-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SRUwgQREclW/gaCAklNGOtOCcPbkqOjUNn3pdP6bB9ciHGL0sgOVEyF/KAahC8ox R6RfdFO+KRW4duY5n6wAhQ== 0000950123-03-006388.txt : 20030521 0000950123-03-006388.hdr.sgml : 20030521 20030521164036 ACCESSION NUMBER: 0000950123-03-006388 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20030521 EFFECTIVENESS DATE: 20030521 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PEABODY ENERGY CORP CENTRAL INDEX KEY: 0001064728 STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE SURFACE MINING [1221] IRS NUMBER: 134004153 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-105455 FILM NUMBER: 03714803 BUSINESS ADDRESS: STREET 1: 701 MARKET ST CITY: ST LOUIS STATE: MO ZIP: 63101-1826 BUSINESS PHONE: 3143423400 MAIL ADDRESS: STREET 1: 701 MARKET ST CITY: ST LOUIS STATE: MO ZIP: 63101-1826 FORMER COMPANY: FORMER CONFORMED NAME: P&L COAL HOLDINGS CORP DATE OF NAME CHANGE: 19980623 S-8 1 y86940sv8.txt PEABODY ENERGY CORPORATION 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 ---------------------- 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 Identification Number) incorporation or organization) 701 MARKET STREET ST. LOUIS, MISSOURI 63101-1826 (Address of principal executive offices) (Zip Code) ---------------------- 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 ---------------------- 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) - --------------------------------------------------------------------------------------------------------------------------- Common Stock, $0.01 par value . . . . 5,261,073 shares $30.31 $159,463,123 $12,901 - --------------------------------------------------------------------------------------------------------------------------- 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. 2 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. 4 (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. 5 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
6
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
7 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. 8 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). 9 EX-4.9 3 y86940exv4w9.txt 1998 STOCK PURCHASE AND OPTION PLAN EXHIBIT 4.9 1998 STOCK PURCHASE AND OPTION PLAN FOR KEY EMPLOYEES OF P&L COAL HOLDINGS CORPORATION 1 Purpose of Plan The 1998 Stock Purchase and Option Plan for Key Employees of P&L Coal Holdings Corporation and Subsidiaries (the "Plan") is designed: (a) to promote the long term financial interests and growth of P&L Coal Holdings Corporation (the "Company") and its subsidiaries by attracting and retaining management personnel with the training, experience and ability to enable them to make a substantial contribution to the success of the Company's business; (b) to motivate management personnel by means of growth-related incentives to achieve long range goals; and (c) to further the alignment of interests of participants with those of the stockholders of the Company through opportunities for increased stock, or stock-based, ownership in the Company. 2 Definitions As used in the Plan, the following words shall have the following meanings: (a) "Active Trading Market" shall mean, as to the Company's Common Stock, that the Company's Common Stock is listed or quoted on a national exchange or the NASDAQ National Market. (b) "Board of Directors" shall mean the Board of Directors of the Company. (c) "Change of Control" shall mean an acquisition of all or substantially all of the direct and indirect assets of the Company and its Subsidiaries (by merger, consolidation, recapitalization event, stock or asset sale or otherwise), whereby immediately following any such transaction (i) the Lehman Fund owns, in the aggregate, less than 50 percent of the Company's outstanding voting securities that the Lehman Fund owned (excluding the sell down of approximately $75 million anticipated to occur after the Closing Date or (ii) any Person individually owns more of the Company's then outstanding voting securities entitled to vote generally than is owned in the aggregate by the Lehman Fund and its affiliates. (d) "Class B Stock" shall mean the $.01 par value Company stock which shall have voting rights and other attributes similar to Common Stock, except that Common Stock will have a liquidation preference. Class B Stock shall be converted to Common Stock upon a Change of Control, an IPO or a Recapitalization Event. (e) "Closing Date" shall mean May 19, 1998. (f) "Code" shall mean the Internal Revenue Code of 1986, as amended. (g) "Committee" shall mean the Compensation Committee of the Board of Directors. (h) "Common Stock" shall mean the $.01 par value common stock of the Company which may be authorized but unissued, or issued and reacquired. (i) "Employee" shall mean a person, including an officer, in the regular full-time employment of