EXHIBIT 3.22
BY-LAWS OF
BLACK BEAUTY RESOURCES, INC.
ARTICLE I.
OFFICES.
Section 1.1. Principal Office. The principal office of the Corporation
shall be in Evansville, Indiana.
Section 1.2. Other Offices. The Corporation may also have other offices at
such places as the Board of Directors may designate or the business of the
Corporation may require from time to time.
Section 1.3. Registered Office and Agent. The Corporation shall maintain a
Registered Office and Registered Agent as required by the Indiana Business
Corporation Law.
ARTICLE II.
SHAREHOLDERS.
Section 2.1. Annual Meeting. The annual meeting of the shareholders of the
Corporation shall be held at the principal office of the Corporation on the
fourth Wednesday in April of each year at 9:00 a.m., local time, if that day is
not a legal holiday, but if that day is a legal holiday, then on the next
succeeding business day; or it may be held at such other place (either within or
without the State of Indiana but which is reasonably convenient for shareholders
to attend) and time (not later than the end of the sixth month following the
close of the fiscal year) as may be fixed by the Board of Directors and
designated in the notice or waiver of notice of the meeting. At the annual
meeting, the directors for the ensuing year shall be elected and all such other
business as may properly be brought before the meeting shall be transacted. The
Secretary of the Corporation shall cause notice of the annual meeting to be
given to each shareholder of record of the Corporation entitled to vote either
by delivery to the shareholder in person or by depositing in the United States
mail, postage prepaid, in an envelope addressed to the shareholder's address
shown in the Corporation's current record of shareholders, a written or printed
notice stating the place, day and hour of the holding of the meeting. Notices
shall be delivered personally or mailed no fewer than ten (10) nor more than
sixty (60) days before the date of the
meeting. If required by any provision of the Indiana Business Corporation Law or
by the Articles of Incorporation of the Corporation or if required by the Board
of Directors, the notice shall also state the purpose or purposes for which the
meeting is called.
Section 2.2. Special Meetings. In addition, special meetings of the
shareholders may be held at the principal office of the Corporation or at any
other place which is reasonably convenient for shareholders to attend, as may be
designated in the notice or waiver of notice of the meeting. Special meetings
may be called in writing by the Chairman of the Board, President, Secretary or
by two members of the Board of Directors. In addition, special meetings may be
called by the holders of at least twenty-five percent (25%) of the outstanding
shares of the Corporation entitled to vote upon the business to be transacted at
the meeting, if the holders sign, date and deliver to the Corporation's
Secretary one (1) or more written demands for the meeting describing the purpose
or purposes for which it is to be held. The Secretary of the Corporation shall
cause notice of the holding of a special meeting to be given to each shareholder
of record of the Corporation entitled to vote upon the business to be transacted
at the meeting either by delivery to the shareholder personally or by depositing
in the United States mail, postage prepaid, in an envelope addressed to the
shareholder's address shown in the Corporation's current record of shareholders,
a written or printed notice stating the place, day, hour, and purpose or
purposes for which such meeting is called. Notices shall be delivered personally
or mailed no fewer than ten (10) nor more than sixty (60) days before the date
of such meeting. Only business within the purpose or purposes described in the
notice of the meeting may be conducted at the meeting, unless all shareholders
are present in person or action is taken by written consent pursuant to Section
2.10.
Section 2.3. Address of Shareholder. The address of a shareholder appearing
upon the Corporation's record of shareholders shall be deemed to be the latest
address of the shareholder that has been furnished in writing to the Corporation
by the shareholder.
Section 2.4. Waiver of Notice. A shareholder may waive notice of any
shareholder's meeting before or after the date and time specified in the notice.
The waiver must be in writing and be delivered to the Corporation for inclusion
in the minutes or filing with the corporate records. A shareholder's attendance
at a meeting: (1) waives objection to lack of notice or defective notice of the
meeting, unless the shareholder at the beginning of the meeting objects to
holding the meeting or transacting business at the meeting; and (2) waives
objection to consideration of a particular matter at the meeting that is not
within the purpose or purposes described in the meeting notice, unless the
shareholder objects to considering the matter when it is presented.
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Section 2.5. Quorum. At any meeting of the shareholders the holders of a
majority of the outstanding shares of the Corporation entitled to vote who are
present in person or represented by proxy shall constitute a quorum for the
transaction of business. Once a share is represented for any purpose at a
meeting, it is deemed present for quorum purposes for the remainder of the
meeting and for any adjournment of that meeting unless a new record date is set
or is required to be set under the Indiana Business Corporation Law or
otherwise.
