SCHEDULE 14A
(Rule 14A-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14 (a) of the
Securities Exchange Act of 1934
Filed by the Registrant [ ]
Filed by a Party other than the Registrant [X]
Check the appropriate box:
Preliminary Proxy Statement [ ]
Confidential, for Use
of the Commission Only (as permitted by Rule 14a-6(e) (2) [ ]
Definitive Proxy Statement [X]
Definitive Additional Materials [ ]
Soliciting Material Pursuant to Rule 14a-11 (c) or Rule 14a-12
MASSEY ENERGY CORPORATION
-------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
-------------------------------------------------------------------------
(Name of Person (s) filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required
[ ] Fee computed on table below per Exchange Act Rules 14 (a)-6(i) (4) and
0-11.
1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
2) Aggregate number of securities to which transaction applies:
------------------------------------------------------------------------
3) Per unit price or other underlying value of transaction computed
pursuant to Exchange Act Rule 0-11 (set forth the amount on which
the filing fee is calculated and state how it was determined):
------------------------------------------------------------------------
4) Proposed maximum aggregate value of transaction:
------------------------------------------------------------------------
5) Total Fee Paid:
------------------------------------------------------------------------
[ ] Fee paid previously with preliminary materials
- --------------------------------------------------------------------------------
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule
0-11(a) (2) and identify the filing for which the offsetting fee was paid
previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
------------------------------------------------------------------------
2) Form, Schedule or Registration Statement No.:
------------------------------------------------------------------------
3) Filing Party:
------------------------------------------------------------------------
4) Date Filed:
------------------------------------------------------------------------
MASSEY ENERGY COMPANY
----------
MEETING OF STOCKHOLDERS
TO BE HELD MAY 16, 2006
----------
PROXY STATEMENT OF THIRD POINT LLC, THIRD POINT OFFSHORE FUND LTD., THIRD POINT
PARTNERS LP, THIRD POINT ULTRA LTD., LYXOR/THIRD POINT FUND LTD., THIRD POINT
PARTNERS QUALIFIED LP, THIRD POINT RESOURCES LP, THIRD POINT RESOURCES LTD.,
DANIEL S. LOEB AND TODD Q. SWANSON IN OPPOSITION TO THE BOARD OF DIRECTORS OF
MASSEY ENERGY COMPANY
April 17, 2006
To Our Fellow Massey Stockholders:
We are furnishing this Proxy Statement to holders of the common stock, par
value $0.625 per share ("Common Stock"), of Massey Energy Company, a Delaware
corporation (the "Company"), in connection with our solicitation of proxies for
use at the 2006 Annual Meeting of Stockholders of the Company and at any and all
adjournments or postponements thereof (the "Stockholder Meeting"). The Company
has stated that the Stockholder Meeting will be held at The Jefferson Hotel, 101
West Franklin Street, Richmond, Virginia, on Tuesday, May 16, 2006, at 9:00am
Eastern Daylight Time. The board of directors of the Company (the "Board of
Directors" or "Board") has fixed March 20, 2006, as the record date for
determining the stockholders entitled to receive notice of and to vote at the
Stockholder Meeting.
This solicitation is being conducted by Third Point LLC, Third Point
Offshore Fund Ltd., Third Point Partners LP, Third Point Ultra Ltd., Lyxor/Third
Point Fund Ltd., Third Point Partners Qualified LP, Third Point Resources LP and
Third Point Resources Ltd. (collectively, the "Third Point Entities") and Daniel
S. Loeb and Todd Q. Swanson. The Third Point Entities and Daniel S. Loeb
beneficially own approximately 5.9% of the Common Stock reported by the Company
as outstanding as of February 28, 2006. As more fully discussed below, we are
soliciting proxies to be used at the Stockholder Meeting for the following
actions:
(1) The election of Mr. Daniel S. Loeb and Mr. Todd Q. Swanson as
directors of the Company (collectively, the "Third Point Nominees");
(2) To ratify the appointment of Ernst & Young LLP as the Company's
independent registered public accounting firm for the fiscal year ending
December 31, 2006;
(3) To vote against the adoption of the Massey Energy Company 2006 Stock
and Incentive Compensation Plan, which includes the authorization of 3.5 million
shares of common stock that can be issued by the Company under the plan;
(4) To approve amendments to the Company's Restated Certificate of
Incorporation and Restated Bylaws to lower the requirement for amendment of the
Company's Restated Bylaws by stockholders from 80% to 67% of the total voting
power of all outstanding shares of voting stock of the Company.
The Company's certificate of incorporation provides, without specifying any
conditions precedent, that stockholders have cumulative voting rights with
respect to the election of directors. Cumulative voting rights entitle you to
give a nominee as many votes as is equal to the number of shares you own
multiplied by the number of directors to be elected, or you may distribute your
votes among the nominees as you see fit. We are soliciting the discretionary
authority to cumulate votes, and the persons named as proxies on our proxy card
will have the authority to cumulate votes at their discretion. We will use the
authority granted to us by our WHITE proxy card to cumulate votes for the Third
Point Nominees to assure that the maximum number of Third Point Nominees are
elected to the Board of Directors. The Third Point Entities may, under the
circumstances described in this Proxy Statement under the caption "REASONS FOR
THIS SOLICITATION" and "MATTERS TO BE CONSIDERED AT THE STOCKHOLDER MEETING",
nominate additional individuals to serve as directors of the Company.
We urge you to elect the Third Point Nominees to the Board of Directors
because we believe that election of new members to the Board would be beneficial
to the Company and its stockholders. Among other things, electing the Third
Point Nominees should provide a new voice and fresh perspective. We believe that
the Board of Directors should include representatives of significant
stockholders who can present stockholders' perspective on management direction,
champion reform of compensation, perquisites and management incentive, and
generally bring focus to the maximization of value for the benefit of
stockholders. Accordingly, we urge you to sign and date the WHITE proxy card
supplied by the Third Point Entities and return it in the enclosed postage-paid
envelope whether or not you attend the meeting in order to vote (A) "FOR" the
election of Daniel S. Loeb and Todd Q. Swanson to the Board of Directors, (B)
"FOR" the ratification of Ernst & Young LLP as the Company's independent
registered public accounting firm for the fiscal year ending December 31, 2006,
(C) "AGAINST" the adoption of the 2006 Stock Incentive Compensation Plan, and
(D) "FOR" the amendments to the Company's Restated Certificate of Incorporation
and Restated Bylaws to lower the stockholder vote required to amend the Restated
Bylaws. This Proxy Statement is first being sent or given to stockholders on or
about April 17, 2006.
If your shares are held in the name of a brokerage firm, bank or nominee,
only that entity can vote such shares and only upon receipt of your specific
instruction. Accordingly, we urge you to contact the person responsible for your
account and instruct that person to execute the WHITE proxy card on your behalf.
YOUR VOTE IS IMPORTANT. If you agree with the reasons for the Third Point
Entities' solicitation set forth in this Proxy Statement and believe that the
election of the Third Point Nominees to the Board of Directors can make a
difference, please vote for the election of the Third Point Nominees, no matter
how many or how few shares you own.
-2-
THE THIRD POINT ENTITIES URGE YOU NOT TO SIGN ANY PROXY CARD THAT IS SENT
TO YOU BY THE COMPANY, EVEN AS A FORM OF PROTEST. By executing the WHITE proxy
card, you will authorize us to vote FOR the election of the two Third Point
Nominees. If you have already signed a proxy card sent to you by the Company,
you may revoke that proxy at any time prior to the time a vote is taken by (i)
submitting a duly executed proxy bearing a later date to the Secretary of the
Company, (ii) filing with the Secretary of the Company a later dated written
revocation or (iii) attending and voting at the Stockholder Meeting in person.
