SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 24, 2001
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Massey Energy Company
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(Exact name of Registrant as specified in charter)
Delaware 1-7775 95-0740960
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(State or other jurisdiction (Commission file (IRS employer
of incorporation) number) identification no.)
4 North 4/th/ Street, Richmond, Virginia 23219
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(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code (804) 788-1800
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Not applicable
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(Former name or former address, if changed since last report)
Item 5. Other Events.
This report is being filed for the purpose of updating the description of
the capital stock of Massey Energy Company ("Massey Energy"), which has been
previously filed with the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, for the purpose of incorporation by
reference in future filings under the securities laws.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is based on our Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws, which we
refer to in this description as our charter and bylaws, respectively. The
following description is qualified in its entirety by reference to our charter
and bylaws.
Authorized Capital
Our charter authorizes the issuance of 150 million shares of common stock,
$0.625 par value per share, and 20 million shares of preferred stock without par
value. As of April 30, 2001, there were 74,325,137 shares of common stock
issued and outstanding and no shares of preferred stock issued and outstanding.
Common Stock
Voting Rights
Holders of our common stock are entitled to one vote per share on all
matters voted on generally by shareholders, except the election of directors as
to which our charter grants cumulative voting rights to shareholders. Except as
otherwise required by law or with respect to any outstanding series of our
preferred stock, the holders of our common stock possess all voting power.
Under our bylaws, shareholder action is effective upon majority vote.
However, an affirmative vote of the holders of at least 80% of the voting power
of our outstanding shares is required for the approval of any proposal to amend
or repeal our bylaws or to:
. merge or consolidate with another corporation that, together with its
affiliates, beneficially owns more than 5% of the voting power of our
outstanding shares (such other corporation and its affiliates referred
to as a "related corporation");
. sell or exchange all or substantially all of our assets or business to
or with a related corporation; or
. issue or deliver any stock or other securities in exchange or payment
for any assets or property of or securities issued by a related
corporation;
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unless such actions are approved by our board of directors before the
acquisition by the related corporation of beneficial ownership of more than 5%
of the voting power of our outstanding shares.
Furthermore, the affirmative vote of the holders of at least 80% of the
voting power of our outstanding shares must approve changes to provisions in our
charter relating to:
. amendment of our charter or bylaws;
. classification of our board of directors;
. prohibition of shareholder action without a meeting;
. cumulative voting;
. vote required for certain extraordinary transactions with related
corporations; and
. appraisal rights.
Dividend Rights; Rights Upon Liquidation
Subject to any preferential rights of holders of any of our preferred stock
that may be outstanding, holders of shares of our common stock are entitled to
receive dividends on their shares of common stock out of assets legally
available for distribution when, as and if authorized and declared by our board
of directors and to share ratably in our assets legally available for
distribution to our shareholders in the event of our liquidation, dissolution or
winding-up.
Classification of Our Board of Directors
Our board of directors is divided into three classes of directors serving
staggered three-year terms. As a result, approximately one-third of our
directors are elected each year. We believe that a classified board of
directors will help to assure the continuity and stability of our board of
directors and our business strategies and policies as determined by our board of
directors because a majority of the directors at any given time will have prior
experience as directors at Massey Energy. This provision should also help to
ensure that, if confronted with an unsolicited proposal from a third party that
has acquired a block of our voting stock, we will have sufficient time to review
the proposal and appropriate alternatives and to seek the best available result
for all of our shareholders.
A classified board of directors could prevent a third party who acquires
control of a majority of our outstanding voting stock from obtaining control of
our board of directors until the second annual shareholders meeting following
the date the third party obtains the controlling stock interest. This could
have the effect of discouraging a potential acquiror from making a tender offer
or otherwise attempting to obtain control of Massey Energy and could thus
increase the likelihood that incumbent directors will retain their positions.
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Miscellaneous
Holders of our common stock have no preferences or preemptive, conversion
or exchange rights. Shares of our common stock will not be liable for further
calls or assessments by us, and the holders of our common stock will not be
liable for any of our liabilities.