Section 2.6. Voting. Except as the Articles of Incorporation may otherwise
state, at each meeting of the shareholders, every shareholder owning shares
entitled to vote shall have the right to one (1) vote for each such share
standing in his name on the books of the Corporation. The shareholder may vote
either in person or by proxy appointed in writing signed by the shareholder or
by the shareholder's duly authorized attorney-in-fact and delivered to the
Secretary of the Corporation or other officer or agent authorized to tabulate
votes at or before the time of the holding of the meeting. No proxy shall be
valid after eleven (11) months from the date of its execution unless a longer
time is expressly provided therein. Only shares which are fully paid and
nonassessable may be voted. If the name signed on a vote, consent, waiver, or
proxy appointment does not correspond to the name of its shareholder, the
Corporation if acting in good faith is nevertheless entitled to accept the vote,
consent, waiver, or proxy appointment and give it effect as the act of the
shareholder if:
(1) The name signed purports to be that of an administrator, executor,
guardian, or conservator representing the shareholder and, if the
Corporation requests, evidence of fiduciary status acceptable to the
Corporation has been presented with respect to the vote, consent,
waiver, or proxy appointment;
(2) The name signed purports to be that of a receiver or trustee in
bankruptcy of the shareholder and, if the Corporation requests,
evidence of this status acceptable to the Corporation has been
presented with respect to the vote, consent, waiver, or proxy
appointment;
(3) The name signed purports to be that of a pledgee, beneficial owner, or
attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory's authority to
sign for the shareholder has been presented with respect to the vote,
consent, waiver, or proxy appointment; or
(4) Two (2) or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least
one (1) of the co-owners and the person signing appears to be acting
on behalf of all the co-owners.
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The Corporation is entitled to reject a vote, consent, waiver, or proxy
appointment if the Secretary or other officer or agent authorized to tabulate
votes, acting in good faith, has reasonable basis for doubt about the validity
of the signature on it or about the signatory's authority to sign for the
shareholder.
Section 2.7. Shareholder List. After the record date for, and more than
five (5) business days before, each shareholders' meeting, the Secretary of the
Corporation shall make, or cause to be made, an alphabetical list of the names
of the shareholders entitled to notice of the meeting, arranged by voting group
(and within each voting group by class or series of shares) and showing the
address of and the number of shares held by each shareholder. The list shall be
available for inspection and copying to the extent provided in the Indiana
Business Corporation Law.
Section 2.8. Fixing of Record Date,. For the purpose of determining
shareholders entitled to notice of or to vote at any meeting of shareholders, to
demand a special meeting, or to take any other action, the Board of Directors
may fix in advance a date, not more than seventy (70) days before the date of
such meeting or action, as the record date for the determination of
shareholders. In the absence of such a determination by the Board of Directors,
the date for the determination of shareholders shall be ten (10) days before the
date of the meeting or action.
Section 2.9. Conduct of Meeting. The Chairman shall preside at all meetings
of the shareholders, and the Secretary of the Corporation shall act as Secretary
of such meetings. The order of business at all such meetings, so far as
practicable, shall be as follows:
(a) Proof of due notice of meeting.
(b) Ascertainment of quorum.
(c) Reading and disposal of any unapproved minutes.
(d) Reports of officers and committees.
(e) Unfinished business.
(f) New business.
(g) Election of Directors,
(h) Adjournment.
Section 2.10. Shareholder Action by Consent in Lieu of Meeting. Any action
required or permitted to be taken at any meeting of shareholders may be taken
without a meeting if the action
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is taken by all the shareholders entitled to vote on the action. The action must
be evidenced by one (1) or more written consents describing the action taken,
signed by all shareholders entitled to vote on the action, and the written
consents delivered to the Corporation for inclusion in the minutes or filing
with the corporate records.
Section 2.11. Meetings by Telephone or Other Means of Communication. Any or
all shareholders may participate in an annual or special shareholders' meeting
by, or through the use of, any means of communication by which all shareholders
participating may simultaneously hear each other during the meeting. A
shareholder participating in a meeting by this means is deemed to be present in
person at the meeting.
ARTICLE III.
DIRECTORS.
Section 3.1. Powers of Directors. All corporate powers shall be exercised
by or under the authority of, and the business and affairs of the Corporation
managed under the direction of, the Board of Directors, subject to any
limitation set forth in the Articles of Incorporation or these by-laws.
Section 3.2. Number. The present number of directors of the Corporation is
ten (10). The number of directors of the Corporation may be increased to fifteen
(15) or decreased to one (1) by action at any time by the Board of Directors,
but no such action shall shorten the term of any incumbent director. Directors
need not be shareholders. Directors shall be elected at each annual meeting of
the shareholders or at a special meeting called for that purpose and shall serve
for the terms provided for by the Indiana Business Corporation Law (I.C.