Thank you for your support,
On behalf of the Third Point Entities,
Sincerely,
/s/ Daniel S. Loeb
---------------------------------------
Daniel S. Loeb
IF YOU HAVE ANY QUESTIONS, REQUIRE ASSISTANCE IN VOTING THE WHITE PROXY CARD
OR NEED ADDITIONAL COPIES OF OUR PROXY MATERIALS,
PLEASE CALL OUR PROXY SOLICITOR:
D.F. KING & CO., INC.
48 Wall Street
New York, NY 10005
Toll Free: 1 (800) 628-8532
Banks and Brokers Call Collect: (212) 269-5550
-3-
GENERAL
The Board of Directors is currently divided into three classes of directors
whose terms are for staggered three-year periods. According to the Company's
proxy statement (the "Company Proxy Statement"), filed in preliminary form on
March 31, 2006, three Class I directors are to be elected to the Board at the
Stockholder Meeting, to hold office until their successors have been elected and
qualified. The Company has nominated three existing members of the Board to
stand for election at the Stockholder Meeting (the "Company Nominees").
We are currently seeking your proxy for the election to the Board of
Directors of two individuals - Mr. Daniel S. Loeb and Mr. Todd Q. Swanson. We
are soliciting the discretionary authority to cumulate votes, and the persons
named as proxies on our proxy card will have the authority to cumulate votes at
their discretion. We will use the authority granted to us by our WHITE proxy
card to cumulate votes for the Third Point Nominees to assure that the maximum
number of Third Point Nominees are elected to the Board of Directors.
For information concerning voting procedures at the Stockholder Meeting,
see "Voting and Proxy Procedures."
BACKGROUND OF THIS SOLICITATION
On September 19, 2005, certain of the Third Point Entities filed a Schedule
13D with the Securities and Exchange Commission (the "SEC") indicating that we
had acquired 5.9% of the outstanding Common Stock. On the same day, Daniel S.
Loeb sent a letter to the Company demanding that the Company implement a share
repurchase program.
On November 15, 2005, the Company announced that the Board of Directors had
approved a plan to repurchase up to $500 million of its common stock from time
to time with free cash flow as market conditions warrant. The Company noted that
it does not expect that its share repurchase activities will begin until the
second half of 2006. We believe that, based on the recent trading history of the
Company's common stock, this timing does not adequately address the near term
value opportunity in the Company's depressed share price. Specifically, on
September 16, 2005, the trading day prior to the date on which the Third Point
Entities demanded adoption of a share repurchase program, the Company's common
stock closed at $51.77 per share. On November 14, 2005, the date prior to the
Company's announcement that it would implement a buyback program, the closing
price was $37.75 per share, and on April 3, 2006, the price was $36.31. Given
this substantial decrease in the market value of the Company's common stock
since we demanded adoption of a share repurchase plan, we believe that the
Company should seize the opportunity to repurchase shares at these relatively
depressed prices.
On March 15, 2006, the Third Point Entities delivered to the Company notice
under the Company's bylaws of the Third Point Entities' intention to nominate
the Third Point Nominees for election at the Stockholder Meeting.
REASONS FOR THIS SOLICITATION
We expect that the Third Point Nominees, if elected, would provide a new
voice and fresh perspective to the Board of Directors. We believe that the Board
of Directors should include representatives of significant stockholders who can
present stockholders' perspective on management direction, champion reform of
compensation, perquisites and management incentive, and generally bring focus to
the maximization of value for the benefit of stockholders. There can be no
assurance that the Third Point Nominees and the Board of Directors will succeed
in creating stockholder value.
Under Delaware corporate law, the Board of Directors is charged with the
management of the Company, including determining its strategic direction. The
Third Point Entities believe, therefore, that if the Third Point Nominees are
elected, they would be in a position as directors of the Company to influence
the strategic direction of the Company by bringing to the Board the perspective
of a significant stockholder. As members of the Board of
-4-
Directors, the Third Point Nominees would be able to present initiatives to the
entire Board of Directors, actively participate in Board discussions and argue
in support of positions that they believe would benefit the Company's
stockholders. If elected, the Third Point Nominees would have greater access to
Company information and management, which would allow them to be more effective
advocates in favor of these positions. The Third Point Nominees believe that the
other directors of the Company will, in the discharge of their fiduciary duties
under Delaware law, consider all reasonable proposals to enhance stockholder
value by exploring these proposals and acting on them if they determine that
such proposals are in the best interests of the Company's stockholders.
The Third Point Nominees have not finalized any proposals that they will
present to the Board but intend, if and when elected, promptly to develop and
make specific proposals to further their goal of creating stockholder value.
Among the proposals that the Third Point Nominees expect to make are proposals
to (i) accelerate and possibly expand the Company's share repurchase program;
(ii) review the personal use by management of private aircraft, company housing
and company cars; (iii) review the Company's need to own or lease private
aircraft; and (iv) more closely tie management compensation to the Company's
operating results. In regards to the last of these potential proposals, the
Third Point Nominees believe, particularly in light of the fact that Company
guidance as to the level of produced coal shipments has been revised downward
three times in a recent span of less than six months, that it is necessary to
hold management accountable for operational shortcomings. In regards to an
acceleration and possible expansion of the Company's share repurchase program,
the Third Point Nominees would propose, at the first Board meeting after their
election, that share repurchases commence immediately or as soon as practicable.
The Third Point Nominees have not yet determined whether to propose an expansion
of the stock repurchase program, or how much of an expansion might be proposed,
and do not expect to make such determinations until they join the Board, have
access to the Company's latest projections and can evaluate various relevant
matters, including the availability of cash flow and external financing to fund
additional repurchases and the effect of additional repurchases on the financial
covenants contained in the Company's debt obligations.
The Third Point Nominees will constitute a small minority of the Board of
Directors if they are elected and, therefore, even if they vote unanimously,
will not be able to adopt any measures without the support of other members of
the Board of Directors. Depending on the responsiveness of the Board to any
proposals or initiatives presented by the Third Point Nominees, the Third Point
Entities may seek to nominate additional directors to the Board of Directors at
the 2007 annual meeting if the Third Point Entities believe that additional
representation on the Board would make their efforts more effective. However,
due to the staggered structure of the Board of Directors and the cumulative
voting rights of the Company's stockholders, the Third Point Entities believe
that it is unlikely that they would be able to obtain majority control of the
Board of the Directors at the 2007 election of directors even if the two Third
Point Nominees are elected at the 2006 Stockholder Meeting.
The Third Point Nominees do not anticipate that they will have any
conflicts of interest with respect to the Company, if elected, and recognize
their fiduciary duty obligations to all stockholders. None of the Third Point
Nominees has any contract, arrangement or understanding with the Company, and no
other direct financial interest concerning the Company, other than through the
beneficial ownership of stock of the Company by the Third Point Entities and the
Third Party Nominees disclosed in this Proxy Statement.
THE THIRD POINT ENTITIES RECOMMEND A VOTE FOR THE ELECTION OF THE THIRD
POINT NOMINEES BECAUSE THEY BELIEVE THAT THE THIRD POINT NOMINEES WOULD
CONTRIBUTE TO THE CREATION OF STOCKHOLDER VALUE.
-5-
MATTERS TO BE CONSIDERED AT THE STOCKHOLDER MEETING
PROPOSAL 1: ELECTION OF DIRECTORS
The Board of Directors currently consists of nine directors. Directors hold
office until the annual meeting for the year in which their terms expire and
until their successors are elected and qualified, unless prior to that time they
have resigned, retired or otherwise left office. According to the Company Proxy
Statement, three Class I directors are to be elected to the Board at the
Stockholder Meeting. On March 15, 2006, we gave notice to the Company of our
intention to nominate the Third Point Nominees to serve as directors of the
Company.
