Exhibit 3.67(a)
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF INCORPORATION
OF
MASSEY COAL TERMINAL, S.C. CORPORATION
(File This Form in This Space for Use
Duplicate Originals) By The Secretary of
State
(Sect. 33-7-30 of 1976 Code)
1. The name of the proposed corporation is Massey Coal Terminal, S.C.
Corporation.
2. The initial registered office of the corporation is 409 East North Street
located in the city of Greenville, county of Greenville and the State of
South Carolina and the name of its initial registered agent at such address
is C T Corporation System.
3. The period of duration of the corporation shall be perpetual.
4. The corporation is authorized to issue shares of stock as follows:
CLASS OF SHARES AUTHORIZED NO. OF EACH CLASS PAR VALUE
--------------- ---------------------------- ---------
Common 100 $10.00 per share
If shares are divided into two or more classes or if any class of shares is
divided into series within a class, the relative rights, preferences, and
limitation so the shares of each class, and of each series within a class, are
as follows:
5. Total authorized capital Stock: $1,000.00.
6. It is represented that the corporation will not begin business until there
has been paid into the corporation the minimum consideration for the issue
of shares, which is $1,000.00 of which at least $500.00 is in cash.
7. The number of directors constituting the initial board of directors of the
corporation is 1 and the names and addresses of the persons who are to
serve as directors until the first annual meeting of shareholders or until
their successors be elected and qualify are:
NAME ADDRESS
E. Morgan Massey P. O. Box 26765, Richmond, VA 23261
8. The general nature of the business for which the corporation is organized
is (it is not necessary to set forth in the purposes powers enumerated in
Section (33-3-10 of 1976 Code).
The purpose of the corporation is to conduct the business of and
provide for the transfer of coal from railcar or other means of ground
transportation to ship vessels or other water transportation means, whether
directly or through ground storage and pier facilities, and to provide for
the receipt of coal and transfer of same from water vessels to railcar or
other means of ground transportation whether directly or through ground
storage and pier facilities; to buy and sell coal, to invest in, trade,
barter, deal in and deal with coal of all grades and sizes, coal
by-products and other merchantable commodities that can lawfully be
exported or imported, coal related products, fuel composed of coal and
liquids, and do any and all acts and things whatsoever necessary, proper or
convenient, desirable or incidental to the carrying out of the business
aforementioned, or to the conducting or managing of any of the business of
the Corporation. In addition, the Corporation shall have the power to do
anything not prohibited by law or required to be stated in these Articles.
9. Provisions which the incorporators elect to include in the articles of
incorporation are as follows:
10. The name and address of each incorporator is:
Name Street & Box No. City County State
- ------------------------------------------------------------------------------
Donna G. Cockcroft 1447 Glencoe Dr. Mt. Pleasant Chas. S.C.
/S/ DONNA G. COCKCROFT
----------------------
(Signature of Incorporator)
Date: November 21, 1980
Type or Print Name: Donna G. Cockcroft
STATE OF SOUTH CAROLINA )
) ss:
COUNTY OF CHARLESTON )
The undersigned, Donna G. Cockcroft, does hereby certify that she is the
incorporator of Massey Coal Terminal, S.C. Corporation and is authorized to
execute this verification; that the undersigned for herself does hereby further
certify that she has read the foregoing document, understands the meaning and
purport of the statements therein contained and the same are true to the best of
her information and belief.
/S/ Donna G. Cockcroft
(Signature of Incorporator)
CERTIFICATE OF ATTORNEY
11. I, Susan M. Smythe, an attorney licensed to practice in the State of South
Carolina, certify that the corporation, to whose articles of incorporation
this certificate is attached, has complied with the requirements of chapter
7 of Title 33 of the South Carolina Code of 1976, relating to the
organization of corporations, and that in my opinion, the corporation is
organized for a lawful purpose.
Date: November 21, 1980 /S/ Susan M. Smythe
(Signature)
Type or Print Name: Susan M. Smythe
Address: P. O. Box 99
Charleston, SC 29402
SCHEDULE OF FEES
(Payable at time of filing Articles of With Secretary of State)
Fee for filing Articles $ 5.00
In addition to the above, $.40 for each $1,000.00 of the .40
aggregate value of shares which the Corporation is authorized
to issue, but in no case less than
Nor more than $ 1,000.00
NOTE: THIS FORM MUST BE COMPLETED IN ITS ENTIRETY BEFORE IT WILL BE ACCEPTED
FOR FILING. THIS FORM MUST BE ACCOMPANIED BY THE FIRST REPORT OF
CORPORATIONS AND A CHECK IN THE AMOUNT OF $10 PAYABLE TO THE SOUTH
CAROLINA TAX COMMISSION.
NOTICE OF CHANGE OF REGISTERED OFFICE OR REGISTERED
AGENT OR BOTH
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
This Space for Use
By The Secretary of
State
(File This Form in Duplicate)
Filing Fee $5.00
This Space for Use
By The Secretary of
State
Pursuant to Section 33-5-40 of the 1976 Code, the undersigned Corporation which
is:
(A) A domestic corporation incorporated in South Carolina on January 23, 1981;
or
(B) A foreign corporation incorporated in (state) on (date), and authorized to
do business in South Carolina on (date), whose registered or principal
office in the jurisdiction of its incorporation is (address), in the City
of __________, and the State of __________.
now gives notice of the change of its registered office or its registered agent
or both, and submits the following statement:
(1) The name of the Corporation is Massey Coal Terminal, S.C. Corporation.
(2) The address of the present registered office is 409 East North St.,
Greenville, SC 29602.
(3) The address to which its registered office is to be changed is Foot of
Milford St., Charleston, S. C. 23607.
(4) The name of the present registered agent is C T Corporation System.
(5) The name of the successor registered agent is Thomas A. McQuade.
(6) The address of the registered office and the address of the business office
of the registered agent, as changed, will be identical.
(7) State whether such change was authorized by action of the Board of
Directors: No.
Massey Coal Terminal, S.C. Corporation
By: /S/ David H. [illegible]
Title: Vice-President and Chief
Financial Officer
By: /S/ [illegible]
Date: December 2, 1986 Title: Treasurer
ARTICLES OF MERGER
MERGING
HENRY CLAY MINING COMPANY, INC.
(a Kentucky corporation)
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
(a South Carolina corporation)
Pursuant to the provisions of Section 33-17-70 of the South Carolina
Business Corporation Act providing for the merger of domestic and foreign
corporations, the undersigned corporations hereby adopt the following Articles
of Merger:
FIRST: The Plan of Merger (the "Plan") pursuant to which Henry Clay Mining
Company, Inc., a Kentucky corporation ("Clay"), will merge into Massey Coal
Terminal, S.C. Corporation, a South Carolina corporation (the "Surviving
Corporation"), which will be the surviving corporation, is attached hereto as
Exhibit A and made a part hereof.
SECOND: The total number of outstanding shares of common stock, $100.00 par
value, of Clay, which is the only class of capital stock of Clay, is 126. The
total number of outstanding shares of common stock, $10.00 par value, of the
Surviving Corporation, which is the only class of capital stock of the Surviving
Corporation, is 100.
THIRD: The Plan of Merger was duly approved (i) on May 20, 1987 by the
written consent of the sole shareholder of Clay pursuant to Sections 271A.365,
271A.385 and 271A.665 of the Kentucky Business Corporation Act, and (ii) on May
20, 1987 by the written consent of the sole shareholder of the Surviving
Corporation, pursuant to Sections 33-11-180, 33-17-30 and 33-17-70 of the South
Carolina Business Corporation Act.
FOURTH: The current address of the registered office of the Surviving
Corporation is Foot of Milford Street, Charleston, South Carolina 23607. The
current address of the registered office of Clay is P. O. Box 2805, South Mayo
Trail, Pikeville, Kentucky 41501.
Dated: May 20, 1987.
HENRY CLAY MINING COMPANY, INC.
By: /S/ Scott M. Kiscaden
Name/Title: Scott M. Kiscaden, President
By: /S/ Wm. Blair Massey
Name/Title: Wm. Blair Massey, Secretary
MASSEY COAL TERMINAL, S.C. CORPORATION
By: /S/ Thomas A. McQuade
Name/Title: Thomas A. McQuade, President
By: /S/ Wm. Blair Massey
Name/Title: Wm. Blair Massey, Secretary
VERIFICATION
We, Scott M. Kiscaden, Wm. Blair Massey and Thomas A. McQuade, have read
and understand the meaning and purport of the statements contained in the
Articles of Merger set forth above. We believe such statements are true. We have
signed said articles and were authorized to do so.
Dated: May 20, 1987
/S/ Scott M. Kiscaden
/S/ Wm. Blair Massey
/S/ Thomas A. McQuade
EXHIBIT A
PLAN OF MERGER
OF
HENRY CLAY MINING COMPANY, INC.
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
FIRST: In accordance with the laws of the States of Kentucky and South
Carolina, Henry Clay Mining Company, Inc., a Kentucky corporation ("Clay"),
shall be merged into Massey Coal Terminal, S.C. Corporation, a South Carolina
corporation (the "Surviving Corporation"), after the filing of Articles of
Merger with the secretaries of state of the states of Kentucky and South
Carolina, effective as of June 8, 1987 (the "Effective Date". The merger shall
have the effect set forth in Section 33-17-70 of the South Carolina Business
Corporation Act and in Section 271A-385 of the Kentucky Business Corporation
Act, as such latter section applies to surviving corporations governed by the
laws of a state other than Kentucky.
SECOND: Clay and the Surviving Corporation are each wholly-owned
subsidiaries of A. T. Massey Coal Company, Inc., a Virginia corporation
("Massey"). On the Effective Date, the 126 shares of capital stock, $100.00 par
value, of Clay held by Massey, which constitute 100% of the outstanding shares
of capital stock of Clay, shall, by virtue of the merger, and without any action
on the part of Clay, Massey or the Surviving Corporation, cease to be
outstanding and shall be cancelled. The outstanding shares of the Surviving
Corporation shall remain unchanged.
THIRD: The Articles of Incorporation and By-Laws of the Surviving
Corporation, as in effect immediately prior to the Effective Date, shall
continue to be the Articles of Incorporation and By-Laws of the Surviving
Corporation, except to the extent they shall be duly altered, amended or
repealed after the Effective Date.
