Arch Coal, Inc. Amendment No. 1 Form SC TO-I/A
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or
13(e)(1)
of the Securities Exchange Act of 1934
(Amendment No. 1)
Arch Coal, Inc.
(Name of Subject Company (Issuer) and Filing Person (Offeror))
5% Perpetual Cumulative Convertible Preferred Stock
(Liquidation Preference $50.00 Per Share)
(Title of Class of Securities)
039380 20 9
(CUSIP Number of Class of Securities)
Robert G. Jones
Vice President – Law, General Counsel and Secretary
Arch Coal, Inc.
One CityPlace Drive, Suite 300
St. Louis, Missouri 61341
(314) 994-2700
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications on Behalf of Filing
Persons)
with a copy to:
Ronald D. West
Kirkpatrick & Lockhart Nicholson Graham LLP
Henry W. Oliver Building
535 Smithfield Street
Pittsburgh, Pennsylvania 15222-2312
(412) 355-6500
CALCULATION OF FILING FEE:
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Amount of Filing Fee |
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$10,062,246
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$1,076.66
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(1) Estimated solely for the purpose of calculating the
registration fee based on the product of (i) $75.15, which
is the average of high and low prices per share of Arch Coal,
Inc.’s Common Stock, $.01 par value, as reported on the New
York Stock Exchange on November 29, 2005, and
(ii) 134,522 shares of Arch Coal, Inc.’s Common Stock,
which represents the maximum number of shares of Arch Coal,
Inc.’s Common Stock that may be issued as the premium
pursuant to the conversion offer, if the conversion offer
expired on November 30, 2005, upon the conversion of up to
2,874,926 shares of Arch Coal’s 5% Perpetual
Cumulative Convertible Preferred Stock (Liquidation Preference
$50.00 Per Share) validly tendered and accepted for conversion
in the conversion offer.
x Check the box if any part
of the fee is offset as provided by Rule 0-11(a)(2) and
identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
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Amount Previously Paid:
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$1,076.66
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Form or Registration No.:
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Schedule TO
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Filing Party:
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Arch Coal, Inc.
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Date Filed:
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December 1, 2005
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o Check the box if the filing
relates solely to preliminary communications made before the
commencement of a tender offer.
Check the appropriate box(es) below to designate any
transactions to which the statement relates:
o third-party tender offer
subject to Rule 14d-1.
x issuer tender offer subject
to Rule 13e-4.
o going-private transaction
subject to Rule 13e-3.
o amendment to
Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment
reporting the results of the tender offer:
o
i
This Amendment No. 1 to the Tender Offer Statement on
Schedule TO filed with the Securities and Exchange
Commission on December 1, 2005 (the
“Schedule TO”) relates to an offer by Arch Coal,
Inc., a Delaware corporation (the “Company”), to
deliver a premium, payable in shares of the Company’s
Common Stock, $.01 par value (“Common Stock”), for
each share of the Company’s 5% Perpetual Cumulative
Convertible Preferred Stock (Liquidation Preference $50.00 Per
Share) (“Preferred Stock”) validly tendered and
accepted for conversion (the “Conversion Offer”)
pursuant to the terms and subject to the conditions described in
the offering circular, dated November 30, 2005 (the
“Offering Circular”), the Offering Circular
Supplement, dated December 5, 2005 (the “Offering
Circular Supplement”), and the accompanying letter of
transmittal. The Offering Circular, the Offering Circular
Supplement and the accompanying letter of transmittal are
exhibits (a)(1)(A), (a)(1)(B) and (a)(1)(C), respectively,
hereto.
The information set forth in the Offering Circular, the Offering
Circular Supplement and the accompanying letter of transmittal,
is hereby expressly incorporated herein by reference in response
to all items required in this Schedule TO.
This Amendment No. 1 to the Schedule TO amends the
Schedule TO in order to reflect the Company’s change
of the formula set forth in the Offering Circular for
calculating the number of shares that will be paid as a premium
in the Conversion Offer for each share of Preferred Stock
validly tendered and accepted for conversion. Accordingly, this
Amendment No. 1 to the Schedule TO amends
Items 4, 7 and 12 of the Schedule TO.
