EXHIBIT 3.4
BY-LAWS
Of
AFFINITY MINING COMPANY
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ARTICLE I
MEETING OF STOCKHOLDERS
SECTION 1. Annual Meeting. The annual meeting of stockholders shall be
held on the second Wednesday of April in each year, beginning in the year 1971
(or, if that be a legal holiday, on the next succeeding business day) at three
o'clock in the afternoon or at such other hour as may from time to time be
designated by the Board of Directors and specified in the notice of the meeting.
4.
SECTION 2. Special Meetings. Special meetings of the
stockholders for any purpose or purposes may be called by the President
or by order of the Board of Directors, and it shall be the duty of the
Secretary to call such a meeting upon a request in, writing therefor
stating the purpose or purposes thereof, delivered to the Secretary,
signed by the holders of record of not leas than one-tenth of the
outstanding capital stock of the corporation.
SECTION 3. Place of Meeting. Meetings of the stockholders may
be held at its principal office in Beckley, West Virginia, or elsewhere
within the State of West Virginia, or may be held outside the State of
West Virginia at such place or places as the Board of Directors may
from time to time determine.
SECTION 4. Notice of Stockholders' Meeting. Notice of the
annual and of any special meeting of stockholders shall be given to
each stockholder of record at least ten and not more than forty days
before the meeting by personally delivering to such stockholder or by
depositing in the United States mails, addressed to the address last
left by such stockholder with the Transfer Agent, or in the absence of
a Transfer Agent, the Registrar, or in the absence of a Transfer Agent
and a Registrar, the Secretary of the corporation, a written or printed
notice, signed by the President or a Vice President or the Secretary or
an Assistant Secretary, stating the place, day and hour of the meeting
and the purpose or purposes for which the meeting is called, and any
such notice shall be deemed given when personally delivered or
deposited postage prepaid in the United States mail. Any stockholder,
or his attorney thereunto authorized, may waive notice of any meeting
either before, at or after the meeting.
SECTION 5. Quorum. At all meetings of stockholders the holders
of record of a majority of the issued and outstanding capital stock of
the corporation, present in person or by proxy, shall constitute a
quorum for the transaction of business. In the absence of a quorum, a
majority in interest of those present or represented may adjourn the
meeting by resolution to a date fixed therein, and no further notice
thereof shall be required. At any such adjourned meeting at which a
quorum may be present, any business may be transacted which might have
been transacted at the meeting as originally called.
SECTION 6. Voting. At each meeting of the stockholders every
stockholder holding one or more shares of the capital stock of the
corporation shall be entitled to one vote for each such share
registered in his name on the books of the corporation at the time of
the closing of the transfer books of the corporation for such meeting
or on the record date therefor, as the case may be, except that, in the
case of an election
5.
of directors, each stockholder shall be entitled to as many votes as
shall equal the number of votes which (except for this cumulative
voting provision) such stockholder would be entitled to cast for the
election of directors with respect to his shares of stock, multiplied
by the number of directors to be elected, and such stockholder may cast
all of such votes for a single director or may distribute them among
the number to be voted for, or any two or more of them, as he may see
fit. Except for the election of directors, all resolutions shall be
adopted by a majority of votes properly cast at the meeting; at
elections of directors, those nominees up to the number to be elected,
receiving the largest number of votes shall be deemed elected. All
elections for directors shall be by ballot, but this requirement shall
be deemed to have been waived if at the meeting no stockholder shall
demand a ballot vote.
SECTION 7. Proxies. Every stockholder entitled to vote at any
meeting of stockholders may vote by proxy. Every proxy must be executed
in writing by the stockholder or by his duly authorized attorney. No
proxy shall be voted after the expiration of three years from the date
of its execution unless the stockholder executing it shall have
specified a longer duration, and then only within the period specified.
Every proxy shall be revocable at the pleasure of the person executing
it or of his personal representatives or assigns except as otherwise
provided by law.
SECTION 8. Inspectors of Election. Two inspectors of election,
who shall act as such at elections of directors, shall be elected by
and shall serve at the pleasure of the Board of Directors. If one or
both of such inspectors fails to appear at any meeting for the election
of directors, the Chairman of the meeting may appoint a substitute or
substitutes to act at such meeting in place of such absent inspector or
inspectors. Each inspector shall be entitled to a reasonable
compensation for his services, to be paid by the corporation. The
inspectors, before entering upon the discharge of their duties, shall
be sworn faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of their ability,
and the oath so taken shall be subscribed by them.
ARTICLE II
BOARD OF DIRECTORS
SECTION 1. General Powers. The property, affairs and business
of the corporation shall be managed by the Board of Directors.
