As filed with the Securities and Exchange Commission on May 10, 2018

 

Registration No. 333-

 

 

UNITED STATES SECURITIES AND
EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 


 

CLOUD PEAK ENERGY INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

26-3088162

(State or other jurisdiction
of incorporation or organization)

 

(I.R.S. Employer
Identification No.)

 

505 S. Gillette Ave.

Gillette, WY 82716

(Address of principal executive offices, including zip code)

 


 

CLOUD PEAK ENERGY INC. 2009 LONG TERM INCENTIVE PLAN

(As Amended and Restated effective March 3, 2017)

(Full title of the plan)

 

Bryan Pechersky

Executive Vice President, General Counsel and Corporate Secretary

385 Interlocken Crescent, Suite 400

Broomfield, CO 80021

(720) 566-2900

(Name, address and telephone number of agent for service)

 

copy to:

 

Shelley A. Barber

Vinson & Elkins LLP

666 Fifth Avenue, 26th Floor

New York, NY 10103-0040

(212) 237-0022

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.  See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).

 

Large accelerated filer

o

 

 

Accelerated filer

x

Non-accelerated filer

o

(Do not check if smaller reporting company)

 

Smaller Reporting Company

o

 

 

 

 

Emerging Growth Company

o

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of securities to be registered

 

Amount to be
registered(1)

 

Proposed maximum
offering
price per share

 

Proposed maximum
aggregate
offering price

 

Amount of
registration fee

 

Common Stock, $0.01 par value per share (“Common Stock”)

 

4,755,000 shares

 

$

3.24

(2)

$

15,406,200.00

(2)

$

1,918.07

 

(1)         Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), there are also being registered such additional shares of Common Stock as may become issuable pursuant to the adjustment provisions of the Cloud Peak Energy Inc. 2009 Long Term Incentive Plan, as amended (the “Plan”).

(2)         Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act. The maximum offering price per share and the maximum aggregate offering price are based on a price of $3.24 per share, which is the average of the high and low trading prices of the registrant’s Common Stock reported on the New York Stock Exchange on May 7, 2018.

 

 

 



 

EXPLANATORY NOTE

 

On November 23, 2009, Cloud Peak Energy Inc., a Delaware corporation (the “Registrant”), filed a Registration Statement on Form S-8 with the Securities and Exchange Commission (the “Commission”) to register 3,400,000 shares of Common Stock for issuance pursuant to the Plan. The Registrant has since filed three Registration Statements on Form S-8 to register additional shares of Common Stock for issuance under the Plan: (1) 2,100,000 shares of Common Stock were registered on July 1, 2011; (2) 4,500,000 shares of Common Stock were registered on May 13, 2016; and (3) 5,185,592 shares of Common Stock were registered on May 11, 2017.

 

This Registration Statement registers an additional 4,755,000 shares of Common Stock for issuance under the Plan in connection with an amendment to the Plan which was approved by the stockholders of the Registrant on May 9, 2018.

 

Accordingly, and pursuant to General Instruction E to Form S-8, the contents of the Registration Statement on Form S-8 filed on each of November 23, 2009 (File No. 333-163295), July 1, 2011 (File No. 333- 175312), May 13, 2016 (File No. 333-211350), and May 11, 2017 (File No. 333-217877) are incorporated by reference herein.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8.                                 Exhibits.

 

Exhibit
Number

 

Description

4.1

 

 

Amended and Restated Certificate of Incorporation of Cloud Peak Energy Inc. effective as of November 25, 2009 (incorporated herein by reference to Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K filed on February 14, 2014 (File No. 001-34547))

 

 

 

 

4.2

 

 

Amended and Restated Bylaws of Cloud Peak Energy Inc., effective July 28, 2016 (incorporated herein by reference to Exhibit 3.2 to the Registrant’s Quarterly Report on Form 10-Q filed on July 28, 2016 (File No. 001-34547))

 

 

 

 

4.3

 

 

Cloud Peak Energy Inc. 2009 Long Term Incentive Plan, as amended and restated effective March 3, 2017 (incorporated herein by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on March 6, 2017 (File No. 001-34547))

 

 

 

 

4.4

 

 

Amendment No. 1 to the Cloud Peak Energy Inc. 2009 Long Term Incentive Plan, as amended and restated effective March 3, 2017 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 10, 2017 (File No. 001-34547))

 

 

 

 

4.5

 

 

Amendment No. 2 to the Cloud Peak Energy Inc. 2009 Long Term Incentive Plan, as amended and restated effective March 3, 2017 (incorporated by reference to Exhibit 10.1 to the Registrant’s Current Report on Form 8-K filed on May 9, 2018 (File No. 001-34547))

 

 

 

 

5.1

*

 

Opinion of Vinson & Elkins LLP as to the legality of the securities being registered

 

 

 

 

23.1

*

 

Consent of Vinson & Elkins LLP (included in the opinion filed as Exhibit 5.1 hereto)

 

 

 

 

23.2

*

 

Consent of PricewaterhouseCoopers LLP (independent registered public accounting firm)

 

 

 

 

24.1

*

 

Power of Attorney (included on the signature page of this Registration Statement)

 


*                 Filed herewith.

 

2



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 City of Gillette, the State of Wyoming, on May 10, 2018.

 

 

Cloud Peak Energy Inc.

 

 

 

By:

/s/ Colin Marshall

 

 

Name:

Colin Marshall

 

 

Title:

President, Chief Executive Officer, Chief Operating Officer and Director

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated and on the 10th day of May, 2018. Each person whose signature appears below hereby appoints Colin Marshall acting alone, his or her true and lawful attorney-in-fact with full power of substitution or re-substitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated below, any and all amendments, including post-effective amendments to this Registration Statement, and to sign any and all additional registration statements relating to the same offering of securities of the Registration Statement that are filed pursuant to Rule 462(b) under the Securities Act, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto said attorney-in-fact, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Signature

 

Title

 

 

 

/s/ Colin S. Marshall

 

President, Chief Executive Officer, Chief Operating Officer and Director

Colin S. Marshall

 

(Principal Executive Officer)

 

 

 

/s/ Heath A. Hill

 

Executive Vice President and Chief Financial Officer

Heath A. Hill

 

(Principal Financial Officer)

 

 

 

/s/ Kendall K. Carbone

 

Vice President and Chief Accounting Officer

Kendall K. Carbone

 

(Principal Accounting Officer)

 

 

 

/s/ William T. Fox III

 

Chairman of the Board of Directors

William T. Fox III

 

 

 

 

 

/s/ Jeane L. Hull

 

Director

Jeane L. Hull

 

 

 

 

 

/s/ Steven W. Nance

 

Director

Steven W. Nance

 

 

 

 

 

/s/ William F. Owens

 

Director

William F. Owens

 

 

 

 

 

/s/ Robert C. Skaggs

 

Director

Robert C. Skaggs

 

 

 

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