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As Filed with the Securities and Exchange Commission on July 1, 1997
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
ARCH COAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 43-0921172
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
CITY PLACE ONE, SUITE 300
ST. LOUIS, MISSOURI 63141
(314) 994-2700
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
ARCH COAL, INC. 1997 STOCK INCENTIVE PLAN
(Full Title of the Plan)
JEFFRY N. QUINN, ESQ.
SENIOR VICE PRESIDENT -- LAW AND HUMAN RESOURCES, SECRETARY AND GENERAL COUNSEL
ARCH COAL, INC.
CITY PLACE ONE, SUITE 300
ST. LOUIS, MISSOURI 63141
(314) 994-2700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES AMOUNT TO BE 0FFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE(1)
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Common Stock, 6,000,000 $28.9375 $173,625,000 $52,613.64
$.01 par value Shares(2)
per share
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(1) Computed pursuant to Rule 457(h) solely for the purpose of determining the
registration fee.
(2) This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to antidilution provisions.
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Arch Coal, Inc. (the "Registrant")
with the Securities and Exchange Commission pursuant to the Securities and
Exchange Act of 1934, as amended (the "Exchange Act"), are incorporated by
reference into this Registration Statement:
(a) The Proxy Statement/Prospectus dated May 30, 1997 filed as part of
the Registrant's Registration Statement on Form S-4 (No. 333-28149)
pursuant to the Securities Act of 1933, as amended;
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"); and
(c) The description of the Registrant's Common Stock, par value $.01
per share (the "Common Stock"), contained in the Registrant's
Registration Statement on Form 8-B filed on June 17, 1997 under the
Exchange Act.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained herein
or in a document incorporated or deemed to be 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 any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
ITEM 4. DESCRIPTION OF SECURITIES.
The description of the Common Stock, and related Preferred Stock
Purchase Rights, contained in Item 1 of the Registrant's Registration Statement
on Form 8-B filed on June 17, 1997 under the Exchange Act is incorporated herein
by reference. The securities are registered under Section 12(b) of the Exchange
Act.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
In accordance with Delaware law, Article Ninth of the Company's
Restated Certificate of Incorporation, as amended, contains provisions that
result in the elimination of the personal
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liability of directors to the Company and its stockholders for monetary damages
for breaches of their fiduciary duties as a director, except for (i) breach of a
director's duty of loyalty to the company or to the stockholders, (ii) acts of
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) dividend or stock repurchases or redemptions that are
illegal under Delaware law, and (iv) any transaction for which a director
receives an improper personal benefit. These provisions pertain only to breaches
of duty by directors as directors and not in any other capacity, such as
officers. As a result of the inclusion of such provisions, stockholders may be
unable to recover monetary damages against directors for actions taken by them
that constitute negligence or gross negligence or that are in violation of their
fiduciary duties, although it may be possible to obtain injunctive or other
equitable relief with respect to such actions. If equitable remedies are found
not to be available to stockholders in any particular case, stockholders may not
have any effective remedy against the challenged conduct.
The Company believes that such provisions are necessary to attract and
retain qualified individuals to serve as directors. In addition, such provisions
will allow directors to perform their duties in good faith without concern for
the application of monetary liability in the event that a court determines their
conduct to have been negligent or grossly negligent. On the other hand, the
potential remedies available to a Company stockholder have been limited and it
is possible that directors may not demonstrate that same level of diligence or
care since they are protected by these provisions.
Under Section 145 of the Delaware General Corporation law, a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances and subject to certain limitations against certain
costs and expenses, including attorneys' fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason of
this being a director or officer of the corporation if it is determined that he
acted in accordance with the applicable standard of conduct set forth in such
statutory provision. Article V of the Company Bylaws provides that the Company
will indemnify any person who may be involved, as a party or otherwise, in a
claim, action, suit or proceeding (other than any claim, action, suit or
proceeding brought by or in the right of the Company) by reason of the fact that
such person is or was a director or officer of the Company, or is or was serving
at the request of the Company as a director or officer of any other corporation
or entity, against certain liabilities, costs and expenses. The Company is also
authorized to and does maintain insurance on behalf of any person who is or was
a director or officer of the Company , or is or was serving at the request of
the Company as a director or officer of any other corporation or entity, against
any liability asserted against such person and incurred by such person in any
such capacity or arising out of his status as such, whether or not the Company
would have the power to indemnify such person against such liability under the
Delaware General Corporation law.