We are seeking your proxy for the election to the Board of Directors of two
individuals - Mr. Daniel S. Loeb and Mr. Todd Q. Swanson. We are soliciting the
discretionary authority to cumulate votes, and the persons named as proxies on
our proxy card will have the authority to cumulate votes at their discretion. We
will use the authority granted to us by our WHITE proxy card to cumulate votes
for the Third Point Nominees to assure that the maximum number of Third Point
Nominees are elected to the Board of Directors.
Each of the Third Point Nominees has consented to being named as a nominee
in this Proxy Statement. The Third Point Entities do not expect that either of
the Third Point Nominees will be unable to stand for election, but in the event
that a vacancy in the slate of Third Point Nominees should occur unexpectedly,
the shares of Common Stock represented by the WHITE proxy card will be voted for
a substitute candidate selected by the Third Point Entities. If the Third Point
Entities determine to add nominees because the Company expands the size of the
Board of Directors subsequent to the date of this Proxy Statement, the Third
Point Entities will supplement this Proxy Statement. If, however, the Company
does not leave reasonable time before the Stockholder Meeting to supplement this
Proxy Statement, the Third Point Entities reserve the right to nominate
additional nominees and to use the discretionary authority granted by the
proxies it is soliciting to vote for such additional nominees or to seek
judicial relief.
Biographical Information Regarding the Third Point Nominees
The following information concerning age, principal occupation and business
experience during the last five years, and current directorships has been
furnished to the Third Point Entities by the Third Point Nominees, each of whom
has confirmed his willingness to serve on the Board of Directors if elected.
Daniel S. Loeb, age 44, is Founder and CEO of Third Point LLC, an
investment management firm founded in 1995. Third Point LLC invests both long
and short in securities involved in event driven and special situations. The
firm is based in New York, with offices in Los Angeles, Sunnyvale and Hong Kong.
In 1994, prior to founding Third Point, Mr. Loeb was Vice President of high
yield sales at Citigroup, and from 1991 to 1993, he was Senior Vice President in
the distressed debt department at Jefferies & Co. Mr. Loeb began his career as
an Associate in private equity at E.M. Warburg Pincus & Co. in 1984. Mr. Loeb is
also Chairman of the Board of American Restaurant Group, Director of Ligand
Pharmaceuticals, Director of Ception Therapeutics and former Director of Radia
Communications, prior to its sale to Texas Instruments in July 2003. He is a
Trustee of Prep for Prep, an organization dedicated to facilitating education
and career opportunities for underprivileged youth. Mr. Loeb graduated with an
A.B. in Economics from Columbia University in 1984.
Todd Q. Swanson, CPA, CFA, age 31, joined Third Point LLC in September
2005. From 2003 to 2005 Mr. Swanson attended the Graduate School of Business at
Stanford University. From 2001 through 2003 he worked for Thoma Cressey Equity
Partners, a private equity firm based in Chicago. From 1998 through 2001, he
worked for KPMG LLP, an international accounting firm, in accounting and merger
and acquisition roles. Mr. Swanson graduated from Iowa State University with a
B.S. in Accounting and a B.S. in Finance, as well as from the Graduate School of
Business at Stanford University with a Masters in Business Administration. Mr.
Swanson became a Certified Public Accountant (CPA) in 1998 and earned the
Chartered Financial Analyst (CFA) designation in 2001.
-6-
If elected, each Third Point Nominee would receive such directors' fees as
may be payable by the Company in accordance with its practice at the time.
Except as described below, there are no understandings or arrangements between
the Third Point Nominees or any other person pursuant to which the nominations
are to be made by the Third Point Entities. Pursuant to each Third Point
Nominee's employment arrangements with Third Point LLC, Third Point LLC, Third
Point Offshore Fund Ltd., Third Point Partners LP, Third Point Ultra Ltd.,
Lyxor/Third Point Fund Ltd., Third Point Partners Qualified LP, Third Point
Resources LP and Third Point Resources Ltd., will indemnify and hold harmless
each Third Point Nominee from any and all damages, judgments, fines,
settlements, losses and expenses incurred by such nominee resulting from any
action, suit or proceeding based upon or arising from certain actions, including
the solicitation of proxies to which this Proxy Statement relates and such
person's ongoing services as a director of the Company to the extent not
otherwise indemnified by the Company, other than certain excluded losses.
Additional information concerning the participants (as such term is defined
in Instruction 3 to Item 4 of Schedule 14A under the Securities Exchange Act) in
this solicitation is set forth in Appendix A to this Proxy Statement.
PROPOSAL 2: RATIFICATION OF APPOINTMENT OF ERNST & YOUNG
According to the Company Proxy Statement, the Company is soliciting proxies
for the appointment of Ernst & Young LLP as the Company's independent
accountants for 2006. The Board of Directors has unanimously recommended a vote
for this proposal. Please refer to the Company Proxy Statement for a detailed
discussion of this proposal, including various arguments in favor of and against
such proposal. We urge you to vote FOR the appointment of Ernst & Young LLP as
the Company's independent accountants for 2006 on the WHITE proxy card. If you
do not indicate any voting instruction, we will vote the WHITE proxy card FOR
this proposal.
PROPOSAL 3: APPROVAL OF 2006 STOCK AND INCENTIVE COMPENSATION PLAN
According to the Company Proxy Statement, the Company is soliciting proxies
with respect to a proposal for the stockholders to approve the Massey Energy
Company 2006 Stock Incentive Compensation Plan (the "Plan"). The Board of
Directors has unanimously approved the Plan and is submitting it for stockholder
approval at the Stockholder Meeting. According to the Company Proxy Statement,
under the Plan the Company will be able to grant stock options, stock units,
stock awards, dividend equivalents and other stock-based awards and if approved,
3,500,000 shares of common stock of the Company will be authorized for issuance
under the Plan. The Company Proxy Statement contains a summary of the Plan and a
copy of the Plan is attached thereto as Annex A. The board's adoption of the
Plan is conditioned upon stockholder approval. The affirmative vote of the
holders of a majority of the shares represented in person or by proxy at the
Stockholder Meeting and entitled to vote will be required for approval of the
Plan. Please refer to the Company Proxy Statement for a detailed discussion of
this proposal, including various arguments in favor of and against the proposal
to approve the Plan.
The Third Point Entities recommend that stockholders vote AGAINST the
approval of the Plan at the Stockholder Meeting. The Third Point Entities
believe that the Company's existing incentive plans, which as of March 20, 2006
allowed for the future grant of 1,709,460 shares of the Company's common stock,
are more than adequate for the time being pending further discussions by the
Board of Directors of its efforts to enhance stockholder value. Since the
existing plans, according to the Company Proxy Statement, expire in 2007 and
2009, there would appear to be ample time for the Board to first focus its
efforts on stockholder value before presenting a new stock incentive plan for
stockholder approval. The Third Point Nominees believe that by first concluding
further discussions of its efforts to enhance stockholder value, the Board of
Directors will be able to consider whether any aspects of those efforts should
be reflected in any new stock incentive plan presented to the Company's
stockholders for their approval.
-7-
We urge you to vote AGAINST the approval of the 2006 Stock and Incentive
Compensation Plan on the WHITE proxy card. If you do not indicate any voting
instruction, we will vote the WHITE proxy card AGAINST this proposal.
