Exhibit 3.5(b)
BYLAWS OF
TENNESSEE MINING, INC.
ARTICLE I
---------
OFFICES
-------
The principal office of the corporation shall be located at Ashland,
Kentucky. The corporation may have such other offices, either within or without
the Commonwealth of Kentucky, as the business of the corporation may require
from time to time.
ARTICLE II
----------
SHAREHOLDERS MEETINGS AND RECORD DATES
--------------------------------------
Section 1. Annual Meeting. The annual meeting of the shareholders shall
--------------
be held on the date and at the time fixed by resolution the board of directors,
for the purpose of electing directors and for the transaction of such other
business as may come before the meeting.
Section 2. Special Meetings. Special meetings of the shareholders may be
----------------
called by the president, by a majority of the members of the board of directors
or by the holders of not less than one-third of all the shares entitled to vote
at the meeting.
Section 3. Place of Meeting. The board of directors may designate any
----------------
place within or without the Commonwealth of Kentucky as the place of meeting for
any annual meeting or for any special meeting called by the board of directors.
If no designation is made, or if a special meeting be called by other
than the board of directors, the place of meeting shall be the principal office
of the corporation, except as otherwise provided in Section 5 of this Article.
Section 4. Notice of Meetings. Written notice stating the place, day and
------------------
hour of the meeting and, in the case of a special meeting, the purpose or
purposes for which the meeting is called, shall be delivered not less than ten
nor more than sixty days before the date of the meeting, either personally or by
telegraph, teletype or other form of wire or wireless communication or by mail
or private carrier, by or at the direction of the president, or the secretary ,
or the officer of persons calling the meeting, to each shareholder of record
entitled to vote at such meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail in a sealed envelope
addressed to the shareholder at his address as it appears on the records of the
corporation, with first class postage thereon prepaid.
Section 5. Meeting of all Shareholders. If all of the shareholders shall
---------------------------
meet at any time and place, either within or without the Commonwealth of
Kentucky, and consent to the holding of a meeting, such meeting shall be valid
without call or notice, and at such meeting any corporate action may be taken.
Section 6. Fixing of Record Date. If no record date is fixed for the
---------------------
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, or shareholders entitled to receive payment of a dividend, the
first date on which notice of the meeting is mailed or the date on which the
resolution of the board of directors declaring such dividend, the first date on
which notice of the meeting is mailed or the date on which the resolution of the
board of directors declaring such dividend is adopted, as the case may be, shall
be the record date for such determination of shareholders. When a determination
of shareholders entitled to vote at any meeting of shareholders has been made as
provided herein, such determination shall apply to any adjournment thereof
unless the meeting is adjourned to a date more than 120 days after the date
fixed for the original meeting, in which case the board shall fix a new record
date.
Section 7. Voting Lists and Share Ledger. The secretary shall prepare a
-----------------------------
complete list of the shareholders entitled to notice of any meeting, or any
adjournment thereof, arranged by voting group (and within each voting group by
class or series of shares) with the address of and the number of shares held by
each shareholder, which list, for a period of five business days prior to any
meeting and continuing through the meeting, shall be kept on file at the
principal office of the corporation and shall be subject to inspection by any
shareholder at any time during usual business hours. Such list shall be
produced and kept open a the meeting and shall be subject to the inspection of
any shareholder during the meeting and any adjournment thereof. The original
share ledger or stock transfer book, or a duplicate thereof kept in this State,
shall be prima facie evidence as to the shareholders entitled to examine such
-----------
list or share ledger or stock transfer book, or the shareholders entitled to
vote at any meeting of shareholders or to receive any dividend.
Section 8. Quorum. A majority of the outstanding shares entitled to vote,
------
represented in person or by proxy, shall constitute a quorum at any meeting of
shareholders. The shareholders present at a duly organized meeting can continue
to do business for the remainder of the meeting and for any adjournment thereof
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum, unless a new record date is or must be set for that adjourned meeting.
Section 9. Proxies. At all meetings of shareholders, a shareholder may
-------
vote by proxy executed in writing by the shareholder or by his duly authorized
attorney-in-fact. Such proxy shall be filed with the secretary of the
corporation before or at the time of the meeting.
Section 10. Informal Action by Shareholders. Any action required or
-------------------------------
permitted to be taken at a meeting of the shareholders may be taken without a
meeting and without prior notice if one or more consents in writing, setting
forth the action so taken, shall be signed by all of the shareholders entitled
to vote with respect to the subject matter thereof and delivered to the
corporation for inclusion in the minutes or filing with the corporate records.
In addition, so long as permitted by the corporation's articles of
incorporation, any action, except the election of directors, required or
permitted to be taken at a shareholders' meeting may be taken without a meeting
and without prior notice (except as otherwise provided by law) if one or more
consents in writing, setting forth the action so taken, shall be signed by
shareholders representing not less than 80% (or such higher percentage as may be
required by law) of the votes entitled to be cast and delivered to the
corporation for inclusion in the minutes of filing with the corporate records.
Prompt notice of the taking of any action by shareholders without a meeting by
less than unanimous consent shall be given to those shareholders entitled to
vote on the action who have not consented in writing.