The company has entered into indemnity agreements with persons who are
or were or shall be directors and/or officers of the Company, Ashland Coal, Inc.
and/or AMC Merger Corporation; and other persons who are or were serving, shall
serve, or shall have served at the request of the company as a director,
officer, partner, trustee, fiduciary, employee or agent of another foreign or
domestic corporation or non-profit corporation, cooperative, partnership, joint
venture, trust, employee benefit plan, or other incorporated or unincorporated
enterprise.
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Directors of the Company who are officers of certain shareholders of
the Company also may be entitled to indemnification under the provisions of that
shareholders' Bylaws providing for the indemnity of officers who serve, at the
request of such shareholders, as a director of another corporation.
Under the Plan, the Company is required to indemnify the Committee, the
individual members thereof and persons acting as authorized delegates of the
Committee against all expenses (including attorneys' fees), costs, judgements
and settlements incurred in connection with any claim, made or threatened, by
reason of the performance of any action pursuant to the plan if the Committee or
its members or authorized delegates did not act in willful violation of the law
or regulation under which such liability, loss, cost or expense arises.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index filed herewith.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or 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 the 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 the 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; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
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PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
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 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 the 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
Pursuant to the requirements of the Securities Act of 1933, 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 St. Louis, Missouri on July 1, 1997.
ARCH COAL, INC.
By:/s/ Jeffry N. Quinn
Jeffry N. Quinn
Senior Vice President - Law and Human
Resources, General Counsel and
Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby severally
constitutes and appoints Steven F. Leer, Patrick A. Kriegshauser, Jeffry N.
Quinn, and James P. Pye his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for such person and in such
person'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, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Steven F. Leer President, Chief Executive Officer July 1, 1997
Steven F. Leer and Director
/s/ Patrick Kriegshauser Senior Vice President, Treasurer July 1, 1997
Patrick A. Kriegshauser and Chief Financial Officer
(Principal Financial Officer)
/s/ James P. Pye Controller July 1, 1997
James P. Pye (Principal Accounting Officer)
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/s/ John R. Hall Chairman of the Board of July 1, 1997
John R. Hall Directors
/s/ James R. Boyd Director July 1, 1997
James R. Boyd
/s/ Robert A. Charpie Director July 1, 1997
Robert A. Charpie
/s/ Paul W. Chellgren Director July 1, 1997
Paul W. Chellgren
/s/ Thomas L. Feazell Director July 1, 1997
Thomas L. Feazell
/s/ Juan Antonio Ferrando Director July 1, 1997
Juan Antonio Ferrando
/s/ Robert L. Hintz Director July 1, 1997
Robert L. Hintz
/s/ Douglas H. Hunt Director July 1, 1997
Douglas H. Hunt
/s/ Thomas Marshall Director July 1, 1997
Thomas Marshall
/s/ James L. Parker Director July 1, 1997
James L. Parker
/s/ J. Marvin Quin Director July 1, 1997
J. Marvin Quin
/s/ Ronald Eugene Samples Director July 1, 1997
Ronald Eugene Samples
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ARCH COAL, INC.
EXHIBIT INDEX
Exhibit
Number Description
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4.1 Restated Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.2 to the Registrant's Registration
Statement on Form S-4 (No. 333-28149) filed with the Commission on
May 30, 1997 (the "Form S-4"))
4.2 Restated and Amended By-laws of the Registrant (incorporated herein by
reference to Exhibit 3.4 to the Form S-4)
4.3 Arch Coal, Inc. 1997 Stock Incentive Plan (filed herewith)
4.4 Stockholders Agreement, dated as of April 4, 1997, among Carboex
International, Ltd., Ashland Inc. and the Registrant (incorporated
herein by reference to Exhibit 4.1 to the Form S-4).