Item 4. Terms of the Transaction.
(a) The information set forth under the captions
“Summary – The Conversion Offer,” “Questions
and Answers about the Conversion Offer,” “The
Conversion Offer,” “Comparison of Rights of Holders of
Our Preferred Stock and Holders of Our Common Stock,”
“Description of Capital Stock” and “Material
United States Federal Income Tax Consequences” in the
Offering Circular, as well as the information set forth in the
related letter of transmittal and in the Offering Circular
Supplement, is incorporated herein by reference.
(b) To the Company’s knowledge, no shares of Preferred
Stock are owned by any officer, director or affiliate of the
Company, and therefore no such persons will participate in the
Conversion Offer. See the information set forth under the
caption “Interests of Directors and Officers” in the
Offering Circular, which is incorporated herein by reference.
Item 7. Source and Amount of Funds or Other
Consideration.
(a) The information set forth under the captions
“Summary – The Conversion Offer,”
“Questions and Answers about the Conversion
Offer – What will I receive in the conversion offer if
I validly tender shares of Preferred Stock and they are accepted
for conversion?” and “The Conversion Offer –
Terms of the Conversion Offer” in the Offering Circular and
the information set forth in the Offering Circular Supplement is
incorporated herein by reference.
(b) Not applicable.
(d) Not applicable.
2
Item 12. Exhibits.
The following are attached as exhibits to this Schedule TO:
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(a)(1)(A)
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Offering Circular, dated November 30, 2005
(incorporated herein by reference to Exhibit (a)(1)(A) to the
Schedule TO).
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(a)(1)(B)
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Offering Circular Supplement, dated
December 5, 2005.
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(a)(1)(C)
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Form of Letter of Transmittal (incorporated
herein by reference to Exhibit (a)(1)(B) to the
Schedule TO).
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(a)(1)(D)
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Form of Letter to DTC Participants.
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(a)(1)(E)
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Form of Letter to Clients for use by brokers,
dealers, commercial banks, trust companies and other nominees.
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(a)(2)
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Not applicable.
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(a)(3)
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Not applicable.
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(a)(4)
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Not applicable.
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(a)(5)
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Press Release, dated December 1, 2005
(incorporated herein by reference to Exhibit (a)(5) to the
Schedule TO).
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(b)
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Not applicable.
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(d)
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Form of Rights Agreement, dated March 3, 2000
(incorporated herein by reference to Exhibit 1 to the
Company’s Registration Statement on Form 8-A filed on
March 9, 2000).
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(g)
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Not applicable.
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(h)
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Not applicable.
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SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is
true, complete and correct.
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Name: Robert J. Messey |
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Title: Senior Vice President and Chief Financial Officer |
Dated: December 5, 2005
4
EX-99(A)(1)(B) Offering Circular Supplement
Exhibit (a)(7)(B)
OFFERING CIRCULAR SUPPLEMENT
Arch Coal, Inc.
Offer to Pay a Premium Upon the Conversion
of up to an Aggregate of 2,874,926 Shares of Its
5% Perpetual Cumulative Convertible Preferred Stock
(Liquidation Preference $50.00 Per Share) to Common Stock
CUSIP No. 039380 20 9
ISIN No. US0393802097
This offering circular supplement relates to the offer by Arch
Coal, Inc., a Delaware corporation (the “Company”), to
pay a premium to holders of any and all of its outstanding 5%
Perpetual Cumulative Convertible Preferred Stock (Liquidation
Preference $50.00 Per Share) (“Preferred Stock”) who
elect to convert their shares of Preferred Stock to the
Company’s Common Stock, $.01 par value (“Common
Stock”), in accordance with the terms of the Preferred
Stock and upon the terms and subject to the conditions set forth
in the Company’s offering circular, dated November 30,
2005 (the “Offering Circular”), and in the
accompanying letter of transmittal. This offering circular
supplement updates the Offering Circular and should be read in
conjunction with the Offering Circular.