the Company or one of its Subsidiaries who, in the opinion of the Committee, is, or is expected to be, involved with the management, growth or protection of some part or all of the business of the Company. (j) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended. (k) "Fair Market Value" shall mean (i) prior to a Public Offering, the fair market value of the equity of the Company, as determined by the Board of Directors in good faith, taking into account all relevant factors, including the Company's historic financial performance, its business prospects and recent sales or valuations of similar companies; (ii) after a Public Offering, the average of the closing prices of the shares of Common Stock for the 20 trading days immediately preceding the determination date; provided, however, at the time of the Public Offering, the offering price per share of Common Stock; and (iii) notwithstanding the foregoing, in the event of a Change in Control, the per share value of equity based on amounts paid in the Change of Control. (l) "Grant" shall mean an award made to a Participant under this Plan, including an award of Options and/or Purchase Stock, as such term is defined in paragraph 5(b) hereof. (m) "Grant Agreement" shall mean an agreement between the Company and a Participant that sets forth the terms, conditions and limitations applicable to Grants pursuant to the Plan. (n) "Lehman Fund" shall mean the initial purchasers listed on the signature pages to the Stockholders Agreement dated as of the Closing Date between the Participant and the Company and any other entity owned or controlled directly or indirectly by Lehman Brothers Holdings, Inc. (o) "Option" shall mean an option to purchase shares of the Common Stock which may be an "Incentive Stock Option" or a "Non-Qualified Stock Option", as such terms are defined in paragraph 5(a) hereof. (p) "Participant" shall mean an Employee, or other person having a relationship with the Company or one of its Subsidiaries, to whom one or more Grants have been made and such Grants have not all been forfeited or terminated under the Plan, or a person to whom such Grant was transferred pursuant to a trust provided for by the Grant Agreement; provided, however, that a non-employee director of the Company or one of its Subsidiaries may not be a Participant. (q) "Person" shall mean an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature. (r) "Public Offering" shall mean the sale of shares of any class of the Company's stock to the public pursuant to an effective registration statement (other than a registration statement on Form S-4 or S-8 or any similar or successor form) filed under the Securities Act of 1933 which results in an Active Trading Market of the lesser of 25% of the outstanding shares of Common Stock and an aggregate value of outstanding securities that are registered equal to $250 million; provided, however, that the first such Public Offering shall be called an "IPO". (s) "Share" shall mean Common Stock or Class B Stock, as the case may be. (t) "Subsidiary" shall mean any corporation in an unbroken chain of corporations beginning with the Company if each of the corporations, or group of commonly controlled corporations, other than the last corporation in the unbroken chain then owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in such chain. 3 Administration of Plan (a) The Plan shall be administered by the Committee; provided, however, that the members of the Committee shall qualify to administer the Plan for purposes of Rule 16b-3 (and any other applicable rule) promulgated under Section 16(b) of the Exchange Act to the extent that the Company is subject to such rule. The Committee may adopt its own rules of procedure, and action of a majority of the members of the Committee taken at a meeting, or action taken without a meeting by unanimous written consent, shall constitute action by the Committee. The Committee shall have the power and authority to administer, construe and interpret the Plan, to make rules for carrying it out and to make changes in such rules. Any such interpretations, rules and administration shall be consistent with the basic purposes of the Plan. 2 (b) The Committee may delegate to the Chief Executive Officer and to other senior officers of the Company its duties under the Plan subject to such conditions and limitations as the Committee shall prescribe, except that only the Committee may designate and make Grants to Participants who are subject to Section 16 of the Exchange Act. (c) The Committee may employ attorneys, consultants, accountants, appraisers, brokers or other persons. The Committee, the Company, and the officers and directors of the Company shall be entitled to rely upon the advice, opinions or valuations of any such persons. All actions taken and all interpretations and determinations made by the Committee in good faith shall be final and binding upon all Participants, the Company and all other interested persons. No member of the Committee shall be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or Grants, and all members of the Committee shall be fully protected by the Company with respect to any such action, determination or interpretation. 