AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 2001
REGISTRATION NO. 333-______
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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
incorporation or organization) Identification Number)
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
(Address of principal executive offices) (Zip Code)
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PEABODY ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
(Full title of the Plan)
JEFFERY L. KLINGER, ESQ.
PEABODY ENERGY CORPORATION
701 MARKET STREET
ST. LOUIS, MISSOURI 63101-1826
PHONE: (314) 342-3400
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Copy to:
THOMAS A. LITZ, ESQ.
THOMPSON COBURN LLP
ONE FIRSTAR PLAZA
ST. LOUIS, MISSOURI 63101
PHONE: (314) 552-6000
FAX: (314) 552-7000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Per Aggregate Offering Amount of Registration
be Registered Registered Share(1) Price(1) Fee
------------------------- ------------------ -------------------------- ------------------------- -------------------------
Stock Units Equivalent
to Peabody Energy
Corporation Common
Stock, $.01 par value(2) 100,000 units $25.53 $2,553,000 $611
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(1) Estimated solely for purpose 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 December
11, 2001.
(2) Stock Units are issuable to participants in the Peabody Energy
Corporation Deferred Compensation Plan (the "Plan") who elect to defer
compensation and receive benefits payable in cash by the Registrant
measured by reference to the common stock, $.01 par value of the
Registrant.
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PART II
INFORMATION REQUIRED IN THIS REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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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 Reports on Form 10-Q for the
quarters ended June 30, 2001 and September 30, 2001; and
(iii) The Registrant's Current Reports on Form 8-K filed on
June 5, 2001 and July 31, 2001.
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 6. Indemnification of Directors and Officers.
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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.
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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.
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See Exhibit Index on page 8 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;
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.
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(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
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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 11th day of December, 2001.
PEABODY ENERGY CORPORATION
By /s/ Irl F. Engelhardt
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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 Energy Corporation Deferred Compensation 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
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/s/ Irl F. Engelhardt Chairman, Chief Executive December 11, 2001
--------------------------------- Officer and Director
Irl F. Engelhardt (PRINCIPAL EXECUTIVE OFFICER)
/s/ Richard M. Whiting President, Chief Operating December 11, 2001
--------------------------------- Officer and Director
Richard M. Whiting
/s/ Richard A. Navarre Executive Vice President and December 11, 2001
--------------------------------- Chief Financial Officer
Richard A. Navarre (PRINCIPAL FINANCIAL OFFICER AND
PRINCIPAL ACCOUNTING OFFICER)
/s/ Henry E. Lentz Vice President, Assistant December 11, 2001
--------------------------------- Secretary and Director
Henry E. Lentz
/s/ Roger H. Goodspeed Director December 11, 2001
---------------------------------
Roger H. Goodspeed
/s/ Alan H. Washkowitz Director December 11, 2001
---------------------------------
Alan H. Washkowitz
/s/ Bernard J. Duroc-Danner Director December 11, 2001
---------------------------------
Bernard J. Duroc-Danner
/s/ William E. James Director December 11, 2001
---------------------------------
William E. James
/s/ Felix P. Herlihy Director December 11, 2001
---------------------------------
Felix P. Herlihy
/s/ James R. Schlesinger Director December 11, 2001
---------------------------------
James R. Schlesinger
/s/ Blanche M. Touhill Director December 11, 2001
---------------------------------
Blanche M. Touhill
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The Plan. Pursuant to the requirements of the Securities Act of
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1933, as amended, the administrators of the Peabody Energy Corporation
Deferred Compensation Plan have duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, as of
the 11th day of December, 2001.
PEABODY ENERGY CORPORATION
DEFERRED COMPENSATION PLAN
By: /s/ Sharon D. Fiehler
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Sharon D. Fiehler, Administrator
By: /s/ Julie A. Nadolny
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Julie A. Nadolny, Administrator
By: /s/ Sara E. Wade
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Sara E. Wade, Administrator
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EXHIBIT INDEX
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EXHIBIT NO.
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4.1 Peabody Energy Corporation Deferred Compensation Plan.
5.1 Opinion of Thompson Coburn LLP as to the legality of the
securities being registered.
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).
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