As Filed with the Securities and Exchange Commission on November 30, 1998
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the
SECURITIES ACT OF 1933
ARCH COAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 43-0921172
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
City Place One, Suite 300
St. Louis, Missouri 63141
(314) 994-2700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
ARCH COAL, INC. DEFERRED COMPENSATION PLAN
(Full Title of the Plan)
Jeffry N. Quinn, Esq.
Senior Vice President -- Law and Human Resources, Secretary and General Counsel
Arch Coal, Inc.
City Place One, Suite 300
St. Louis, Missouri 63141
(314) 994-2700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------------
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Aggregate Registration
to be Registered(1) Registered(2) Price Offering Fee
Per Price(3)
Obligation(3)
- -------------------------------------------------------------------------------
Deferred
Compensation $10,000,000 100% $10,000,000 $2,780
Obligations
- -------------------------------------------------------------------------------
(1)The Deferred Compensation Obligations are unsecured obligations of Arch Coal,
Inc. to pay deferred compensation in the future in accordance with the terms of
the Arch Coal, Inc. Deferred Compensation Plan for a select group of eligible
employees.
(2) The deferred compensation obligations being registered represent the amount
of compensation deferrals that Arch Coal, Inc. estimates will be made by
participants in the Plan during the five year period following the initial date
of deferrals under this registration statement.
(3) Estimated solely for the purpose of determining the registration fee.
<PAGE>
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Arch Coal, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission"), under File No.
1-13105, pursuant to the Securities and Exchange Act of 1934, as amended (the
"Exchange Act"), are incorporated by reference into this Registration Statement
and shall be deemed to be a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1997.
(b) Quarterly Reports on Form 10-Q for the quarters ended March
31, 1998, June 30, 1998 and September 30, 1998.
(c) Current Reports on Form 8-K dated March 23, 1998 (filed March
23, 1998), June 1, 1998 (filed June 2, 1998), June 1, 1998
(filed June 15, 1998 as amended on Form 8-K/A filed on August
17, 1998), July 22, 1998 (filed July 22, 1998), and August 11,
1998 (filed August 12, 1998).
All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in 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 herein by reference 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.
ITEM 4. DESCRIPTION OF SECURITIES.
The following description of the securities offered hereby is
qualified by reference to the Arch Coal, Inc. Deferred Compensation Plan (the
"Plan"). The Plan is a nonqualified deferred compensation plan intended to be
exempt from Parts 1, 2, 3 and 4 of Title I of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"). The Plan, however, is subject to the
Administration and Enforcement provision of Part 5 of Title I of ERISA.
Under the Plan, the Registrant will provide eligible employees the
opportunity to enter into agreements for the deferral of a specified percentage
of their compensation. The Personnel and Compensation Committee of the Board of
Directors (the "Committee") may select from management and other highly
compensated employees who may participate in the Plan (each a "Participant").
II-2
<PAGE>
The Committee will administer the Plan and will establish rules and regulations
governing the Plan and Participants.
The obligations of the Registrant (including, the amount deferred by
the Participants and the amount matched by the Registrant) under the Plan (the
"Obligations") will be unsecured general obligations of the Registrant to pay
the benefits in the future in accordance with the terms of the Plan, and will
rank equally with other unsecured and unsubordinated indebtedness of the
Registrant from time to time outstanding.
Participants may elect to participate in the Plan by submitting a
form to the Registrant's Corporate Human Resources Department. The amount of
compensation to be deferred by each Participant will be determined in accordance
with the Plan based on elections by each Participant. The Registrant will
establish on behalf of each participant a bookkeeping account to which the
Registrant will credit any deferred compensation, matching amounts and income
(or loss) based upon the hypothetical investment options elected by the
Participant pursuant to the options available under the Plan. All account
balances will remain in the Plan until distributable according to the terms of
the Plan. The amount of compensation distributed upon the Participant's death,
termination or retirement will be based on the Participant's account balance as
of such date. A Participant may choose to receive a distribution prior to an
elected or prescribed distribution date or to accelerate distribution under
certain circumstances, subject to certain restrictions and penalties.