SECTION 2. Number. The number of directors shall be not less
than one (1) nor more than eleven (11), as may be determined from time
to time by the Board of Directors.
6.
SECTION 3. Term of Office and Qualification. Directors need
not be stockholders and shall be elected to serve until the next annual
election of directors and until their successors are elected and shall
have qualified.
SECTION 4. Chairman of the Board. The Board of Directors may
elect a Chairman of the Board from among its members to serve at its
pleasure, who shall preside at all meetings of the Board of Directors
and shall have such other duties as from time to time may be assigned
to him by the Board of Directors or by the Executive Committee.
SECTION 5. Vacancies. Vacancies in the Board of Directors
because of death, resignation, disqualification, physical or mental
incapacity to act, an increase in the number of members of the Board of
Directors, or resulting from any other cause whatsoever, shall be
filled for the unexpired portion of the term by a majority vote of the
remaining directors, although less than a quorum, given at a regular
meeting, or at a special meeting called for the purpose.
SECTION 6. Place of Meeting. The Board of Directors shall hold
its meetings at such places within or without the State of West
Virginia as it may decide.
SECTION 7. Regular Meetings: Notice. The Board of Directors by
resolution may establish regular periodic meetings and notice of such
meetings need not be given.
SECTION 8. Special Meetings. Special meetings of the Board of
Directors shall be called by the Secretary or an Assistant Secretary
whenever ordered by the Board of Directors or requested in writing by
the President or any two other directors. Such meetings shall be held
at the principal office of the corporation unless the Board of
Directors, by its order calling a special meeting, shall fix a
different place for such meeting. Notice of each special meeting shall
be mailed to each director, addressed to his residence or usual place
of business, at least four days before the day on which the meeting is
to be held, or shall be sent to such address by telegraph, or be given
personally or by telephone, not later than two days before the day on
which the meeting is to be held. Notice of any meeting may be waived in
writing by any director before, at or after the meeting.
SECTION 9. Quorum and Manner of Acting. A majority of the
members of the Board of Directors then in office shall constitute a
quorum for the transaction of any business at any meeting of the Board
of Directors and, except as herein otherwise provided, the act of a
majority of those present at the meeting at which
7.
a quorum is present shall be the act of the Board of Directors. In the
absence of a quorum of the Board of Directors a majority of the members
present may adjourn the meeting from time to time until a quorum be
had, and no notice of any such adjournment need be given.
SECTION 10. Fees. The Board of Directors may from time to time
prescribe reasonable fees for attendance by members of the Board of
Directors and members of the Executive Committee and other committees,
and for reimbursement for travel and other expenses incidental to such
attendance.
ARTICLE III
EXECUTIVE AND OTHER COMMITTEES
SECTION 1. How Constituted and the Powers Thereof. The Board
of Directors by the vote of a majority of the entire Board, may
designate three or more directors to constitute an Executive Committee,
who shall serve during the pleasure of the Board of Directors. Except
as otherwise provided by law, by these by-laws or by resolution adopted
by a majority of the whole Board of Directors, the Executive Committee
shall possess and may exercise during the intervals between the
meetings of the directors, all of the powers of the Board of Directors
in the management of the business, affairs and property of the
corporation, including the power to cause the seal of the corporation
to be affixed to all papers that may require it.
SECTION 2. Organization, etc. The Executive Committee shall
choose its own Chairman and its Secretary and may adopt rules for its
procedure. The Committee shall keep a record of its acts and
proceedings and report the same from time to time to the Board of
Directors.
SECTION 3. Meetings. Meetings of the Executive Committee may
be called by the Chairman of the Committee, and shall be called by him
at the request of any member of the Committee, or by any member if
there shall be no Chairman. Notice of each meeting of the Committee
shall be sent to each member of the Committee by mail at least two days
before the meeting is to be held, or given personally or by telegraph
or telephone at least one day before the day on which the meeting is to
be held. Notice of any meeting may be waived before, at or after the
meeting.
SECTION 4. Quorum and Manner of Acting. A majority of the
Executive Committee shall constitute a quorum for the transaction of
business, and the act of a majority of those present at the meeting at
which a quorum is present shall be the act of the Executive Committee.
8.
SECTION 5. Removal. Any member of the Executive Committee may
be removed, with or without cause, at any time, by the Board of
Directors.
SECTION 6. Vacancies. Any vacancy in the Executive Committee
shall be filled by the Board of Directors.
SECTION 7. Other Committees. The Board of Directors or the
Executive Committee may by resolution provide for such other standing
or special committees as it deems desirable, and discontinue the same
at pleasure. Each committee shall have such powers and perform such
duties, not inconsistent with law, as may be assigned to it by the
Board of Directors or by the Executive Committee.