PROPOSAL 4: APPROVAL OF AMENDMENTS TO THE RESTATED CERTIFICATE OF
INCORPORATION AND RESTATED BYLAWS
According to the Company Proxy Statement, the Company is soliciting proxies
for the approval of amendments to the Company's Restated Certificate of
Incorporation and Restated Bylaws to lower the requirement for amendment of the
Company's Restated Bylaws by stockholders from 80% to 67% of the total voting
power of all outstanding shares of voting stock of the Company. The Board of
Directors has unanimously approved the proposal and is submitting it for
stockholder approval at the Stockholder Meeting.
The Third Point Entities recommend that stockholders vote FOR the approval
of the amendments. The Third Point Entities believe that the current
supermajority requirement of 80% in order for stockholders to amend or adopt
bylaws is a significant restriction on stockholder rights and therefore should
be changed. However, although the Third Point Entities support this proposal,
they believe that the requirement should be further reduced so that the Restated
Bylaws could be amended, or new bylaws adopted, by the vote of the holders of a
majority of the outstanding common shares. If the Company alters its proposal to
further reduce the supermajority requirement to a majority requirement, the
Third Point Entities would be pleased to support such a proposal.
We urge you to vote FOR the approval of the amendment to the Restated
Certificate of Incorporation and Restated Bylaws on the WHITE proxy card. If you
do not indicate any voting instruction, we will vote the WHITE proxy card FOR
this proposal.
Except as set forth in this Proxy Statement, the Third Point Entities are
not aware of any other matter to be considered at the Stockholder Meeting.
However, if the Third Point Entities learn of any other proposals made at a
reasonable time before the Stockholder Meeting, the Third Point Entities will
either supplement this Proxy Statement and provide an opportunity to
stockholders to vote by proxy directly on such matter or will not exercise
discretionary authority with respect thereto. If other proposals are made
thereafter, the persons named as proxies on the WHITE proxy card solicited by
the Third Point Entities will vote such proxies in their discretion.
-8-
INFORMATION ABOUT THE THIRD POINT ENTITIES
Daniel S. Loeb is the managing member of Third Point LLC and controls Third
Point LLC's business activities. The principal business of Mr. Loeb is to act as
the managing member of Third Point LLC. Third Point LLC is organized as a
limited liability company under the laws of the State of Delaware, and its
principal business is to serve as investment manager or adviser to a variety of
funds and managed accounts (such funds and accounts, the "Funds"), and to
control the investing and trading in securities of the Funds. Third Point
Offshore Fund Ltd. is organized as a limited liability exempted company under
the laws of the Cayman Islands, and its principal business is to invest and
trade in securities. Third Point Partners LP is organized as a limited
partnership under the laws of the State of Delaware, and its principal business
is to invest and trade in securities. Third Point Ultra Ltd. is organized as a
limited liability company under the laws of the British Virgin Islands, and its
principal business is to invest and trade in securities. Lyxor/Third Point Fund
Ltd. is organized as a public company with limited liability organized under the
laws of Jersey, and its principal business is to invest and trade in securities.
Third Point Partners Qualified LP is organized as a limited partnership under
the laws of the State of Delaware, and its principal business is to invest and
trade in securities. Third Point Resources LP is organized as a limited
partnership under the laws of the State of Delaware, and its principal business
is to invest and trade in securities. Third Point Resources Ltd. is a limited
liability exempted company organized under the laws of the Cayman Islands, and
its principal business is to invest and trade in securities. Todd Q. Swanson's
principal business is as an employee of Third Point LLC.
The address of the principal business and principal office of Third Point
Offshore Fund Ltd. and Third Point Resources Ltd. is c/o Walkers SPV Limited,
Walker House, Mary Street, P.O. Box 908GT, George Town, Grand Cayman, Cayman
Islands, British West Indies. The address of the principal business and
principal office of Third Point Ultra Ltd. is c/o Walkers (BVI) Limited of
Walkers Chambers, P.O. Box 92, Road Town, Tortola, British Virgin Islands. The
address of the principal business and principal office of Lyxor/Third Point Fund
Ltd. is c/o Lyxor Asset Management, Tour Societe Generale, 17 Cours Valmy, 92987
Paris-La Defense Cedex, France. The address of the principal business and
principal office of the other Third Point Entities is 390 Park Avenue, New York,
NY 10022.
The Third Point Entities beneficially own 4,800,000 shares of Common Stock,
representing approximately 5.9% of the 81,976,239 shares of Common Stock as
reported to be outstanding by the Company as of February 28, 2006.
Additional information concerning transactions in securities of the Company
effected during the past two years by the Third Point Entities and the Third
Point Nominees is set forth in Appendix B to this Proxy Statement.
SOLICITATION; EXPENSES
Proxies may be solicited by mail, advertisement, telephone, facsimile,
telegraph, email and personal solicitation by the Third Point Entities and by
the Third Point Nominees. No additional compensation will be paid to the Third
Point Entities or to the Third Point Nominees for the solicitation of proxies.
Banks, brokerage houses and other custodians, nominees and fiduciaries will be
requested to forward the Third Point Entities' solicitation material to their
customers for whom they hold shares, and the Third Point Entities will reimburse
them for their reasonable out-of-pocket expenses.
The Third Point Entities have retained D.F. King & Co., Inc. ("D.F. King")
to assist in the solicitation of proxies and to act as an advisor and consultant
in connection with the solicitation of proxies. The Third Point Entities will
pay D.F. King an estimated fee of up to $150,000 and $5 for each completed
telephone contact in connection with the solicitation and have agreed to
reimburse it for its reasonable out-of-pocket expenses. Approximately 50 persons
will be used by D.F. King in its solicitation efforts. Pursuant to the terms of
the agreement with D.F. King, Third Point LLC will indemnify D.F. King and its
officers, directors and employees, from any and all losses incurred by D.F. King
in connection with the solicitation of the proxies for the Stockholder Meeting.
-9-
The entire expense of preparing, assembling, printing and mailing this
Proxy Statement and related materials and the cost of soliciting proxies will be
borne by the Third Point Entities.
The Third Point Entities estimate that the total expenditures relating to
its proxy solicitation incurred by the Third Point Entities will be
approximately $500,000, approximately $150,000 of which has been incurred to
date.
VOTING AND PROXY PROCEDURES
The Third Point Entities believe that it is in the best interest of the
Company's stockholders to elect the Third Point Nominees at the Stockholder
Meeting. We believe that the Board of Directors should include representatives
of significant stockholders who can present stockholders' perspective on
management direction, champion reform of compensation, perquisites and
management incentive, and generally bring focus to the maximization of value for
the benefit of stockholders. There can be no assurance that the election of the
Third Point Nominees will maximize stockholder value. THE THIRD POINT ENTITIES
RECOMMEND A VOTE FOR THE ELECTION OF THE THIRD POINT NOMINEES BECAUSE THE THIRD
POINT ENTITIES BELIEVE THAT THE THIRD POINT NOMINEES WOULD CONTRIBUTE TO THE
CREATION OF STOCKHOLDER VALUE.
HOW DO I VOTE BY PROXY?
For the proxy solicited hereby to be voted, the WHITE proxy card to be
supplied by the Third Point Nominees must be signed, dated and returned to the
Third Point Nominees, c/o D.F. King in the enclosed postage-paid envelope in
time to be voted at the Stockholder Meeting. If you wish to vote for the Third
Point Nominees, you must submit the WHITE proxy card supplied by the Third Point
Entities and must NOT submit the Company's proxy card.
WHAT IF I AM NOT THE RECORD HOLDER OF MY SHARES?
If your shares are held in the name of a brokerage firm, bank or nominee,
only that entity can vote such shares and only upon receipt of your specific
instruction. Accordingly, we urge you to contact the person responsible for your
account and instruct that person to execute on your behalf the WHITE proxy card.