A Participant's interest in a deferred compensation account, and
thus the Participant's right to the Obligations, generally cannot be
transferred, alienated or assigned, nor are they subject to attachment,
execution, garnishment or other such equitable or legal process.
The Committee may amend, alter or terminate the Plan at any time
without the prior approval of the Board; except that without the Board's
approval no amendment, modification or termination may materially modify the
requirements as to eligibility for participation in the Plan, or otherwise
materially increase the benefits accruing to Participants under the Plan.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Pursuant to Delaware law, Article Ninth of the Registrant's Restated
Certificate of Incorporation, as amended, contains provisions that result in the
elimination of the personal liability of directors to the Registrant and its
stockholders for monetary damages for breaches of their fiduciary duties as a
director, except for (i) breach of a director's duty of loyalty to the company
or to the stockholders, (ii) acts of omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) dividend or stock
repurchases or redemptions that are illegal under Delaware law, and (iv) any
transaction for which a director receives an improper personal benefit. These
provisions pertain only to breaches of duty by directors as directors and not in
II-3
<PAGE>
any other capacity, such as officers. As a result of the inclusion of such
provisions, stockholders may be unable to recover monetary damages against
directors for actions taken by them that constitute negligence or gross
negligence or that are in violation of their fiduciary duties, although it may
be possible to obtain injunctive or other equitable relief with respect to such
actions. If equitable remedies are found not to be available to stockholders in
any particular case, stockholders may not have any effective remedy against the
challenged conduct.
Under Section 145 of the Delaware General Corporation law, a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances and subject to certain limitations against certain
costs and expenses, including attorneys' fees actually and reasonably incurred
in connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason of
this being a director or officer of the corporation if it is determined that he
acted in accordance with the applicable standard of conduct set forth in such
statutory provision. Article V of the Registrant's Bylaws provides that the
Registrant will indemnify any person who may be involved, as a party or
otherwise, in a claim, action, suit or proceeding (other than any claim, action,
suit or proceeding brought by or in the right of the Registrant) by reason of
the fact that such person is or was a director or officer of the Registrant, or
is or was serving at the request of the Registrant as a director or officer of
any other corporation or entity, against certain liabilities, costs and
expenses. The Registrant is also authorized to and does maintain insurance on
behalf of any person who is or was a director or officer of the Registrant, or
is or was serving at the request of the Registrant as a director or officer of
any other corporation or entity, against any liability asserted against such
person and incurred by such person in any such capacity or arising out of his
status as such, whether or not the Registrant would have the power to indemnify
such person against such liability under the Delaware General Corporation law.
The Registrant has entered into indemnity agreements with persons
who are or were or shall be directors and/or officers of the Registrant, Ashland
Coal, Inc. and/or AMC Merger Corporation; and other persons who are or were
serving, shall serve, or shall have served at the request of the Registrant as a
director, officer, partner, trustee, fiduciary, employee or agent of another
foreign or domestic corporation or non-profit corporation, cooperative,
partnership, joint venture, trust, employee benefit plan or other incorporated
or unincorporated enterprise.
Directors of the Registrant who are officers of certain shareholders
of the Registrant also may be entitled to indemnification under the provisions
of that shareholders' Bylaws providing for the indemnity of officers who serve,
at the request of such shareholders, as a director of another corporation.
The directors and officers of the Registrant are insured under a policy of
directors' and officers' liability insurance.
II-4
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Reference is made to the Exhibit Index filed herewith.
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 a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(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 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed
by the registrant pursuant to Section 13 or Section 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.
II-5
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered 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 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement 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.
(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.
II-6
<PAGE>
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 County of St. Louis, State of Missouri on November 25, 1998.
