PEABODY ENERGY
CORPORATION
Amended and Restated Australian
Employee Stock Purchase Plan
1.1 Purpose. The
purpose of the Peabody Energy Corporation Australian Employee Stock
Purchase Plan is to provide eligible employees of Participating
Subsidiaries, as defined herein, of Peabody Energy Corporation (the
“Company”) the opportunity to acquire a proprietary
interest in the Company and thereby provide employees with an
additional incentive to contribute to the long-term profitability
and success of the Company and its Subsidiaries. The Plan is for
the exclusive benefit of eligible employees of Participating
Subsidiaries.
1.2 Stock Purchase
Plan. The Plan is a stock purchase plan that is intended to mirror
the provisions of the Company’s U.S. employee stock purchase
plan, except that stockholder approval is not required for adoption
of this Plan, in accordance with guidance from the New York Stock
Exchange, and except as otherwise expressly provided herein. The
Plan is not intended to qualify under Section 423 of the
Code.
1.3 Effective Date
and Term. The Plan will be effective on January 1, 2008 or
such later date as may be selected by the Committee (the
“Effective Date”). The Plan shall continue in effect
until the earlier of the date the Company terminates the Plan or
the date all of the shares of Stock subject to the Plan, as amended
from time to time, are purchased.
1.4 Participating
Subsidiaries. The Plan will be deemed to have been adopted by
(i) Peabody Pacific Pty Limited and its Subsidiaries listed on
Exhibit A for eligible Employees as of the Effective
Date and (ii) any other Subsidiary designated by the Committee
after the Effective Date for its eligible Employees as of the date
of designation.
1.5 Stock Subject
to Plan.
(a) The
Stock subject to purchase under the Plan will be shares of the
Company’s authorized but unissued shares, or previously
issued shares of Stock reacquired and held by the Company, or
shares acquired in the market. The aggregate number of shares of
Stock that may be purchased under the Plan shall not exceed one
million (1,000,000) shares. All shares of Stock purchased under the
Plan will count against this limitation.
(b) In
case of a reorganization, recapitalization, stock split, reverse
stock split, stock dividend, combination of shares, merger,
consolidation, offering of rights or other change in the capital
structure of the Company, the Committee may make such adjustment as
it deems appropriate in the number, kind and purchase price of
shares of Stock available for purchase under the Plan, subject to
Section 7.1.
For purposes of
this Plan, the following words and phrases, whether or not
capitalized, have the meanings specified below, unless the context
plainly requires a different meaning:
2.1
“Beneficiary” means a person to whom all or a portion
of the cash amounts due to the Employee under this Plan will be
paid if the Employee dies before receiving such cash
amounts.
2.2
“Board” means the Board of Directors of the
Company.
2.3 “Change
in Control” means any one of the following:
(a) any
Person (other than a Person holding securities representing 10% or
more of the combined voting power of the Company’s
outstanding securities as of the Effective Date, the Company, any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company, or any company owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company),
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company, representing 50% or more of the combined voting
power of the Company’s then- outstanding
securities;
(b) during
any period of twenty-four consecutive months (not including any
period prior to the Effective Date), individuals who at the
beginning of such period constitute the Board, and any new director
(other than (A) a director nominated by a Person who has
entered into an agreement with the Company to effect a transaction
described in clause 2.3(a), (c) or (d) or (B) a
director nominated by any Person (including the Company) who
publicly announces an intention to take or to consider taking
actions (including, but not limited to, an actual or threatened
proxy contest) which if consummated would constitute a Change in
Control) whose election by the Board or nomination for election by
the Company’s shareholders was approved by a vote of at least
three-fourths (3/4) of the directors then still in office who
either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority
thereof;
(c) the
consummation of any merger, consolidation, plan of arrangement,
reorganization or similar transaction or series of transactions in
which the Company is involved, other than such a transaction or
series of transactions which would result in the shareholders of
the Company immediately prior thereto continuing to own (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) more than 50% of the combined voting power
of the securities of the Company or such surviving entity (or the
parent, if any) outstanding immediately after such transaction(s)
in substantially the same proportions as their ownership
immediately prior to such transaction(s); or
(d) the
shareholders of the Company approve a plan of complete liquidation
of the Company or the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a
liquidation of the Company into a wholly owned
subsidiary.
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As used herein,
“ Person ” (including a “group”),
has the meaning as such term is used for purposes of Section 13(d)
or 14(d) of the Securities Exchange Act of 1934, as amended (or any
successor section thereto).
2.4
“Code” means the U.S. Internal Revenue Code of 1986, as
amended, and any successor thereto.
2.5
“Committee” means the individuals appointed by the
Board to administer the Plan.
2.6
“Company” means Peabody Energy Corporation, and any
successor.
2.7
“Compensation” means wages or base salary
(inclusively) paid for services rendered by an Employee to the
Company or any Participating Subsidiary during the applicable
period specified in the Plan, including any such amounts
contributed by the Employee to any plan or plans established by the
Company or Participating Subsidiary in accordance with sections 125
or 401(k) of the Code. Bonuses, incentive compensation, overtime,
commissions and shift premiums paid to an Employee shall not be
included in Compensation. Notwithstanding the foregoing,
Compensation shall not include any amount paid to an Employee after
he or she incurs a termination of employment with all Participating
Subsidiaries.
2.8
“Custodian” means the custodian for the Plan, which
shall be located in Australia if and to the extent so required by
law, appointed by the Company.
2.9
“Effective Date” shall have the meaning set forth in
Section 1.3.
2.10
“Employee” means any employee (as defined for purposes
of Section 423 of the Code) of a Participating Subsidiary and
may include a Transferred Employee, but does not include any
employee of the Company.