IF I PLAN TO ATTEND THE STOCKHOLDER MEETING, SHOULD I STILL SUBMIT A WHITE
PROXY?
Whether or not you plan to attend the Stockholder Meeting, we urge you to
submit a WHITE proxy. Returning the enclosed proxy card will not affect your
right to attend and vote at the Stockholder Meeting.
WHAT IF I WANT TO REVOKE MY PROXY?
Any proxy may be revoked as to all matters covered thereby at any time
prior to the time a vote is taken by (i) submitting a duly executed proxy
bearing a later date to the Secretary of the Company, (ii) filing with the
Secretary of the Company a later dated written revocation or (iii) attending and
voting at the Stockholder Meeting in person. Attendance at the Stockholder
Meeting will not in and of itself constitute a revocation.
WHAT SHOULD I DO IF I RECEIVE A PROXY CARD SOLICITED BY THE COMPANY?
If you submit a proxy to us by signing and returning the enclosed WHITE
proxy card, do not sign or return the proxy card solicited by the Company or
follow any voting instructions provided by the Company unless you intend to
change your vote, because only your latest-dated proxy will be counted.
-10-
If you have already sent a proxy card to the Company, you may revoke it and
provide your support to the Third Point Nominees by signing, dating and
returning the enclosed WHITE proxy card.
WHO CAN VOTE?
The Board of Directors has established March 20, 2005 as the record date
for the Stockholder Meeting (the "Record Date"). Only holders of record of
Common Stock on the Record Date will be entitled to vote at the Stockholder
Meeting. If you are a stockholder of record on the Record Date, you will retain
the voting rights in connection with the Stockholder Meeting even if you sell
such shares after the Record Date. Accordingly, it is important that you vote
the shares of Common Stock held by you on the Record Date, or grant a proxy to
vote such shares on the WHITE proxy card, even if you sell such shares after
such date.
WHAT IS THE REQUIRED QUORUM?
According to the Company's bylaws, the holders of a majority of shares of
Common Stock entitled to vote at the Stockholder Meeting, present in person or
by proxy, constitute a quorum.
WHAT VOTE IS REQUIRED TO ELECT THE THIRD POINT NOMINEES?
Based on the Company Proxy Statement:
o the three nominees receiving the highest number of affirmative votes
at the Stockholder Meeting will be elected to the Board of Directors;
and
o abstentions and broker non-votes will be counted as "present" when
determining whether there is a quorum, but will not be counted toward
a nominee's attainment of a plurality.
HOW WILL MY SHARES BE VOTED?
In accordance with the cumulative voting rights set forth in the Company's
certificate of incorporation, you are entitled to give a nominee as many votes
as is equal to the number of shares you own multiplied by the number of
directors to be elected, or you may distribute your votes among the nominees as
you see fit. For example, if you own 100 shares as of the Record Date, and if 3
directors are to be elected at the Stockholder Meeting, you have 300 votes that
you can allocate among the nominees in any manner you choose. There are no
conditions precedent set forth in the certificate of incorporation to the
exercise of cumulative voting rights.
Shares of Common Stock represented by a valid, unrevoked WHITE proxy card
will be voted in accordance with the recommendations made in this Proxy
Statement unless you otherwise indicate on the proxy card. We are soliciting the
discretionary authority to cumulate votes, and the persons named as proxies on
our proxy card will have the authority to cumulate votes at their discretion. We
will use the authority granted to us by our WHITE proxy card to cumulate votes
for the Third Point Nominees to assure that the maximum number of Third Point
Nominees are elected to the Board of Directors.
Except as set forth in this Proxy Statement, including the possible
election of the Company's independent accountants, the Third Point Entities are
not aware of any other matter to be considered at the Stockholder Meeting.
However, if the Third Point Entities learn of any other proposals made at a
reasonable time before the Stockholder Meeting, the Third Point Entities will
either supplement this Proxy Statement and provide an opportunity to
stockholders to vote by proxy directly on such matter or will not exercise
discretionary authority with respect thereto. If other proposals are made
thereafter, the persons named as proxies on the WHITE proxy card solicited by
the Third Point Entities will vote such proxies in their discretion.
-11-
THE THIRD POINT ENTITIES ARE ONLY PROPOSING TWO NOMINEES, WHILE THREE DIRECTORS
ARE EXPECTED TO BE ELECTED AT THE STOCKHOLDER MEETING. IF I VOTE MY SHARES ON
THE WHITE PROXY CARD, HOW MANY NOMINEES WILL I BE VOTING FOR?
The Third Point Entities are seeking to elect the maximum number of Third
Point Nominees. The Third Point Entities expect to cumulate all of the votes
received in favor of the Third Point Nominees. If the two Third Point Nominees
are elected, the nominee of the Company who receives the greatest number of
votes would be elected as the third director.
INFORMATION ABOUT THE COMPANY
Based upon documents publicly filed by the Company, the mailing address of
the principal executive offices of the Company is 4 North 4th Street, Richmond,
VA 23219.
Appendix C to this Proxy Statement sets forth information obtained from the
Company's public filings related to the beneficial ownership of shares of Common
Stock.
Except as otherwise noted herein, the information in this Proxy Statement
concerning the Company has been taken from or is based upon documents and
records on file with the SEC and other publicly available information. Although
the Third Point Entities do not have any knowledge indicating that any statement
contained herein is untrue, we do not take any responsibility, except to the
extent imposed by law, for the accuracy or completeness of statements taken from
public documents and records that were not prepared by or on behalf of the Third
Point Entities, or for any failure by the Company to disclose events that may
affect the significance or accuracy of such information.
OTHER MATTERS
Except as set forth in this Proxy Statement, the Third Point Entities are
not aware of any other matter to be considered at the Stockholder Meeting.
However, if the Third Point Entities learn of any other proposals made at a
reasonable time before the Stockholder Meeting, the Third Point Entities will
either supplement this Proxy Statement and provide an opportunity to
stockholders to vote by proxy directly on such matter or will not exercise
discretionary authority with respect thereto. If other proposals are made
thereafter, the persons named as proxies on the WHITE proxy card solicited by
the Third Point Entities will vote such proxies in their discretion.
Third Point LLC
Third Point Offshore Fund Ltd.
Third Point Partners LP
Third Point Ultra Ltd.
Lyxor/Third Point Fund Ltd.
Third Point Partners Qualified LP
Third Point Resources LP
Third Point Resources Ltd.
Daniel S. Loeb
Todd Q. Swanson
April 17, 2006
-12-
APPENDIX A
INFORMATION CONCERNING PARTICIPANTS IN THE PROXY SOLICITATION
The following sets forth the name, business address, and the number of
shares of Common Stock of the Company beneficially owned (as determined in
accordance with Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")) as of March 17, 2006 by each of (i) the Third Point
Entities and (ii) the Third Point Nominees:
Number of Shares of
Common Stock of Percent of Common
the Company Stock of the
Name Business Address Beneficially Owned Company(1)
- ------------------------------ ------------------------------ -------------------- -----------------
Third Point LLC(2) 390 Park Avenue 4,800,000 5.9%
New York, NY 10022
Third Point Offshore Fund Ltd. c/o Walkers SPV Limited 2,752,100 3.4%
Walker House
Mary Street
P.O. Box 908GT
George Town
Grand Cayman
Cayman Islands
British West Indies
Third Point Ultra Ltd. c/o Walkers (BVI) Limited of 499,200 0.6%
Walkers Chambers
P.O. Box 92
Road Town
Tortola
British Virgin Islands
Third Point Partners LP 390 Park Avenue 500,500 0.6%
New York, NY 10022
Lyxor/Third Point Fund Ltd. c/o Lyxor Asset Management 303,300 0.4%
Tour Societe Generale
17 Cours Valmy
92987 Paris-La Defense Cedex
France
Third Point Partners Qualified 390 Park Avenue 305,800 0.4%
LP New York, NY 10022
A-1
Third Point Resources Ltd. c/o Walkers SPV Limited 289,000 0.4%
Walker House
Mary Street
P.O. Box 908GT
George Town
Grand Cayman
Cayman Islands
British West Indies
Third Point Resources LP 390 Park Avenue 150,100 0.2%
New York, NY 10022
Daniel S. Loeb(3) 390 Park Avenue 4,800,000 5.9%
New York, NY 10022
Todd Q. Swanson 390 Park Avenue -- --
New York, NY 10022
- ----------
(1) All percentages are based on the 81,939,989 shares of Common Stock
outstanding as of February 28, 2006.