ARCH COAL, INC.
By:/s/ Jeffry N. Quinn
-------------------------------
Jeffry N. Quinn
Senior Vice President - Law and Human
Resources, General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Steven F. Leer, Patrick A. Kriegshauser and Jeffry N. Quinn, and each
of them (with full power to each of them to act alone) his true and lawful
attorneys-in-fact and agents, for him and on his behalf and is his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to
file the same, with exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or his substitute 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 and on the dates indicated.
II-7
<PAGE>
Signatures Title Date
/s/ Steven F. Leer
- ---------------------------
Steven F. Leer President, Chief Executive November 23, 1998
Officer and Director
/s/ Patrick A. Kriegshauser
- ---------------------------
Patrick A. Kriegshauser Senior Vice President, Chief November 25, 1998
Financial Officer and
Treasurer (Principal
Financial Officer)
/s/ John R. Hall
- ---------------------------
John R. Hall Chairman of the Board of November 24, 1998
Directors
/s/ James R. Boyd
- ---------------------------
James R. Boyd Director November 24, 1998
/s/ Juan Antonio Ferrando
- ---------------------------
Juan Antonio Ferrando Director November 24, 1998
/s/ Paul W. Chellgren
- ---------------------------
Paul W. Chellgren Director November 24, 1998
/s/ Thomas L. Feazell
- ---------------------------
Thomas L. Feazell Director November 24, 1998
/s/ Robert L. Hintz
- ---------------------------
Robert L. Hintz Director November 24, 1998
/s/ Douglas H. Hunt
- ---------------------------
Douglas H. Hunt Director November 24, 1998
/s/ James L. Parker
- ---------------------------
James L. Parker Director November 24, 1998
/s/ A. Michael Perry
- ---------------------------
A. Michael Perry Director November 24, 1998
/s/ J. Marvin Quin
- ---------------------------
J. Marvin Quin Director November 24, 1998
II-8
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibits
4.1 Arch Coal, Inc. Deferred Compensation Plan.
5.1 Opinion of Bryan Cave LLP.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Pricewaterhouse Coopers LLP.
23.4 Consent of Bryan Cave LLP (included in Exhibit 5.1).
24.1 Powers of Attorney authorizing signature
(included in Signature Page).
II-9
EXHIBIT 4.1
ARCH COAL, INC.
DEFERRED COMPENSATION PLAN
Effective January 1, 1999
1. PURPOSE
The purpose of this Arch Coal, Inc. Deferred Compensation Plan (the
"Plan") is to provide eligible key employees of the Company with an opportunity
to defer compensation to be earned by them from the Company as a means of saving
for retirement or other future purposes.
2. DEFINITIONS
The following definitions shall be applicable throughout the Plan:
(a) "Accounting Date" means each Business Day on which a calculation
concerning a Participant's Compensation Account is performed, or as otherwise
defined by the Committee.
(b) "Beneficiary" means the person(s) designated by the Participant in
accordance with Section 11, or if no person(s) is/are so designated, the estate
of a deceased Participant.
(c) "Board" means the Board of Directors of Arch Coal, Inc. or its
designee.
(d) "Business Day" means a day on which the New York Stock Exchange is
open for trading activity.
(e) "Committee" means the Personnel and Compensation Committee of the
Board or its designee.
(f) "Common Stock" means the common stock, $.01 par value, of Arch Coal,
Inc.
(g) "Common Stock Fund" means that investment option, approved by the
Committee, in which a Participant's Compensation Account may be deemed to be
invested and may earn income based on a hypothetical investment in Common Stock.
(h) "Company" means Arch Coal, Inc., its divisions, subsidiaries and
affiliates.
(i) "Compensation" means any employee compensation determined by the
Committee to be properly deferrable under the Plan.
(j) "Compensation Account(s)" means the Retirement Account and/or the
In-Service Account(s).