4 Eligibility The Committee may from time to time make Grants under the Plan to such Employees, or other persons having a relationship with the Company or any of its Subsidiaries, and in such form and having such terms, conditions and limitations as the Committee may determine consistent, however, with the terms of the Plan. Grants may be made singly, in combination or in tandem. The terms, conditions and limitations of each Grant under the Plan shall be set forth in a Grant Agreement, in a form approved by the Committee; provided, however, that such Grant Agreement shall contain provisions dealing with the treatment of Grants in the event of the termination, death or disability of a Participant, and may also include provisions concerning the treatment of Grants in the event of a Change of Control of the Company. 5 Grants (a) Stock Options - From time to time, the Committee, in its sole discretion, will determine the forms and amounts of Options to be granted to Participants. Such Options may take the following forms in the Committee's sole discretion: (i) Incentive Stock Options - These are Options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended ("Code"). In addition to other restrictions contained in the Plan, an Option granted under this Paragraph 5(a)(i), (A) may not be exercised more than 10 years after the date it is granted, (B) may not have an option price less than the Fair Market Value of Common Stock on the date the Option is granted, (C) must otherwise comply with Code Section 422, and (D) must be designated as an "Incentive Stock Option" by the Committee. The maximum aggregate Fair Market Value of Common Stock (determined at the time of grant) with respect to which Incentive Stock Options granted to any Participant under the Plan and incentive stock options granted to such Participant under any other plan maintained by the Company or a Subsidiary become first exercisable in any calendar year is $100,000. Payment of the Option price shall be made in cash or in Shares, or a combination thereof, in accordance with the terms of the Plan, the Grant Agreement, and of any applicable guidelines of the Committee in effect at the time. (ii) Non-Qualified Stock Options - These are Options which are not designated by the Committee as "Incentive Stock Options". At the time of the Grant the Committee shall determine, and shall include in the Grant Agreement or other Plan rules, the Option exercise period, the Option price, and such other conditions or restrictions on the Grant or exercise of the Option as the Committee deems appropriate. In addition to other restrictions contained in the Plan, an Option granted under this Paragraph 5(a)(ii), may not be exercised more than 10 years after the date it is granted. Payment of the Option price shall be made in cash or in Shares, or a combination thereof, in accordance with the terms of the Plan, the Grant Agreement and of any applicable guidelines of the Committee in effect at the time. Options may be granted prior to the effective date of the Plan (as determined pursuant to Paragraph 13 herein); provided, however, that no Option shall be exercisable prior to the date of the approval of the Plan by the stockholders of the Company; provided, further, that such approval will occur within 12 months of adoption of the Plan by the Board of Directors for the purpose of granting Incentive Stock Options. 3 (b) Purchase Stock - The Committee, in its sole discretion, may grant a Participant the right to purchase Class B Stock ("Purchase Stock") at such price as is determined by the Committee. 6 Limitations and Conditions (a) Subject to adjustments under Paragraphs 8 and 9 hereof, the number of shares of authorized Common Stock available under this Plan shall be 5,638,9201 shares as of the effective date of the Plan. The number of shares of authorized Class B Stock available under this Plan shall be 1,039,1752 shares as of the effective date of the Plan. Unless restricted by applicable law, Shares related to Grants that are forfeited, terminated, cancelled or expire unexercised, shall immediately become available to be subject to Grants. (b) No Grants shall be made under the Plan beyond ten years after the effective date of the Plan, but the terms of Grants made on or before the expiration of the Plan may extend beyond such expiration. At the time a Grant is made or amended or the terms or conditions of a Grant are changed, the Committee may provide for limitations or conditions on such Grant. (c) Nothing