23-1-33-5).
Section 3.3. Resignation. A director may resign at any time by written
notice to the Board of Directors delivered to the President or Secretary of the
Corporation. Acceptance of the resignation, unless required by the terms
thereof, shall not be necessary to make it effective. It shall be effective when
the notice is delivered unless the notice specifies a later effective date.
Section 3.4. Removal of Directors. Unless the Articles of Incorporation
provide otherwise, shareholders may remove directors with or without cause. A
director may be removed only if the number of votes cast to remove the director
exceeds the number of votes cast not to remove the director. No director may be
removed by directors, either with or without cause.
Section 3.5. Vacancies. If any vacancy occurs on the Board of Directors
caused by resignation, removal, death or other incapacity,
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or an increase in the number of directors, then (a) the Board of Directors may
fill the vacancy, or (b) if the directors remaining in office constitute fewer
than a quorum of the Board, they may fill the vacancy by the affirmative vote of
a majority of all directors remaining in office. The term of a director elected
to fill a vacancy expires at the end of the term for which the director's
predecessor was elected.
Section 3.6. Regular Meetings. A regular meeting of the Board of Directors
shall be held at the place of (or reasonably near thereto) and promptly
following the annual meeting of the shareholders. Other regular meetings may be
held at the principal office of the Corporation or at any other place reasonably
convenient for directors to attend, at such times and places as the Board of
Directors may fix from time to time. No notice shall be required for regular
Board meetings.
Section 3.7. Special Meetings. Special meetings of the Board of Directors
may be held at the principal office of the Corporation or at any other place
reasonably convenient for directors to attend whenever called by the Chairman of
the Board or the Secretary or by any two (2) members of the Board of Directors.
At least 48 hours' written notice of the meeting specifying the date, time,
place, and purpose thereof shall be given to each director. Notice may be given
personally, by written notice deposited in the United States mail, postage
prepaid in an envelope addressed to such director, or by telephone, telegraph,
teletype, or other form of wire or wireless communication. Notice of the date,
time, place, and purpose of the holding of any special meeting may be waived,
before or after the date and time stated in the notice, by written notice signed
by any director and filed with the minutes or corporate records. A director's
attendance at or participation in any meeting shall constitute a waiver of the
notice of the meeting, unless the director at the beginning of the meeting (or
promptly upon the director's arrival) objects to holding the meeting or
transacting business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
Section 3.8. Conduct of Meetings. The Chairman shall preside at all
meetings of the Board of Directors and the Secretary of the Corporation shall
act as secretary of the Board, but in their absence the directors may appoint
another person to serve.
The order of business at all meetings shall be as follows:
(a) Proof of due notice of the meeting, if notice is required.
(b) Ascertainment of quorum.
(c) Reading and disposal of any unapproved minutes.
(d) Reports of officers.
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(e) Reports of committees.
(f) Unfinished business.
(g) New business.
(h) Adjournment.
Section 3.9. Quorum and Voting. A majority of the actual number of
directors elected and qualified from time to time shall be necessary to
constitute a quorum for the transaction of any business, except as may be
provided in Section 3.5 above concerning the filling of vacancies. The act of a
majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors, unless the act of a greater number
is expressly required by the Indiana Business Corporation Law, the Articles of
Incorporation, or another provision of these by-laws.
Section 3.10. Assent by Director to Action Taken at a Meeting. A director
who is present at a meeting of the Board of Directors or a committee of the
Board at which action on any corporate matter is taken is deemed to have
assented to the action taken unless:
(1) the director objects at the beginning of the meeting (or promptly upon
the director's arrival) to holding it or transacting business at the
meeting;
(2) the director's dissent or abstention from the action taken is entered
in the minutes of the meeting; or
(3) the director delivers written notice of the director's dissent or
abstention to the presiding officer of the meeting before its
adjournment or to the Secretary of the Corporation immediately after
adjournment of the meeting.
The right of dissent or abstention is not available to a director who votes in
favor of the action taken.
Section 3.11. Directors' or Committee Action by Consent in Lieu of Meeting.
Any action required or permitted to be taken at any meeting of the Board of
Directors or any committee thereof may be taken without a meeting if the action
is taken by all members of the Board of committee. The action shall be evidenced
by one (1) or more written consents describing the action taken, signed by each
director, and included in the minutes or filed with the Corporation's records
reflecting the action taken. A written consent is effective when the last
director signs the consent, unless the consent specifies a different prior or
subsequent effective date.
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Section 3.12. Meetings by Telephone or Other Communications. The Board of
Directors may permit any or all directors to participate in a regular or special
meeting by, or conduct the meeting through the use of, any means of
communication by which all directors participating may simultaneously hear each
other during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
Section 3.13. Compensation. Each member of the Board of Directors shall be
paid such compensation as shall be fixed by the Board of Directors. This shall
not preclude any director from serving in any other capacity and receiving
compensation therefor.
