-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JqVWVOLtliwOhg1A8M2AhIvCWRBkG4ObrDHDQXuN4PeK1XLLJoRvIp6p1KSYaaGX oer2gNDdIcxslK6SgpxQ5g== 0000899140-06-001104.txt : 20060725 0000899140-06-001104.hdr.sgml : 20060725 20060725150534 ACCESSION NUMBER: 0000899140-06-001104 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060725 DATE AS OF CHANGE: 20060725 GROUP MEMBERS: DANIEL S. LOEB SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: MASSEY ENERGY CO CENTRAL INDEX KEY: 0000037748 STANDARD INDUSTRIAL CLASSIFICATION: BITUMINOUS COAL & LIGNITE SURFACE MINING [1221] IRS NUMBER: 950740960 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-30745 FILM NUMBER: 06978848 BUSINESS ADDRESS: STREET 1: 4 NORTH 4TH STREET CITY: RICHMOND STATE: VA ZIP: 23219 BUSINESS PHONE: 9493492000 MAIL ADDRESS: STREET 1: 4 NORTH 4TH STREET CITY: RICHMOND STATE: VA ZIP: 23219 FORMER COMPANY: FORMER CONFORMED NAME: FLUOR CORP/DE/ DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FLUOR CORP LTD DATE OF NAME CHANGE: 19710624 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Third Point LLC CENTRAL INDEX KEY: 0001040273 IRS NUMBER: 133922602 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 390 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 BUSINESS PHONE: 2122247400 MAIL ADDRESS: STREET 1: 390 PARK AVENUE CITY: NEW YORK STATE: NY ZIP: 10022 FORMER COMPANY: FORMER CONFORMED NAME: THIRD POINT MANAGEMENT CO LLC DATE OF NAME CHANGE: 19970602 SC 13D/A 1 t3342190.txt THIRD AMENDMENT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D (Amendment No. 3) Under the Securities Exchange Act of 1934* Massey Energy Company - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $0.625 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 576206106 - -------------------------------------------------------------------------------- (CUSIP Number) Daniel S. Loeb - -------------------------------------------------------------------------------- Third Point LLC 390 Park Avenue New York, NY 10022 (212) 224-7400 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: Michael A. Schwartz, Esq. Willkie Farr & Gallager LLP 787 Seventh Avenue New York, NY 10019 (212) 728-8000 - -------------------------------------------------------------------------------- July 21, 2006 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box: [ ] NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 240.13d-7 for other parties to whom copies are to be sent. * The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - --------------------------------------- -------------------------- CUSIP No. 576206106 Page 2 of 5 pages - --------------------------------------- -------------------------- 1 NAMES OF REPORTING PERSONS ------------------------------------------------------------------ I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Daniel S. Loeb - ------------- ------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ------------- ------------------------------------------------------------------ 3 SEC USE ONLY - ------------- ------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) AF - ------------- ------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------- ------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States - ----------------------- ----------- -------------------------------------------- 7 SOLE VOTING POWER 0 ----------- -------------------------------------------- NUNMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 4,800,000 ----------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ----------- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 4,800,000 - ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,800,000 - ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.9 % - ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) IN - ------------- ------------------------------------------------------------------ SCHEDULE 13D - --------------------------------------- -------------------------- CUSIP No. 576206106 Page 3 of 5 pages - --------------------------------------- -------------------------- 1 NAMES OF REPORTING PERSONS ------------------------------------------------------------------ I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Third Point LLC I.R.S. #13-3922602 - ------------- ------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) [ ] (b) [X] - ------------- ------------------------------------------------------------------ 3 SEC USE ONLY - ------------- ------------------------------------------------------------------ 4 SOURCE OF FUNDS (See Instructions) AF - ------------- ------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------- ------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ----------------------- ----------- -------------------------------------------- 7 SOLE VOTING POWER 0 ----------- -------------------------------------------- NUNMBER OF SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH 4,800,000 ----------- -------------------------------------------- 9 SOLE DISPOSITIVE POWER 0 ----------- -------------------------------------------- 10 SHARED DISPOSITIVE POWER 4,800,000 - ------------- ------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,800,000 - ------------- ------------------------------------------------------------------ 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) [ ] - ------------- ------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.9 % - ------------- ------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON (See Instructions) OO - ------------- ------------------------------------------------------------------ This Amendment No. 3 to Schedule 13D ("Amendment No. 3") is filed on behalf of Third Point LLC, a Delaware limited liability company (the "Management Company"), and Daniel S. Loeb, an individual ("Mr. Loeb" and, together with the Management Company, the "Reporting Persons"), and amends the original Schedule 13D filed on September 19, 2005, as amended by Amendment No. 1, filed on March 16, 2006, and by Amendment No. 2, filed on March 17, 2006, on behalf of the Reporting Persons (the "Schedule 13D"). This Amendment No. 3 relates to the common stock, par value $0.625 per share, of Massey Energy Company, a Delaware corporation (the "Company"). Unless the context otherwise requires, references herein to the "Common Stock" are to such common stock of the Company. The Management Company is the investment manager or adviser to a variety of hedge funds and managed accounts (such funds and accounts, collectively, the "Funds"). The Funds directly own the Common Stock to which this Amendment No. 3 relates, and the Reporting Persons may be deemed to have beneficial ownership over such Common Stock by virtue of the authority granted to them by the Funds to vote and to dispose of the securities held by the Funds, including the Common Stock. Item 4. Purpose of Transaction. Item 4 of the Schedule 13D is hereby amended by adding thereto the following: On July 21, 2006, the Management Company and the Company entered into a Settlement Agreement whereby the Company agreed to dismiss the action captioned Baldwin v. Swanson, C.A. No. 2250-N (the "Settlement Agreement"). Under the terms of the Settlement Agreement, the Management Company and the Company agreed (i) that the Management Company and the Funds would not bring any cause of action to challenge the expansion of the Board of the Directors of the Company (the "Board") to create a seat for James B. Crawford or the appointment of Mr. Crawford to the Board, (ii) that the Company would not expand the size of the Board to create a seat for John C. Baldwin, but Mr. Baldwin would remain eligible to fill any vacancy that may occur on the Board in the future, (iii) to settle and dismiss with prejudice the above captioned action in the Delaware Court of Chancery, (iv) that the Company would reimburse the Management Company and the Funds for $750,000 of legal fees incurred in connection with the proxy contest and in connection with the above captioned action in the Delaware Court of Chancery, and (v) that the current composition of the Board is: Don L. Blankenship, James B. Crawford, Robert H. Foglesong, E. Gordon Gee, William R. Grant, Bobby R. Inman, Daniel S. Loeb, Dan R. Moore, Martha R. Seger and Todd Q. Swanson. Item 5. Interest in Securities of the Issuer Item 5(c) of the Schedule 13D is hereby replaced with the following: (c) Schedule A hereto sets forth certain information with respect to transactions by the Funds, at the direction of the Reporting Persons, in the Common Stock during the past sixty days. All of the transactions set forth on Schedule A were effected in open market transactions on the New York Stock Exchange through a securities broker. Except as set forth on Schedule A, during the last sixty days there were no transactions in the Common Stock effected by the Reporting Persons, nor, to the best of their knowledge, any of their directors, executive officers, general partners or members. Item 7. Exhibits 1. Settlement Agreement, dated July 21, 2006, by and between Third Point LLC and Massey Energy Company. Schedule A (Transactions by the Funds in Common Stock during the last sixty days) Date Transaction Shares Price Per Share 5-22-2006 Buy 438,400 37.8 5-22-2006 Sell 438,400 37.8 5-31-2006 Buy 28,200 37.32 5-31-2006 Sell 28,200 37.32 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: July __, 2006 THIRD POINT LLC By: /s/ Daniel S. Loeb ----------------------------------- Name: Daniel S. Loeb Title: Chief Executive Officer /s/ Daniel S. Loeb ----------------------------------- Daniel S. Loeb [Signature Page to Amendment No. 3 to Schedule 13D] EX-1 2 t3342190a.txt SETTLEMENT AGREEMENT Exhibit 1 --------- SETTLEMENT AGREEMENT -------------------- This Settlement Agreement (the "Agreement") dated as of July 21, 2006 is entered into by and among Massey Energy Corporation ("Massey" or the "Company"), its directors, officers and employees and 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 "Third Point") and their managers, officers and employees (collectively the "Parties"). WHEREAS, the Company nominated three candidates for election at the May 16, 2006 annual meeting (the "Annual Meeting"): John C. Baldwin, James B. Crawford and E. Gordon Gee. WHEREAS, Third Point nominated two candidates for election at the Annual Meeting: Daniel S. Loeb and Todd Q. Swanson. WHEREAS, following the certification of the results of the May 16, 2006 election, on June 28, 2006, an action was filed in the Delaware Court of Chancery pursuant to section 225 of the Delaware General Corporation Law and captioned Baldwin v. Swanson, C.A. No. 2250-N, challenging the election of Todd Q. Swanson to the Company's Board of the Directors ("the Board"). WHEREAS, subsequent to the Annual Meeting, the Board voted to increase the number of directors by one and elected James B. Crawford to the vacancy thereby created. NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, agreements, representations and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound by the terms herein, the Parties hereby agree as follows: 1. Third Point, on behalf of its managers, officers and employees hereby agrees not to bring any causes of action challenging the expansion of the Board to create a seat for James B. Crawford or the appointment of James B. Crawford to the Board. 