The Company has determined to change the formula set forth in
the Offering Circular for calculating the number of shares that
will be paid as a premium in the conversion offer for each share
of Preferred Stock validly tendered and accepted for conversion.
As changed, the premium offered in the conversion offer is an
amount of shares of our Common Stock valued at $3.50, as
determined by dividing (i) $3.50 by (ii) the
volume-weighted average of the reported sales prices on the New
York Stock Exchange of our Common Stock during the five trading
days ending at the close of the second trading day prior to the
expiration of the conversion offer (including any extension),
per share of Preferred Stock validly tendered and accepted for
conversion. Other than this change to the formula used to
determine the number of shares of Common Stock that you will
receive as a premium if you participate in the conversion offer,
the terms and conditions set forth in the Offering Circular
remain in effect, including the expiration of the conversion
offer at 12:00 midnight, New York City time, on
December 29, 2005, unless extended or earlier terminated.
Enclosed is a new letter of transmittal for your Preferred
Stock. If you have not already returned a completed letter of
transmittal with respect to your Preferred Stock, please
complete the enclosed letter of transmittal if you wish to
participate in the conversion offer. If you have already
returned a completed letter of transmittal, you do not need to
return the enclosed letter of transmittal unless you wish to
change the information set forth in the letter of transmittal
that you have already returned. This new letter of transmittal,
when received, will supersede your earlier letter of
transmittal. In any event, you may validly withdraw shares of
Preferred Stock that you have already tendered or that you may
tender at any time prior to the expiration date of the
conversion offer. In addition, if not previously returned, you
may withdraw any shares of Preferred Stock that you tender that
are not accepted by us for conversion before January 30,
2006, which is 40 business days from the commencement of the
conversion offer. For a withdrawal of shares of Preferred Stock
to be effective, you must comply with the appropriate procedures
of DTC’s ATOP system prior to the expiration date or, if
not accepted by us before January 30, 2006, the 40th
business day after the commencement of the conversion offer. Any
notice of withdrawal must identify the shares of Preferred Stock
to be withdrawn, including the name and number of the account at
DTC to be credited and otherwise comply with the procedures of
DTC.
If you have questions regarding the procedures for tendering in
the conversion offer or require assistance in tendering your
shares of Preferred Stock, please contact American Stock
Transfer & Trust Company, the information agent for the
conversion offer, at (718) 921-8317 or toll-free at
(877) 248-6417. If you would like additional copies of this
offering circular supplement, the Offering Circular, our annual,
quarterly and current reports, proxy statement and other
information that we incorporate by reference in the Offering
Circular, please contact either the information agent at either
telephone number set forth above or Investor Relations at Arch
Coal at (314) 994-2700. Holders of Preferred Stock may also
contact their brokers, dealers, commercial banks, trust
companies or other nominees through which they hold their
Preferred Stock with questions and requests for assistance.
The date of this offering circular supplement is
December 5, 2005.
EX-99(A)(1)(D)
Exhibit (a)(1)(D)
ARCH COAL, INC.
LETTER TO THE DEPOSITORY TRUST COMPANY PARTICIPANTS
Offer to Pay a Premium Upon the Conversion
of up to an Aggregate of 2,874,926 Shares of Its
5% Perpetual Cumulative Convertible Preferred Stock
(Liquidation Preference $50.00 Per Share)
CUSIP No. 039380 20 9
ISIN No. US0393802097
Pursuant to the Offering Circular dated November 30,
2005
and the Offering Circular Supplement dated December 5,
2005
THE CONVERSION OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME,
ON DECEMBER 29, 2005 (THE “EXPIRATION DATE”),
UNLESS THE CONVERSION
OFFER IS EXTENDED OR EARLIER TERMINATED.
SHARES OF 5% PERPETUAL CUMULATIVE CONVERTIBLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $50.00 PER SHARE) (“PREFERRED
STOCK”) TENDERED IN THE CONVERSION OFFER MAY BE WITHDRAWN
AT ANY TIME PRIOR TO THE EXPIRATION DATE (AS IT MAY BE
EXTENDED). IN ADDITION, YOU MAY WITHDRAW ANY TENDERED SHARES OF
PREFERRED STOCK AFTER JANUARY 30, 2006, IF WE HAVE NOT ACCEPTED
THEM FOR CONVERSION.