FOURTH: Within 30 days after the Effective Date and in accordance with
Section 33-17-70 of the South Carolina Business Corporation Act, the Surviving
Corporation shall file with the South Carolina Secretary of State a certificate
that the merger has become effective under the laws of the State of Kentucky.
FIFTH: As of the Effective Date, the stock transfer books of Clay shall be
deemed to be closed and no transfer of shares on the books of Clay shall
thereafter be effected.
Sixth: Upon the Surviving Corporation's receipt of triplicate originals of
the Articles of Merger, the Surviving Corporation shall file one such copy with
the appropriate county clerk in accordance with Section 271A.370(3) of the
Kentucky Business Corporation Act.
ARTICLES OF MERGER
MERGING
UTILITY COALS, INC.
(a West Virginia corporation)
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
(a South Carolina corporation)
Pursuant to the provisions of Section 33-17-70 of the South Carolina
Business Corporation Act providing for the merger of domestic and foreign
corporations, the undersigned corporations hereby adopt the following Articles
of Merger:
FIRST: The Plan of Merger (the "Plan of Merger") pursuant to which Utility
Coals, Inc., a West Virginia corporation ("Utility"), will merge into Massey
Coal Terminal, S.C. Corporation, a South Carolina corporation (the "Surviving
Corporation"), which will be the surviving corporation, is attached hereto as
Exhibit A and made a part hereof.
SECOND: The total number of outstanding shares of common stock, $100.00 par
value, of Utility, which is the only class of capital stock of Utility, is 10.
The total number of outstanding shares of common stock, $10.00 par value of the
Surviving Corporation, which is the only class of capital stock of the Surviving
Corporation, is 100.
THIRD: The Plan of Merger was duly approved (i) on May 20, 1987, pursuant
to Section 31-1-73 of the West Virginia Corporation Act, by agreement of the
sole shareholder of Utility; and (ii) on May 20, 1987 by the written consent,
pursuant to Section 33-11-180 of the South Carolina Business Corporation Act, of
the sole shareholder of the Surviving Corporation.
FOURTH: The current address of the registered office of the Surviving
Corporation is Foot up Milford Street, Charleston, South Carolina 23607. The
current address of the registered office of Utility is P. O. Box 2765,
Pikeville, Kentucky 41501.
Dated: May 20, 1987.
UTILITY COALS, INC.
By: /S/ Raymond Ramey
Name and Title: Raymond Ramey, President
By: /S/ Wm. Blair Massey
Name and Title: Wm. Blair Massey, Secretary
MASSEY COAL TERMINAL, S.C. CORPORATION
By: /S/ Thomas A. McQuade
Name and Title: Thomas A. McQuade, President
By: /S/ Wm. Blair Massey
Name and Title: Wm. Blair Massey, Secretary
VERIFICATION
We, Raymond Ramey, Wm. Blair Massey and Thomas A. McQuade, have read and
understand the meaning and purport of the statements contained in the Articles
of Merger set forth above. We believe such statements are true. We have signed
said articles and were authorized to do so.
Dated: May 20, 1987.
/S/ Raymond Ramey
/S/ Wm. Blair Massey
/S/ Thomas A. McQuade
EXHIBIT A
PLAN OF MERGER
OF
UTILITY COALS, INC.
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
FIRST: In accordance with the laws of the States of South Carolina and West
Virginia, Utility Coals, Inc., a West Virginia corporation ("Utility"), shall be
merged into Massey Coal Terminal, S.C. Corporation, a South Carolina corporation
(the "Surviving Corporation"), after the filing of Articles of Merger with the
secretaries of state of the states of West Virginia and South Carolina,
effective as of June 8, 1987 (the "Effective Date"). The merger shall have the
effect set forth in Section 33-17-70 of the South Carolina Business Corporation
Act and in Section 31-1-38 of the West Virginia Business Corporation Act as such
latter section applies to surviving corporations governed by the laws of a state
other than West Virginia.
SECOND: Both Utility and the Surviving Corporation are each wholly-owned
subsidiaries of A. T. Massey Coal Company, Inc., a Virginia corporation
("Massey"). On the Effective Date, the 10 shares of capital stock, $100.00 par
value, of Utility held by Massey, which constitute 100% of the outstanding
shares of capital stock of Utility, shall, by virtue of the merger, and without
any action on the part of Utility, Massey or the Surviving Corporation, cease to
be outstanding and shall be cancelled. The outstanding shares of the Surviving
Corporation shall remain unchanged.
THIRD: On the Effective Date, the corporate name, existence and
organization of Utility shall cease, and all of its purposes, powers and
objects, and all of its rights, assets and obligations shall pass to and vest in
the Surviving Corporation without any conveyance or transfer, except such
confirmatory deed or deeds as may be required by the provisions of the West
Virginia Corporation Act. The Surviving Corporation shall continue to be
governed by the laws of the State of South Carolina and shall succeed to all
rights, assets, liabilities and obligations of Utility in accordance with the
provisions of the South Carolina Business Corporation Act. The Surviving
Corporation will continue to use its present name.
FOURTH: The Articles of Incorporation and By-Laws of the Surviving
Corporation, as in effect immediately prior to the Effective Date, shall
continue to be the Articles of Incorporation and By-Laws of the Surviving
Corporation, except to the extent they shall be duly altered, amended or
repealed after the Effective Date.
FIFTH: Within 30 days after the Effective Date and in accordance with
Section 33-17-70(g) of the South Carolina Business Corporation Act, the
Surviving Corporation shall file with the South Carolina Secretary of State a
certificate that the merger has become effective under the laws of the State of
West Virginia.
SIXTH: As of the Effective Date, the stock transfer books of Utility shall
be deemed to be closed and no transfer of shares on the books of Utility shall
thereafter be effected.
SEVENTH: Upon the Surviving Corporation's receipt of a certificate of
merger from the West Virginia Secretary of State, the Surviving Corporation
shall file such certificate or a certified copy thereof in the office of the
appropriate county clerk in accordance with Section 31-1-36(c) of the West
Virginia Corporation Act.
ARTICLES OF MERGER
MERGING
CLARK ELKHORN COAL COMPANY, INCORPORATED
(a Kentucky corporation)
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
(a South Carolina corporation)
Pursuant to the provisions of Section 33-17-70 of the South Carolina
Business Corporation Act providing for the merger of domestic and foreign
corporations, the undersigned corporations hereby adopt the following Articles
of Merger:
FIRST: The Plan of Merger (the "Plan") pursuant to which Clark Elkhorn Coal
Company, Incorporated, a Kentucky corporation ("Clark"), will merge into Massey
Coal Terminal, S.C. Corporation, a South Carolina corporation (the "Surviving
Corporation"), which will be the surviving corporation, is attached hereto as
Exhibit A and made a part hereof.
SECOND: The total number of outstanding shares of common stock, $50.00 par
value, of Clark, which is the only class of capital stock of Clark, is 15. The
total number of outstanding shares of common stock, $10.00 par value, of the
Surviving Corporation, which is the only class of capital stock of the Surviving
Corporation, is 100.
THIRD: The Plan of Merger was duly approved (i) on May 20, 1987 by the
written consent of the sole shareholder of Clark pursuant to Sections 271A.365,
271A.385 and 271A.665 of the Kentucky Business Corporation Act, and (ii) on May
20, 1987 by the written consent of the sole shareholder of the Surviving
Corporation, pursuant to Sections 33-11-180, 33-17-30 and 33-17-70 of the South
Carolina Business Corporation Act.
FOURTH: The current address of the registered office of the Surviving
Corporation is Foot of Milford Street, Charleston, South Carolina 23607. The
current address of the registered office of Clark is Rt. 1, Box 353, Shelbiana,
Kentucky 41562.
Dated: May 20, 1987.
CLARK ELKHORN COAL COMPANY, INCORPORATED
By: /S/ Robert Mayfield
Name and Title: Robert Mayfield, President
By: /S/ Wm. Blair Massey
Name and Title: Wm. Blair Massey, Secretary
MASSEY COAL TERMINAL, S.C. CORPORATION
By: /S/ Thomas A. McQuade
Name and Title: Thomas A. McQuade, President
By: /S/ Wm. Blair Massey
Name and Title: Wm. Blair Massey, Secretary
VERIFICATION
We, Robert Mayfield, Wm. Blair Massey and Thomas A. McQuade, have read and
understand the meaning and purport of the statements contained in the Articles
of Merger set forth above. We believe such statements are true. We have signed
said articles and were authorized to do so.
Dated: May 20, 1987.
/S/ Robert Mayfield
/S/ Wm. Blair Massey
/S/ Thomas A. McQuade
EXHIBIT A
PLAN OF MERGER
OF
CLARK ELKHORN COAL COMPANY, INCORPORATED
INTO
MASSEY COAL TERMINAL, S.C. CORPORATION
FIRST: In accordance with the laws of the States of Kentucky and South
Carolina, Clark Elkhorn Coal Company, Incorporated, a Kentucky corporation
("Clark"), shall be merged into Massey Coal Terminal, S.C. Corporation, a South
Carolina corporation (the "Surviving Corporation"), after the filing of Articles
of Merger with the secretaries of state of the states of Kentucky and South
Carolina, effective as of June 8, 1987 (the "Effective Date"). The merger shall
have the effect set forth in Section 33-17-70 of the South Carolina Business
Corporation Act and in Section 271A-385 of the Kentucky Business Corporation
Act, as such latter section applies to surviving corporations governed by the
laws of a state other than Kentucky.
SECOND: Both Clark and the Surviving Corporation are each wholly-owned
subsidiaries of A. T. Massey Coal Company, Inc., a Virginia corporation
("Massey"). On the Effective Date, the 15 shares of capital stock, $50.00 par
value, of Clark held by Massey, which constitute 100% of the outstanding shares
of capital stock of Clark, shall, by virtue of the merger, and without any
action on the part of Clark, Massey or the Surviving Corporation, cease to be
outstanding and shall be cancelled. The outstanding shares of the Surviving
Corporation shall remain unchanged.