<PAGE>
(k) "Corporate Human Resources" means the Corporate Human Resources
Department of the Company.
(l) "Credit Date" means the date on which Compensation would otherwise
have been paid to the Participant or, in the case of the Participant's
designation of investment option changes, any date within three Business Days
after the Participant's designation is received by Corporate Human Resources, or
as otherwise designated by the Committee.
(m) "Deferred Compensation" means the Compensation elected by the
Participant to be deferred pursuant to the Plan.
(n) "Election" means a Participant's delivery of a written notice of
election to Corporate Human Resources electing to defer payment of all or a
portion of his or her Compensation either until Retirement, Termination, death
or such other time as further provided by the Committee or the Company.
(o) "Employee" means an individual classified by the Committee as a
full-time, regular salaried employee (which term shall be deemed to include
officers) of the Company, its present and future subsidiary corporations as
defined in Section 424 of the Internal Revenue Code of 1986, as amended, or its
affiliates.
(p) "Exchange Act" means the Securities Exchange Act of 1934, as amended.
(q) "Fair Market Value" means the price of a share of Common Stock, as
reported on the Composite Tape for New York Stock Exchange issues on the date
and at the time designated by the Company.
(r) "Fiscal Year" means the fiscal year of the Company, which is currently
the annual period commencing January 1 and ending the following December 31.
(s) "In-Service Account" means the account(s) to which the Participant's
Deferred Compensation is credited and from which, pursuant to Section 10(b),
distributions are made.
(t) "Participant" means an Employee selected by the Committee to
participate in the Plan and who has elected to defer payment of all or a portion
of his or her Compensation under the Plan.
(u) "Plan" means this Arch Coal, Inc. Deferred Compensation Plan as it now
exists or as it may hereafter be amended.
(v) "Retirement" means a Participant's termination of employment after age
55.
(w) "Retirement Account" means the account(s) to which the Participant's
Deferred Compensation is credited and from which, pursuant to Section 10(a),
distributions are made.
<PAGE>
(x) "Service Year" means, as designated by the Committee, such year or
portion thereof during which the services have been rendered for which
Compensation is payable.
(y) "Stock Unit(s)" means the share equivalents credited to the Common
Stock Fund of a Participant's Compensation Account pursuant to Section 6.
(z) "Termination" means termination of services as an Employee for any
reason other than Retirement.
3. SHARES; ADJUSTMENTS IN EVENT OF CHANGES IN CAPITALIZATION
In the event of any change in the outstanding Common Stock of the Company
by reason of any stock split, share dividend, recapitalization, merger,
consolidation, reorganization, combination, or exchange or reclassification of
shares, split-up, split-off, spin-off, liquidation or other similar change in
capitalization, or any distribution to common shareholders other than cash
dividends, the number or kind of shares or Stock Units that may be credited
under the Plan shall be automatically adjusted so that the proportionate
interest of the Participants shall be maintained as before the occurrence of
such event. Such adjustment shall be conclusive and binding for all purposes of
the Plan.
4. ELIGIBILITY
The Committee shall have the authority to select from management and/or
highly compensated Employees those Employees who shall be eligible to
participate in the Plan.
5. ADMINISTRATION
Full power and authority to construe, interpret and administer the Plan
shall be vested in the Company and the Committee. This power and authority
includes, but is not limited to, selecting Compensation eligible for deferral,
selecting investment indices, establishing deferral cycles for purposes of
Section 10(b), establishing deferral terms and conditions, and adopting
modifications, amendments and procedures as may be deemed necessary, appropriate
or convenient by the Committee. Decisions of the Company and the Committee shall
be final, conclusive and binding upon all parties. Day-to-day administration of
the Plan shall be the responsibility of Corporate Human Resources.
