As filed with the Securities and Exchange Commission on December 27, 2004.
Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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FOUNDATION COAL HOLDINGS, INC.
(Exact name of registrant as specified in its charter)
Delaware 42-1638663
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
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999 Corporate Boulevard
Suite 300
Linthicum Heights, Maryland 21090-2227
(410) 689-7600
(Address, including zip code, and telephone number, including area code,
of principal executive offices)
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Foundation Coal Holdings, Inc. 2004 Stock Incentive Plan
(Full Title of the Plan)
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Greg A. Walker, Esq.
General Counsel
Foundation Coal Holdings, Inc.
999 Corporate Boulevard
Suite 300
Linthicum Heights, Maryland 21090-2227
(410) 689-7600
(Name and address, including zip code, and telephone number,
including area code, of agent for service)
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With a copy to:
Edward P. Tolley III, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
(212) 455-2000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of securities to be Amount to be offering price per aggregate offering Amount of
registered registered(1) share(2) price(2) registration fee
- ------------------------------- ------------------------ ------------------------ ------------------------- ------------------------
Common stock, $.01 par value 5,978,483 $23.05 $137,804,033 $16,220
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(1) Covers 5,978,483 shares under the Foundation Coal Holdings, Inc. 2004 Stock
Incentive Plan and an indeterminate number of additional shares which may be
offered and issued to prevent dilution resulting from stock splits, stock
dividends or similar transactions.
(2) Estimated pursuant to Rule 457(h) and 457(c) under the Securities Act,
solely for the purpose of computing the registration fee, based on the average
of the high and low prices of the common stock being registered hereby on the
New York Stock Exchange on December 21, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of the
Registration Statement on Form S-8 (the "Registration Statement") is omitted
from this filing in accordance with the provisions of Rule 428 under the
Securities Act and the introductory note to Part I of the Registration
Statement. The documents containing the information specified in Part I will be
delivered to the participants in the plan covered by this Registration Statement
as required by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Foundation Coal Holdings, Inc. (the "Company")
pursuant to the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are hereby incorporated by reference in this
registration statement:
(a) The Company's Prospectus filed pursuant to Rule 424(b) of the
Securities Act (Registration No. 333-118427) filed on December
10, 2004 (the "Prospectus") and
(b) The Company's registration statement on Form 8-A (Registration
No. 001-32331), filed on October 25, 2004.
All documents that the Company subsequently files pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement indicating that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Company is a Delaware corporation. Section 145 of the Delaware
General Corporation Law provides, in summary, that directors and officers of
Delaware corporations are entitled, under certain circumstances, to be
indemnified against all expenses and liabilities (including attorneys' fees)
incurred by them as a result of suits brought against them in their capacity as
a director or officer, if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the Company's best interests,
and, with respect to any criminal action or proceeding, if they had no
reasonable cause to believe their conduct was unlawful; provided that no
indemnification may be made against expenses in respect of any claim, issue or
matter as to which they shall have been adjudged to be liable to the Company,
unless and only to the extent that the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, they are fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Any such indemnification may be made by the Company only as authorized
in each specific case upon a determination by the stockholders, disinterested
directors or independent legal counsel that indemnification is proper because
the indemnitee has met the applicable standard of conduct.
The Company's certificate of incorporation and by-laws provide that it
will indemnify its directors and officers to the fullest extent permitted by law
and that no director shall be personally liable for monetary damages to the
Company or its stockholders for any breach of fiduciary duty, except to the
extent provided by applicable law.
The Company currently maintains liability insurance for its directors
and officers. Such insurance would be available to the Company's directors and
officers in accordance with its terms.
Reference is made to the form of underwriting agreement filed as
Exhibit 1.1 to the Company's Registration Statement on Form S-1 (Registration
No. 333-118427) ("Form S-1") for provisions providing that the underwriters and
the Company are obligated under certain circumstances to indemnify the Company's
directors, officers and controlling persons against certain liabilities under
the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration
statement:
Exhibit
Number Description of Document
4.1 Form of Amended and Restated Certificate of Incorporation of Registrant
(incorporated by reference to Exhibit 3.1 of the Form S-1)
4.2 Form of Amended and Restated By-Laws of Registrant (incorporated by
reference to Exhibit 3.2 of the Form S-1)
4.3 Specimen of Common Stock Certificate (incorporated by reference to Exhibit
4.1 of the Form S-1)
4.4 Amended and Restated Stockholders Agreement, dated as of October 4, 2004,
by and among Foundation Coal Holdings, Inc., Blackstone FCH Capital
Partners IV, L.P., Blackstone Family Investment Partnership IV-A L.P.,
First Reserve Fund IX, L.P., AMCI Acquisition, LLC and the management
stockholders parties thereto (incorporated by reference to Exhibit 4.2 of
the Form S-1)
5.1 Opinion of Simpson Thacher & Bartlett LLP
10.1 Foundation Coal Holdings, Inc. 2004 Stock Incentive Plan (incorporated by
reference to Exhibit 10.5 of the Form S-1)
23.1 Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24 Power of Attorney (included in the signature page to this registration
statement)
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 20 percent 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 not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the 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 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 hereby 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
Exchange Act that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the securities
offered herein, 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.
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 the city of Linthicum Heights, state of Maryland on December 27,
2004.
FOUNDATION COAL HOLDINGS, INC.
By: /s/ Frank J. Wood
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Name: Frank J. Wood
Title: Senior Vice President and
Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Greg A. Walker and Frank J. Wood,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, in connection with this registration
statement, to sign any and all amendments or supplements to the registration
statement, including post-effective amendments, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and does hereby grant unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitutes, 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 indicated on the 27th day of December, 2004.
Signature Title
/s/ James F. Roberts President, Chief Executive Officer
- ------------------------------ and Director
James F. Roberts (Principal Executive Officer)
/s/ Frank J. Wood Senior Vice President and Chief Financial
- ------------------------------ Officer
Frank J. Wood (Principal Financial and Accounting Officer)
/s/ Joshua H. Astrof Director
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Joshua H. Astrof
/s/ David I. Foley Director
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David I. Foley
/s/ Alex T. Krueger Director
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Alex T. Krueger
/s/ William E. Macaulay Chairman of the Board and Director
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William E. Macaulay
/s/ Prakash A. Melwani Director
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Prakash A. Melwani
/s/ Hans J. Mende Director
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Hans J. Mende
/s/ William J. Crowley Director
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William J. Crowley