THIRD: The Articles of Incorporation and By-Laws of the Surviving
Corporation, as in effect immediately prior to the Effective Date, shall
continue to be the Articles of Incorporation and By-Laws of the Surviving
Corporation, except to the extent they shall be duly altered, amended or
repealed after the Effective Date.
FOURTH: Within 30 days after the Effective Date and in accordance with
Section 33-17-70 of the South Carolina Business Corporation Act, the Surviving
Corporation shall file with the South Carolina Secretary of State a certificate
that the merger has become effective under the laws of the State of Kentucky.
FIFTH: As of the Effective Date, the stock transfer books of Clark shall be
deemed to be closed and no transfer of shares on the books of Clark shall
thereafter be effected.
SIXTH: Upon the Surviving Corporation's receipt of triplicate originals of
the Articles of Merger, the Surviving Corporation shall file one such copy with
the appropriate county clerk in accordance with Section 271A.370(3) of the
Kentucky Business Corporation Act.
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
TO THE ARTICLES OF INCORPORATION OF
SOUTH ATLANTIC DREDGING COMPANY, INC.
Pursuant to Authority of Section 33-15-10, Code of Laws of South Carolina
1976, as amended, the undersigned Corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
1. The name of the Corporation is South Atlantic Dredging Company, Inc.
2. The Registered Office of the Corporation is Suite 318, 171 Church
Street, in the City of Charleston, County of Charleston, and the State of South
Carolina and the name of the Registered Agent at such address is Charles F.
Ailstock.
3. The following Amendments of the Articles of Incorporation were adopted
by the shareholders of the Corporation as of June 1, 1987, by unanimous written
consent.
A. Delete Article 4 in its entirety and substitute the following in lieu
thereof:
The Corporation is authorized to issue shares of stock as follows:
CLASS OF SHARES AUTHORIZED NO. OF EACH CLASS PAR VALUE
--------------- ---------------------------- ---------
Common 500,000 $.10
Non-voting Common 500,000 $.10
Except as specifically required by law, Nonvoting Common shares
of stock in the Corporation shall have no voting rights
whatsoever.
B. Delete Article 9 in its entirety and substitute in the following in lieu
thereof.
9. Provisions which the incorporators elect to include in the articles of
incorporation are as follows:
(i) The corporation may, as determined from time to time by the Board of
Directors, purchase shares of the corporation to the extent of
unreserved and unrestricted capital surplus available therefor.
(ii) The corporation shall have the authority to issue bonds convertible
into shares of the corporation within such period and upon such
conditions as shall be fixed by the Board of Directors.
(iii) The judgement of the Board of Directors of the corporation as to the
value of consideration received for shares or for rights or options
entitling the holders thereof to purchase from the corporation shares
of any class or classes of the corporation shall be conclusive.
(iv) The holders of shares of any class of stock (herein "Stock"),
including, without limitation, Common and Non-Voting Common, shall, in
the event of:
(1) the proposed sale by the Corporation for cash of additional shares
of either class; or
(2) the grant by the Corporation of any options or rights to purchase
shares of either class; or
(3) the proposed sale by the Corporation for cash of any securities
convertible into or carrying an option to purchase shares of either
class;
have the right to acquire such securities, as nearly as practicable,
in proportion to their holdings of shares of Stock. The preemptive
right shall exist whether or not the shares which are to be sold or
which are subject to any options or rights are authorized but unissued
shares, treasury shares, or other shares. The price to each holder
shall be no less favorable than the price at which such shares,
securities, options, or rights are to be offered to other holders. The
holders of shares entitled to the preemptive right, and the number of
shares for which they have a preemptive right, shall be determined by
fixing a record date in accordance with ss.33-11-60, Code of Laws of
South Carolina 1976, as amended. For purposes of the pre-emptive
right, there shall be no distinction between Voting and Non-Voting
Stock except that each shareholder acquiring Stock or securities which
are options to purchase Stock or which are convertible into Stock
shall, upon purchase of such Stock, exercise of the option(s) or
conversion of such securities, receive Voting and Non-Voting Stock in
the same proportion to the Voting and Non-Voting Stock then held by
such shareholder.
Except as otherwise provided in the Articles of Incorporation, as
amended, no holder of shares of Stock shall have any preemptive right
with respect to shares or securities of any class which may be issued,
sold, or optioned by the Corporation.
The holders of shares entitled to the preemptive right shall be given
prompt notice setting forth the time within which and the terms and
conditions upon which such shareholders may exercise their preemptive
right. Such notice shall be given personally or by mail at least
thirty (30) days prior to the expiration of the period during which
the right may be exercised.
(v) At any meeting of the Board of Directors, two-thirds (2/3) of the
Directors that are entitled to vote shall constitute a quorum for the
transaction of business. Except as otherwise provided in these
Articles of Incorporation, the Bylaws, the Shareholders Agreement
referred to above or by law, the vote of not less than two thirds
(2/3) of the Directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors.
(vi) Certificates representing Common Shares and Certificates representing
Non-Voting Common Shares shall bear the following legend or a legend
in substantially this form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933 or any state
securities act. The voluntary or involuntary encumbering,
transfer or other disposition (including without limitation, any
disposition pursuant to the laws of bankruptcy, intestacy,
descent and distribution or succession) of the shares of stock
evidenced by the within Certificate is restricted under the terms
of an Agreement dated June 1, 1987, by and among the Corporation
and its Shareholders, a copy of which Agreement is on file at the
principal office of the Corporation. No sale, assignment,
transfer or other disposition of or surrender for exchange of
such securities shall be valid or effective unless and until the
registered holder of such securities shall have complied with the
terms and conditions of such agreement. Upon written request of
any such Shareholder, the Corporation shall furnish, without
charge to such Shareholder, a copy of such Agreement. In
addition, the Corporation will furnish to any such Shareholder
upon his written request therefor and without charge to such
Shareholder, a full statement of the designations, preferences,
limitations and relative rights of the shares of each class
authorized to be issued by the Corporation.
4. At the date of adoption of the Amendment, the total number of
outstanding shares of the Corporation was 1,000. The total of such shares
entitled to vote, and the vote of such shares was:
Total Number of
Shares Entitled
TO VOTE Number of Shares Voted
FOR AGAINST
1,000 1,000 -0-
5. The manner in which any exchange, reclassification, or cancellation of
issued shares provided for in the Amendment shall be effected is set forth in
the Amendment which is set forth in Article 4 above.
6. The amendment does not effect a change in the amount of stated capital.
Dated: June 1, 1987
SOUTH ATLANTIC DREDGING COMPANY, INC.
/S/ Leon B. Monk
Name and Title: Leon B. Monk, President
/S/ F. Hammond Johnson
Name and Title: F. Hammond Johnson, Secretary
STATE OF SOUTH CAROLINA )
)
COUNTY OF CHARLESTON )
The undersigned Leon B. Monk and F. Hammond Johnson do hereby certify that
they are the duly elected and acting President and Secretary respectively, of
South Atlantic Dredging Company, Inc. and are authorized to execute this
document; that each of the undersigned for himself does hereby further certify
that he signed and was so authorized, has read the foregoing document,
understands the meaning and purport of the statements therein contained and the
same are true to the best of his information and belief.
Dated at Charleston South Carolina, this 1st day of June, 1987.
/S/ Leon B. Monk
Name and Title: Leon B. Monk, President
/S/ F. Hammond Johnson
Name and Title: F. Hammond Johnson, Secretary
NOTICE OF CHANGE OF REGISTERED OFFICE OR REGISTERED
AGENT OR BOTH
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
This Space for Use
By The Secretary of
State
(File This Form in Duplicate)
Filing Fee $5.00
Pursuant to Section 33-5-40 of the 1976 Code, the undersigned Corporation which
is:
(A) A domestic corporation incorporated in South Carolina on January 23, 1981;
or
(B) A foreign corporation incorporated in (state) on (date), and authorized to
do business in South Carolina on (date), whose registered or principal
office in the jurisdiction of its incorporation is (address), in the City
of __________, and the State of __________.
now gives notice of the change of its registered office or its registered agent
or both, and submits the following statement:
(1) The name of the Corporation is Massey Coal Terminal, S.C. Corporation.
(2) The address of the present registered office is Foot of Milford Street,
Charleston, SC.
(3) The address to which its registered office is to be changed is c/o C T
Corporation System, 75 Beattie Place, Two Shelter Centre, Greenville, County of
Greenville, South Carolina 29601.
(4) The name of the present registered agent is Thomas A. McQuade.
(5) The name of the successor registered agent is C T Corporation System.
(6) The address of the registered office and the address of the business office
of the registered agent, as changed, will be identical.
(7) State whether such change was authorized by action of the Board of
Directors: Authorized by Unanimous Action of the Board of Directors Without a
Meeting on July 16, 1987.
Massey Coal Terminal, S.C. Corporation
By: /S/ N. J. Isto
Title: Chief Operating Officer
By: /S/ S. J. Paul
Date: August 18, 1987 Title: Secretary
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF AMENDMENT
To The Articles of Incorporation of This Space for Use
By The Secretary of
Massey Coal Terminal S.C. Corp. State
(File This Form in Duplicate)
Pursuant to Authority of Section 33-15-10, Code of Laws of South Carolina
1976, as amended, the undersigned Corporation adopts the following Articles of
Amendment to its Articles of Incorporation:
1. The name of the Corporation is Massey Coal Terminal S.C. Corporation.
2. The Registered Office of the Corporation is 75 Beattie Place, Two
Shelter Centre, in the City of Greenville, County of Greenville, and the State
of South Carolina and the name of the Registered Agent at such address is C T
Corporation System.
(Complete item 3 of 4 whichever is relevant)
3. a. The following Amendments of the Articles of Incorporation were
adopted by the shareholders of the Corporation on July 13, 1987.
(Text of Amendment)
ARTICLE ONE: The name of the Corporation is SHIPYARD RIVER COAL
TERMINAL COMPANY.
b. At the date of adoption of the Amendment, the total number of
all outstanding shares of the Corporation was .............................. The
total of such shares entitled to vote, and the vote of such shares was:
Total Number of
Shares Entitled Number of Shares Voted
To Vote For Against
------- -- -------
One hundred (100) one hundred
(100)
c. At the date of adoption of the Amendment, the number of
outstanding shares of each class entitled to vote as a class on the Amendment,
and the vote of such shares, was: (if inapplicable, insert "none")
Number of Shares Number of Shares Voted
Class Entitled To Vote For Against
----- ---------------- --- --------
None
4. a. Prior to the organizational meeting the Corporation and with the
consent of the subscribers, the following Amendment was adopted by the
Incorporator(s) on...............
