MAIL STOP 3628
December 7, 2005
By Facsimile (804) 788-8218 and U.S. Mail
David M. Carter, Esq.
Hunton & Williams LLP
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Re: Massey Energy Company
4.75% Convertible Senior Notes due 2023
Schedule TO-I
2.25% Convertible Senior Notes due 2024
Schedule TO-I
Filed on November 23, 2005
File No. 005-30745
Dear Mr. Carter:
We have the following comments on the above referenced
filings. Please understand that the purpose of our review process
is to assist you in your compliance with the applicable disclosure
requirements and to enhance the overall disclosure in your filings.
We look forward to working with you in these respects. We welcome any
questions you may have about our comments or on any other aspect
of our review. Feel free to call us at the telephone number listed
at the end of this letter.
Please note that unless otherwise noted, our comments apply
to both filings. Please make conforming changes as necessary.
Schedule TO-I
General
1. We note that in each of your filings, you are offering to
purchase or exchange all of the securities in each class. Tell us what
consideration you have given to the applicability of Rule 13e-3 to
this repurchase.
2. The filing date that appears in each of your Schedule TO-I
filings, November 22, 2005, is incorrect. Confirm your
understanding that the EDGAR filing date for these documents is
November 23, 2005.
3. Please explain in your response letter why you have not
provided the pro forma financial information required by Item 1010(b)
of Regulation M-A. We may have additional comments after reviewing
your response.
4. Please give us your well reasoned analysis of the applicability
of the exemption contained in Section 3(a)(9) to the exchange of
common stock for your 2.25% Notes, and confirm to us that no commission
or remuneration will be given in connection with the proposed
exchange.
5. The safe harbor protections for forward looking statements
provided in the Private Securities Litigation Reform Act of 1995
do not by their terms apply to statements made in connection with a
tender offer. See Section 21E(b)(2)(C) of the Securities Exchange
Act of 1934. We note references to the PSLRA in both of the Schedule
TO-I filings and all of your press releases. Please confirm your
understanding that future references in any additional tender
offer materials are not appropriate.
6. Please advise us, with a view towards disclosure, of the steps
you are taking to repurchase the 6.95% Senior Notes due 2007. We may
have further comments when we have considered your response.
7. Confirm your intention to update the disclosure in each of the
offers comprising the refinancing to take account of developments
in the other tender offers and the Rule 144A offering.
Source and Amount of Funds
8. Confirm to us that when the financing is complete, you will
amend the Schedule TO`s to include the definitive terms of the Note
Offering, pursuant to Item 1007(a)(b) and (c) of Regulation M-A,
and file any relevant agreements and offering documents as exhibits in
accordance with Item 1016(b) of Regulation M-A.
Offer to Purchase
General
9. We note that holders of $1,000 principal amount of convertible
notes will receive 29.7619 shares of your common stock, $230.00 in
cash and accrued and unpaid interest up to the expiration date of
the offer. Please disclose the cash amount of the accrued and unpaid
interest anticipated to be paid if the offer ends, as expected, on
December 22, 2005.
10. In your revised offer materials for the 4.75% Notes, you
should disclose in the summary term sheet section the relationship
between the offer price range and the recent trading prices of the
Company`s common stock. Highlight for security holders that the
range of possible prices is quite broad and explain the reasons for this,
and disclose that current market prices as reported on page 5 of your
Offer to Purchase are near the midpoint of the quoted range.
Summary, page 1
What are the significant conditions to the tender offer? page 3
11. Your statement in the second bullet point in this section,
that the offer is conditioned upon your acceptance of the Convertible
Notes for purchase, appears to be within your control. A tender
offer may be conditioned on a variety of events and circumstances,
provided that they are not within the direct or indirect control
of the bidder, and are drafted with sufficient specificity to allow
for objective verification that the conditions have been satisfied.
With this in mind, amend the bullet point to exclude your own actions
or omissions.
12. Revise this section to briefly describe the Exchange Condition
and the Refinancing Condition. You may wish to do this by means
of a cross reference.
How will we pay for the Convertible Notes? page 4
13. Briefly describe the terms of the New Senior Notes, including
coupon and maturity.
Expiration Date; Extension and Termination, page 1
14. Revise the second paragraph of this section to clarify that
under Rule 13e-4(f)(5), you will pay promptly or return the tendered
securities.
Other Matters, page 14
15. We note that here and on page 1 of your letter of transmittal,
you request that the security holder represent, warrant and agree
that "such tendering holder has received and read a copy of the
Offer Documents, understands and agrees to be bound by all terms and
conditions ..." It is not appropriate to require security holders
to attest to the fact that they "read" the offering documents because
your statements effectively operate as a waiver of liability.