ARTICLE IV
OFFICES AND OFFICERS
SECTION 1. Officers--Number. The officers of the corporation
shall be the Chairman, the President, one or more Vice-Presidents as
the Board of Directors or Executive Committee may determine, a
Treasurer and a Secretary. The Board of Directors or Executive
Committee may from time to time appoint one or more Assistant
Secretaries and Assistant Treasurers. The same person may hold any two
or more offices except those of President and Vice-President. No
officer except the President need be a member of the Board of
Directors.
SECTION 2. Salaries. The Board of Directors or Executive
Committee may from time to time fix the salary of the President, as
well as the salaries of other officers of the corporation.
SECTION 3. Election, Term of Office and Qualification. All
officers of the corporation shall be elected annually (unless otherwise
specified at the time of election) by the Board of Directors or
Executive Committee and each officer shall hold office until his
successor shall have been duly chosen and shall have qualified, or
until he shall resign or shall have been removed in the manner
hereinafter provided.
SECTION 4. Vacancies. If any vacancy shall occur in any office
of the corporation, such vacancy shall be filled by the Board of
Directors or by the Executive Committee.
SECTION 5. Other Officers, Agents and Employees. The Board of
Directors or the Executive Committee may from time to time appoint such
other officers, agents and employees of the corporation as may be
deemed proper, and may authorize any officer to appoint and remove
agents and employees. The Board of Directors
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or the Executive Committee or the President may from time to time
prescribe the powers and duties of such officers, agents and employees
of the corporation in the management of its property, affairs and
business.
SECTION 6. Removal. Any officer of the corporation may be
removed, either with or without cause, by vote of a majority of the
Board of Directors or of the Executive Committee, or, in the case of
any officer, agent or employee not elected by the Board of Directors or
the Executive Committee, by any committee or superior officer upon whom
such power of removal may be conferred by the Board of Directors or by
the Executive Committee.
SECTION 7. Chairman. The Chairman shall preside at all
meetings of the stockholders and of the Board of Directors, and shall
perform such other duties as shall be delegated to him at any time or
from time to time by the Board of Directors.
SECTION 8. President. The President shall be the chief
executive officer of the corporation and shall have general direction
of its business, affairs and property and over its several officers. He
shall see that all orders and resolutions of the Board of Directors and
of the Executive Committee are carried into effect, and he shall have
the power to execute in the name of the corporation all authorized
deeds, mortgages, ship mortgages, bonds, contracts or other
instruments, except in cases in which the signing and execution thereof
shall have been expressly delegated to some other officer or agent of
the corporation; and in general, he shall perform all duties, incident
to the office of a president of a corporation, and such other duties as
from time to time may be assigned to him by the Board of Directors or
by the Executive Committee. He shall be ex officio a member of all
committees. He shall from time to time report to the Board of Directors
or to the Executive Committee all matters within his knowledge which
the interest of the corporation may require to be brought to their
notice.
SECTION 9. Vice-Presidents. The Vice-President or
Vice-Presidents of the corporation, under the direction of the
President, shall have such powers and perform such duties as the Board
of Directors or Executive Committee or President may from time to time
prescribe, and shall perform such other duties as may be prescribed in
these by-laws. In case of the absence or inability of the President to
act, then the Vice-Presidents, in the order designated therefor by the
Board of Directors or Executive Committee, shall have the powers and
discharge the duties of the President.
SECTION 10. Treasurer. The Treasurer, under the direction of
the President, shall have charge of the funds, securities,
10.
receipts and disbursements of the corporation. He shall deposit all
moneys and other valuable effects in the name and to the credit of the
corporation in such banks or trust companies or with such other
depositories as the Board of Directors or Executive Committee may from
time to time designate. He shall supervise and have charge of keeping
correct books of account of all the corporation's business and
transactions. If required by the Board of Directors, he shall give a
bond in such sum as the Board of Directors or Executive Committee may
designate, conditioned upon the faithful performance of the duties of
his office and the restoration to the corporation, at the expiration of
his term of office, or in case of his death, resignation or removal
from office, of all books, papers, vouchers, money or other property of
whatever kind in his possession belonging to the corporation. He shall
also have such other powers and perform such other duties as pertain to
his office, or as the Board of Directors or the Executive Committee or
the President may from time to time prescribe.
SECTION 11. Assistant Treasurers. In the absence of or
disability of the Treasurer, the Assistant Treasurers, in the order
designated by the Board of Directors or by the Executive Committee,
shall perform the duties of the Treasurer, and, when so acting, shall
have all the powers of, and be subject to all restrictions upon, the
Treasurer. They shall also perform such other duties as from time to
time may be assigned to them by the Board of Directors or by the
Executive Committee or the President.
