Incorporated
by reference to Exhibit 4.10 of the Registrant's Form 10-Q
for the quarter ended December 31, 1999).
4.13 Third Supplemental Senior Note Indenture dated as of June
30, 1999 among the Guaranteeing Subsidiary (as defined
therein), the Registrant, the other Senior Note Guarantors
(as defined in the Senior Note Indenture) and State Street
Bank and Trust Company, as Senior Note Trustee (Incorporated
by reference to Exhibit 4.11 of the Registrant's Form 10-Q
for the quarter ended December 31, 1999).
4.14 Third Supplemental Senior Subordinated Note Indenture dated
as of June 30, 1999 among the Guaranteeing Subsidiary (as
defined therein), the Registrant, the other Senior
Subordinated Note Guarantors (as defined in the Senior
Subordinated Note Indenture) and State Street Bank and Trust
Company, as Senior Subordinated Note Trustee (Incorporated
by reference to Exhibit 4.12 of the Registrant's Form 10-Q
for the quarter ended December 31, 1999).
4.15 Fourth Supplemental Senior Note Indenture dated as of
February 16, 2000 among the Guaranteeing Subsidiary (as
defined therein), the Registrant, the other Senior Note
Guarantors (as defined in the Senior Note Indenture) and
State Street Bank and Trust Company, as Senior Note Trustee
(Incorporated by reference to Exhibit 4.13 of the
Registrant's Form S-3 Registration Statement No. 333-67250).
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EXHIBIT NO.
-----------
4.16 Fourth Supplemental Senior Subordinated Note Indenture dated
as of February 16, 2000 among the Guaranteeing Subsidiary
(as defined therein), the Registrant, the other Senior
Subordinated Note Guarantors (as defined in the Senior
Subordinated Note Indenture) and State Street Bank and Trust
Company, as Senior Subordinated Note Trustee (Incorporated
by reference to Exhibit 4.14 of the Registrant's Form S-3
Registration Statement No. 333-67250).
4.17 Fifth Supplemental Senior Note Indenture dated as of March
27, 2000 among the Guaranteeing Subsidiary (as defined
therein), the Registrant, the other Senior Note Guarantors
(as defined in the Senior Note Indenture) and State Street
Bank and Trust Company, as Senior Note Trustee (Incorporated
by reference to Exhibit 4.15 of the Registrant's Form S-3
Registration Statement No. 333-67250).
4.18 Fifth Supplemental Senior Subordinated Note Indenture dated
as of March 27, 2000 among the Guaranteeing Subsidiary
(as defined therein), the Registrant, the other Senior
Subordinated Note Guarantors (as defined in the Senior
Subordinated Note Indenture) and State Street Bank and Trust
Company, as Senior Subordinated Note Trustee (Incorporated
by reference to Exhibit 4.16 of the Registrant's Form S-3
Registration Statement No. 333-67250).
4.19 Specimen of stock certificate representing Peabody Energy
Corporation'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).
5.1 Opinion of Thompson Coburn LLP as to the legality of the
securities being registered.
5.2 Internal Revenue Service determination letter that the
Peabody Holding Company, Inc. Employee Retirement Account
is qualified under Section 401 of the Internal Revenue
Code.
5.3 Internal Revenue Service determination letter that the Lee
Ranch Coal Company Retirement and Savings Plan for
Salaried Employees is qualified under Section 401 of the
Internal Revenue Code.
5.4 Internal Revenue Service determination letter that the Lee
Ranch Coal Company Retirement and Savings Plan for Hourly
Employees is qualified under Section 401 of the Internal
Revenue Code.
5.5 Internal Revenue Service determination letter that the
Western Surface Agreement-UMWA 401(k) Plan is qualified
under Section 401 of the Internal Revenue Code.
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23.1 Consent of Thompson Coburn LLP (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).
99.1 Peabody Holding Company, Inc. Employee Retirement Account.
99.2 Lee Ranch Coal Company Retirement and Savings Plan for
Salaried Employees.
99.3 Lee Ranch Coal Company Retirement and Savings Plan for
Hourly Employees.
99.4 Western Surface Agreement-UMWA 401(k) Plan.
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