To Depository Trust Company Participants:
We are enclosing herewith the documents listed below relating to
the offer by Arch Coal, Inc., a Delaware corporation (the
“Company”), to pay a premium to holders of any
and all of the outstanding Preferred Stock who elect to convert
their shares of Preferred Stock to the Company’s Common
Stock, $.01 par value (“Common Stock”), in
accordance with the terms of the Preferred Stock and upon the
terms and subject to the conditions set forth in the
Company’s Offering Circular, dated November 30, 2005
(the “Offering Circular”), in the
Company’s Offering Circular Supplement, dated
December 5, 2005 (the “Offering Circular
Supplement”), and in the accompanying letter of
transmittal (the “Letter of Transmittal”). The
premium offered in this conversion offer is an amount of shares
of our Common Stock valued at $3.50, as determined by dividing
(i) $3.50 by (ii) the volume-weighted average of the
reported sales prices on the New York Stock Exchange of our
Common Stock during the five trading days ending at the close of
the second trading day prior to the expiration of this
conversion offer (including any extension), per share of
Preferred Stock validly tendered and accepted for conversion.
Holders who validly tender shares of Preferred Stock for
conversion will receive the premium in addition to the number of
shares of Common Stock issuable upon conversion pursuant to the
conversion terms of the Preferred Stock. As of the date of the
Offering Circular, the conversion ratio for the Preferred Stock
was 2.3985 shares of our Common Stock for each share of
Preferred Stock validly converted. On November 29, 2005,
2,874,926 shares of our Preferred Stock were outstanding.
Certain terms used but not defined herein have the meanings
ascribed to them in the Offering Circular.
The Company is requesting that you contact your clients for whom
you hold shares of our Preferred Stock through your account with
The Depository Trust Company (“DTC”) regarding
the Conversion Offer. For your information and for forwarding to
your clients for whom you hold shares of our Preferred Stock
through your DTC account, enclosed herewith are copies of the
following documents:
1. Offering Circular and Offering Circular Supplement;
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Letter of Transmittal (together with accompanying Substitute
Form W-9 and related Guidelines); and |
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Letter that may be sent to your clients for whose accounts you
hold shares of Preferred Stock through your DTC account, which
contains a form that may be sent from your clients to you with
such clients’ instruction with regard to the Conversion
Offer. |
We urge you to contact your clients promptly. Please note that
the Conversion Offer will expire on the Expiration Date, unless
extended or earlier terminated. The Conversion Offer is subject
to certain conditions. Please see the section of the Offering
Circular entitled “The Conversion Offer —
Conditions to the Conversion Offer.”
To participate in the Conversion Offer, a duly executed and
properly completed Letter of Transmittal (or facsimile thereof
or agent’s message in lieu thereof), with any required
signature guarantees and any other required documents, should be
sent to the conversion agent, and the book-entry transfer
procedures should be complied with, all in accordance with the
instructions set forth in the Letter of Transmittal and the
Offering Circular.
The Company will not pay any fee, commission or expense to any
broker or dealer or to any other persons (other than the dealer
manager, the exchange agent and the information agent) in
connection with the solicitation of tenders of shares of
Preferred Stock pursuant to the Conversion Offer.
Additional copies of the enclosed materials may be obtained from
the conversion agent by calling American Stock
Transfer & Trust Company at (800) 937-5449.
Very truly yours,
ARCH COAL, INC.
NOTHING HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE
YOU OR ANY PERSON AS AN AGENT OF THE COMPANY OR THE CONVERSION
AGENT, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT
OR MAKE ANY STATEMENTS ON BEHALF OF EITHER OF THEM WITH RESPECT
TO THE CONVERSION OFFER, EXCEPT FOR STATEMENTS EXPRESSLY MADE IN
THE OFFERING CIRCULAR OR THE ACCOMPANYING LETTER OF
TRANSMITTAL.
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EX-99(A)(1)(E)
Exhibit (a)(1)(E)
ARCH COAL, INC.