ARTICLE III
-----------
DIRECTORS
---------
Section 1. General Powers. The business and affairs of the corporation
--------------
shall be managed under the direction of a board of directors.
Section 2. Number and Tenure. A variable range of between one member (the
-----------------
minimum) and ten members (the maximum) is established for the size of the board
of directors. The number of directors may be fixed or changed from time to
time, within the minimum and maximum, by resolution of the shareholders or by
resolution of the board of directors, provided, however, that, after shares are
issued, only the shareholders may change the range for the size of the board of
directors or change from a variable range board to a fixed number of directors.
Each director shall hold office for a term expiring at the next annual
shareholders' meeting following his or her election; provided that, despite the
expiration of a director's term, the director shall continue to serve until his
or her successor shall have been elected and qualifies for the office or until
there is a decrease in the number of directors.
Section 3. Regular Meetings. A regular meeting of the board of directors
----------------
shall be held without other notice than this Bylaw, immediately after, and at
the same place as, the annual meeting of shareholders. The board of directors
may provide, by resolution, the time and place, either within or without the
Commonwealth of Kentucky, for the holding of additional regular meetings without
other notice than such resolution.
Section 4. Special Meetings. Special meetings of the board of directors
----------------
may be called by or at the request of the president or any one director. The
person or persons authorized to call special meetings of the board of directors
may fix any place, either within or without the Commonwealth of Kentucky, as the
place for holding any special meeting of the board of directors called by them.
Section 5. Notice. Notice of any special meeting shall be given at least
------
two (2) days prior thereto by written notice delivered personally, mailed or
telegrammed to each director at his business address. If mailed, such notice
shall be deemed to be delivered five (5) days after its deposit in the United
States mail in a sealed envelope so addressed, with first class postage thereon
prepaid. If notice be given by telegram, such notice shall be deemed to be
delivered when the telegram is delivered to this telegraph company. Any
director may waive notice of any meeting. The attendance of a director at any
meeting shall constitute a waiver of notice of such meeting, unless the director
at the beginning of the meeting (or promptly upon his arrival) objects to the
transaction of any business at the meeting and does not thereafter vote for or
assent to action taken at the meeting. Neither the business to be transacted
at, nor the purpose of, any regular or special meeting of the board of directors
need be specified in the notice or waiver of notice of such meeting.
Section 6. Quorum. A majority of the board of directors shall constitute
------
a quorum for the transaction of business at any meeting of the board of
directors, provided that if less than a majority of the directors are present at
said meeting, a majority of the directors present may adjourn the meeting from
time to time without further notice.
Section 7. Manner of Acting. The act of the majority of the directors
----------------
present at a meeting at which a quorum is present shall be the act of the board
of directors.
Section 8. Vacancies. Any vacancy occurring in the board of directors may
---------
be filled by the affirmative vote of a majority of the remaining directors
though less than a quorum of the board of directors.
A director elected to fill a vacancy shall serve until the next shareholders'
meeting at which directors are elected.
Section 9. Committees. The board of directors shall have authority to
----------
establish such committees as it may consider necessary or convenient for the
conduct of its business. The board of directors may establish an executive
committee in accordance with and subject to the restrictions set out in the
statutes of the Commonwealth of Kentucky.
Section 10. Informal Action. Any action required or permitted to be taken
---------------
at a meeting of the board of directors, or any action which may be taken at a
meeting of the board of directors or of a committee, may be taken without a
meeting if a consent, in writing, setting forth the action so taken shall be
signed by all of the directors, or all of the members of the committee, as the
case may be, and included in minutes or filed with the corporate records. Such
consent shall have the same effect as a unanimous vote.
In addition to the foregoing, any action, except the election of
directors, required or permitted to be taken at a shareholders' meeting may be
taken without a meeting and without prior notice (except as otherwise provided
by law) if the action is taken by shareholders representing not less than 80%
(or such higher percentage as may be required by law) of the votes entitled to
be cast. Prompt notice of the taking of any action by shareholders without a
meeting by less than unanimous consent shall be given to those shareholders
entitled to vote on the action who have not consented in writing.
ARTICLE IV
----------
OFFICERS
--------
Section 1. Classes. The officers of the corporation shall be a president,
-------
a secretary, and such other officers, as may be provided by the board of
directors and elected in accordance with the provisions of this article.
Section 2. Election and Term of Office. The officers of the corporation
---------------------------
shall be elected annually by the board of directors at the first meeting of the
board of directors held after each annual meeting of shareholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Vacancies may be filled or new offices
created and filled at any meeting of the board of directors. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign or shall have been removed
from office in the manner hereinafter provided.
Section 3. Removal. Any officer elected by the board of directors may be
-------
removed by the board of directors, with or without cause, whenever in its
judgment the best interest of the corporation would be served thereby, but such
removal shall be without prejudice to the contract rights, if any, of the person
so removed. Election or appointment of an officer or agent shall not of itself
create contractual rights.
Section 4. President. The president shall be the chief executive officer
---------
of the corporation and shall, in general, supervise and control all of the
business and affairs of the corporation. The president shall perform all duties
normally incident to the office of president and such other duties as may be
prescribed by the board of directors from time to time.