ARTICLE IV.
OFFICERS.
Section 4.1. Officers. The officers of the Corporation shall consist of the
Chairman of the Board, a President, and if desired by the Board of Directors, a
Treasurer, one or more Assistant Treasurers, a Secretary, one or more Assistant
Secretaries, an Executive Vice President, a Senior Vice President and/or one or
more Vice Presidents, who shall be elected annually by the Board of Directors of
the Corporation at the first meeting thereof immediately following the annual
meeting of the shareholders; and they shall hold office, subject to removal,
until their successors are elected and qualified or the office is eliminated.
One person may hold more than one office. The Chairman of the Board may also
appoint one (1) or more other officers or assistant officers as the Chairman may
deem appropriate from time to time.
Section 4.2. Removal; Resignations. Any officer of the Corporation may be
removed by the Board of Directors at any time with or without cause. Removal
does not affect the officer's contract rights, if any, with the Corporation. An
officer's resignation does not affect the Corporation's contract rights, if any,
with the officer. The election or appointment of an officer does not itself
create contract rights.
Section 4.3. Compensation. The compensation of the officers of the
Corporation shall be fixed by, or as permitted by, the Board of Directors.
Section 4.4. Duties.
(a) Chairman of the Board. The Chairman of the Board shall be the Chief
Executive Officer of the Corporation and shall have the powers and perform the
duties usually incident thereto. He shall preside at all meetings of the
shareholders and of the Board of Directors. He shall have the power to appoint
such officers, agents, and employees, other than those for which election is
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provided for in Section 4.1, as in his judgment may be necessary or proper for
the transaction of the business of the Corporation, and shall determine their
duties and fix their compensation, all subject to the ratification of the Board
of Directors. He shall submit to the Board of Directors, at least ten (10) days
prior to the annual meeting of the shareholders, an annual report of the
operations of the Corporation during the preceding fiscal year, complete
detailed statements of all income and expenditures and a balance sheet showing
the financial condition of the Corporation at the close of the fiscal year. He
is authorized to sign, on behalf of the Corporation, proxies, contracts and
other instruments in writing, including bids, bonds and other obligations
required in legal proceedings, surety and indemnity bonds required in the
conduct of the business of the Corporation papers required by the laws of any
state with respect to the right to conduct business in such state and reports
required by the laws of any state. He shall also perform the duties of Secretary
and Treasurer during any period of time that such offices are for any reason
vacant.
(b) President. The President shall be the Chief Operating Officer of the
Corporation. He shall perform all duties incumbent upon the Chairman during the
absence, disability or other inability of the Chairman to perform his duties and
such other duties as may be prescribed from time to time by the Board of
Directors, including the authority to sign on behalf of the Corporation proxies,
contracts and other instruments in writing, including bids, bonds and other
obligations required in legal proceedings and surety and indemnity bonds
required in the conduct of the business of the Corporation.
(c) Executive Vice President. The Executive Vice President shall perform
all duties incumbent upon the President during the absence or disability of the
President and shall perform such other duties as are herein provided for, or as
may be prescribed from time to time by the Board of Directors or the Chairman.
(d) Senior Vice President. The Senior Vice President shall perform all
duties incumbent upon the President during the absence or disability of the
President and Executive Vice President and shall perform such other duties as
are herein provided for, or as may be prescribed from time to time by the Board
of Directors or the Chairman of the Board.
(e) Vice President. The Vice President, if one shall have been elected and
acting, shall perform such duties as may be prescribed from time to time by the
Board of Directors or the Chairman of the Board.
(f) Secretary. The Secretary shall keep or cause to be kept a full, true
and complete record of all of the meetings of the shareholders and of the Board
of Directors, and shall be responsible for preparing minutes of the
shareholders' and directors' meeting
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and have charge of the minute book of the Corporation and of all its other books
and documents (except the books of account). He shall have custody of any
corporate seal, and he shall affix the same to and countersign papers requiring
such acts, but only upon the order of the Board of Directors, the Chairman of
the Board, the President or any Vice President. He shall authenticate records of
the Corporation, and shall perform such other duties as may be required by the
Board of Directors or the Chairman of the Board.