4.5 Registration Rights Agreement, dated as of April 4, 1997, among the
Registrant, Ashland Inc., Carboex International, Ltd. and the entities
listed on Schedules I and II thereto (incorporated herein by reference
to Exhibit 4.2 to the Form S-4).
4.6 Agreement Relating to Nonvoting Observer, executed as of April 4,
1997, among Carboex International, Ltd., Ashland Inc. and the
Registrant (incorporated herein by reference to Exhibit 4.3 to the
Form S-4).
4.7 The Registrant has not filed certain instruments with respect to long-
term debt since the total amount of securities authorized thereunder
does not exceed 10% of the total assets of the Registrant and its
subsidiaries on a consolidated basis. The Registrant agrees to furnish
a copy of any such agreement to the Commission upon request.
5.1 Opinion of Jeffry N. Quinn regarding the validity of the Common Stock
(filed herewith)
23.1 Consent of Arthur Andersen LLP (filed herewith)
23.2 Consent of Jeffry N. Quinn (included in Exhibit 5.1)
24.1 Power of Attorney (included in Signature Page)
99.1 Arch Coal, Inc. 1997 Stock Incentive Plan (incorporated by reference to
Exhibit 10.19 of the Form S-A).
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EXHIBIT 5.1
[Arch Coal Letterhead]
July 1, 1997
Board of Directors
Arch Coal, Inc.
City Place One, Suite 300
St. Louis, Missouri 63141
Ladies and Gentlemen:
I have acted as counsel to Arch Coal, Inc., a Delaware corporation (the
"Company"), in connection with the filing of a Registration Statement on Form
S-8 ("Registration Statement") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "Act"), covering the offering and
sale of up to 6,000,000 shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), under the Company's 1997 Stock Incentive Plan (the
"Plan").
In connection herewith, I have examined and relied without independent
investigation as to matters of fact upon such certificates of public officials,
such statements and certificates of officers of the Company and originals or
copies certified to our satisfaction of the Registration Statement, the Restated
Certificate of Incorporation and the By-laws of the Company, proceedings of the
Board of Directors of the Company and such other corporate records, documents,
certificates and instruments as we have deemed necessary or appropriate in order
to enable us to render the opinions expressed below. In rendering this opinion,
I have assumed the genuineness of all signatures on all documents examined by
us, the authenticity of all documents submitted to us as originals and the
conformity to authentic originals of all documents submitted to us as certified
or photostatted copies.
Based upon the foregoing and in reliance thereon, and subject to the
qualifications and limitations stated herein, I am of the opinion that:
(1) The Company is a corporation validly existing in good standing
under the laws of the State of Delaware;
(2) When,
(i) the Registration Statement shall have become effective
under the Act; and
(ii) the shares of Common Stock being offered and sold by the
Company pursuant to the Plan shall have been duly issued and
sold in accordance with the terms of the Plan;
then such shares of Common Stock will be legally issued, fully paid
and non-assessable.
This opinion is not rendered with respect to any laws other than the
General Corporation Law of the State of Delaware and the Act.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. I also consent to your filing copies of this opinion as
an exhibit to the Registration Statement with agencies of such states as you
deem necessary in the course of complying with the laws of such states regarding
the offering and sale of such shares of Common Stock.
In giving this consent, I do not admit that I am in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Jeffry N. Quinn
Jeffry N. Quinn
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 16,
1997, except with respect to the matters discussed in Note 13 as to which the
date is May 20, 1997, included in Arch Mineral Corporation's Form S-4
Registration Statement (No. 333-28149), and to all references to our Firm
included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
St. Louis, Missouri
June 30, 1997