(Text of Amendment)
N/A
b. The number of withdrawals of subscribers, if such be the case
is............
c. The number of Incorporators are............. And the number
voting for the Amendment was........... and the number voting against the
Amendment was......................
5. The manner, if not set forth in the Amendment, in which any
exchange, reclassification, or cancellation or issued shares provided for in the
Amendment shall be effected, is as follows: (if not applicable, insert "no
change")
No Change
6. The manner in which the Amendment effects a change in the amount of
stated capital, and amount of stated capital, expressed in dollars, as changed
by the Amendment, is as follows: (if not applicable, insert "no change")
No Change
Date: August 18, 1987
MASSEY COAL TERMINAL S.C. CORPORATION
Note: Any person signing this form, /S/ N. J. Isto
shall either opposite or beneath Name and Title: N. J. Isto,
his signature, clearly and legibly Chief Operating Officer
state his name and the capacity in
which he signs. Must be signed in
accordance with Section 33-1-40 of /S/ S. J. Paul
the 1976 Code, as amended. Name and Title: S. J. Paul, Secretary
STATE OF SOUTH CAROLINA )
) ss:
COUNTY OF CHARLESTON )
The undersigned N. J. Isto and S. J. Paul do hereby certify that they
are the duly elected and acting Chief Operating Officer and Secretary,
respectively, of Massey Coal Terminal S.C. Corporation and are authorized to
execute this document that each of the undersigned for himself does hereby
further certify that he signed and was so authorized, has read the foregoing
document, understands the meaning and purport of the statements therein
contained and the same are true to the best of his information and belief.
Dated at 4 PM, this 18th day of August, 1987.
/S/ N. J. Isto
/S/ S. J. Paul
SCHEDULE OF FEES
(Payable at time of filing application with
Secretary of State)
Filing Fee $ 5.00
Taxes $40.00
----------------------------
Total Fee $45.00
NOTE: IF THE AMENDMENT EFFECT AN INCREASE IN
CAPITAL STOCK, IN LIEU OF THE ABOVE, THE
FILLING FEES WILL BE AS FOLLOWS:
Fee for filing application............... $ 5.00
In addition to the above, $.40 for each 40.00
$1,000.00 of the total increase in the
aggregate value of authorized shares, but
in no case less than.....................
Nor more than............................ 1,000.00
ARTICLES OF MERGER MERGING SUNSET COAL COMPANY,
REDBONE COAL COMPANY AND PIKE COUNTY COAL COMPANY,
KENTUCKY CORPORATIONS, INTO SHIPYARD RIVER COAL
TERMINAL COMPANY, A SOUTH CAROLINA CORPORATION
The following Articles of Merger are hereby executed and adopted by
the undersigned corporations, pursuant to Section 271A.385 of the Kentucky
Revised Statutes (hereinafter called the "KRS") and Section 33-17-70 of the Code
of Laws of South Carolina (1976), as amended (hereinafter called the "S.C. Code
Section 33-17-70), for the purpose of merging SUNSET COAL COMPANY, a Kentucky
corporation (hereinafter called "Sunset"), REDBONE COAL COMPANY, INC., a
Kentucky corporation (hereinafter called "Redbone"), and PIKE COUNTY COAL
CORPORATION, a Kentucky corporation (hereinafter called "Pike County"), with and
into SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation
(hereinafter called "Shipyard").
FIRST: The Plan of Merger, which is attached hereto as Exhibit "A" and
incorporated herein by reference, has been approved and adopted by Sunset,
Redbone, Pike County and Shipyard in the manner required by KRS Chapter 271A and
S.C. Code Section 33-17-70, as applicable, and satisfies the requirements for a
merger of Sunset, Redbone and Pike County into Shipyard in the manner prescribed
by KRS 271A.355 ET. SEQ. and S.C. Code Section 33-17-70.
SECOND: Sunset, by and through its President and Secretary, hereby
certifies that it has only one class of authorized stock, to wit: common voting
stock with par value of $10,000 per share; and that on the date on which the
Plan of Merger was considered and on the date hereof there was issued and
outstanding one hundred (100) shares of common voting stock. Redbone, by and
through its President and Secretary, hereby certifies that it has only one class
of authorized stock, to wit: common voting stock with par value of $10.00 per
share; and that on the date on which the Plan of Merger was adopted and on the
date hereof there was issued and outstanding one thousand (1,000) shares of
common voting stock. Pike County, by and through its President and Secretary,
hereby certifies that it has only one class of authorized stock, to wit: common
voting stock with par value of $10.00 per share; and that on the date on which
the Plan of Merger was adopted and on the date hereof there was issued and
outstanding one thousand (1,000) shares of common voting stock. Shipyard, by and
through its President and Secretary, hereby certifies that it has only one class
of authorized stock, to wit: common voting stock with par value of $10.00 per
share; and that on the date on which the Plan of Merger was adopted and on the
date hereof there was issued and outstanding ten (10) shares of common voting
stock.
THIRD: The Plan of Merger was approved by the unanimous written
consent of the Board of Directors of each of Sunset, Redbone, Pike County and
Shipyard on December 22, 1988.
FOURTH: The Plan of Merger was approved by the unanimous written
consent of the sole shareholder of each of Sunset, Redbone, Pike County and
Shipyard on December 22, 1988, said shareholder having waived the 20-day notice
period and shareholder's meeting provided under KRS 271A.365.
FIFTH: Pursuant to the Plan of Merger, the surviving corporation shall
be Shipyard, with one class of authorized stock, to wit: common voting stock
with par value of $10.00 per share; and on the date on which these Articles of
Merger are effective there shall be issued and outstanding ten (10) shares of
common voting stock.
SIXTH: The current address of Shipyard, the surviving corporation, is
Foot of Milford Street, Post Office Box 71506, Charleston, South Carolina 29405.
SEVENTH: Shipyard, the surviving corporation, hereby: (a) agrees that
it may be served with process in the Commonwealth of Kentucky in any proceeding
for the enforcement of any obligation of Sunset, Redbone or Pike County and in
any proceeding for the enforcement of the rights of any dissenting shareholder
of Sunset, Redbone or Pike County against the surviving corporation; (b)
irrevocably appoints the Secretary of State of Kentucky as its agent to accept
service of process in any such proceeding; (c) agrees that it will promptly pay
to any dissenting shareholder of Sunset, Redbone or Pike County the amount, if
any, to which any such shareholder shall be entitled under the Kentucky Business
Corporation Act with respect to the rights of dissenting shareholders; and (d)
agrees that the courts of Kentucky shall retain jurisdiction over that part of
its corporate property within Kentucky in all matters which may arise as if the
merger described above had not taken place.
EIGHTH: This Merger shall become effective as of December 31, 1988.
IN WITNESS WHEREOF, each of the parties to these Articles of Merger
has caused its name to be subscribed by and through its respective duly
authorized officers, as of this the 22d day of December, 1988.
SUNSET COAL COMPANY, a Kentucky
corporation,
By: /S/ W. G. Meister
Name and Title: W. G. Meister, President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
REDBONE COAL COMPANY, INC., a Kentucky
corporation,
By: /S/ W. G. Meister
Name and Title: W. G. Meister, President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
PIKE COUNTY COAL CORPORATION, a Kentucky
corporation,
By: /S/ W. G. Meister
Name and Title: W. G. Meister, President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
SHIPYARD RIVER COAL TERMINAL COMPANY,
a South Carolina corporation,
By: /S/ N. J. Isto
Name and Title: N. J. Isto, President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
VERIFICATION
The undersigned, being President and Secretary, respectively of SUNSET
COAL COMPANY, a Kentucky corporation, hereby certify that we have read and
understand the foregoing Articles of Merger, that we are informed and believe
the statements contained therein are true, and that we have signed said Articles
of Merger on behalf of SUNSET COAL COMPANY and were authorized to do so.
/S/ W. G. Meister
President
/S/ S. J. Paul
Secretary
STATE OF KENTUCKY
COUNTY OF PIKE
Subscribed, sworn to and acknowledged before me by W. G. Meister,
President of SUNSET COAL COMPANY, a Kentucky corporation, on behalf of said
corporation, on this 21st day of December, 1988.
My commission expires: 6/19/90
/s/ [illegible]
NOTARY PUBLIC
STATE-AT-LARGE
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of SUNSET COAL COMPANY, a Kentucky corporation, on behalf of said
corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
VERIFICATION
The undersigned, being President and Secretary, respectively of
REDBONE COAL COMPANY, a Kentucky corporation, hereby certify that we have read
and understand the foregoing Articles of Merger, that we are informed and
believe the statements contained therein are true, and that we have signed said
Articles of Merger on behalf of REDBONE COAL COMPANY and were authorized to do
so.
/S/ W. G. Meister
President
/S/ S. J. Paul
Secretary
STATE OF KENTUCKY
COUNTY OF PIKE
Subscribed, sworn to and acknowledged before me by W. G. Meister,
President of REDBONE COAL COMPANY, INC., a Kentucky corporation, on behalf of
said corporation, on this 21st day of December, 1988.
My commission expires: 6/19/90
/s/ [illegible]
NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of REDBONE COAL COMPANY, INC., a Kentucky corporation, on behalf of
said corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
VERIFICATION
The undersigned, being President and Secretary, respectively of PIKE
COUNTY COAL CORPORATION, a Kentucky corporation, hereby certify that we have
read and understand the foregoing Articles of Merger, that we are informed and
believe the statements contained therein are true, and that we have signed said
Articles of Merger on behalf of PIKE COUNTY COAL CORPORATION and were authorized
to do so.
/S/ W. G. Meister
President
/S/ S. J. Paul
Secretary
STATE OF KENTUCKY
COUNTY OF PIKE
Subscribed, sworn to and acknowledged before me by W. G. Meister,
President of PIKE COUNTY COAL CORPORATION, a Kentucky corporation, on behalf of
said corporation, on this 21st day of December, 1988.