(g) Treasurer. The Treasurer shall have custody of the funds and
securities of the Corporation and shall keep, or cause to be kept, correct and
accurate books of account and shall also deposit, or see to the deposit of, the
funds of the Corporation in a depository to be approved by the Board of
Directors. He shall keep full and accurate accounts of all assets, liabilities,
commitments, receipts, disbursements and other financial transactions of the
Corporation in books belonging to the Corporation; shall cause regular audits of
such books and records to be made; shall see that all expenditures are made in
accordance with procedures duly established, from time to time, by the
Corporation; shall render financial statements at all regular meetings of the
Board of Directors, and a full financial report at the annual meeting of
shareholders, if called upon so to do; and, in general, shall perform all the
duties ordinarily connected with the office of Treasurer and such other duties
as may, from time to time, be delegated to him by the Board of Directors or the
Chairman of the Board.
ARTICLE V.
CAPITAL STOCK.
Section 5.1. Certificates for Shares. Unless the Articles of Incorporation
provide otherwise, all shares of stock of the Corporation shall be represented
by a certificate. The certificates shall be in such form not inconsistent with
the Articles of Incorporation and the Indiana Business Corporation Law as shall
be approved by the Board of Directors. Each certificate must be signed by the
Chairman, the President or Vice-President and Secretary. Share certificates
which have been signed (whether manually or in facsimile) by officers may be
used and shall continue to be valid even though any individual whose signature
appears on a certificate shall no longer be an officer of the Corporation at the
time of the issue of such certificate.
Section 5.2. Registration of Transfer. Registration of transfer of shares
and issuance of a new certificate or certificates therefor shall be made only
upon surrender to the Corporation or its transfer agent and cancellation of a
certificate or certificates for a like number of shares [of the same class and
series], properly endorsed for transfer, accompanied by (a) such assurance as
the
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Corporation may require as to the genuineness and effectiveness of each
necessary endorsement, (b) satisfactory evidence of compliance with all laws
relating to collection of taxes, and (c) satisfactory evidence of compliance
with or removal of any restriction on transfer of which the Corporation or
transfer agent may have notice.
Section 5.3. Registered Shareholders. As respects the Corporation, its
stock record books shall be conclusive as to the ownership of its shares for all
purposes and the Corporation shall not be bound to recognize adverse claims.
Section 5.4. Consideration for Issue of Shares. The shares of the
Corporation may be issued by the Corporation from time to time for such an
amount of consideration as the Board of Directors determines to be adequate.
Shares may be issued to the Corporation's shareholders without consideration to
the extent permitted by the Indiana Business Corporation Law and shares so
issued shall be fully paid and nonassessable. Consideration for shares may
consist of any tangible or intangible property or benefit to the Corporation, as
may be determined by the Board of Directors, including cash, promissory notes,
services performed, contracts for services to be performed, or other securities
of the Corporation. When payment of the consideration for which any share was
authorized to be issued shall have been received by the Corporation, the shares
issued therefor shall be fully paid and nonassessable. If the Corporation
authorizes the issuance of shares for promissory notes or for promises to render
services in the future, the Corporation shall report in writing to the
shareholders the number of shares authorized to be so issued with or before the
notice of the next shareholders' meeting. The Board may (but is not required) to
place in escrow shares issued for a contract for future services or benefits or
a promissory note or may make other arrangements or conditions or place other
restrictions on the transfer of the shares until the services are performed, the
note is paid, or the benefits are received. If the services are not performed,
the note is not paid, or the benefits are not received, the shares escrowed or
restricted and the distributions credited may be cancelled in whole or in part.
ARTICLE VI.
INDEMNIFICATION.
Section 6.1. Definitions. For purposes of this Article VI, the following
definitions shall apply:
(a) Corporation. "Corporation" shall include the Corporation and any
domestic or foreign predecessor entity of the Corporation in a merger
or other transaction in which the predecessor's existence ceased upon
consummation of the transaction.
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(b) Director. "Director" means an individual who is or was a director of
the Corporation or an individual who, while a director of the
Corporation, is or was serving at the Corporation's request as a
director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust,
employee benefit plan, or other enterprise, whether for profit or not.
A director is considered to be serving an employee benefit plan at the
Corporation's request if the director's duties to the Corporation also
impose duties on, or otherwise involve services by, the director to
the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate
or personal representative of a director.
(c) Officer. "Officer" means an individual who is or was an officer of the
Corporation or an individual who, while an officer of the Corporation,
is or was serving at the Corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust employee benefit plan,
or other enterprise, whether for profit or not. An officer is
considered to be serving an employee benefit plan at the Corporation's
request if the officer's duties to the Corporation also impose duties
on, or otherwise involve services by, the officer to the plan or to
participants in or beneficiaries of the plan. "Officer" includes,
unless the context requires otherwise, the estate or personal
representative of an officer.
(d) Expenses. "Expenses" include counsel fees.
(e) Liability. "Liability" means the obligation to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with
respect to an employee benefit plan), or reasonable expenses incurred
with respect to a proceeding.