(2) Third Point LLC is the investment manager or adviser to the Funds, which
include Third Point Offshore Fund Ltd., Third Point Partners LP, Third
Point Ultra Ltd., Lyxor/Third Point Fund Ltd., Third Point Partners
Qualified LP, Third Point Resources LP and Third Point Resources Ltd., and
as such may be deemed the beneficial owner of the shares held for their
account.
(3) Mr. Loeb is the managing member of Third Point LLC and controls Third Point
LLC's business activities. Third Point LLC is the investment manager or
advisor to the Funds. As such, Mr. Loeb may be deemed the beneficial owner
of the shares held for the account of the Funds.
----------
Except as set forth in this Proxy Statement, in the Appendices hereto or
filings of the Third Point Entities pursuant to Section 13 of the Exchange Act
to the best knowledge of the Third Point Entities, none of the Third Point
Entities, any of the persons participating in this solicitation on behalf of the
Third Point Entities, any of the Third Point Nominees nor any associate of any
of the foregoing persons (i) owns beneficially, directly or indirectly, or has
the right to acquire, any securities of the Company or any parent or subsidiary
of the Company, (ii) owns any securities of the Company of record but not
beneficially, (iii) has purchased or sold any securities of the Company within
the past two years, (iv) has incurred indebtedness for the purpose of acquiring
or holding securities of the Company, (v) is or has been a party to any
contract, arrangement or understanding with respect to any securities of the
Company within the past year, (vi) has been indebted to the Company or any of
its subsidiaries since the beginning of the Company's last fiscal year, (vii)
has any arrangement or understanding with respect to future employment by the
Company or with respect to any future transactions to which the Company or any
of its affiliates will be or may be a party or (viii) has engaged in or had a
direct or indirect interest in any transaction, or series of similar
transactions, since the beginning of the Company's last fiscal year, or any
currently proposed transaction, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeds $60,000. In addition, except as set forth in this Proxy
Statement or in the Appendices hereto, to the best knowledge of the Third Point
Entities, none of the Third Point Entities, any of the persons participating in
this solicitation on behalf of the Third Point Entities, any of the Third Point
Nominees, nor any associate of any of the foregoing persons has had or is
A-2
deemed to have a direct or indirect material interest in any transaction with
the Company since the beginning of the Company's last fiscal year, or in any
proposed transaction, to which the Company or any of its affiliates was or is a
party.
None of the corporations or organizations in which any of the Third Point
Nominees has conducted his principal occupation or employment was a parent,
subsidiary or other affiliate of the Company, and none of the Third Point
Nominees holds any position or office with the Company, has any family
relationship with any executive officer or director of the Company or each
other, or has been involved in any legal proceedings of the type required to be
disclosed by the rules governing this solicitation.
To the knowledge of the Third Point Nominees, there are no material
proceedings to which either Third Point Nominee, or any of their associates, is
a party adverse to the Company or any of its subsidiaries, or in which either of
the Third Point Nominees or any of their associates has a material interest
adverse to the Company or any of its subsidiaries.
During the past five years and, with respect to (b) below, during the past
ten years:
(a) No petition under the Federal bankruptcy laws or any state insolvency
law has been filed by or against, and no receiver, fiscal agent or similar
officer has been appointed by a court for the business or property of, any Third
Point Nominee, or any partnership in which any Third Point Nominee was a general
partner at or within two years before the time of such filing, or any
corporation or business association of which he was an executive officer at or
within two years before the time of such filing;
(b) No Third Point Nominee has been convicted in a criminal proceeding or
is a named subject of a pending criminal proceeding (excluding traffic
violations and other minor offenses);
(c) No Third Point Nominee has been the subject of any order, judgment or
decree, not subsequently reversed, suspended or vacated, of any court of
competent jurisdiction, permanently or temporarily enjoining such person from,
or otherwise limiting, the following activities:
(i) Acting as a futures commission merchant, introducing broker,
commodity trading advisor, commodity pool operator, floor broker, leverage
transaction merchant, any other person regulated by the Commodity Futures
Trading Commission, or an associated person of any of the foregoing, or as an
investment advisor, underwriter, broker or dealer in securities, or as an
affiliated person, director or employee of any investment company, bank, savings
and loan association or insurance company, or engaging in or continuing any
conduct or practice in connection with such activity;
(ii) Engaging in any type of business practice; or
(iii) Engaging in any activity in connection with the purchase or
sale of any security or commodity or in connection with any violation of Federal
or State securities laws or Federal commodities laws;
(d) No Third Point Nominee has been the subject of any order, judgment or
decree, not subsequently reversed, suspended or vacated, of any Federal or State
authority barring, suspending or otherwise limiting for more than 60 days the
right of such person to engage in any activity described in paragraph (c)(i)
above, or to be associated with persons engaged in any such activity;
(e) No Third Point Nominee has been found by a court of competent
jurisdiction in a civil action or by the Commission to have violated any Federal
or State securities law, where the judgment in such civil action or finding by
the Commission has not been subsequently reversed, suspended or vacated; and
A-3
(f) No Third Point Nominee has been found by a court of competent
jurisdiction in a civil action or by the Commodities Futures Trading Commission
to have violated any Federal commodities law, where the judgment in such civil
action or finding by the Commodity Futures Trading Commission has not been
subsequently reversed, suspended or vacated.
Since the beginning of the Company's last fiscal year, neither of the Third
Point Nominees currently has or has had any relationship of the nature described
in Item 404(b) of Regulation S-K, promulgated by the Securities and Exchange
Commission under the Exchange Act. Specifically, since the beginning of the
Company's last fiscal year, neither of the Third Point Nominees has been an
officer, director, partner or employee of, nor has either of them owned,
directly or indirectly, beneficially or of record, more than 10% of the equity
interest in, any of the following types of organizations:
(a) Any organization that has made or proposes to make payments to the
Company or any of its subsidiaries for property or services in excess of the
amounts specified in such Item 404(b);
(b) Any organization to which the Company or any of its subsidiaries was
indebted, at the end of the Company's last full fiscal year, in excess of the
amount specified in such Item 404(b);
(c) Any organization to which the Company or any of its subsidiaries has
made or proposes to make payments for property or services in excess of the
amounts specified in such Item 404(b); or
(d) Any organization that provided or proposes to provide legal services
or investment banking services to the Company or any of its subsidiaries in
excess of the amounts specified in such Item 404(b).
No Third Point Nominee has failed to file reports related to the Company
that are required by Section 16(a) of the Exchange Act.
