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As filed with the Securities and Exchange Commission on May 5, 2020 UNITED STATES OF AMERICA BEFORE THE SECURITIES AND EXCHANGE COMMISSION FIRST AMENDED AND RESTATED APPLICATION FOR AN ORDER PURSUANT TO SECTION 3(b)(2) OF THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED, DECLARING THAT ARCH COAL, INC. IS PRIMARILY ENGAGED IN A BUSINESS OTHER THAN THAT OF INVESTING, REINVESTING, OWNING, HOLDING, OR TRADING IN SECURITIES In the Matter of ARCH COAL, INC. File No. 812-15085 Please send all communications to: Robert G. Jones, Esq. Arch Coal, Inc. One CityPlace Drive, Suite 300 St. Louis, Missouri 63141 (314) 994-2700 Nabil Sabki, Esq. Latham & Watkins LLP 330 North Wabash Avenue, Suite 2800 Chicago, Illinois 60611 (312) 876-7700 This Application (including Exhibits) consists of 22 pages. 1 UNITED STATES OF AMERICA BEFORE THE SECURITIES AND EXCHANGE COMMISSION In the Matter of FIRST AMENDED AND RESTATED APPLICATION FOR AN ORDER PURSUANT TO SECTION 3(b)(2) OF THE INVESTMENT ARCH COAL, INC. COMPANY ACT OF 1940, AS AMENDED, DECLARING THAT One CityPlace Drive, Suite 300 ARCH COAL, INC. IS PRIMARILY ENGAGED IN A BUSINESS St. Louis, Missouri 63141 OTHER THAN THAT OF INVESTING, REINVESTING, OWNING, HOLDING, OR TRADING IN SECURITIES. File No. 812-15085 I. SUMMARY OF RELIEF REQUESTED Arch Coal, Inc. (“Arch Coal” or the “Company”),1 a Delaware corporation listed on the New York Stock Exchange (NYSE: ARCH) with its principal executive office in St. Louis, Missouri, is one of the world’s largest coal producers. Arch Coal hereby files this amended and restated application (this “Application”) and applies for an order (the “Requested Order”) of the U.S. Securities and Exchange Commission (the “Commission” or the “SEC”) pursuant to Section 3(b)(2) of the Investment Company Act of 1940, as amended (the “1940 Act”),2 finding and declaring that Arch Coal is primarily engaged in a business or businesses other than that of investing, reinvesting, owning, holding, or trading in securities and, therefore, is not an “investment company,” as such term is defined in the 1940 Act.3 The Requested Order would confirm the status of Arch Coal as an operating company that is primarily engaged in the business of coal production. As discussed herein, Arch Coal believes the Requested Order is necessary in light of the Company’s proposed participation in a strategic joint venture (the “Joint Venture”) with another publicly listed natural resource and mining company, Peabody Energy Corporation (“Peabody”), in support of the Company’s long-term business operations in the Western region of the United States. A. Definition of “Investment Company” Section 3(a)(1) sets forth a three-prong test that broadly defines an “investment company” as any issuer that: (A) is or holds itself out as being engaged primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities4 (the “Business Test”); 1 As used in this Application, references to “Arch Coal” and to the “Company” typically refer to the entity Arch Coal, Inc., but in some contexts such references also are intended to include its subsidiaries. The Company announced on May 1, 2020 that it is changing its name to Arch Resources, Inc., effective May 15, 2020. The Company’s announcement on Form 8-K is available at: https://www.sec.gov/ix? doc=/Archives/edgar/data/1037676/000110465920055011/tm2018336d1_8k.htm. 2 Unless otherwise indicated, all references to sections and rules herein are references to those sections and rules under the 1940 Act. 3 This Application amends and restates the initial application filed by Arch Coal with the Commission on December 20, 2019. The amendments and restatements contained herein reflect comments received from the Commission on March 18, 2020. 4 Section 2(a)(36) defines a security as “any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security (including a certificate of deposit) or on any group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a ‘security’, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” 2 (B) is engaged or proposes to engage in the business of issuing face-amount certificates of the installment type, or has been engaged in such business and has any such certificate outstanding; or (C) is engaged or proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and owns or proposes to acquire investment securities having a value exceeding 40 per centum of the value of such issuer’s total assets (exclusive of Government securities5 and cash items) on an unconsolidated