6. PARTICIPANT ACCOUNTS
Upon election to participate in the Plan, there shall be established a
Retirement Account and/or In-Service Account, as designated by the Participant,
to which there shall be credited any Deferred Compensation, as of each Credit
Date. In addition, matching credits shall be allocated to a Participant's
Retirement Account in accordance with rules prescribed by the Committee. Each
<PAGE>
such Compensation Account shall be credited (or debited) on each Accounting Date
with income (or loss) based upon a hypothetical investment in any one or more of
the investment options available under the Plan, as prescribed by the Committee
for the particular compensation credited, which may include a Common Stock Fund,
as elected by the Participant under the terms of Section 9.
7. FINANCIAL HARDSHIP
Upon the written request of a Participant or a Participant's legal
representative and a finding that continued deferral will result in an
unforeseeable financial emergency to the Participant, the Committee or the
Company (each in its sole discretion) may authorize (a) the payment of all or a
part of a Participant's Compensation Account in a single installment prior to
his or her ceasing to be a Participant, or (b) the acceleration of payment of
any multiple installments thereof. It is intended that the Committee's
determinations as to whether the Participant has suffered an "unforeseeable
financial emergency" shall be made consistent with the requirements under
Section 457(d) of the Internal Revenue Code of 1986, as amended.
8. ACCELERATED DISTRIBUTION
(a) Availability of Withdrawal Prior to Retirement. The Participant or the
Participant's Beneficiary who is receiving installment payments under the Plan
may elect, in writing, to withdraw all or a portion of a Participant's
Compensation Account at any time prior to the time such Compensation Account
otherwise becomes payable under the Plan, provided the conditions specified in
Section 8(c), 8(d) and 8(e) hereof are satisfied.
(b) Acceleration of Periodic Distributions. Upon the written election of
the Participant or the Participant's Beneficiary who is receiving installment
payments under the Plan, the Participant or Participant's Beneficiary may elect
to have all or a portion of the remaining installments distributed in the form
of an immediately payable lump sum, provided the conditions specified in Section
8(c) and 8(e) hereof are satisfied.
(c) Forfeiture Penalty. In the event of a withdrawal pursuant to Section
8(a), or an accelerated distribution pursuant to Section 8(b), the Participant
shall forfeit from such Compensation Account an amount equal to 10% of the
amount of the withdrawal or accelerated distribution, as the case may be. The
forfeited amount shall be deducted from the Compensation Account prior to giving
effect to the requested withdrawal or acceleration. Neither the Participant nor
the Participant's Beneficiary shall have any right or claim to the forfeited
amount, and the Company shall have no obligation whatsoever to the Participant,
the Participant's Beneficiary or any other person with regard to the forfeited
amount.
(d) Minimum Withdrawal. In no event shall the amount withdrawn in
accordance with Section 8(a) be less than 25% of the amount credited to such
Participant's Compensation Account immediately prior to the withdrawal.
<PAGE>
(e) Suspension from Deferrals. In the event of a withdrawal pursuant to
Section 8(a) or 8(b), a Participant who is otherwise eligible to make deferrals
of Compensation under this Plan shall be prohibited from making such deferrals
with respect to the remainder of the current Fiscal Year and the Fiscal Year of
the Plan immediately following the Fiscal Year of the Plan during which the
withdrawal was made, and any election previously made by the Participant with
respect to deferrals of Compensation for such Fiscal Years of the Plan shall be
void and of no effect.
9. MANNER OF ELECTION
(a) General. Any Employee selected by the Committee to participate in the
Plan may elect to do so by delivering to Corporate Human Resources an Election
on a form prescribed by Corporate Human Resources, designating the Compensation
account to which the Deferred Compensation is to be credited, electing the
timing and form of distribution, and setting forth the manner in which such
Deferred Compensation shall be invested in accordance with Section 6 hereof. The
timing of the filing of the appropriate form with Corporate Human Resources
shall be determined by the Company or the Committee. An effective election to
defer Compensation may not be revoked or modified except as otherwise determined
by the Company or the Committee or as stated herein.
