As filed with the Securities and Exchange Commission on November 22, 2005

 

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington D.C. 20549

 

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SCHEDULE TO

 

Tender Offer Statement under Section 14(d)(1) or 13(e)(1) of

the Securities Exchange Act of 1934

 

MASSEY ENERGY COMPANY

(Name of Subject Company (Issuer))

 

MASSEY ENERGY COMPANY

(Name of Filing Person (Offeror))

 

2.25% Convertible Senior Notes due 2024

(Title of Class of Securities)

 

576203 AE 3 (144A), U5757P AB 1 (Reg. S) and 576203 AF 0 (Registered)

(CUSIP Number of Class of Securities)

 

Thomas J. Dostart, Esq.

Vice President, General Counsel and Secretary

MASSEY ENERGY COMPANY

4 North 4^th Street

Richmond, Virginia 23219

(804) 788-1800

(Name, address and telephone number of person

authorized to receive notices and communications

on behalf of filing persons)

 

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Copies to:

 

David M. Carter, Esq.

Hunton & Williams LLP

Riverfront Plaza, East Tower

951 East Byrd Street

Richmond, Virginia 23219

(804) 788-8200

 

Calculation of Filing Fee

 

Transaction valuation(1)		Amount of filing fee(2)
$231,350,000		$27,230

 

(1)

Calculated solely for the purpose of determining the filing fee. Pursuant to Rule 0-11(b)(2) of the Securities Exchange Act of 1934, as amended, the transaction value was calculated based on the average of the bid and asked prices of the 2.25% Convertible Senior Notes due 2024 on the PORTAL System on November 16, 2005 of $1,322 per $1,000 issue price of the Convertible Notes. As of November 16, 2005, there was $175,000,000 aggregate principal amount of Convertible Notes outstanding.

 

(2)	The amount of the filing fee was calculated at a rate of $117.70 per $1,000,000 of the transaction value. It was calculated by multiplying the transaction valuation amount by 0.00011770.

 

¨	Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration number, or the Form or Schedule and the date of its filing.

 

Amount Previously Paid:		N/A		Filing Party:		N/A
Form or Registration No.:		N/A		Date Filed:		N/A

 

¨	Check box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

 

Check the appropriate boxes to designate any transactions to which this statement relates:

 

¨		third party tender offer subject to Rule 14d-1		¨		going-private transaction subject to Rule 13e-3
x		issuer tender offer subject to Rule 13e-4		¨		amendment to Schedule 13D under Rule 13d-2

 

Check the following box if the filing is a final amendment reporting the results of the tender offer. ¨

 

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This issuer tender offer statement on Schedule TO (this “Schedule TO”) relates to the offer by Massey Energy Company, a Delaware corporation (the “Company”), to exchange shares of its common stock, par value $0.625 per share (“Common Stock”), and a cash payment for any and all of its outstanding 2.25% Convertible Senior Notes due 2024 (the “Notes”) upon the terms and subject to the conditions set forth in the Offer to Exchange, dated November 22, 2005 (the “Offer to Exchange”), and in the related Letter of Transmittal, which, as amended or supplemented from time to time, together constitute the exchange offer, copies of which are attached hereto as Exhibit (a)(1)(A) and Exhibit (a)(1)(B), respectively, and incorporated herein by reference. This Schedule TO is filed in satisfaction of the reporting requirements of Rule 13e-4 under the Securities Exchange Act of 1934, as amended. The exchange offer is being made by the Company pursuant to an exemption from registration under Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities Act”).

 

As of November 21, 2005, there was $175,000,000 aggregate principal amount of Notes outstanding.

 

In response to Items 1, 2, 4(a)(1), 4(b), 6, 7, 8, 9, and 11, reference is made to the information set forth in the Offer to Exchange and the related Letter of Transmittal, which is incorporated in this Schedule TO by reference.

 

Item 3.

Identity and Background of Filing Person.

 

(a) The issuer of the securities to which this Schedule TO relates is Massey Energy Company, a Delaware corporation (the “Company”), and the address of its principal executive office is 4 North 4^th Street, Richmond, Virginia 23219. The following table names each person specified in Instruction C to Schedule TO. Each person’s business address is the same as the Company’s, 4 North 4^th Street, Richmond, Virginia 23219, and each filing person’s business telephone number is (804) 788-1800.

 

NAME		POSITION
Don L. Blankenship		Chairman of the Board, Chief Executive Officer and President
Dr. John C. Baldwin		Director
James B. Crawford		Director
E. Gordon Gee		Director
William R. Grant		Director
Bobby R. Inman		Director
Dan R. Moore		Director
Dr. Martha R. Seger		Director
Baxter F. Phillips, Jr.		Executive Vice President and Chief Administrative Officer
J. Christopher Adkins		Senior Vice President and Chief Operating Officer
H. Drexel Short, Jr.		Senior Vice President, Group Operations
Thomas J. Dostart		Vice President, General Counsel & Secretary
Jeffrey M. Jarosinski		Vice President, Finance and Chief Compliance Officer
John M. Poma		Vice President, Human Resources
Eric B. Tolbert		Vice President and Chief Financial Officer
David W. Owings		Corporate Controller

 

Item 4.