(f) Official Capacity. "Official capacity" means:
(1) when used with respect to a director, the office of director in
the Corporation; and
(2) when used with respect to an officer, the office in the
Corporation held by the officer. "Official capacity" does not
include service for any other foreign or domestic corporation or
any partnership, joint venture, trust, employee benefit plan, or
other enterprise, whether for profit or not.
(g) Party. "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
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(h) Proceeding. "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative,
or investigative and whether formal or informal.
Section 6.2. Mandatory Indemnification. Unless limited by the Articles of
Incorporation, the Corporation shall indemnify a director who was wholly
successful, on the merits or otherwise, in the defense of any proceeding to
which the director was a party because the director is or was a director of the
Corporation against reasonable expenses incurred by the director in connection
with the proceeding.
Section 6.3. Other Indemnification.
(a) Without limiting the provisions of Section 6.2, the Corporation shall
indemnify an individual made a party to a proceeding because the
individual is or was a director against liability incurred in the
proceeding if:
(1) the individual's conduct was in good faith; and
(2) the individual reasonably believed:
(A) in the case of conduct in the individual's official capacity
with the Corporation, that the individual's conduct was in
its best interests; and
(B) in all other cases, that the individual's conduct was at
least not opposed to its best interests; and
(3) in the case of any criminal proceeding, the individual either:
(A) had reasonable cause to believe the individual's conduct was
lawful; or
(B) had no reasonable cause to believe the individual's conduct
was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is
not, of itself, determinative that the
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director did not meet the standard of conduct described in this
section.
(d) The Corporation may not indemnify a director under this section:
(1) in connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to the
Corporation; or
(2) in connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis
that personal benefit was improperly received by him.
(e) Indemnification permitted under this Section in connection with a
proceeding by or in the right of the Corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 6.4. Advancement of Expenses.
(a) The Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of
final disposition of the proceeding if:
(1) the director furnishes the Corporation a written affirmation of
the director's good faith belief that the director has met the
standard of conduct described in Section 6.3;
(2) the director furnishes the Corporation a written undertaking,
executed personally or on the director's behalf, to repay the
advance if it is ultimately determined that the director did not
meet the standard of conduct; and
(3) a determination is made that the facts then known to those making
the determination would not preclude indemnification under this
Article.
(b) The undertaking required by Subsection (a)(2) must be an unlimited
general obligation of the director but need not be secured and may be
accepted without reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this Section shall
be made in the manner specified in Section 6.6.
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Section 6.5. Application to Court. Unless the Corporation's Articles of
Incorporation provide otherwise, a director of the Corporation who is a party to
a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On the receipt of an
application, the court after giving any notice the court considers necessary may
order indemnification if it determines:
(1) the director is entitled to mandatory indemnification under Section
6.2, in which case the court shall also order the Corporation to pay
the director's reasonable expenses incurred to obtain court-ordered
indemnification; or
(2) the director is fairly and reasonably entitled to indemnification in
view of all the relevant circumstances, whether or not the director
met the standard of conduct set forth in Section 6.3, or was adjudged
liable as described in subsection 6.3(d)(l), but if he was adjudged so
liable his indemnification is limited to reasonable expenses incurred.
Section 6.6. Determination and Authorization.
(a) The Corporation may not indemnify a director under Section 6.3 unless
authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the
circumstances because the director has met the standards of conduct
set forth in Section 6.3.
(b) The determination shall be made by any one (1) of the following
procedures:
(1) By the Board of Directors by majority vote of a quorum consisting
of directors not at the time parties to the proceeding.
(2) If a quorum cannot be obtained under subdivision (1), by majority
vote of a committee duly designated by the Board of Directors (in
which designation directors who are parties may participate),
consisting solely of two (2) or more directors not at the time
parties to the proceeding.
(3) By special legal counsel:
(A) selected by the Board of Directors or its committee in the
manner prescribed in subdivision (1) or (2); or
(B) if a quorum of the Board of Directors cannot be obtained
under subdivision (1) and a committee
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cannot be designated under subdivision (2), selected by
majority vote of the full Board of Directors (in which
selection the directors who are parties may participate).
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination.
(c) Authorization of indemnification and evaluation as to reasonableness
of expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is
made by special legal counsel, authorization of indemnification and
evaluation as to reasonableness of expenses shall be made by those
entitled under Subsection (b)(3) to select counsel.
Section 6.7. Indemnification of Officers. Unless the Corporation's Articles
of Incorporation provide otherwise:
(1) an officer of the Corporation, whether or not a director, is entitled
to mandatory indemnification under Section 6.2, and to the
indemnification under Section 6.3, and is entitled to apply for
court-ordered indemnification under Section 6.5, in each case to the
same extent as a director; and
(2) the Corporation may indemnify and advance expenses under this Article
to an officer, whether or not a director, to the same extent as to a
director.