(b) Investment Alternatives -- Existing Balances. A Participant may elect
to change an existing selection as to the investment alternatives in effect with
respect to an existing Compensation Account (in increments prescribed by the
Committee or the Company) as often, and with such restrictions, as determined by
the Committee or by the Company.
(c) Change of Beneficiary. A Participant may, at any time, elect to change
the designation of a Beneficiary in accordance with Section 11 hereof.
10. DISTRIBUTION
(a) Retirement Account. A Participant's Retirement Account shall be
distributed in cash at the time and in the manner elected by the Participant in
his Election. If no Election is made by a Participant as to the distribution or
form of payment of his or her Retirement Account, upon the Participant's death,
Termination, or Retirement such account shall be paid in cash in a lump sum. The
entire Retirement Account must be paid out within forty years following the date
of the earliest of the Participant's death, Termination, or Retirement.
(b) In-Service Account. Deferred Compensation credited to a Participant's
In-Service Account shall be distributed in cash at the time and in the manner
elected by the Participant in his Election. A Participant may make different
Elections with respect to the applicable distribution periods for different
deferral cycles in the In-Service Accounts.
<PAGE>
(c) Termination. Notwithstanding the foregoing, in the event of a
Participant's Termination, the Company reserves the right to distribute the
Participant's Compensation Account at such time and in such manner as deemed
appropriate.
(d) Change of Distribution of Compensation Account. A Participant will be
allowed to change the Election as to the distribution of his or her Retirement
Account, subject to approval by the Committee or the Company. Such change must
be made by the earlier of:
(1) the date six months prior to the first day of the month
following such Participant's Retirement; or
(2) the December 31 immediately preceding the first day of the month
following such Participant's Retirement.
A Participant may not change the Election as to the distribution of
Deferred Compensation in his or her In-Service Account(s) except as otherwise
set forth in Sections 7 and 8.
11. BENEFICIARY DESIGNATION
A Participant may designate one or more persons (including a trust) to
whom or to which payments are to be made if the Participant dies before
receiving distribution of all amounts due hereunder. A designation of
Beneficiary will be effective only after the signed Election is filed with
Corporate Human Resources while the Participant is alive and will cancel all
designations of Beneficiary signed and filed earlier. If the Participant fails
to designate a Beneficiary as provided above or if all of a Participant's
Beneficiaries predecease him or her and he or she fails to designate a new
Beneficiary, the remaining unpaid amounts shall be paid in one lump sum to the
estate of such Participant. If all Beneficiaries of the Participant die after
the Participant but before complete payment of all amounts due hereunder, the
remaining unpaid amounts shall be paid in one lump sum to the estate of the last
to die of such Beneficiaries.
12. UNSECURED GENERAL CREDITOR STATUS OF EMPLOYEE
The payments to Participants and their Beneficiaries hereunder shall be
made from the general corporate assets of the Company. No person shall have any
interest in any such assets by virtue of the provisions of this Plan. The
Company's obligation hereunder shall be an unfunded and unsecured promise to pay
money in the future. To the extent that any person acquires a right to receive
payments from the Company under the provisions hereof, such right shall be no
greater than the right of any unsecured general creditor of the Company; no such
person shall have nor acquire any legal or equitable right, interest or claim in
or to any property or assets of the Company. Any accounts maintained under this
Plan shall be hypothetical in nature and shall be maintained for bookkeeping
purposes only. Neither the Plan nor any account shall hold any actual funds or
assets.
<PAGE>
13. INALIENABILITY OF BENEFITS
The interests of the Participants and their Beneficiaries under the Plan
may not in any way be voluntarily or involuntarily transferred, alienated or
assigned, nor subject to attachment, execution, garnishment or other such
equitable or legal process. A Participant or Beneficiary cannot waive the
provisions of this Section 13.
14. GOVERNING LAW
The provisions of this plan shall be interpreted and construed in
accordance with the laws of the State of Missouri, except to the extent
preempted by Federal law.