contained herein shall affect the right of the Company to terminate any Participant's employment at any time or for any reason. (d) Other than as specifically provided in the forms of Subscription Agreement and Stockholders Agreement attached hereto as Exhibits A and B with regard to the death of a Participant, no benefit under the Plan shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to do so shall be void. No such benefit shall, prior to receipt thereof by the Participant, be in any manner liable for or subject to the debts, contracts, liabilities, engagements, or torts of the Participant. (e) Participants shall not be, and shall not have any of the rights or privileges of, stockholders of the Company in respect of any Shares purchasable in connection with any Grant unless and until certificates representing any such Shares have been issued by the Company to such Participants. (f) No election as to benefits or exercise of Options may be made during a Participant's lifetime by anyone other than the Participant except by a legal representative appointed for or by the Participant. (g) Absent express provisions to the contrary, any Grant under this Plan shall not be deemed compensation for purposes of computing benefits or contributions under any retirement plan of the Company or its Subsidiaries and shall not affect any benefits under any other benefit plan of any kind now or subsequently in effect under which the availability or amount of benefits is related to level of compensation. This Plan is not a "Retirement Plan" or "Welfare Plan" under the Employee Retirement Income Security Act of 1974, as amended. (h) Unless the Committee determines otherwise, no benefit or promise under the Plan shall be secured by any specific assets of the Company or any of its Subsidiaries, nor shall any assets of the Company or any of its Subsidiaries be designated as attributable or allocated to the satisfaction of the Company's obligations under the Plan. 7 Transfers and Leaves of Absence For purposes of the Plan, unless the Committee determines otherwise: (a) a transfer of a Participant's employment without an intervening period of separation among the Company and any Subsidiary shall not be deemed a termination of employment, and (b) a Participant who is granted in writing a leave of absence shall be deemed to have remained in the employ of the Company or any Subsidiary during such leave of absence. - ---------------------------- (1) Reflects the 1.4-for-one stock split effected on May 17, 2001. 4,027,800 shares of Common Stock were originally authorized under this Plan. (2) Reflects the 1.4-for-one stock split effected on May 17, 2001. 742,268 shares of Class B stock were originally authorized under this Plan. 4 8 Adjustments In the event of any change in the outstanding Common Stock or Class B Stock by reason of a stock split, spin-off, stock dividend, stock combination or reclassification, recapitalization, consolidation or merger, Change of Control, or similar event, the Committee shall adjust appropriately the number of Shares subject to Grants under the Plan and make such other revisions as it deems are equitably required. 9 Change of Control Unless otherwise provided in the Grant Agreement, in its absolute discretion, and on such terms and conditions as it deems appropriate, coincident with or after any Grant, the Committee may provide that such Grant cannot be exercised after a Change of Control of the Company, and if the Committee so provides, it shall also provide, either by the terms of such Grant or by a resolution adopted prior to the occurrence of such Change of Control that such Grants will be cashed out at the Change of Control price or that such Grant shall be exercisable as to all Shares subject thereto prior to such Change of Control, notwithstanding anything to the contrary herein (but subject to the provisions of Paragraph 6(b)) and that, upon the occurrence of such event, such Grant shall terminate and be of no further force or effect; provided, however, that the Committee may also provide, in its absolute discretion, that even if the Grant shall remain exercisable after any such event, from and after such event, any such Grant shall be exercisable only for the kind and amount of securities and/or other property, or the cash equivalent thereof, receivable as a result of such event by the holder of a number of Shares for which such Grant could have been exercised immediately prior to such event. 