Section 5. Secretary. The secretary shall [a] keep the minutes of the
---------
shareholders' and of the board of directors' meetings in one or more books
provided for that purpose; [b] see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law; [c] be
custodian of the corporate records and stock transfer books of the corporation;
and, [d] in general, perform all duties normally incident to the office of
secretary and such other duties as from time to time may be assigned by the
president or by the board of directors.
Section 6. Vice President. If the office of vice president is filled by
--------------
the board of directors, the vice president shall perform the duties of the
president in the absence of the president or in the event of his inability or
refusal to act, and, when so acting, shall have all the powers of and be subject
to all the restriction upon the president. The vice president shall perform
such other duties as from time to time may be assigned by the president or by
the board of directors.
Section 7. Treasurer. If the office of treasurer is filled by the board
---------
of directors, the treasurer shall be the chief financial officer of the
corporation and shall perform all duties normally incident to the office of
treasurer and such other duties as from time to time may be assigned by the
president or by the board of directors.
ARTICLE V
---------
CONTRACTS, LOANS, CHECKS AND DEPOSITS
-------------------------------------
Section 1. Contracts and Agreements. The board of directors may authorize
------------------------
any officer or officers, agent or agents, to enter into any contract or
agreement or execute and deliver any instruments in the name of and on behalf of
the corporation, and such authority may be general or confined to specific
instances.
Section 2. Loans. No loans shall be contracted on behalf of the
-----
corporation, an no evidences of indebtedness shall be issued in its name unless
authorized by a resolution of the board of directors. Such authority may be
general or confined to specific instances.
Section 3. Checks, Drafts, Orders, Etc.. All checks, drafts or other
----------------------------
orders for the payment of money, notes or other evidences of indebtedness issued
in the name of the corporation shall be signed by such officer or officers,
agent or agents, of the corporation and in such manner as shall from time to
time be determined by resolution of the board of directors.
Section 4. Deposits. All funds of the corporation not otherwise employed
--------
shall be deposited from time to time to the credit of the corporation in such
banks, trust companies, or other depositories as the board of directors may
select.
ARTICLE VI
----------
CERTIFICATES FOR SHARES AND THEIR TRANSFER
------------------------------------------
Section 1. Certificates for Shares. Certificates representing shares of
-----------------------
the corporation shall be in such form as may be determined by the board of
directors. Such certificates shall be signed by the president or vice president
and by the secretary or an assistant secretary and may be sealed with the seal
of the corporation or a facsimile thereof. All certificates surrendered to the
corporation for transfer shall be canceled,
and no new certificate shall be issued until the former certificate for a like
number of shares shall have been surrendered and canceled, except that in the
case of a lost, destroyed or mutilated certificate, a new certificate may be
issued therefor upon such terms and indemnity to the corporation as the board of
directors may prescribe.
Section 2. Transfer of Shares. Transfer of shares of the corporation
------------------
shall be made only on the books of the corporation by the registered holder
thereof or by his attorney authorized by power of attorney duly executed and
filed with the secretary of the corporation, and on surrender for cancellation
of the certificates for such shares. The person in whose name shares stand on
the books of the corporation shall be deemed the owner thereof for all purposes
as regards the corporation.
ARTICLE VII
-----------
FISCAL YEAR
-----------
The fiscal year of the corporation shall be the calendar year.
ARTICLE VIII
------------
WAIVER OF NOTICE
----------------
Whenever any notice whatever is required to be given under the
provisions of these Bylaws, or under the provisions of the Articles of
Incorporation, or under the provisions of the corporation laws of the
Commonwealth of Kentucky, waiver thereof in writing, signed by the persons,
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to the giving of such notice.
ARTICLE IX
----------
INDEMNIFICATION OF OFFICERS AND DIRECTORS
-----------------------------------------
The corporation shall indemnify any person who is or was a director of
the corporation and may, as determined by the board of directors, indemnify any
person who is or was an officer or employee of the corporation, from any and all
judgments, settlements, penalties, fines and reasonable expenses that may be
incurred by or imposed against him in connection with any claims,
investigations, proceedings and/or litigation arising out of or relating to any
acts or omissions by him in his capacity as a director or officer or employee
of, or as trustee of any employee benefit plan maintained by, the corporation,
other than acts or omissions not in good faith or which involve intentional
misconduct or are known to him to be a violation of law or for any transaction
from which he derived an improper personal benefit, and except as otherwise
prohibited by Kentucky or Federal law. The right or privilege of
indemnification, as the case may be, granted hereunder shall include the payment
of reasonable expenses incurred in advance of the final disposition of a claim,
investigation, proceeding or litigation subject to the receipt by the
corporation of a written undertaking of the person requesting such payment that
he will repay such amounts if it is finally determined by a court of competent
jurisdiction that he is not entitled to indemnification under this bylaw.
ARTICLE X
---------
AMENDMENT OF BYLAWS
-------------------
The board of directors may alter, amend or rescind these bylaws,
subject to the rights of the shareholders to repeal or modify such actions.