Preferred Stock
Our charter authorizes our board of directors to provide for the issuance,
from time to time, of preferred stock in series and to fix the voting rights,
designations, powers, preferences and the relative participating, optional or
other rights of the shares, if any, of each series and any qualifications,
limitations or restrictions with respect to that series. Because our board of
directors will have the power to establish the preferences and rights of the
shares of any such series of preferred stock, holders of any of our preferred
stock may be afforded voting rights and preferences, powers and rights senior to
the rights of holders of our common stock. No shares of our preferred stock are
currently outstanding.
Anti-Takeover Provisions of Our Charter and Bylaws and Delaware Law
General
Our charter, bylaws and Section 203 of the Delaware General Corporation Law
contain provisions that may have the effect of impeding the acquisition of
control of Massey Energy by means of a tender offer, a proxy fight, open market
purchases or otherwise in a transaction not approved by our board of directors.
These provisions are designed to reduce, or have the effect of reducing, our
vulnerability to an unsolicited proposal for the restructuring or sale of all or
substantially all of our assets or an unsolicited takeover attempt that is
unfair to our shareholders.
Charter and Bylaw Provisions
Under our charter, our board of directors has the authority, without
further shareholder approval, to issue preferred stock in series and to fix the
designations, voting power, preferences and rights of the shares of each series
and any qualifications, limitations or restrictions with respect to that series.
Under this authority, our board of directors could create and issue a series of
preferred stock with rights, preferences or restrictions that have the effect of
discriminating against an existing or prospective holder of our capital stock as
a result of such holder beneficially owning or commencing a tender offer for a
substantial amount of our common stock. One of the effects of authorized but
unissued and unreserved shares of preferred stock may be to render more
difficult for, or discourage an attempt by, a potential acquiror to obtain
control of Massey Energy by means of a merger, tender offer, proxy content or
otherwise, and thereby protect the continuity of our management. The issuance of
shares of preferred stock may have the effect of delaying, deferring or
preventing a change in control of Massey Energy without any further action by
our shareholders.
Other provisions of our charter and bylaws that may make replacing our
board more difficult include:
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. 80% supermajority voting requirements to approve certain extraordinary
corporate transactions or certain amendments to our charter and bylaws;
. classification of our board of directors;
. prohibition on shareholders calling a meeting or acting by written
consent;
. requirements for advance notice for raising business or making
nominations at shareholder meetings; and
. ability of our board of directors to increase the size of the board and
fill vacancies on the board.
Section 203 of the Delaware General Corporation Law
We are subject to Section 203 of the Delaware General Corporation Law. The
provisions of Section 203 prohibit us from engaging in certain "business
combinations" with an "interested shareholder" for a period of three years after
the date that the person became an interested shareholder, unless one of the
following conditions is satisfied:
. before the date that the person became an interested shareholder, our
board of directors approved the transaction or business combination that
resulted in the person becoming an interested shareholder;
. upon consummation of the transaction that resulted in the shareholder
becoming an interested shareholder, the interested shareholder owns at
least 85% of our outstanding voting stock; or
. on or after the date that the person became an interested shareholder,
the business combination is approved by our board of directors and by
the holders of at least 66 2/3% of our outstanding voting stock,
excluding voting stock owned by the interested shareholder.
Generally, a "business combination" includes a merger, asset or stock sale
or other transaction resulting in a financial benefit to the interested
shareholder. Subject to certain exceptions, an "interested shareholder" is a
person who together with that person's affiliates and associates owns, or within
the previous three years did own, 15% or more of our outstanding voting stock.
Transfer Agent and Registrar
Mellon Investor Services LLC is the transfer agent and registrar for our
common stock.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: May 24, 2001
MASSEY ENERGY COMPANY
By: /s/ Roger L. Nicholson
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Roger L. Nicholson
Vice President, Secretary & General
Counsel
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