A-4
APPENDIX B
TRANSACTIONS IN MASSEY ENERGY COMPANY
The following table sets forth information with respect to all purchases
and sales of shares of Common Stock by the Third Point Entities and its
associates, affiliates and the Third Point Nominees during the past two years
(amounts in parentheses indicate a sale of shares):
DATE PARTNERS(1) OFFSHORE(2) QUALIFIED(3) ULTRA(4) RESOURCES LP(5) RESOURCES LTD.(6) LYXOR(7)
- ---------- ------------ ------------ ------------ ------------ --------------- ----------------- ------------
8-25-04 19,800 51,300 -- 9,750 3,450 4,450 11,250
12-7-04 (19,800) (51,300) -- (9,750) (3,450) (4,450) (11,250)
8-17-05 24,800 120,500 10,000 14,700 7,000 11,400 11,600
8-17-05 40,400 196,000 16,100 23,800 11,400 18,400 18,900
8-17-05 18,600 90,400 7,500 10,900 5,300 8,600 8,700
8-17-05 12,400 60,300 5,000 7,400 3,500 5,600 5,800
8-17-05 12,400 60,200 5,000 7,300 3,500 5,800 5,800
8-18-05 74,700 362,500 30,000 43,000 21,000 33,800 35,000
8-18-05 31,000 150,800 12,400 18,300 8,700 14,200 14,600
8-19-05 15,500 75,600 6,300 8,900 4,400 7,000 7,300
8-19-05 37,300 181,000 14,900 21,800 10,500 17,000 17,500
8-22-05 37,100 180,300 14,900 22,500 10,600 17,200 17,400
8-23-05 8,500 41,600 3,400 5,900 2,500 4,200 3,900
8-24-05 26,800 130,200 10,700 -- 7,500 12,300 12,500
8-25-05 12,400 59,700 5,000 6,300 4,000 6,400 6,200
8-29-05 13,000 80,000 7,000 7,000 44,000 72,000 7,000
8-30-05 23,500 103,000 8,000 13,000 8,600 13,400 10,500
8-31-05 300 18,700 14,500 24,600 3,200 8,400 300
9-2-05 15,800 72,800 5,800 12,200 4,400 8,200 5,800
9-6-05 26,800 129,900 11,500 16,400 10,700 17,600 12,100
9-6-05 11,800 57,900 5,100 7,300 4,700 7,700 5,500
9-7-05 11,600 58,600 5,200 8,500 4,000 6,600 5,500
9-7-05 41,400 202,700 18,000 25,500 16,300 26,900 19,200
9-7-05 5,900 28,900 2,600 3,600 2,300 3,900 2,800
9-9-05 11,500 56,600 5,000 7,400 4,700 9,500 5,300
9-12-05 2,800 15,100 1,100 3,400 1,400 500 700
9-14-05 3,600 15,800 1,500 1,600 300 300 1,900
9-16-05 4,200 20,300 1,800 2,500 1,600 2,700 1,900
9-16-05 11,800 58,000 5,100 7,300 4,700 7,600 5,500
B-1
DATE PARTNERS(1) OFFSHORE(2) QUALIFIED(3) ULTRA(4) RESOURCES LP(5) RESOURCES LTD.(6) LYXOR(7)
- ---------- ------------ ------------ ------------ ------------ --------------- ----------------- ------------
9-20-05 -- -- -- -- 18,000 32,000 --
9-30-05 (12,000) -- 5,000 1,100 400 8,200 (2,700)
10-27-05 (24,100) (83,200) (7,400) (34,900) (12,200) (22,000) (16,200)
10-28-05 (12,500) (62,300) (5,700) (8,800) (5,600) (9,600) (5,500)
10-31-05 (43,500) (266,000) (12,000) -- (21,500) (36,000) (21,000)
11-1-05 -- (19,500) (2,500) -- (1,000) (2,000) --
11-2-05 61,600 -- 28,800 25,400 28,400 50,100 30,700
11-2-05 30,000 -- 15,000 125,000 10,000 10,000 10,000
11-14-05 (31,000) -- (15,000) (21,000) (11,000) (18,000) (4,000)
12-8-05 -- 200,000 -- -- -- -- --
12-8-05 -- 100,000 -- -- -- -- --
12-30-05 (13,000) (26,500) 42,300 39,800 (34,200) (47,800) 39,400
1-20-06 -- 150,000 -- -- -- -- --
1-23-06 (21,900) (128,600) (11,800) (14,800) (6,000) (6,500) (10,400)
1-31-06 (6,700) (6,300) (1,800) 6,200 800 7,800 --
2-1-06 (2,000) (8,600) 800 (2,400) (2,000) 10,400 3,800
2-7-06 9,400 42,700 5,400 6,500 1,600 4,100 5,300
2-28-06 (1,500) 19,700 (3,800) 16,400 (21,200) (18,500) 8,900
3-7-06 4,500 21,000 4,500 3,300 1,200 6,500 9,000
3-10-06 6,000 34,000 4,100 3,600 -- -- 2,300
3-13-06 5,600 28,300 2,800 6,500 1,300 2,800 2,700
3-15-06 15,400 83,300 9,100 19,300 4,500 8,800 9,600
3-31-06 300 46,700 14,600 (3,100) (12,200) (38,500) (7,800)
- ----------
(1) Third Point Partners LP
(2) Third Point Offshore Fund Ltd.
(3) Third Point Partners Qualified LP
(4) Third Point Ultra Ltd.
(5) Third Point Resources LP
(6) Third Point Resources Ltd.
(7) Lyxor/Third Point Fund Ltd.
B-2
APPENDIX C
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
The following table sets forth, to the knowledge of the Third Point
Entities based on a review of publicly available information filed with the SEC,
each person (other than directors, whose beneficial ownership is in the table on
the following page, and the Third Point Entities, whose beneficial ownership is
in the table in Appendix A) reported to own beneficially more than 5% of the
outstanding Common Stock:
Number of Shares of Common
Name and Address of Stock the Company Percent of Common Stock
Beneficial Owner Beneficially Owned of the Company(1)
- -------------------------------------------- --------------------------- -----------------------
Joint filing by: (2)
The PNC Financial Services Group, Inc. 7,498,053 9.15%
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222
and
PNC Bancorp, Inc.
300 Delaware Avenue
Suite 304
Wilmington, DE 19801
and
PNC Bank, National Association
State Street Research & Management Company
PNC Equity Securities, LLC
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222
and
BlackRock Advisors, Inc.
BlackRock Financial Management, Inc.
BlackRock Capital Management, Inc.
100 Bellevue Parkway
Wilmington, DE 19809
1. All percentages are based on the 81,976, 239 shares of Common Stock
outstanding as of February 28, 2006 according to the Company's last Annual
Report on Form 10-K for the year ending December 31, 2005.
2. Pursuant to a Schedule 13G filed on February 14, 2006 by The PNC Financial
Services Group, Inc., PNC Bancorp, Inc., PNC Bank, National Association,
BlackRock Advisors, Inc., BlackRock Capital Management Inc., BlackRock Financial
Management, Inc., State Street Research & Management Company and PNC Equity
Securities, LLC which reported sole voting power over 7,498,053 shares, sole
dispositive power over 7,478,592 shares and shared dispositive power over 1,634
shares.
C-1
SECURITY OWNERSHIP OF MANAGEMENT
The following table sets forth, to the knowledge of the Third Point
Entities based on a review of the Company Proxy Statement, information with
respect to the beneficial ownership of shares of Common Stock by each of the
Company's directors and executive officers and all directors and executive
officers as a group:
Number of Percent of
Shares Beneficially Common Stock
Name Owned (1) of the Company (2)
- ------------------------------ -------------------- --------------------
John C. Baldwin 10,140 *
James B. Crawford 8,112 *
E. Gordon Gee 18,252 *
William R. Grant(3) 115,142 *
Dan R. Moore 14,196 *
Martha R. Seger 17,338 *
Don L. Blankenship(4) 412,274 *
Robert H. Foglesong(5) -- *
Bobby R. Inman 19,110 *
Baxter F. Phillips, Jr.(6) 86,382 *
J. Christopher Adkins 63,966 *
H. Drexel Short, Jr.(7) 78,881 *
Thomas J. Dostart 29,443 *
* Less than 1%
1. Includes shares that may be acquired through the exercise of options within
60 days of February 28, 2006.