15. AMENDMENTS
The Committee may amend, alter or terminate this Plan at any time without
the prior approval of the Board; provided, however, that the Committee may not,
without approval by the Board, materially increase the benefits accruing to
Participants under the Plan.
IN WITNESS WHEREOF, the Arch Coal, Inc. Deferred Compensation Plan
is effective as January 1, 1999.
ARCH COAL, INC.
By:___________________________
Title:________________________
EXHIBIT 5.1
November 25, 1998
Arch Coal, Inc.
City Place One, Suite 300
St. Louis, Missouri 63141
Re: Deferred Compensation Plan -- Registration Statement on Form S-8
Ladies and Gentlemen:
We are acting as special counsel for Arch Coal, Inc., a Delaware
corporation (the "Company"), in connection with various legal matters relating
to the filing with the Securities and Exchange Commission of a Registration
Statement on Form S-8 (the "Registration Statement") under the Securities Act of
1933, as amended (the "Securities Act"), covering the registration of
$10,000,000 in deferred compensation obligations (the "Obligations") of the
Company under the Arch Coal, Inc. Deferred Compensation Plan (the "Plan").
We are familiar with the proceedings undertaken in connection with
the authorization of the Plan and the Obligations. Additionally, we have
examined such questions of law and fact as we have considered necessary or
appropriate for purposes of this opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals, and
the conformity to authentic original documents of all documents submitted to us
as copies.
We are opining herein as to the effect on the subject transaction
only of the federal securities law of the United States and the General
Corporation Laws of the State of Delaware, and we express no opinion with
respect to the applicability thereto, or the effect thereon, of any other laws.
We express no opinion as to the applicability or effect of (i) any
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, or (ii) general principles
of equity, including, without limitation, concepts of reasonableness,
materiality, good faith and fair dealing and the possible unavailability of
specific performance, injunctive relief or other equitable remedies, regardless
of whether enforceability is considered in a proceeding in equity or at law.
Based on the foregoing and in reliance thereon and subject to the
qualifications and limitations stated herein, we are of the opinion that:
(1) The Company is a corporation validly existing in good standing under
the laws of the State of Delaware;
(2) The Obligations have been duly authorized, and upon the issuance of
the Obligations under the terms of the Plan, such Obligations will be
legally valid and binding obligations of the Company, except as may be
limited by the effect of bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to or
affecting the rights or remedies of creditors.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. We also consent to your filing copies of this opinion as
an exhibit to the Registration Statement with agencies of such states as you
deem necessary in the course of complying with the laws of such states regarding
the Obligations' offering. In giving this consent, we do not admit that we are
in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Bryan Cave LLP
Bryan Cave LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement pertaining to the Arch Coal, Inc.
Deferred Compensation Plan of our report dated January 16, 1997 (except with
respect to the matter discussed in Note 11 as to which the date is April 4,
1997), with respect to the consolidated financial statements and schedules of
Arch Coal, Inc. and subsidiaries included in the Annual Report (Form 10-K) for
the year ended December 31, 1997, filed with the Securities and Exchange
Commission.
/s/ ARTHUR ANDERSEN LLP
St. Louis, Missouri
November 30, 1998
EXHBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8 No. 333-XXXXX) pertaining to Arch Coal, Inc. Deferred Compensation
Plan of our report dated January 29, 1998, with respect to the consolidated
financial statements and schedule of Arch Coal, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Louisville, Kentucky
November 25, 1998
EXHBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Arch Coal, Inc. on Form S-8 (File No. 333-_____) of our report dated April 7,
1998, on our audits of the consolidated financial statements of ARCO Coal and
Subsidiaries as of December 31, 1997 and 1996, and for the years ended December
31, 1997, 1996 and 1995.
/s/ Pricewaterhouse Coopers LLP
Denver, Colorado
November 30, 1998