2. The Company hereby agrees that it will not add John C. Baldwin to the Board by expanding the size of the board; however, John C. Baldwin will remain an eligible director candidate to fill any vacancy that may occur on the Board in the future. 3. The Company, on behalf of its directors, officers and employees, and John C. Baldwin, hereby agree to settle and dismiss with prejudice the action filed in the Delaware Court of Chancery, captioned Baldwin v. Swanson, C.A. No. 2250-N, through a stipulation of dismissal substantially in the form attached hereto as Exhibit A, which plaintiff shall file on or before the next business day following the date on which this Agreement is executed by all parties. 4. The Company, on behalf of its directors, officers and employees, hereby agrees to reimburse Third Point for its legal fees incurred in connection with (i) the proxy contest waged by Third Point in respect of the Annual Meeting and (ii) the action in the Delaware Court of Chancery, Baldwin v. Swanson, C.A. No. 2250-N. The Parties agree that the amount of such fees to be reimbursed is $750,000, and such amount shall be paid by the Company to Third Point no later than two business days following the date of the Agreement. 5. The Parties hereby agree that the current composition of the Board is: : Don L. Blankenship, James B. Crawford, Robert H. Foglesong, E. Gordon Gee, William R. Grant, Bobby R. Inman, Daniel S. Loeb, Dan R. Moore, Martha R. Seger and Todd Q. Swanson. 6. Governing Law. The Agreement and the rights of the Parties hereunder, shall be governed by, given effect, and construed in accordance with, the laws of the State of Delaware, without regard to conflict of laws principles. Any legal action, suit or proceeding concerning any matter arising under, out of or in connection with this Agreement or for recognition or enforcement of any judgment rendered in any such action, suit or proceeding shall be resolved only in the Court of Chancery of the State of Delaware in and for New Castle County. 7. No Waiver. The failure of any Party to insist on strict adherence to any term of the Agreement shall not be considered a waiver of, or deprive that Party of the right thereafter to insist upon strict adherence to that term or any other term of the Agreement. Any waiver (express or implied) of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach. 8. Counterparts. The Agreement may be signed in counterparts and delivered by telecopy and so executed, shall constitute one agreement. The Agreement shall be considered executed and binding on all Parties when all signatories designated herein have executed the Agreement. 9. Authority. Each of the individuals executing the Agreement and any ancillary documents on behalf of one or more of the Parties warrants and represents that he has been duly authorized and empowered to execute this Agreement on behalf of such party, and that it shall be binding on such party in accordance with its terms. 10. Interpretation. This Agreement will be deemed to have been mutually prepared by the Parties and will not be construed against any of them by reason of authorship. The Parties acknowledge that they have made their own independent analysis of this document and have engaged separate counsel and advisors. 11. Headings. The headings contained in the Agreement are for convenience of reference purposes only and do not form a part of the Agreement and in no way modify, interpret or construe the agreements and understandings of the Parties contained in the Agreement. 12. Entire Agreement. This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and may be modified or amended only by a writing signed by the signatories hereto. IN WITNESS WHEREOF, the parties have executed this Stipulation effective as of the date noted above. MASSEY ENERGY COMPANY By: /s/ Baxter F. Phillips, Jr. ------------------------------------------ Baxter F. Phillips, Jr. Executive Vice President and Chief Administrative Officer THIRD POINT, LLC By: /s/ Daniel S. Loeb ------------------------------------------ Daniel S. Loeb Chief Executive Officer /s/ John C. Baldwin ---------------------------------------------- John C. Baldwin EX-99.A 3 t3342190b.txt NOTICE OF DISMISSAL EXHIBIT A IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY - -------------------------------------------------------------------------------- JOHN C. BALDWIN, ) ) ) Plaintiff ) ) Civil Action No. 2250-N v. ) ) TODD Q. SWANSON, ) ) Defendant. ) - -------------------------------------------------------------------------------- NOTICE OF DISMISSAL ------------------- Pursuant to Court of Chancery Rule 41(a), the Plaintiff, John C. Baldwin, through his undersigned counsel hereby dismisses with prejudice this action and all claims asserted therein. MORRIS NICHOLS ARSHT & TUNNELL LLP --------------------------------- Alan J. Stone (#2677) S. Mark Hurd (#3297) Kevin M. Coen (#4775) 1201 N. Market Street P.O. Box 1347 Wilmington, DE 19899 (302) 658-9200 Attorneys for Plaintiff SO ORDERED this ____ day of July, 2006. -------------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----