2.11 “Fair
Market Value” means the fair market value of one share of
Stock as of a particular day, which shall be the closing price per
share of Stock on the New York Stock Exchange on that day, or, if
such day is not a trading day, the last preceding trading
day.
2.12
“Offering Date” means the first day of the Offering
Period.
2.13
“Offering Period” means any of the following time
periods: the Effective Date through June 30, 2008; and each
consecutive six-month period thereafter; or such other period
designated by the Committee in its sole discretion.
2.14
“Option” means an option to purchase shares of Stock
under the Plan, based on the contributions credited to each
Employee’s Option Account.
2.15 “Option
Account” means the account solely maintained and held on
trust in an Australian authorized deposit-taking institution
designated by the Committee on behalf of the Employee under
Section 3.4 to which contributions to the Plan are credited
and from which amounts are withdrawn to exercise options on a
Termination Date, provided, that such amounts
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shall be
converted to U.S. dollars utilizing the $A/$US exchange rate
published by the Reserve Bank of Australia on that date.
2.16
“Participating Subsidiary” means a Subsidiary which is
participating in the Plan in accordance with
Section 1.4.
2.17
“Plan” means this Peabody Energy Corporation Amended
and Restated Australian Employee Stock Purchase Plan, as described
in this document and as amended from time to time.
2.18
“Stock” means the common stock, $0.01 par value, of the
Company.
2.19
“Subsidiary” means any corporation (other than the
Company) in an unbroken chain of corporations beginning with the
Company if each of the corporations, or group of commonly
controlled corporations, other than the last corporation in the
unbroken chain owns 50% or more of the total combined voting power
of all classes of stock in one of the other corporations in the
chain.
2.20
“Termination Date” means the last day of an Offering
Period, or if earlier, the date of a Change in Control that occurs
during such Offering Period.
2.21
“Transferred Employee” means an Employee who
(a) was a participant in an employee stock purchase plan of
the Company other than the Plan on the Offering Date of an Offering
Period, and (b) transferred directly to employment with a
Participating Subsidiary during such Offering Period.
SECTION 3 — ENROLLMENT AND
CONTRIBUTIONS
3.1 Eligibility
for Enrollment.
(a) An
Employee may enroll in the Plan for an Offering Period unless one
of the following applies:
(i) The
customary employment of the Employee on the Offering Date is twenty
(20) hours or less per week; or
(ii) The
customary employment of the Employee on the Offering Date is for
not more than five months in any calendar year; or
(iii) The
Employee is not employed by the Company or a Subsidiary on the
Offering Date; or
(iv) The
Employee would, immediately upon enrollment, own directly or
indirectly, or hold options or rights to acquire, an aggregate of
five percent (5%) or more of the total combined voting power or
value of all outstanding shares of all classes of the Company or
any Subsidiary, with ownership determined in accordance with the
rules of Section 424(d) of
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the Code and
treating stock which the Employee may purchase under outstanding
options as owned by the Employee; or
(v) The
Employee is eligible to participate in and continue to make
contributions to an employee stock purchase plan of the Company
other than the Plan; or
(vi) The
primary place where the Employee provides services is not in
Australia, unless otherwise determined by the Committee, which may
be on a case-by-case or general basis or otherwise, in the
Committee’s discretion.
(b) The
Committee or its designee will notify an Employee that the Employee
is first eligible to enroll in the Plan and make available to each
eligible Employee the necessary enrollment forms before the
Offering Date.
3.2 Enrollment
Procedure.
(a) To
enroll in the Plan for an Offering Period, an Employee must file an
enrollment form with the Company and elect to make contributions
under the Plan in accordance with Section 3.3. The enrollment
form must be received by the Company at least fifteen
(15) calendar days prior to the Offering Date and must state
the contribution rate elected by the Employee for the Offering
Period. An Employee who does not enroll in the Plan for an Offering
Period will receive no shares of Stock under the Plan for such
Offering Period. Notwithstanding the foregoing, any Transferred
Employee shall be automatically enrolled in the Plan at the
contribution rate in effect for the other employee stock purchase
plan of the Company in which he or she participated, subject to
such Transferred Employee’s right to increase, decrease or
discontinue contributions under Section 3.3(d).
(b) An
Employee whose enrollment in, and contributions under, the Plan
continue throughout an Offering Period will automatically be
enrolled in the Plan for the next Offering Period unless (i) the
Employee files a written notice of discontinuance of contributions
with the Company before the Offering Date for the next Offering
Period in accordance with Section 5.1(a)(i), or (ii) on
the Offering Date for such Offering Period the Employee is
described in Section 3.1(a). The contribution rate for an
Employee who is automatically enrolled for an Offering Period
pursuant to this Section will be the contribution rate in effect
for the immediately preceding Offering Period, unless the Employee
files an amended enrollment form with the Company at least fifteen
(15) calendar days prior to the next subsequent Offering Period
designating a different contribution rate.
(a) To
enroll for the first time in the Plan for an Offering Period, an
Employee must elect to make a contribution under the Plan, subject
to the terms and conditions prescribed below, by means of payroll
deduction for each payroll period within the Offering Period.
Notwithstanding the foregoing, in the case of any Transferred
Employee who is automatically enrolled in the Plan pursuant to
Section 3.2(a), contributions to the Plan for such Transferred
Employee’s initial Offering Period shall be made by means of
payroll deduction only for payroll periods within such Offering
Period that began after he or she was automatically enrolled in the
Plan.
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(b) An
Employee may elect to make payroll deduction contributions in
amounts not less than one percent (1%) of Compensation per payroll
period and not more than the lesser of (i) fifteen percent
(15%) of Compens
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