EXHIBIT 10.67
AMENDMENT NO. 1 TO THE
PEABODY ENERGY CORPORATION
2004 LONG TERM INCENTIVE PLAN
WHEREAS, Peabody Energy Corporation (the "Corporation") previously
established and currently maintains the Peabody Energy Corporation 2004
Long-Term Equity Incentive Plan (the "Plan");
WHEREAS, pursuant to Section 16 of the Plan, the Board of Directors of the
Corporation (the "Board") may amend the Plan, subject to the limitations set
forth therein; and
WHEREAS, the Corporation deems it appropriate to further specify in the
Plan certain requirements relating to the administration of awards granted under
the Plan and the number of shares of the Corporation's common stock available
for grants under the Plan;
NOW, THEREFORE, effective as of July 20, 2004, unless otherwise provided
herein, the Plan is hereby amended as follows:
I.
Section 3 of the Plan is hereby amended by adding the following at the end
of the first paragraph thereof:
"Notwithstanding anything herein to the contrary, the aggregate number of
shares of Common Stock available for issuance under the Plan may only be
increased by the Board, subject to the approval of the Corporation's
shareholders, in accordance with Section 16 hereof."
II.
Section 6 of the Plan is hereby amended by adding the following
immediately after the first sentence thereof:
"Notwithstanding the foregoing, with respect to any SAR grant, the
Administrator shall not establish a period of restriction or vesting
period of less than two years following the date such SAR is granted,
subject to such accelerated vesting or lapse of restriction on the basis
of death, Disability, Change of Control or Recapitalization Event."
III.
Section 7(c) of the Plan is hereby amended by adding the following at the
end thereof:
"Notwithstanding the foregoing, with respect to any Restricted Stock
grant, the Administrator shall not establish a period of restriction or
vesting period of less than two years following the date such Restricted
Stock is granted, subject to such accelerated vesting or lapse of
restriction on the basis of death, Disability, Change of Control or
Recapitalization Event."
IV.
Section 10 of the Plan is hereby amended by adding the following
immediately after the first sentence thereof:
"Notwithstanding the foregoing, with respect to any Stock Unit grant, the
Administrator shall not establish a period of restriction or vesting
period of less than two years following the date such Stock Unit is
granted, subject to such accelerated vesting or lapse of restriction on
the basis of death, Disability, Change of Control or Recapitalization
Event."
V.
Section 11(b)(iii) of the Plan is hereby amended by adding the following
immediately after the first sentence thereof:
"Notwithstanding the foregoing, with respect to any Performance Award
grant, the Administrator shall not establish a period of restriction or
vesting period of less than two years following the date such Performance
Award is granted, subject to such accelerated vesting or lapse of
restriction on the basis of death, Disability, Change of Control or
Recapitalization Event."
VI.
Section 17 of the Plan is hereby amended by adding the following at the
end thereof:
"(m) For purposes hereof, "Change of Control" shall mean:
(i) any Person (other than a Person holding securities
representing 10% or more of the combined voting power of the
Corporation's outstanding securities as of May 22, 2001, the
Corporation, any trustee or other fiduciary holding securities under
an employee benefit plan of the Corporation, or any Corporation
owned, directly or indirectly, by the shareholders of the
Corporation in substantially the same proportions as their ownership
of stock of the Corporation), becomes the beneficial owner, directly
or indirectly, of securities of the Corporation,
representing 50% or more of the combined voting power of the Corporation's
then-outstanding securities;
(ii) 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, and any new director (other
than (A) a director nominated by a Person who has entered into an
agreement with the Corporation to effect a transaction described in clause
(i), (iii) or (iv) or (B) a director nominated by any Person (including
the Corporation) 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) whose election by the Board or nomination for election by the
Corporation'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, cease for any reason to
constitute at least a majority thereof;
(iii) the consummation of any merger, consolidation, plan of
arrangement, reorganization or similar transaction or series of
transactions in which the Corporation is involved, other than such a
transaction or series of transactions which would result in the
shareholders of the Corporation immediately prior thereto continuing to
own (either by remaining outstanding or by being converted into voting
securities of the surviving entity) more than 50% of the combined voting
power of the securities of the Corporation or such surviving entity (or
the parent, if any) outstanding immediately after such transaction(s) in
substantially the same proportions as their ownership immediately prior to
such transaction(s); or
(iv) the shareholders of the Corporation approve a plan of complete
liquidation of the Corporation or the sale or disposition by the
Corporation of all or substantially all of the Corporation's assets, other
than a liquidation of the Corporation into a wholly owned subsidiary.
As used in this Section 17(m), "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).
(n) For purposes hereof, "Disability" shall mean the Participant's absence
from the full-time performance of the Participant's duties pursuant to a
reasonable determination made in accordance with the Corporation's disability
plan that the Participant is disabled as a result of incapacity due to physical
or mental illness that lasts, or is reasonably expected to last, for at least
six months.
(o) For purposes hereof, "Recapitalization Event" shall mean
recapitalization, reorganization, stock dividend or other special corporate
restructuring which results in an extraordinary distribution to the stockholders
of cash and/or securities through the use of leveraging or otherwise but which
does not result in a Change of Control.
VII.
In all other respects, the Plan shall remain in full force and effect.
PEABODY ENERGY CORPORATION
/s/ SHARON D. FIEHLER
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Sharon D. Fiehler
EVP Human Resources & Administration