Section 6.8. Insurance. The Corporation may purchase and maintain insurance
on behalf of an individual who is or was a director, officer, employee, or agent
of the Corporation, or who, while a director, officer, employee, or agent of the
Corporation, is or was serving at the request of the Corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by the individual in
that capacity or arising from the individual's status as a director, officer,
employee, or agent, whether or not the Corporation would have power to indemnify
the individual against the same liability under Section 6.2 or 6.3.
Section 6.9. Miscellaneous.
(a) The indemnification and advance for expenses provided for or
authorized by this Article does not exclude any other rights to
indemnification and advance for expenses that a person may have under:
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(1) the Corporation's Articles of Incorporation;
(2) a resolution of the Board of Directors or of the shareholders; or
(3) any other authorization, whenever adopted, after notice, by a
majority vote of all the voting shares then issued and
outstanding.
(b) This Article does not limit the Corporation's power to pay or
reimburse expenses incurred by a director, officer, employee, or agent
in connection with the person's appearance as a witness in a
proceeding at a time when the person has not been made a named
defendant or respondent to the proceeding.
(c) The rights of indemnification herein provided shall be severable,
shall continue as to a person who has ceased to serve as a director or
officer, shall inure to the benefit of the heirs, executors,
administrators and other legal representatives of such person and
shall constitute a contract between the Corporation and its Directors
and officers.
(d) Subject to the limitations above imposed in this Article, it is
intended by this Article to grant imdemnification to the full extent
permissible under existing or future law. It is not intended, however,
that the provisions of this indemnification shall be applicable to,
and this Article is not to be construed as granting indemnity with
respect to, matters as to which indemnification would be in
contravention of the laws of the State of Indiana or the United States
of America whether as a matter of public policy or pursuant to any
statutory provision
ARTICLE VII.
SEAL.
The use of a corporate seal is not required.
ARTICLE VIII.
FISCAL YEAR.
The fiscal year of the Corporation shall be the calendar year.
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ARTICLE IX.
FUNDS.
Section 9.1. Depository. The funds of the Corporation shall be deposited in
a depository or depositories to be selected by the Board of Directors of the
Corporation.
Section 9.2. Withdrawal of Funds. The funds of the Corporation may be
withdrawn and disbursed by such officers as may be designated by the Board of
Directors.
ARTICLE X.
RECORDS.
Section 10.1. Records.
(a) The Corporation shall keep as permanent records minutes of all
meetings of the shareholders and Board of Directors, a record of all
formal actions taken by the shareholders or Board of Directors without
a meeting, and a record of all actions taken by a committee of the
Board of Directors in place of the Board of Directors on behalf of the
Corporation.
(b) The Corporation shall maintain appropriate accounting records.
(c) The Corporation shall maintain a record of the shareholders, in a form
that permits preparation of a list of the names and addresses of all
shareholders, in alphabetical order by class of shares showing the
number and class of shares held by each.
(d) The Corporation shall maintain its records in written form or in
another form capable of conversion into written form within a
reasonable time.
(e) The Corporation shall keep a copy of the following records at its
principal office:
(1) The Articles of Incorporation and all amendments to them
currently in effect.
(2) The by-laws and all amendments to them currently in effect.
(3) The minutes of all shareholders' meetings, and records of all
action taken by shareholders without a meeting, for the past
three (3) years.
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(4) All written communications to shareholders generally within the
past three (3) years, including any financial statements
furnished for the past three (3) years as required by the Indiana
Business Corporation Law.
(5) A list of the names and business addresses of its current
directors and officers.
(6) Its most recent annual report delivered to the Secretary of
State.
Section 10.2. Shareholder's Right to Inspect and Copy; Limitations on Use.
A shareholder may inspect and copy the Corporation's records only as permitted
by the Indiana Business Corporation Law. The shareholder, the shareholder's
agents and attorneys, and any other person who obtains the information may use
and distribute the records and the information only for the purposes and to the
extent permitted by the Indiana Business Corporation Law and shall use
reasonable care to ensure that the restrictions imposed by that Law are
observed.
ARTICLE XI.
REPORTS.
Section 11.1. Annual Financial Reports to Shareholders.
(a) On written request of any shareholder the Corporation shall prepare
and mail to the shareholder annual financial statements, which may be
consolidated or combined statements of the Corporation and one (1) or
more of its subsidiaries, as appropriate, that include a balance sheet
as of the end of the fiscal year most recently completed, an income
statement for that year, and a statement of changes in shareholders'
equity for that year unless that information appears elsewhere in the
financial statements. If financial statements are prepared for the
Corporation on the basis of generally accepted accounting principles,
the annual financial statements must also be prepared on that basis.