LETTER TO CLIENTS
Offer To Pay a Premium Upon The Conversion
of up to an Aggregate of 2,874,926 Shares of Its
5% Perpetual Cumulative Convertible Preferred Stock
(Liquidation Preference $50.00 Per Share)
CUSIP No. 039380 20 9
ISIN No. US0393802097
Pursuant to the Offering Circular dated November 30, 2005
and the Offering Circular Supplement dated December 5,
2005
THE CONVERSION OFFER WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK
CITY TIME,
ON DECEMBER 29, 2005 (THE “EXPIRATION DATE”),
UNLESS THE CONVERSION
OFFER IS EXTENDED OR EARLIER TERMINATED.
SHARES OF 5% PERPETUAL CUMULATIVE CONVERTIBLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $50.00 PER SHARE) (“PREFERRED
STOCK”) TENDERED IN THE CONVERSION OFFER MAY BE WITHDRAWN
AT ANY TIME PRIOR TO THE EXPIRATION DATE (AS IT MAY BE
EXTENDED). IN ADDITION, YOU MAY WITHDRAW ANY TENDERED SHARES OF
PREFERRED STOCK AFTER JANUARY 30, 2006, IF WE HAVE NOT ACCEPTED
THEM FOR CONVERSION.
To Our Clients:
We are enclosing herewith an Offering Circular, dated November
30, 2005 (the “Offering Circular”), and an
Offering Circular Supplement, dated December 5, 2005 (the
“Offering Circular Supplement”), of Arch Coal,
Inc., a Delaware corporation (the “Company”),
and a letter of transmittal (the “Letter of
Transmittal”) relating to the offer by the Company to
pay a premium to holders of any and all of the outstanding
Preferred Stock who elect to convert their shares of Preferred
Stock to the Company’s Common Stock, $.01 par value
(“Common Stock”), in accordance with the terms
of the Preferred Stock and upon the terms and subject to the
conditions set forth in the Offering Circular, the Offering
Circular Supplement and the accompanying Letter of Transmittal.
The premium offered in this conversion offer is an amount of
shares of the Company’s Common Stock valued at $3.50, as
determined by dividing (i) $3.50 by (ii) the
volume-weighted average of the reported sales prices on the New
York Stock Exchange of the Company’s Common Stock during
the five trading days ending at the close of the second trading
day prior to the expiration of this conversion offer (including
any extension), per share of Preferred Stock validly tendered
and accepted for conversion. Holders who validly tender shares
of Preferred Stock for conversion will receive the premium in
addition to the number of shares of Common Stock issuable upon
conversion pursuant to the conversion terms of the Preferred
Stock. As of the date of the Offering Circular, the conversion
ratio for the Preferred Stock was 2.3985 shares of the
Company’s Common Stock for each share of Preferred Stock
validly converted. On November 29, 2005, 2,874,926 shares
of the Company’s Preferred Stock were outstanding. Certain
terms used but not defined herein have the meanings ascribed to
them in the Offering Circular.
The Conversion Offer is subject to certain conditions. See the
section of the Offering Circular entitled “The Conversion
Offer — Conditions to the Conversion Offer.”
We are the holder of your shares of Preferred Stock through our
account with the Depository Trust Company
(“DTC”). A tender of such shares of Preferred
Stock can be made only by us as a DTC participant and pursuant
to your instructions. The enclosed Letter of Transmittal is
furnished to you for your information only and cannot be used by
you to tender shares of Preferred Stock held by us for your
account.
We request instructions as to whether you wish to tender any or
all of the shares of Preferred Stock held by us through our DTC
account pursuant to the terms and conditions set forth in the
Offering Circular and the Letter of Transmittal.
We urge you to read the Offering Circular, including the
documents incorporated by reference therein, and the Letter of
Transmittal carefully before instructing us to tender your
shares of Preferred Stock. You may use the attached form to give
your instructions.
PLEASE RETURN YOUR INSTRUCTIONS TO US IN THE ENCLOSED
ENVELOPE OR CONTACT YOUR REPRESENTATIVE WITH INSTRUCTIONS TO
PERMIT US TO TENDER YOUR SHARES OF PREFERRED STOCK PRIOR TO THE
EXPIRATION DATE.