Terms of the Transaction.

 

(a)(2) Not applicable.

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Item 5.

Past Contacts, Transactions, Negotiations and Agreements.

 

(e) The Notes are governed by the Indenture, dated as of May 29, 2003 (the “Base Indenture”), by and among the Company, A.T. Massey Coal Company and Wilmington Trust Company, as trustee (the “Trustee”), as amended and supplemented by the Second Supplemental Indenture, dated as of April 7, 2004 (the “Second Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and among the Company, the guarantors listed on the signature pages thereto (the “Guarantors”) and the Trustee. The description of the Notes and the Indenture set forth under “Description of the Notes” in the Company’s prospectus, dated June 28, 2004, as filed with the Securities and Exchange Commission pursuant to Rules 424(b)(3) and 424(c) under the Securities Act is incorporated herein by reference.

 

The Notes are also governed by the Registration Rights Agreement, dated as of April 7, 2004 (the “Registration Rights Agreement”), by and among the Company, the Guarantors, UBS Securities LLC and Bear, Stearns & Co., Inc. The Registration Rights Agreement provides holders of the Notes with certain registration rights with respect to resales of the Notes and the shares of Common Stock issuable upon the conversion of the Notes. The Registration Rights Agreement also provides for the payment of liquidated damages to holders of Notes and shares of Common Stock under certain circumstances if the Company fails to perform certain obligations under the Registration Rights Agreement.

 

Item 10.

Financial Statements.

 

(a)-(b) Not applicable.

 

Item 12.

Material to be Filed as Exhibits.

 

(a)(1)(A)		Offer to Purchase, dated November 22, 2005.
(a)(1)(B)		Letter of Transmittal.
(a)(1)(C)		Guidelines for Certification of Taxpayer Indemnification Number on Substitute Form W-9.
(a)(2)-(4)		Not applicable
(a)(5)(A)		Press Release issued by the Company, dated November 22, 2005.
(b)		Not applicable.
(d)(1)		Indenture, dated as of May 29, 2003, by and among the Company, A.T. Massey Coal Company and Wilmington Trust Company, as trustee (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on May 30, 2003).
(d)(2)		Second Supplemental Indenture, dated as of April 7, 2004, by and among the Company, the guarantors listed on the signature pages thereto and Wilmington Trust Company, as trustee (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on April 8, 2004).
(d)(3)		Form of Notes (included in Exhibit (d)(2) hereto).
(d)(4)		Registration Rights Agreement, dated as of April 7, 2004, by and among the Company, the guarantors listed on the signature pages thereto, UBS Securities LLC and Bear, Stearns & Co., Inc. (incorporated herein by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed on April 8, 2004).
(g)		Not applicable.
(h)		Not applicable.

 

Item 13.

Information Required by Schedule 13e-3.

 

Not applicable.

 

2

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SIGNATURE

 

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Schedule TO is true, complete and correct.

 

 

Dated: November 22, 2005

 

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EXHIBIT INDEX

 

Exhibit No.		Description
(a)(1)(A)		Offer to Purchase, dated November 22, 2005.
(a)(1)(B)		Letter of Transmittal
(a)(1)(C)		Guidelines for Certification of Taxpayer Indemnification Number on Substitute Form W-9.
(a)(2)-(4)		Not applicable.
(a)(5)(A)		Press Release issued by the Company, dated November 22, 2005.
(b)		Not applicable.
(d)(1)		Indenture, dated as of May 29, 2003, by and among the Company, A.T. Massey Coal Company and Wilmington Trust Company, as trustee (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on May 30, 2003).
(d)(2)		Second Supplemental Indenture, dated as of April 7, 2004, by and among the Company, the guarantors listed on the signature pages thereto and Wilmington Trust Company, as trustee (incorporated herein by reference to Exhibit 4.1 of the Company’s Current Report on Form 8-K filed on April 8, 2004).
(d)(3)		Form of Notes (included in Exhibit (d)(2) hereto).
(d)(4)		Registration Rights Agreement, dated as of April 7, 2004, by and among the Company, the guarantors listed on the signature pages thereto, UBS Securities LLC and Bear, Stearns & Co., Inc. (incorporated herein by reference to Exhibit 4.2 of the Company’s Current Report on Form 8-K filed on April 8, 2004).
(g)		Not applicable.
(h)		Not applicable.