My commission expires: 6/19/90
/s/ [illegible]
NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of PIKE COUNTY COAL CORPORATION, a Kentucky corporation, on behalf of
said corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
VERIFICATION
The undersigned, being President and Secretary, respectively of
SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation, hereby
certify that we have read and understand the foregoing Articles of Merger, that
we are informed and believe the statements contained therein are true, and that
we have signed said Articles of Merger on behalf of SHIPYARD RIVER COAL TERMINAL
COMPANY and were authorized to do so.
/S/ N. J. Isto
President
/S/ S. J. Paul
Secretary
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by N. J. Isto,
President of SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 23rd day of December, 1988.
My commission expires: 12/23/91
/S/ Mary D. Henry
NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
THIS INSTRUMENT PREPARED BY:
STOLL, KEENON & PARK
1000 First Security Plaza
Lexington, Kentucky 40507-1380
By: /S/ J. Mel Camenisch, Jr.
PLAN OF MERGER
THIS PLAN OF MERGER, by and between SUNSET COAL COMPANY, a Kentucky
Corporation (hereinafter called "Sunset"), REDBONE COAL COMPANY, INC., a
Kentucky corporation (hereinafter called "Redbone"), PIKE COUNTY COAL
CORPORATION, a Kentucky corporation (hereinafter called "Pike County"), and
SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation (hereinafter
called "Shipyard" or the "Surviving Corporation"), and joined in by SHELL COAL
AND TERMINAL COMPANY, a Virginia corporation (hereinafter called "Shell").
W I T N E S S E T H:
THAT WHEREAS, Sunset is a corporation duly organized and validly
existing under the laws of Kentucky having authorized capital stock consisting
solely of one hundred (100) shares of common voting stock having a par value of
$10.00 per share, of which one hundred (100) shares are issued and outstanding
(hereinafter called the "Sunset Stock"); and
WHEREAS, Redbone is a corporation duly organized and validly existing
under the laws of Kentucky having authorized capital stock consisting solely of
one thousand (1000) shares of common voting stock having a par value of $10.00
per share, of which one hundred (100) shares are issued and outstanding
(hereinafter called the "Redbone Stock"); and
WHEREAS, Pike County is a corporation duly organized and validly
existing under the laws of Kentucky having authorized capital stock consisting
solely of one thousand (1000) shares of common voting stock having a par value
of $10.00 per share, of which one thousand (1000) shares are issued and
outstanding (hereinafter called the "Pike County Stock"); and
WHEREAS, Shipyard is a corporation duly organized and validly existing
under the laws of South Carolina having authorized capital stock consisting
solely of ten (10) shares of common voting stock having a par value of $10.00
per share, of which ten (10) shares are issued and outstanding (hereinafter
called the "Shipyard Stock") (the Sunset Stock, Redbone Stock, Pike County Stock
and Shipyard Stock are sometimes hereinafter collectively called the
"Subsidiaries' Stock"); and
WHEREAS, all issued and outstanding shares of the Subsidiaries' Stock
are now, and at the Effective Time (as hereinafter defined) will be, issued to
and owned by Shell; and
WHEREAS, the respective Boards of Directors of Sunset, Redbone, Pike
County and Shipyard deem it advisable for the general welfare of the respective
corporations and their respective shareholders that Sunset, Redbone and Pike
County be merged into Shipyard pursuant to a Plan of Merger, and Sunset,
Redbone, Pike County and Shipyard desire to effect such merger pursuant to this
Plan of Merger and pursuant to the applicable provisions of Section 371A.385 of
the Kentucky Revised Statutes (hereinafter "KRS") and Section 33-17-70 of the
Code of Laws of South Carolina (1976), as amended "hereinafter called "S. C.
Code Section 33-17-70");
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the parties agree as follows:
(1) MERGER. At the Effective Time (as hereinafter defined), Sunset,
Redbone and Pike County shall be merged with and into Shipyard, which shall
survive the Merger and be the Surviving Corporation. The Merger shall be
effective pursuant to the provisions of and have the effect provided for by
Chapter 271A of the Kentucky Revised Statutes (hereinafter called "KRS") and S.
C. Code Section 33-17-70.
(2) ARTICLES OF INCORPORATION OF SURVIVING CORPORATION. At and
subsequent to the Effective Time, the Articles of Incorporation of Shipyard
shall continue to be the Articles of Incorporation of the Surviving Corporation.
(3) EFFECT OF MERGER. At the Effective Time, the corporate existence
of Sunset, Redbone and Pike County shall be merged into and continued in the
Surviving Corporation, with the effect as provided in KRS Section 271A.380 and
S. C. Code Section 33-17-70, as applicable. The Surviving Corporation shall have
all of the rights, privileges, immunities and powers, and be subject to all of
the liabilities, obligations and duties of Sunset, Redbone and Pike County, and
each of them, and shall without the necessity of any conveyance, assignment or
transfer become the owner of all the assets of every kind and character formerly
belonging to Sunset, Redbone and Pike County, and each of them.
(4) QUALIFICATION OF SURVIVING CORPORATION. The Surviving Corporation
is qualified to transact business in the Commonwealth of Kentucky as required
under the provisions of KRS Chapter 271A regarding the qualification of foreign
corporations. At and after the Effective Time, the Surviving Corporation shall
file all agreements and other documents required under KRS 271A.385.
(5) LIABILITIES. At and after the Effective Time: (a) The Surviving
Corporation shall be liable for all liabilities of Sunset, Redbone and Pike
County; (b) all debts, liabilities, obligations and contracts of Sunset, Redbone
and Pike County, matured or unmatured, whether accrued, absolute, contingent or
otherwise, whether or not reflected or reserved against on the balance sheets,
books of account or records of Sunset, Redbone and Pike County, shall be those
of the Surviving Corporation and shall not be released or impaired by the
Merger; and (c) all rights of creditors and other obligees and all liens on
property of Sunset, Redbone and Pike County shall be preserved unimpaired
subsequent to the Merger.
(6) STATUS OF SHARES. At the Effective Time:
(a) Each issued and outstanding share of the Shipyard Stock
shall remain issued, outstanding and unchanged; and
(b) Each issued and outstanding share of the Sunset Stock, the
Redbone Stock and the Pike County Stock shall, IPSO FACTO
and without any action on the part of the holder thereof, be
cancelled.
(7) CONDITIONS. Consummation of the Merger is conditioned upon
procurement of all governmental, regulatory and other consents and approvals,
completion of all filings, registrations and certifications, and satisfaction of
all other requirements prescribed by this Plan of Merger and by law for
consummation of the Merger.
(8) OFFICERS AND DIRECTORS. The Board of Directors
of the Surviving Corporation shall consist of all persons who are directors of
Shipyard immediately before the Merger becoming effective and the officers of
the Surviving Corporation shall consist of all the persons who are the officers
of Shipyard immediately before the Merger becoming effective.
(9) EFFECTIVE TIME. Subject to the terms hereof and upon satisfaction
of requirements of law and the conditions specified in this Plan of Merger, the
Effective Time of the Merger shall be December 31, 1988.
(10) UNDERTAKING AND APPROVAL BY SHELL. Shell, the sole shareholder of
Sunset, Redbone, Pike County and Shipyard, hereby:
(a) Joins in this Plan of Merger and undertakes and agrees that
it will be bound hereby and will do and perform all the acts
and things herein referred to or provided to be done by it.
(b) Acknowledges receipt of a copy of this Plan of Merger,
waives the written notice and the holding of a shareholders'
meeting provided for in KRS Section 271A.365 and S. C. Code
Section 33-17-30 and approved, adopts and consents to this
Plan of Merger.
(11) BINDING EFFECT. This Plan of Merger shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. In the event of the merger and consolidation of Shipyard into or
with any other corporation prior to the Effective Time, this Plan of Merger
shall remain in full force and effect with the Surviving Corporation in any such
merger or consolidation acquiring all the rights and being subject to all the
liabilities, obligations and duties of Shipyard under and pursuant to this Plan
of Merger, including without limitation both the right and the obligation to be
the Surviving Corporation to the Merger provided for in this Plan of Merger.
IN WITNESS WHEREOF, Sunset, Redbone, Pike County, Shipyard and Shell
have caused this Plan of Merger to be executed by their respective duly
authorized officers on this the 22d day of December, 1988.
SUNSET COAL COMPANY, a Kentucky corporation
By: /S/ W. G. Meister
ATTEST: Its: President
/S/ S. J. Paul
Title: Secretary
REDBONE COAL COMPANY, INC., a Kentucky
corporation
By: /S/ W. G. Meister
ATTEST: Its: President
/S/ S. J. Paul
Title: Secretary
PIKE COUNTY COAL CORPORATION, a Kentucky
corporation
By: /S/ W. G. Meister
ATTEST: Its: President
/S/ S. J. Paul
Title: Secretary
SHIPYARD RIVER COAL TERMINAL COMPANY, a South
Carolina corporation
By: /S/ N. J. Isto
ATTEST: Its: President
/S/ S. J. Paul
Title: Secretary
SHELL COAL AND TERMINAL COMPANY, a Virginia
corporation
By: /S/ W. G. Meister
ATTEST: Its: Vice President Mining
/S/ S. J. Paul
Title: Secretary
ARTICLES OF MERGER MERGING
COOPER RIVER COAL TERMINAL COMPANY,
A SOUTH CAROLINA CORPORATION, INTO
SHIPYARD RIVER COAL TERMINAL COMPANY,
A SOUTH CAROLINA CORPORATION
The following Articles of Merger are hereby executed and adopted by
the undersigned corporations, pursuant to Section 33-17-70 ET SEQ. of the Code
of Laws of South Carolina (1976), as amended (hereinafter "S. C. Code Section
33-17-70 ET SEQ.) for the purpose of merging COOPER RIVER COAL TERMINAL COMPANY,
a South Carolina corporation (hereinafter called "Cooper River"), with and into
SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation (hereinafter
called "Shipyard");
FIRST: The Plan of Merger, which is attached hereto as Exhibit "A" and
incorporated herein by reference, has been approved and adopted by Cooper River
and Shipyard in the manner required by S. C. Code Section 33-17-70 ET SEQ. and
satisfies the requirements for a merger of Cooper River into Shipyard in the
manner prescribed by S. C. Code Section 33-17-70 ET SEQ.