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INSTRUCTIONS TO THE DEPOSITORY TRUST COMPANY PARTICIPANT
To the Participant of The Depository Trust Company:
The undersigned hereby acknowledges receipt of the Offering
Circular, dated November 30, 2005 (the “Offering
Circular”), and the Offering Circular Supplement, dated
December 5, 2005 (the “Offering Circular
Supplement”), of Arch Coal, Inc., a Delaware
corporation (the “Company”), and the Letter of
Transmittal, which together set forth the terms and conditions
of the offer (the “Conversion Offer”) by the
Company to pay a premium to holders of any and all of the
Company’s outstanding 5% Perpetual Cumulative Convertible
Preferred Stock (Liquidation Preference $50.00 Per Share)
(“Preferred Stock”) who elect to convert their
shares of Preferred Stock to shares of the Company’s Common
Stock, $0.01 par value (“Common Stock”), in
accordance with the terms of the Preferred Stock and upon the
terms and subject to the conditions set forth in the Offering
Circular, the Offering Circular Supplement and in the Letter of
Transmittal. Certain terms used but not defined herein have the
meanings ascribed to them in the Offering Circular.
This will instruct you as to the action to be taken by you, for
the account of the undersigned, relating to the Conversion Offer.
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shares of Preferred Stock. |
With respect to the Conversion Offer, the undersigned hereby
instructs you (check appropriate box):
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To tender the following shares of Preferred Stock held by you
for the account of the undersigned, upon the terms and subject
to the conditions set forth in the Offering Circular, the
Offering Circular Supplement and the Letter of Transmittal
(insert number of shares of Preferred Stock to be tendered, if
any): |
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shares of Preferred Stock.* |
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The number of shares of the Company’s Common Stock that the
undersigned will beneficially own immediately prior to the
conversion of the tendered shares of Preferred Stock,
excluding shares to be issued upon conversion of shares
of Preferred stock in the Conversion Offer is (insert number of
shares of Common Stock): |
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The number of shares of the Company’s Common Stock that the
undersigned will beneficially own immediately prior to the
conversion of the tendered shares of Preferred Stock,
excluding shares to be issued upon conversion of shares
of Preferred stock in the Conversion Offer is (insert number of
shares of Common Stock): |
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The number of shares of Preferred Stock beneficially owned by
the undersigned that are held by Participants other than
you,which the undersigned is tendering for conversion
(insert number of shares of Preferred Stock): |
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shares of Preferred Stock. |
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Not to tender any shares of Preferred Stock held by you for the
account of the undersigned. |
The undersigned represents that either (i) upon the
conversion of the shares of Preferred Stock tendered pursuant to
the Conversion Offer, the undersigned will not beneficially own
in excess of 9.9% of the aggregate number of shares of the
Company’s Common Stock outstanding immediately after giving
effect to such conversion or (ii) these instructions set
forth (a) the number of shares of Common Stock that the
undersigned will beneficially own at the time of the conversion
of the tendered shares of Preferred Stock, excluding shares
issued upon conversion of shares of Preferred Stock in the
Conversion Offer, (b) the number of shares of Preferred
Stock the Participant is instructed to tender hereby, and
(c) the number of shares of Preferred Stock being tendered
through other Participants, and that the undersigned is
requesting that the Company does not accept for conversion any
shares of Preferred Stock to the extent that upon conversion of
such shares of Preferred Stock the undersigned’s beneficial
ownership of the Company’s Common Stock will exceed 9.9% of
the aggregate number of shares of the Company’s Common
Stock outstanding following the Conversion Offer.
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Unless otherwise indicated, the entire number of shares of
Preferred Stock indicated above as held by the Participant for
the account of the undersigned will be tendered. |
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SIGN HERE
Name(s) of beneficial owner(s):
Signature(s):
Name(s):
(Please Print)
Address(es):
Telephone Number(s):
Taxpayer Identification or
Social Security Number(s):
Date:
4