2. All percentages are based on the 81,976,239 shares of Common Stock
outstanding as of February 28, 2006 according to the Company's last Annual
Report on Form 10-K for the year ending December 31, 2005.
3. Mr. Grant owns 35,583 shares directly and is a beneficial owner of 79,559
shares through his ownership interest in Contrarian Trends, L.P., a limited
partnership of which he is a general partner.
4. Mr. Blankenship is also a Named Executive Officer.
5. On March 13, 2006, subsequent to his appointment to the Board of Directors,
Mr. Foglesong received an initial grant award of 4,056 shares and an annual
grant for 2006 of 2,028 shares.
6. Mr. Phillips owns 36,095 shares directly and is the indirect beneficial
owner of 3,044 shares through the Massey's Coal Salary Deferral and Profit
Sharing Program as of February 28, 2006 and 8,911 shares that are held by his
wife.
7. Mr. Short owns 39,066 shares directly and is the indirect beneficial owner
of 2,311 shares through the Massey's Coal Salary Deferral and Profit Sharing
Program as of February 28, 2006.
C-2
IMPORTANT
Please review this proxy statement and the enclosed materials carefully. YOUR
VOTE IS VERY IMPORTANT, no matter how many or how few shares you own.
1. If your shares are registered in your own name, please sign, date and mail
the enclosed WHITE proxy card to D.F. King & Co., Inc., in the postage-paid
envelope provided today.
2. If you have previously signed and returned a proxy card to Massey Energy,
you have every right to change your vote. Only your latest dated proxy card
will count. You may revoke any proxy card already sent to Massey Energy by
signing, dating and mailing the enclosed WHITE proxy card in the
postage-paid envelope provided. Any proxy may be revoked at any time prior
to the 2006 Stockholder Meeting by delivering a written notice of
revocation or a later dated proxy for the 2006 Stockholder Meeting to D.F.
King & Co., Inc., or by voting in person at the 2006 Stockholder Meeting.
3. If your shares are held in the name of a brokerage firm, bank nominee or
other institution, only it can vote your shares and only after receiving
your specific instructions. Accordingly, please sign, date and mail the
enclosed WHITE proxy card in the postage-paid envelope provided, and to
ensure that your shares are voted, you should also contact the person
responsible for your account and give instructions for a WHITE proxy card
to be issued representing your shares.
4. After signing the enclosed WHITE proxy card, do not sign or return Massey
Energy's proxy card unless you intend to change your vote, because only
your latest dated proxy card will be counted.
If you have any questions concerning this proxy statement, would like to request
additional copies of this proxy statement or need help voting your shares,
please contact our proxy solicitor:
D.F. King & Co., Inc.
48 Wall Street
New York, NY 10005
Call Toll-Free: (800) 628-8532
Banks and Brokerage Firms Call Collect: (212) 269-5550
| DETACH PROXY CARD HERE |
- ------------------------------------------------------------------------------------------------------------------------------------
[X]
PLEASE MARK AN "X" IN THE
APPROPRIATE BOX BELOW.
WE RECOMMEND THAT YOU VOTE FOR PROPOSAL 1 BELOW.
1. Election of Directors FOR AGAINST ABSTAIN
WE RECOMMEND THAT YOU VOTE FOR PROPOSAL 2 BELOW.
FOR our director WITHHOLD for all 2. Appointment of Ernst & Young LLP as [ ] [ ] [ ]
nominees [ ] nominees [ ] independent accountants for 2006.
Nominees: Mr. Daniel S. Loeb, Mr. Todd Q. Swanson WE RECOMMEND THAT YOU VOTE AGAINST
PROPOSAL 3 BELOW.
YOU MAY WITHHOLD AUTHORITY TO VOTE FOR ANY INDIVIDUAL BY 3. Adoption of the Massey Energy Company 2006 [ ] [ ] [ ]
WRITING THE NAME OF THE NOMINEE YOU DO NOT SUPPORT ON THE Stock and Incentive Compensation Plan
LINE BELOW. IF YOU WITHHOLD DISCRETIONARY AUTHORITY TO
VOTE FOR ONE OF THE THIRD POINT NOMINEES, WE WILL WE RECOMMEND THAT YOU VOTE FOR PROPOSAL 4 BELOW.
ALLOCATE YOUR VOTES TO THE REMAINING NOMINEE.
4. Approve amendments to the Company's Restated [ ] [ ] [ ]
Certificate of Incorporation and Restated
_________________________________________________________ Bylaws
Dated _______________, 2006
Signature of stockholder ________________________
Signature if held jointly _______________________
Title, if applicable ____________________________
Please sign exactly as your name appears on this
proxy card. All joint owners should sign. If you
are signing in a fiduciary capacity or as a
corporate officer, please also provide your full
title.
PLEASE SIGN, DATE, AND MAIL THIS PROXY CARD TODAY
- --------------------------------------------------------------------------------
MASSEY ENERGY COMPANY
THIS PROXY IS SOLICITED ON BEHALF OF THIRD POINT LLC,THIRD POINT
OFFSHORE FUND LTD.,
THIRD POINT PARTNERS LP,THIRD POINT ULTRA LTD., LYXOR/THIRD POINT FUND LTD.,
THIRD POINT PARTNERS QUALIFIED LP,
THIRD POINT RESOURCES LP,THIRD POINT RESOURCES LTD.,
DANIEL S. LOEB AND TODD Q. SWANSON
AND NOT ON BEHALF OF THE BOARD OF DIRECTORS.
The undersigned hereby appoints Daniel S. Loeb or Todd Q. Swanson, or either of
them, with full power of substitution, as proxies to vote, as indicated above,
for and in the name of the undersigned all shares of Massey Energy Company that
the undersigned is entitled to vote at the Stockholder Meeting scheduled to be
held on May 16, 2006 at The Jefferson Hotel, 101 West Franklin Street, Richmond,
Virginia, at 9:00am Eastern Daylight Time, and at any adjournments or
postponements of the meeting.
This proxy card revokes all previously given by the undersigned.
This proxy will be voted in accordance with your instructions specified below.
If you do not give any specific instructions, this proxy will be voted FOR the
election of the Third Point Nominees, Daniel S. Loeb and Todd Q. Swanson, FOR
proposal 2, AGAINST proposal 3 and FOR proposal 4. IN ADDITION, THE PROXIES ARE
AUTHORIZED TO VOTE IN THEIR DISCRETION FOR ANY SUBSTITUTE NOMINEES AS THE
PROXIES MAY SELECT IF ANY NOMINEE NAMED BELOW IS UNABLE TO SERVE AND ON ANY
OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE STOCKHOLDER MEETING THAT THE
PROXIES WERE NOT AWARE OF A REASONABLE TIME BEFORE THE STOCKHOLDER MEETING.
Stockholders have the right to vote cumulatively in the election of directors
and at the Stockholder Meeting we intend to invoke our right to cumulate our
votes for the election of our nominees, Daniel S. Loeb and Todd Q. Swanson. THIS
PROXY CARD GIVES OUR PROXIES FULL DISCRETIONARY AUTHORITY TO VOTE CUMULATIVELY
AND TO ALLOCATE VOTES AMONG MESSRS. LOEB AND SWANSON, UNLESS AUTHORITY TO VOTE
FOR ANY OF THEM IS WITHHELD ON REVERSE SIDE.
IMPORTANT: PLEASE SIGN AND DATE ON THE REVERSE SIDE.