basis (the “40% Test”). As a result of the accounting requirements of the 40% Test, an issuer that prepares its financial statements on a consolidated basis with its subsidiaries and does not prepare separate financial statements (including separate financial statements of each of its subsidiaries, as applicable) on an unconsolidated basis may not be able to apply the 40% Test without undertaking significant additional accounting work. However, a related rule may provide a more efficient method for such an issuer to determine its status under the 1940 Act. Specifically, notwithstanding the 40% Test, Rule 3a-1 provides that an issuer will not be deemed an “investment company” if, on a consolidated basis with its wholly-owned subsidiaries,6 no more than 45% of the issuer’s total assets (exclusive of Government securities and cash items) (the “Asset Test”) consists of, and no more than 45% of the issuer’s net income after taxes over the last four fiscal quarters combined (the “Income Test”) is derived from, securities other than: (i) Government securities; (ii) securities issued by employees’ securities companies; (iii) securities of certain majority-owned subsidiaries7 of the issuer that are not investment companies; and (iv) securities of certain companies that are controlled primarily8 by the issuer that are not investment companies. For purposes of this Application, assets that constitute investment securities for the 40% Test and that would be included in the numerator for the Asset Test, as applicable, are referred to as “bad” assets (collectively, “Bad Assets”). All other assets, except for Government securities (“U.S. Government Securities”) and cash items, are referred to as “good” assets (collectively, “Good Assets”). In order to rely on Rule 3a-1, an issuer must satisfy each of the Asset Test and the Income Test (together, the “45% Tests”) and additionally must not: (i) hold itself out as being engaged primarily, or propose to engage primarily, in the business of investing, reinvesting, or trading in securities; (ii) be engaged or propose to engage 5 Section 2(a)(16) defines a Government security as “any security issued or guaranteed as to principal or interest by the United States, or by a person controlled or supervised by and acting as an instrumentality of the Government of the United States pursuant to authority granted by the Congress of the United States; or any certificate of deposit for any of the foregoing.” 6 Section 2(a)(43) defines a wholly-owned subsidiary of a person as “a company 95 per centum or more of the outstanding voting securities of which are owned by such person, or by a company which, within the meaning of this paragraph, is a wholly-owned subsidiary of such person.” 7 Section 2(a)(24) defines a majority-owned subsidiary of a person as “a company 50 per centum or more of the outstanding voting securities of which are owned by such person, or by a company which, within the meaning of this paragraph, is a majority-owned subsidiary of such person.” 8 In this regard, the staff (the “Staff”) of the Division of Investment Management of the SEC has stated that a company is not “controlled primarily” by an issuer within the meaning of Rule 3a-1 unless (i) the issuer “controls” the company by virtue of owning 25% or more of the voting securities of the company and (ii) the degree of the issuer’s control is greater than that of any other person. See Health Communications Services, Inc., SEC Staff No- Action Letter (Apr. 26, 1985). 3 in the business of issuing face-amount certificates of the installment type, or have been engaged in such business and have any such certificate outstanding; or (iii) be a special situation investment company.9 B. Status of the Company under the 1940 Act Arch Coal prepares consolidated financial statements, which are audited and made publicly available in the Company’s filings on Form 10-Q and Form 10- K. Arch Coal does not prepare financial statements on an unconsolidated basis. While the Company believes it is not an investment company on the basis of the 40% Test (as described in Section IV.C.4 herein), Arch Coal has not performed the significant accounting work of examining each of its subsidiaries on a unconsolidated basis as required by the 40% Test. Therefore, rather than examine the status of Arch Coal under the 40% Test, this Application focuses on examining the status of Arch Coal under Rule 3a-1 with reference to the Company’s existing consolidated financial statements.
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