Please delete this and other similar language throughout your materials.
16. We note your disclosure that you may waive any condition of
the offer for any particular tendering security holder. Reserving the
right to waive a condition of the offer as to only particular
tendering security holders raises issues under Rule 13e-4(f)(8)
and otherwise. Please revise here and throughout the offer to
purchase, where similar language appears.
Conditions of the Tender Offer, page 16
17. You state in the opening paragraph of this section that the
conditions shall be triggered if the stated events have occurred
"or shall be determined by us to have occurred." In the absence of
any objective criteria for the determination of the existence of a
condition, such as a standard of reasonableness, satisfaction or
waiver of the conditions in the sole discretion of the bidder may
be equated with a waiver of that condition. If you waive a material
condition to the offer, there must be five business days remaining
prior to expiration. Please revise your offer to include an
objective standard for the assertion or waiver of the conditions
18. We refer you to the disclosure in the last sentence of the
last paragraph of this section that your failure at any time to
exercise any of the offer conditions will not be deemed a waiver of
such conditions. This language suggests that even once a condition is
triggered, the company can decide whether it is advisable to
proceed with the offer. We agree. However, when a condition is
triggered and the company decides to proceed with the offer anyway, we
believe that this constitutes a waiver of the triggered condition(s).
You may not rely on this language to tacitly waive a condition of the
offer by failing to assert it. Please revise.
19. Your statement that you may assert the conditions "at any time
and from time to time" leaves open the possibility that you may
assert a condition after the expiration of the offer. Please
revise to clarify that all conditions will be satisfied or waived prior
to the Expiration Date.
20. We note that many of the offer conditions listed are broadly
drafted. Whether or not an offer condition has been "triggered" is
necessarily a subjective determination that you state will be made
by you, which could make it difficult for security holders to
determine whether any condition has been triggered. We are concerned
that some of the listed offer conditions are so broadly drafted as to
potentially render this offer illusory, and to make it impossible
for a security holder to determine what events or occurrences will
allow you to terminate it. Please generally revise to narrow your
conditions, quantifying where possible. The following are
examples of offer conditions which we believe are problematic because
of their breadth or lack of specificity; however, these examples are not
intended to be an exhaustive, and we urge you to examine and
revise this section generally:
* The second sub point in this section refers to "any development
which would...materially affect our business ...liabilities or
prospects." It would be very difficult for a security holder to
determine when such a development had occurred.
* The fourth sub point refers to any thing that may occur "or be
likely to occur" that would prohibit, prevent, restrict or delay
consummation of the offer.
* The sixth sub point in this section refers to any limitation
that might affect the extension of credit by banks.
Incorporation by Reference, page 25
21. Schedule TO does not permit you to "forward incorporate" by
reference to additional documents you may file between the date of
filing of the Schedule TO and the expiration date of your offer.
Rather, you are under an obligation to amend the Schedule TO
whenever the information disclosed materially changes. See Rule
13e-4(d)(2). Please revise the language to the contrary on page 25 of
your Offer to Purchase.
Closing
We urge all persons who are responsible for the accuracy and
adequacy of the disclosure in the filings reviewed by the staff to
be certain that they have provided all information investors require
for an informed decision. Since the issuer is in possession of all
facts relating to its disclosure, it is responsible for the accuracy
and adequacy of the disclosures it has made.
In connection with responding to our comments, please
provide, in writing, a statement from the Company acknowledging that:
* the issuer is responsible for the adequacy and accuracy of the
disclosure in the filings;
* staff comments or changes to disclosure in response to staff
comments in the filings reviewed by the staff do not foreclose the
Commission from taking any action with respect to the filing; and
* the issuer may not assert staff comments as a defense in any
proceeding initiated by the Commission or any person under the
federal securities laws of the United States.
In addition, please be advised that the Division of
Enforcement has access to all information you provide to the staff of
the Division of Corporation Finance in our review of your filing or in
response to our comments on your filing.
As appropriate, please amend your document in response to
these comments. You may wish to provide us with marked copies of the
amendment, if required, to expedite our review. Please furnish a
cover letter with your amendment that keys your responses to our
comments and provides any requested information. Detailed cover
letters greatly facilitate our review.
Please file your cover letter on EDGAR. Please understand
that we may have additional comments after reviewing your amendment and
responses to our comments. In addition, depending upon your
response to these comments, a supplement may need to be sent to security
holders.
Please direct any questions to me at (202) 551-3267. You
may also contact me via facsimile at (202) 772-9203.
Very truly yours,
Julia E.Griffith
Special Counsel
Office of Mergers & Acquisitions