SECOND: Cooper River, by and through its President and Secretary,
hereby certifies that it has only one class of authorized stock, to wit: common
voting stock with par value of $1.00 per share; and that on the date on which
the Plan of Merger was adopted and on the date hereof there was issued and
outstanding one thousand (1,000) shares of common voting stock. Shipyard, by and
through its President and Secretary, hereby certifies that it has only one class
of authorized stock, to wit: common voting stock with par value of $10.00 per
share; and that on the date on which the Plan of Merger was adopted and on the
date hereof there was issued and outstanding ten (10) shares of common voting
stock.
THIRD: The Plan of Merger was approved by the unanimous written
consent of the Board of Directors of each of Cooper River and Shipyard on
December 22, 1988.
FOURTH: The Plan of Merger was approved by the unanimous written
consent of the sole shareholder of each of Cooper River and Shipyard on December
22, 1988.
FIFTH: Pursuant to the Plan of Merger, the surviving corporation shall
be Shipyard, with one class of authorized stock, to wit: common voting stock
with par value of $10.00 per share; and on the date on which these Articles of
Merger are effective there shall be issued and outstanding ten (10) shares of
common voting stock.
SIXTH: The current address of Shipyard, the surviving corporation, is
Foot of Milford Street, Post Office Box 71506, Charleston, South Carolina 29405.
SEVENTH: This Merger shall become effective as of December 31, 1988.
IN WITNESS WHEREOF, each of the parties to these Articles of Merger
has caused its name to be subscribed by and through its respective duly
authorized officers, as of this the 22d day of December, 1988. COOPER RIVER COAL
COMPANY, a South Carolina corporation,
By: /S/ M. R. Grover
Name and Title: M. R. Grover,
Vice President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
SHIPYARD RIVER COAL TERMINAL COMPANY,
a South Carolina corporation,
By: /S/ N. J. Isto
Name and Title: N. J. Isto, President
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
VERIFICATION
The undersigned, being President and Secretary, respectively of COOPER
RIVER COAL TERMINAL COMPANY, hereby certify that we have read and understand the
foregoing Articles of Merger, that we are informed and believe the statements
contained therein are true, and that we have signed said Articles of Merger on
behalf of Cooper River Coal Terminal Company and were authorized to do so.
/S/ M. R. Grover
Vice President
/S/ S. J. Paul
Secretary
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by M. R. Grover, Vice
President of COOPER RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 22nd day of December, 1988.
My commission expires: 12/23/91
/s/ Mary D. Henry
NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of COOPER RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
VERIFICATION
The undersigned, being President and Secretary, respectively of
SHIPYARD RIVER COAL TERMINAL COMPANY, hereby certify that we have read and
understand the foregoing Articles of Merger, that we are informed and believe
the statements contained therein are true, and that we have signed said Articles
of Merger on behalf of Shipyard River Coal Terminal, Inc. and were authorized to
do so.
/S/ N. J. Isto
President
/S/ S. J. Paul
Secretary
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by N. J. Isto,
President of SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 22nd day of December, 1988.
My commission expires: 12/23/91
/S/ Mary D. Henry
NOTARY PUBLIC
STATE OF TEXAS
COUNTY OF HARRIS
Subscribed, sworn to and acknowledged before me by S. J. Paul,
Secretary of SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation,
on behalf of said corporation, on this 22nd day of December, 1988.
My commission expires: 8/25/92
/s/ [illegible]
NOTARY PUBLIC
PLAN OF MERGER
THIS PLAN OF MERGER, by and between COOPER RIVER COAL TERMINAL
COMPANY, a South Carolina corporation (hereinafter called "Cooper River"), and
SHIPYARD RIVER COAL TERMINAL COMPANY, a South Carolina corporation (hereinafter
called "Shipyard" or the "Surviving Corporation"), and joined in by SHELL COAL
AND TERMINAL COMPANY, a Virginia corporation (hereinafter called "Shell").
W I T N E S S E T H:
THAT WHEREAS, Cooper River is a corporation duly organized and validly
existing under the laws of South Carolina having authorized capital stock
consisting solely of one hundred thousand (100,000) shares of common voting
stock having a par value of $1.00 per share, of which one thousand (1,000)
shares are issued and outstanding (hereinafter called the "Cooper River Stock");
and
WHEREAS, Shipyard is a corporation duly organized and validly existing
under the laws of South Carolina having authorized capital stock consisting
solely of ten (10) shares of common voting stock having a par value of $10.00
per share, of which ten (10) shares are issued and outstanding (hereinafter
called the "Shipyard Stock"); and
WHEREAS, all issued and outstanding shares of the Cooper River Stock
are now, and at the Effective Time (as hereinafter defined) will be, issued to
and owned by Shipyard; and
WHEREAS, the respective Boards of Directors of Cooper River and
Shipyard deem it advisable for the general welfare of the respective
corporations and their respective shareholders that Cooper River be merged into
Shipyard pursuant to a Plan of Merger, and Cooper River and Shipyard desire to
effect such merger pursuant to this Plan of Merger and pursuant to the
applicable provisions of Section 33-17-70 ET SEQ. of the Code of Laws of South
Carolina (1976), as amended "hereinafter called "S.C. Code Section 33-17-70 ET
SEQ.");
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements herein contained, the parties agree as follows:
(1) MERGER. At the Effective Time (as hereinafter defined), Cooper
River shall be merged with and into Shipyard, which shall survive the Merger and
be the Surviving Corporation. The Merger shall be effective pursuant to the
provisions of and have the effect provided for by S.C. Code Section 33-17-70 ET
SEQ.
(2) ARTICLES OF INCORPORATION OF SURVIVING CORPORATION. At and
subsequent to the Effective Time, the Articles of Incorporation of Shipyard
shall continue to be the Articles of Incorporation of the Surviving Corporation.
(3) EFFECT OF MERGER. At the Effective Time, the corporate existence
of Cooper River shall be merged into and continued in the Surviving Corporation,
with the effect as provided in S.C. Code Section 33-17-70 ET SEQ. The Surviving
Corporation shall have all of the rights, privileges, immunities and powers, and
be subject to all of the liabilities, obligations and duties of Cooper River,
and shall, without the necessity of any conveyance, assignment or transfer,
become the owner of all the assets of every kind and character formerly
belonging to Cooper River.
(4) LIABILITIES. At and after the Effective Time: (a) The Surviving
Corporation shall be liable for all liabilities of Cooper River; (b) all debts,
liabilities, obligations and contracts of Cooper River, matured or unmatured,
whether accrued, absolute, contingent or otherwise, whether or not reflected or
reserved against on the balance sheets, books of account or records of Cooper
River, shall be those of the Surviving Corporation and shall not be released or
impaired by the Merger; and (c) all rights of creditors and other obligees and
all liens on property of Cooper River shall be preserved unimpaired subsequent
to the Merger.
(5) STATUS OF SHARES. At the Effective Time:
(a) Each issued and outstanding share of the Shipyard Stock
shall remain issued, outstanding and unchanged; and
(b) Each issued and outstanding share of the Cooper River Stock
shall, IPSO FACTO and without any action on the part of the
holder thereof, be cancelled.
(6) CONDITIONS. Consummation of the Merger is conditioned upon
procurement of all governmental, regulatory and other consents and approvals,
completion of all filings, registrations and certifications, and satisfaction of
all other requirements prescribed by this Plan of Merger and by law for
consummation of the Merger.
(7) OFFICERS AND DIRECTORS. The Board of Directors of the Surviving
Corporation shall consist of all persons who are directors of Shipyard
immediately before the Merger becoming effective and the officers of the
Surviving Corporation shall consist of all the persons who are the officers of
Shipyard immediately before the Merger becoming effective.
(8) EFFECTIVE TIME. Subject to the terms hereof and upon satisfaction
of requirements of law and the conditions specified in this Plan of Merger,
the Effective Time of the Merger shall be December 31, 1988.
(9) UNDERTAKING AND APPROVAL BY SHAREHOLDERS. (a) Shell, the sole
shareholder of Shipyard, hereby:
(i) Joins in this Plan of Merger and undertakes and agrees
that it will be bound hereby and will do and perform
all the acts and things herein referred to or provided
to be done by it.
(ii) Acknowledges receipt of a copy of this Plan of Merger,
waives the written notice and the holding of a
shareholders' meeting provided for in S.C. Code Section
33-17-30 ET SEQ. and -- --- approved, adopts and
consents to this Plan of Merger.
(b) Shipyard as the sole shareholder of Cooper River hereby:
(i) Joins in this Plan of Merger and undertakes and agrees
that it will be bound hereby and will do and perform
all the acts and things herein referred to or provided
to be done by it.
(ii) Acknowledges receipt of a copy of this Plan of Merger,
waives the written notice and the holding of a
shareholders' meeting provided for in S.C. Code Section
33-17-30 ET SEQ. and approved, adopts and consents to
this Plan of Merger.
(10) BINDING EFFECT. This Plan of Merger shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns. In the event of the merger and consolidation of Shipyard into or
with any other corporation prior to the Effective Time, this Plan of Merger
shall remain in full force and effect with the Surviving Corporation in any such
merger or consolidation acquiring all the rights and being subject to all the
liabilities, obligations and duties of Shipyard under and pursuant to this Plan
of Merger, including without limitation both the right and the obligation to be
the Surviving Corporation to the Merger provided for in this Plan of Merger.
(11) WAIVER OF RIGHTS OF DISSENT. Shipyard acknowledges and agrees
that it is aware of its rights of dissent pursuant to Section 33-11-270 of the
Code of Laws of South Carolina (1976), as amended, and that it hereby waives
those rights and any other rights of dissent, whether created by statute or
common law.
IN WITNESS WHEREOF, Cooper River, Shipyard and Shell have caused this
Plan of Merger to be executed by their respective duly authorized officers on
this the 22d day of December, 1988.
