EXHIBIT 10.65
PEABODY ENERGY CORPORATION
AMENDMENT TO
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AMENDMENT TO NON-QUALIFIED STOCK OPTION AGREEMENT (this "Amendment")
dated as of June 15, 2004, is made by and between Peabody Energy Corporation, a
Delaware corporation (the "Company") and the undersigned employee of the Company
or one of its subsidiaries or affiliates (the "Optionee").
WHEREAS, the Company previously adopted the 1998 Stock Purchase and Option
Plan for Key Employees of P&L Coal Holdings Corporation (now known as Peabody
Energy Corporation) (the "Plan");
WHEREAS, pursuant to the terms of the Plan, the Company and the Optionee
entered into that certain Non-Qualified Stock Option Agreement(s) dated as of
<<Date_1>>,<<Date_2>> <<Date_3>><<Date_4>><<Date_5>><<Date_6>>, (the
"Agreement") whereby the Company granted the Optionee the right to acquire
shares of the CompaNY'S common stock under the terms and conditions set forth in
the Agreement;
WHEREAS, pursuant to Section 5.7 of the Agreement, the Company and the
Optionee may amend the Agreement by a writing executed by both parties thereto
which specifically states that it is amending the Agreement;
WHEREAS, the Company deems it appropriate, and the Optionee agrees, to
modify the provisions of the Agreement relating to the vesting and the
exercisability of the Superperformance Option (as such term is defined in the
Agreement) in connection with certain specified corporate events;
NOW, THEREFORE, the parties hereto agree as follows:
I.
Section 1.6 of the Agreement is amended by adding the following at the end
thereof:
"Notwithstanding the foregoing, on or after June 15, 2004, a Change of
Control shall mean:
(a) any Person (other than a Person holding securities
representing 10% or more of the combined voting power of the Company's
outstanding securities as of May 22, 2001, the Company, any trustee or
other fiduciary holding securities under an employee benefit plan of the
Company, or any company owned, directly or indirectly, by the shareholders
of the Company in substantially the same proportions as their ownership of
stock of the Company), becomes the beneficial owner, directly or
indirectly, of securities of the Company,
representing 50% or more of the combined voting power of the Company's
then-outstanding securities; or
(b) during any period of twenty-four consecutive months (not
including any period prior to May 22, 2001), individuals, who at the
beginning of such period constitute the Board (the "Incumbent Board"),
cease for any reason to constitute at least a majority of the Board;
provided, however, that the Incumbent Board shall be deemed to include any
new director, whose election by the Board or nomination for election by
the Company's shareholders was approved by a vote of at least
three-fourths (3/4) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination
for election was previously so approved; provided further that the
Incumbent Board shall be deemed to exclude (A) any director nominated by a
Person who has entered into an agreement with the Company to effect a
transaction described in Section 1.6(a), (c) or (d) and (B) any director
nominated by any Person (including the Company) who publicly announces an
intention to take or to consider taking actions (including, but not
limited to, an actual or threatened proxy contest) which if consummated
would constitute a Change in Control); or
(c) the consummation of any merger, consolidation, plan of
arrangement, reorganization or similar transaction or series of
transactions in which the Company is involved; provided, however, that a
Change of Control shall not include any transaction or series of
transactions as a result of which the shareholders of the Company
immediately prior thereto continue to own, in substantially the same
proportions as their ownership immediately prior to such transaction(s),
more than 50% of the combined voting power of the securities of the
Company or such surviving entity (or the parent, if any) outstanding
immediately after such transaction(s) (either by remaining outstanding or
by being converted into voting securities of the surviving entity); or
(d) the shareholders of the Company approve a plan of complete
liquidation of the Company or the sale or disposition by the Company of
all or substantially all of the Company's assets, other than a liquidation
of the Company into a wholly owned subsidiary.
As used in herein, "Person" (including a "group"), has the meaning as such
term is used for purposes of Section 13(d) or 14(d) of the Securities
Exchange Act of 1934, as amended (or any successor section thereto)."
II.
Section 3.4 of the Agreement is amended by adding the following at the end
thereof:
"(d) The Superperformance Option I and the Superperformance Option
II shall vest and become non-forfeitable (but only to the extent such
Superperformance Option I and Superperformance Option II have not
otherwise terminated or become exercisable) upon a Change of Control
occurring at any time on or after June 15, 2004. Notwithstanding the
accelerated vesting described
in the immediately preceding sentence, any Superperformance Option I or
Superperformance Option II subject to such accelerated vesting shall only
become exercisable upon the earlier of (i) 9 1/2 years from the date of
grant, and (ii) a Termination of Employment without Cause or for Good
Reason or by reason of death, Disability or Retirement."
III.
Except as provided herein, the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, this Amendment has been executed and delivered by the
parties hereto.
PEABODY ENERGY CORPORATION
/s/ Sharon Fiehler
EVP Human Resources & Administration
Optionee:
____________________________________
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