(b) If the annual financial statements are reported upon by a public
accountant, the public accountant's report must accompany them. If
not, the statements must be accompanied by a statement of the
President or the person responsible for the Corporation's accounting
records:
(1) stating the person's reasonable belief whether the statements
were prepared on the basis of generally
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accepted accounting principles and, if not, describing the basis
of preparation; and
(2) describing any respects in which the statements were not prepared
on a basis of accounting consistent with the statements prepared
for the preceding year.
Section 11.2. Reports to Shareholders of Indemnification.
(a) If a corporation indemnifies or advances expenses to a director under
these by-laws or otherwise, in connection with a proceeding by or in
the right of the Corporation, the Corporation shall report the
indemnification or advance in writing to the shareholders with or
before the notice of the next shareholders' meeting.
(b) If the Corporation authorizes the issuance of shares for promissory
notes or for promises to render services in the future, the
Corporation shall report in writing to the shareholders the number of
shares authorized to be so issued with or before the notice of the
next shareholders' meeting.
Section 11.3. Annual Reports to Secretary of State. The Secretary of the
Corporation shall cause each annual report to the Secretary of State of Indiana
to be filed as required by the Indiana Business Corporation Law.
ARTICLE XII.
AMENDMENT.
These by-laws may be amended by the Board of Directors, by the affirmative
votes of a majority of all the members of the Board of Directors, at any regular
or special meeting notice of which contains the proposed amendment or a digest
thereof, or at any meeting, regular or special, at which all directors are
present, or by the written consents of all directors pursuant to Section 3.11 of
these by-laws.
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PROPOSED AMENDMENTS TO BY-LAWS
OF
BLACK BEAUTY RESOURCES, INC.
The following amendments are proposed to the Code of By-Laws of Black
Beauty Resources, Inc.
1. Section 1.01 - Name is hereby amended so that such section shall read
as follows:
Section 1.01 - Name: The name of the Corporation is Black Beauty
Resources, Inc. (hereinafter referred to as the "Corporation").
2. Section 1.02 is hereby amended so that such section shall read as
follows:
Section 1.02 - Principal Office and Resident Agent: The post office
address of the principal office of the Corporation is 414 South Fares
Avenue, Evansville, Indiana 47714 and the name and post office address of
the resident agent is Steven E. Chancellor, 414 South Fares Avenue,
Evansville, Indiana 47714.
3. Section 1.04 is hereby amended so that such section shall read as
follows:
Section 1.04 - Fiscal Year: The fiscal year of the Corporation shall
begin at the beginning of the first day of January of each year and at the
close of the last day of December next succeeding.
4. Section 3.02 is hereby amended to read as follows:
Section 3.02 - Annual Meeting: The annual meeting of the Shareholders
for the election of Directors and for the transaction of such business as
may properly come before the meeting shall be held at 9:00 o'clock a.m. on
the fourth Wednesday in April of each year, if such day is not a legal
holiday and if a legal holiday, then on the first following day that is not
a legal holiday. If for any reason the annual meeting of the Shareholders
shall not be held at the time and place herein provided, the same may be
held at any time thereafter, or the business to be transacted at such
annual meeting may be transacted at any special meeting called for that
purpose.
5. Section 4.04 is hereby amended so that such section shall read as
follows:
Section 4.04 - Number: The Board of Directors shall be composed of
nine (9) members.
6. Section 5.01 is hereby amended so that such section shall read as
follows:
Section 5.01 - Officers: The officers of the Corporation shall consist
of a President, Executive Vice-President, one or more Senior
Vice-Presidents, one or more Vice-Presidents, Secretary, one or more
Assistant Secretaries, Treasurer and one or more Assistant Treasurers.
7. Section 5.04 is hereby amended to read as follows: Section 5.04:
(a) The Executive Vice-President; The Executive Vice-President shall
perform all duties incumbent upon the President during the absence or
disability of the President and perform such of the duties as this Code of
By-Laws may prescribe or the Board of Directors or President may direct.
(b) Senior Vice-President: The Senior Vice President shall perform
all duties incumbent upon the President during the absence or disability of
the President and Executive Vice-President and perform such other duties as
this Code of By-Laws may prescribe or the Board of Directors or President
may direct.
(c) Vice-President: The Vice-President shall perform all duties
incumbent upon the President during the absence or disability of the
President, the Executive Vice-President nd Senior Vice President and
perform such other duties as the Code of By-Laws may prescribe or the Board
of Directors or the President may direct.
8. A new Article 8 will be inserted after Article 7 reading as follows:
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