COOPER RIVER COAL TERMINAL COMPANY,
a South Carolina corporation
By: /S/ M. R. Grover
ATTEST: Its: Vice President
/S/ S. J. Paul
Title: Secretary
SHIPYARD RIVER COAL TERMINAL COMPANY,
a South Carolina corporation
By: /S/ N. J. Isto
ATTEST: Its: President
/S/ S. J. Paul
Title: Secretary
SHELL COAL AND TERMINAL COMPANY,
a Virginia corporation
By: /S/ W. G. Meister
ATTEST: Its: Vice President Mining
/S/ S. J. Paul
Title: Secretary
CERTIFICATE OF MERGER PURSUANT TO
SECTION 33-17-70, S. C. CODE OF LAWS, AS AMENDED, 1976
The undersigned, as counsel for Shipyard River Coal Terminal Company,
(Shipyard) hereby certifies, pursuant to Section 33-17-70, S. C. Code of Laws,
as amended, 1976; that all actions necessary to render the mergers of Cooper
River Coal Terminal Company, a South Carolina corporation ("Cooper River");
Sunset Coal Company, a Kentucky corporation ("Sunset"); Redbone Coal Company,
Inc., a Kentucky corporation ("Redbone"); and Pike County Coal Corporation, a
Kentucky corporation ("Pike"), collectively into Shipyard have been taken and
each of these mergers has become effective under the laws of the States of South
Carolina and Kentucky as applicable. No further actions are required pursuant to
Kentucky law relative to the mergers of Sunset, Redbone and Pike into Shipyard,
and those mergers were concluded upon filing with the Secretary of State for the
State of Kentucky and became effective within thirty (30) days of the date of
this Certificate. Upon acceptance and filing of this Certificate by the Office
of the Secretary of State for the State of South Carolina, all actions necessary
or convenient to the mergers of Cooper River, Sunset, Redbone and Pike into
Shipyard will have been concluded pursuant to applicable South Carolina
statutes.
NELSON, MULLINS, RILEY & SCARBOROUGH
By: /S/ J. Douglas Nunn, Jr.
P. O. Box 11070
Columbia, SC 29211
(803) 799-2000
Counsel to Shipyard River Coal Terminal
Company, a South Carolina corporation
January 19, 1989
Columbia, South Carolina
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
NOTICE OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT OR BOTH
OF A SOUTH CAROLINA
OR FOREIGN CORPORATION
Pursuant to ss.ss.33-5-102 and 33-15-108 of the 1976 South Carolina
Code, as amended, the undersigned corporation submits the following information.
1. The name of the corporation is SHIPYARD RIVER COAL TERMINAL COMPANY.
2. The corporation is (complete either a or b, whichever is applicable);
a. a domestic corporation incorporated in South Carolina on January
23, 1981; or
b. a foreign corporation incorporated in (state) on (date), and
authorized to do business in South Carolina on (date).
3. The street address of the current registered office in South Carolina
is Two Shelter Centre in the city of Greenville, South Carolina 29602.
4. If the current registered office is to be changed, the street address
to which its registered office is to be changed is 2019 Park Street in
the City of Columbia, South Carolina 29201.
5. The name of the present registered agent is C T Corporation System.
6. If the current registered agent is to be changed, the name of the
successor registered agent is The Prentice-Hall Corporation System,
Inc.
o I hereby consent to the appointment as registered agent of the
corporation:
The Prentice-Hall Corporation System, Inc.
By: [illegible]
(signature of New Registered Agent)
[illegible]
7. The address of the registered office and the address of the business
office of the registered agent, as changed, will be identical.
8. Unless a delayed date is specified, this application will be effective
upon acceptance for filing by the Secretary of State
(Seess.33-1-230(b)): ___________________________.
Pursuant to ss.ss.33-9-102(5) and 33-19-108(5), the written consent of
the registered agent may be attached to this form.
9. Dated this 10 day of January, 1990.
SHIPYARD RIVER COAL TERMINAL COMPANY
By: /S/ S. J. Paul
Name and Title: S. J. Paul, Secretary
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original
or a conformed copy, must be filed.
2. Filing Fee (payable to the Secretary of State at the time of filing
this document) -- $10.00
3. Pursuant to ss.33-5-102(b), the registered agent can file this form
when the only change is changing the street address of the registered
office. In this situation, the following statement should be typed on
the form above the registered agent's signature: The corporation has
been notified of this change.
Form Approved by South Carolina
Secretary of State 1/89
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
ARTICLES OF MERGER
OR SHARE EXCHANGE
Pursuant to ss.33-11-105 of the 1976 South Carolina Code, as amended,
the undersigned as the surviving corporation in a merger or the acquiring
corporation in a share exchange, as the case may be, hereby submits the
following information:
1. The name of the surviving or acquiring corporation is Shipyard River
Coal Terminal Company.
2. Attached hereto and made a part hereof is a copy of the Plan or Merger
or Share Exchange (see ss.ss.33-11-101 (merger) 33-11-102 (share
exchange, 33-11-104 (merger of subsidiary into parent) 33-11-107
(merger or share exchange with a foreign corporation), and 33-11-108
(merger of a parent corporation into one of its subsidiaries).
3. Complete the following information to the extent it is relevant with
respect to each corporation which is a party to the transaction:
(a) Name of the corporation Shipyard River Coal Terminal Company
Complete either (1) or )2), whichever is applicable:
(1) [ ] Shareholder approval of the merger or stock
exchange was not required (See s.ss.33-11-103(h),
33-11-104(a), and 33-11-108(a)).
(2) |X| The Plan of Merger or Share Exchange was duly
approved by shareholders of the corporation as
follows:
Number of Number of Number of Votes
Voting Outstanding Votes Entitled Represented at the Number of Undisputed*
Group Shares to be Cast meeting Shares Voted
- --------------------- ---------------- ---------------- --------------------- ------------ ----------
Common Stock 100 100 100 100 0
*NOTE: Pursuant to the Section 33-11-105(a)(3)(ii), the corporation can
alternatively state the total number of undisputed shares cast for the
amendment by each voting group together with a statement that the
number case for the amendment by each voting group was sufficient for
approval by that voting group.
(b) Name of the corporation: Basin Resources, Inc. Complete either
(1) or )2), whichever is applicable:
(1) [ ] Shareholder approval of the merger or stock exchange
was not required (See ss.ss.33-11-103(h),
33-11-104(a), and 33-11-108(a)).
(2) |X| The Plan of Merger or Share Exchange was duly approved
by shareholders of the corporation as follows:
Number of Number of Number of Votes Number of Undisputed*
Voting Outstanding Votes Entitled Represented at the Shares Voted
Group Shares to be Cast meeting For Against
------------------- ---------------- ---------------- --------------------- ------------ -------------
Common Stock 100 100 100 100 0
*NOTE: Pursuant to the Section 33-11-105(a)(3)(__), the corporation can
alternatively state the total number of undisputed shares cast for the
amendment by each voting group together with a statement that the
number case for the amendment by each voting group was sufficient for
approval by that voting group.
4. Unless a delayed date is specified, this application will be effective
upon acceptance for filing by the Secretary of State
(Seess.33-1-230(b)): __________________________.
Date: December 8, 1994
Shipyard River Coal Terminal Company
By: /S/ Michael A. Kafoury
Name and Office: Michael A. Kafoury,
Secretary
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original
or a conformed copy, must be filed.
2. Filing Fee (payable to the Secretary of State at the time of filing of
this document.)
Filing Fees $ 10.00
Filing Tax 100.00
3. TWO COPIES OF THE PLAN OF MERGER OR SHARE EXCHANGE MUST BE FILED WITH
THIS FORM AS AN ATTACHMENT.
Form Approved by South Carolina
Secretary of State 1/89
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of December 8, 1994,
between Basin Resources, Inc., a Delaware corporation ("Basin"), and Shipyard
River Coal Terminal Company, a South Carolina corporation ("Shipyard"), (Basin
and Shipyard collectively shall be the "Constituent Corporations")(the
"Agreement").
WHEREAS, Basin is a corporation duly organized and existing under the
laws of the State of Delaware with an authorized capital stock of 100 shares of
common stock, with a part value of $0.01 per share, (the "Basin Common Stock")
of which 100 shares of the Basin Common Stock are issued and outstanding as of
the date of this Agreement;
WHEREAS, Shipyard is a corporation duly organized and existing under
the laws of the State of South Carolina with an authorized capital stock of 100
shares of common stock, with a par value of $10.00 per share, (the "Shipyard
Common Stock") of which 100 shares of the Shipyard Common Stock are issued and
outstanding as of the date of this Agreement;
WHEREAS, the respective board of directors of each of the Constituent
Corporations have determined that it is in each of their best interests to
effect certain exchanges and other transactions described in this agreement,
that Basin merge with and into Shipyard with Shipyard being the surviving
corporation, and that the directors and stockholders of each of the Constituent
Corporations have approved the merger on the terms and conditions set forth
herein in accordance with the applicable provisions of the laws of the State of
South Carolina;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereby agree that, in accordance with the
applicable statutes of the State of South Carolina, Basin shall be merged into
Shipyard, with Shipyard being the surviving corporation, and that the terms and
conditions of such merger (the "Merger"), the mode of carrying it into effect
and the manner and basis of converting the shares effected by the Merger shall
be as follows:
1. THE MERGER. Upon the terms and conditions hereinafter set forth and in
accordance with the Business Corporation Act of South Carolina, on the day of
the Effective Time, Basin shall be merged with and into Shipyard and thereupon
the separate existence of Basin shall cease, and Shipyard, as the surviving
corporation (the "Surviving Corporation"), shall continue to exist under and be
governed by the Business Corporation Act of the State of South Carolina.
1. FILING. Basin and Shipyard will cause the Articles of Merger, in
compliance with the provisions of applicable law to be executed
and filed with the Secretary of State of South Carolina (the
"Articles of Merger").
2. EFFECTIVE DATE OF MERGER. The Merger shall become effective
immediately upon the filing of the Articles of Merger with the
Secretary of State of South Carolina (the "Effective Time").
3. CERTIFICATE OF INCORPORATION AND BY-LAWS. At the Effective Time,
the Certificate of Incorporation of Shipyard shall be the
Certificate of Incorporation of the Surviving Corporation. The
by-laws of Shipyard shall be the by-laws of the Surviving
Corporation.