10 Amendment and Termination The Committee shall have the authority to make such amendments to any terms and conditions applicable to outstanding Grants as are consistent with this Plan provided that, except for adjustments under Paragraph 8 or 9 hereof, no such action shall modify such Grant in a manner adverse to the Participant without the Participant's consent. The Board of Directors may amend, suspend or terminate the Plan except that no such action, other than an action under Paragraph 8 or 9 hereof, may be taken which would, without shareholder approval, increase the aggregate number of Shares subject to Grants under the Plan, decrease the exercise or purchase price of outstanding Grants, change the requirements relating to the Committee or extend the term of the Plan, but only to the extent such shareholder approval would be required by Rule 16b-3 at a time when the Company is subject to Section 16(b) of the Exchange Act. 11 Foreign Grants and Rights The Committee may make Grants to Employees or other persons having a relationship with the Company or one of its Subsidiaries who are subject to the laws of nations other than the United States, which Grants may have terms and conditions that differ from the terms thereof as provided elsewhere in the Plan for the purpose of complying with foreign laws. 12 Withholding Taxes The Company shall have the right to deduct from any cash payment made under the Plan any federal, state or local income or other taxes required by law to be withheld with respect to such payment. It shall be a condition to the obligation of the Company to deliver Shares upon the exercise of an Option or payment for Purchase Stock that the Participant pay to the Company such amount as may be requested by the Company for the purpose of satisfying any liability for such withholding taxes. Any Grant Agreement may provide that the Participant may elect, in accordance with any conditions set forth in such Grant Agreement, to pay a portion or all of such withholding taxes in Shares. 5 13 Effective Date and Termination Dates The Plan shall be effective on and as of the date of its approval by the stockholders of the Company and shall terminate ten years later, subject to earlier termination by the Board of Directors pursuant to Paragraph 10. 6 EX-5.1 4 y86940exv5w1.txt OPINION OF JEFFERY L. KLINGER EXHIBIT 5.1 JEFFERY L. KLINGER, ESQ. 701 Market Street St. Louis, Missouri 63101-1826 May 21, 2003 Peabody Energy Corporation 701 Market Street St. Louis, Missouri 63101-1826 Re: 1998 Stock Purchase and Option Plan for Key Employees of Peabody Energy Corporation Ladies and Gentlemen: With reference to the Registration Statement on Form S-8 (the "Registration Statement") being filed with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, on May 21, 2003, by Peabody Energy Corporation, a Delaware corporation (the "Company"), pertaining to the issuance by the Company of up to 5,261,073 shares of the Company's common stock, $.01 par value (the "Shares"), pursuant to the 1998 Stock Purchase and Option Plan for Key Employees of Peabody Energy Corporation (the "Plan"), I have examined such corporate records of the Company, such laws and such other information as I have deemed relevant, including the Company's Third Amended and Restated Certificate of Incorporation, By-Laws, and resolutions adopted by the Board of Directors relating to such issuance, the written document constituting the Plan, certificates received from state officials and statements I have received from officers and representatives of the Company. In delivering this opinion, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, the conformity to the originals of all documents submitted to me as duplicates or certified or conformed copies, the authenticity of originals of all such latter documents, and the correctness of statements submitted to me by officers and representatives of the Company. Based solely on the foregoing, I am of the opinion that: 1. The Company is duly incorporated and is validly existing under the laws of the State of Delaware; and 2. The Shares to be issued by the Company pursuant to the Plan have been duly authorized and, when issued by the Company in accordance with the Plan, will be duly and validly issued and will be fully paid and nonassessable. I consent to the filing of this opinion as an exhibit to the Registration Statement. I further consent to the filing of copies of this opinion with agencies of such states and other jurisdictions as you deem necessary in the course of complying with the laws of the states and jurisdictions regarding the sale and issuance of the Shares in accordance with the Plan. Very truly yours, Jeffery L. Klinger, Esq. EX-23.2 5 y86940exv23w2.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 (No. 333-xxxxx) pertaining to the 1998 Stock Purchase and Option Plan for Key Employees of Peabody Energy Corporation of our report dated January 18, 2003, with respect to the consolidated financial statements and schedule of Peabody Energy Corporation included in its Annual Report on Form 10-K for the year ended December 31, 2002, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP St. Louis, Missouri May 20, 2003 -----END PRIVACY-ENHANCED MESSAGE-----