4. DIRECTORS AND OFFICERS. The persons who are directors of Shipyard
immediately prior to the Effective Time shall, after the
Effective Time, serve as the directors of the Surviving
Corporation, and the officers of Shipyard immediately prior to
the Effective Time shall, after the Effective Time, serve as the
officers of the Surviving Corporation; in each case, such
directors and officers to serve until their successors have been
duly elected and qualified in accordance with the Certificate of
Incorporation and the by-laws of the Surviving Corporation,
respectively.
5. CONVERSION. At the Effective Time, by virtue of the Merger and
without any action on the part of the holders of the Basin Common
Stock, each share of the Basin Common Stock, which is issued and
outstanding immediately prior to the Effective Time, shall be
cancelled and shall reflect no interest in the surviving
corporation.
6. EFFECT OF MERGER. On and after the Effective Time, the Surviving
Corporation shall possess all the assets of every description,
and every interest in the assets, wherever located, and the
rights, privileges, immunities, powers, franchises and authority,
of a public as well as a private nature, of each of Basin and
Shipyard and all obligations belonging to or due to each of Basin
and Shipyard, all of which vested in the Surviving Corporation
without further act or deed. The Surviving Corporation shall be
liable for all the obligations of Basin and Shipyard; any claim
existing, or action or proceeding pending, by or against Basin or
Shipyard may be prosecuted to judgment, with right of appeal, as
if the Merger had not taken place, or the Surviving Corporation
may be substituted in its place; and all the rights of creditors
of each of Basin and Shipyard shall be preserved unimpaired.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
BASIN RESOURCES, INC. SHIPYARD RIVER COAL TERMINAL COMPANY
By: /S/ William A. Miller By: /S/ Kevin L. Yocum
Name: William A. Miller Name: Kevin L. Yocum
Title: Vice President Title: Vice President
Attest: Attest:
By: /S/ Patricia A. Britton By: /S/ Michael A. Kafoury
Name: Patricia A. Britton Name: Michael A. Kafoury
Title: Secretary Title: Secretary
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger dated as of December 8, 1994,
between Basin Resources, Inc., a Delaware corporation ("Basin"), and Shipyard
River Coal Terminal Company, a South Carolina corporation ("Shipyard"), (Basin
and Shipyard collectively shall be the "Constituent Corporations")(the
"Agreement").
WHEREAS, Basin is a corporation duly organized and existing under the
laws of the State of Delaware with an authorized capital stock of 100 shares of
common stock, with a part value of $0.01 per share, (the "Basin Common Stock")
of which 100 shares of the Basin Common Stock are issued and outstanding as of
the date of this Agreement;
WHEREAS, Shipyard is a corporation duly organized and existing under
the laws of the State of South Carolina with an authorized capital stock of 100
shares of common stock, with a par value of $10.00 per share, (the "Shipyard
Common Stock") of which 100 shares of the Shipyard Common Stock are issued and
outstanding as of the date of this Agreement;
WHEREAS, the respective board of directors of each of the Constituent
Corporations have determined that it is in each of their best interests to
effect certain exchanges and other transactions described in this agreement,
that Basin merge with and into Shipyard with Shipyard being the surviving
corporation, and that the directors and stockholders of each of the Constituent
Corporations have approved the merger on the terms and conditions set forth
herein in accordance with the applicable provisions of the laws of the State of
South Carolina;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereby agree that, in accordance with the
applicable statutes of the State of South Carolina, Basin shall be merged into
Shipyard, with Shipyard being the surviving corporation, and that the terms and
conditions of such merger (the "Merger"), the mode of carrying it into effect
and the manner and basis of converting the shares effected by the Merger shall
be as follows:
1. THE MERGER. Upon the terms and conditions hereinafter set forth and in
accordance with the Business Corporation Act of South Carolina, on the day of
the Effective Time, Basin shall be merged with and into Shipyard and thereupon
the separate existence of Basin shall cease, and Shipyard, as the surviving
corporation (the "Surviving Corporation"), shall continue to exist under and be
governed by the Business Corporation Act of the State of South Carolina.
1. FILING. Basin and Shipyard will cause the Articles of Merger, in
compliance with the provisions of applicable law to be executed
and filed with the Secretary of State of South Carolina (the
"Articles of Merger").
2. EFFECTIVE DATE OF MERGER. The Merger shall become effective
immediately upon the filing of the Articles of Merger with the
Secretary of State of South Carolina (the "Effective Time").
3. CERTIFICATE OF INCORPORATION AND BY-LAWS. At the Effective Time,
the Certificate of Incorporation of Shipyard shall be the
Certificate of Incorporation of the Surviving Corporation. The
by-laws of Shipyard shall be the by-laws of the Surviving
Corporation.
4. DIRECTORS AND OFFICERS. The persons who are directors of Shipyard
immediately prior to the Effective Time shall, after the
Effective Time, serve as the directors of the Surviving
Corporation, and the officers of Shipyard immediately prior to
the Effective Time shall, after the Effective Time, serve as the
officers of the Surviving Corporation; in each case, such
directors and officers to serve until their successors have been
duly elected and qualified in accordance with the Certificate of
Incorporation and the by-laws of the Surviving Corporation,
respectively.
5. CONVERSION. At the Effective Time, by virtue of the Merger and
without any action on the part of the holders of the Basin Common
Stock, each share of the Basin Common Stock, which is issued and
outstanding immediately prior to the Effective Time, shall be
cancelled and shall reflect no interest in the surviving
corporation.
6. EFFECT OF MERGER. On and after the Effective Time, the Surviving
Corporation shall possess all the assets of every description,
and every interest in the assets, wherever located, and the
rights, privileges, immunities, powers, franchises and authority,
of a public as well as a private nature, of each of Basin and
Shipyard and all obligations belonging to or due to each of Basin
and Shipyard, all of which vested in the Surviving Corporation
without further act or deed. The Surviving Corporation shall be
liable for all the obligations of Basin and Shipyard; any claim
existing, or action or proceeding pending, by or against Basin or
Shipyard may be prosecuted to judgment, with right of appeal, as
if the Merger had not taken place, or the Surviving Corporation
may be substituted in its place; and all the rights of creditors
of each of Basin and Shipyard shall be preserved unimpaired.
* * * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
BASIN RESOURCES, INC. SHIPYARD RIVER COAL TERMINAL COMPANY
By: /S/ William A. Miller By: /S/ Kevin L. Yocum
Name: William A. Miller Name: Kevin L. Yocum
Title: Vice President Title: Vice President
Attest: Attest:
By: /S/ Patricia A. Britton By: /S/ Michael A. Kafoury
Name: Patricia A. Britton Name: Michael A. Kafoury
Title: Secretary Title: Secretary
AGENT'S STATEMENT OF CHANGE OF REGISTERED OFFICE
OF A SOUTH CAROLINA OR FOREIGN CORPORATION
Pursuant to Section 33-5-102 and 33-15-108 of the 1976 South Carolina Code, as
amended, the undersigned registered agent submits the following information for
the purpose of changing the registered office address of the following
corporation in the State of South Carolina.
1. The name of the corporation is
SHIPYARD RIVER COAL TERMINAL COMPANY
2. The sate of incorporation is
SC
3. Date of incorporation or qualification in South Carolina is
1/23/81
4. The name of the current registered agent is
THE PRENTICE-HALL CORPORATION SYSTEM, INC.
5. The street address of the current registered office in South Carolina
is
2019 PARK STREET
COLUMBIA, SC 29201
6. The street address to which the registered office is changed to
1301 GERVAIS STREET
COLUMBIA, SOUTH CAROLINA 29201
7. The address of the registered office and the address of the business
office of the registered agent as changed, will be identical.
8. The above named corporation has been notified of the change.
Dated: June 10, 1999
THE PRENTICE-HALL CORPORATION SYSTEM, INC.
(As Registered Agent)
By: /S/ John H. Pelletier
Name and Title: John H. Pelletier, Asst. VP
STATE OF SOUTH CAROLINA
SECRETARY OF STATE
NOTICE OF CHANGE OF REGISTERED OFFICE
OR REGISTERED AGENT OR BOTH
OF A SOUTH CAROLINA
OR FOREIGN CORPORATION
Pursuant to ss.ss.33-5-102 and 33-15-108 of the 1976 South Carolina
Code, as amended, the undersigned corporation submits the following information.
1. The name of the corporation is Shipyard River Coal Terminal Company.
2. The corporation is (complete either a or b, whichever is applicable);
a. a domestic corporation incorporated in South Carolina on January
23, 1981; or
b. a foreign corporation incorporated in (state) on (date), and
authorized to do business in South Carolina on (date).
3. The street address of the current registered office in South Carolina
is 2019 Park Street in the city of Columbia, SC South Carolina (Zip
Code).
4. If the current registered office is to be changed, the street address
to which its registered office is to be changed is c/o C T Corporation
System, 75 Beattie Place, Two Insignia Financial Plaza in the City of
Greenville, South Carolina 29601.
5. The name of the present registered agent is Prentice Hall Corporation.
6. If the current registered agent is to be changed, the name of the
successor registered agent is C T Corporation System.
o I hereby consent to the appointment as registered agent of the
corporation:
/S/ C. A. Record
By: C. A. Record, Asst. Secretary
(signature of New Registered Agent)
7. The address of the registered office and the address of the business
office of the registered agent, as changed, will be identical.
8. Unless a delayed date is specified, this application will be effective
upon acceptance for filing by the Secretary of State
(Seess.33-1-230(b)): __________________________.
* Pursuant toss.ss.33-9-102(5) and 33-19-108(5), the written consent of
the registered agent may be attached to this form.
9. Dated this 21st day of May, 1999.
Shipyard River Coal Terminal Company
By: /S/ Kevin Crutchfield
Name and Title: Kevin Crutchfield,
President
FILING INSTRUCTIONS
1. Two copies of this form, the original and either a duplicate original
or a conformed copy, must be filed.
2. Filing Fee (payable to the Secretary of State at the time of filing
this document) -- $10.00
3. Pursuant to ss.33-5-102(b), the registered agent can file this form
when the only change is changing the street address of the registered
office. In this situation, the following statement should be typed on
the form above the registered agent's signature: "The corporation has
been notified of this change."
Form Approved by South Carolina
Secretary of State 1/89