SECTION 12. Secretary. The Secretary shall attend all meetings
of the stockholders of the corporation and of its Board of Directors
and shall keep the minutes of all such meetings in a book or books kept
by him for that purpose. He shall keep in safe custody the seal of the
corporation, and, when authorized by the Board of Directors or the
Executive Committee, he shall affix such seal to any instrument
requiring it. In the absence of a Transfer Agent or a Registrar, the
Secretary shall have charge of the stock certificate books, and the
Secretary shall have charge of such other books and papers as the Board
of Directors or Executive Committee may direct. He shall also have such
other powers and perform such other duties as pertain to his office, or
as the Board of Directors or the Executive Committee or the President
may from time to time prescribe.
SECTION 13. Assistant Secretaries. In the absence or
disability of the Secretary, the Assistant Secretaries, in the order
designated by the Board of Directors or Executive Committee, shall
perform the duties of the Secretary, and, when so acting, shall have
all the powers of, and be subject to all the restrictions upon, the
Secretary. They shall also perform such other duties as from time to
time may be assigned to them by the Board of Directors or Executive
Committee or the President.
11.
ARTICLE V
CHECKS, DRAFTS, ETC.
All checks, drafts or 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, person or persons, to whom the Board of Directors or Executive
Committee shall have delegated the power, but under such conditions and
restrictions as in said resolutions may be imposed. The signature of
any officer upon any of the foregoing instruments may be a facsimile
whenever authorized by the Board of Directors or by the Executive
Committee.
ARTICLE VI
SHARES AND THEIR TRANSFER
SECTION 1. Issue of Certificates of Stock. The Board of
Directors or Executive Committee shall provide for the issue and
transfer of the certificates of capital stock of the corporation, and
prescribe the form of such certificates. Every owner of stock of the
corporation shall be entitled to a certificate of stock, which shall be
under the seal of the corporation (which seal may be a facsimile,
engraved or printed), specifying the number of shares owned by him, and
which certificate shall be signed by the President or Vice-President
and by the Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the corporation. Said signatures may, wherever
permitted by law, be facsimile, engraved or printed. In case any
officer or officers who shall have signed, or whose facsimile signature
or signatures shall have been used on any such certificate or
certificates shall cease to be such officer or officers of the
corporation, whether because of death, resignation or othewise, before
such certificate or certificates shall have been delivered by the
corporation, such certificate or certificates may nevertheless be
issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures
shall have been used thereon had not ceased to be such officer or
officers of the corporation.
SECTION 2. Transfer Agents and Registrars. The corporation may
have one or more Transfer Agents and one or more Registrars of its
stock whose respective duties the Board of Directors may, from time to
time, prescribe. If the corporation shall have a Transfer Agent, no
certificate of stock shall be valid until countersigned by such
Transfer Agent, and if the corporation shall have a Registrar, until
registered by the Registrar. The duties of the Transfer Agent and
Registrar may be combined.
SECTION 3. Transfer of Shares. The shares of the corporation
shall be transferable only upon its books and by the holders
12.
thereof in person or by their duly authorized attorneys or legal
representatives, and upon such transfer the old certificates shall be
surrendered to the corporation by the delivery thereof to the person in
charge of the stock transfer books and ledgers or to such other person
as the Directors may designate for such purpose, and new certificates
shall thereupon be issued.
SECTION 4. Addresses of Stockholders. Every stockholder shall
furnish the Transfer Agent, or in the absence of a Transfer Agent, the
Registrar, or in the absence of a Transfer Agent and a Registrar, the
Secretary, with an address at or to which notices of meetings and all
other notices may be served upon or mailed to him, and in default
thereof, notices may be addressed to him at the office of the
corporation.
SECTION 5. Closing of Transfer Books; Record Date. The Board
of Directors shall have power to close the stock transfer books of the
corporation for a period not exceeding forty (40) days and not less
than ten (10) days prior to the date of any meeting of stockholders;
provided, however, that in lieu of closing the stock transfer books as
aforesaid the Board of Directors may fix a date not exceeding forty
(40) days and not less than ten (10) days prior to the date of any such
meeting as the time as of which stockholders entitled to notice of and
to vote at such meeting shall be determined, and all persons who were
holders of record of voting stock at such time and no others shall be
entitled to notice of and to vote at such meeting.
The Board of Directors shall also have power to close the
stock transfer books of the corporation for a period not exceeding
forty (40) days preceding the date fixed for the payment of any
dividend or the making of any distribution or for the delivery of any
evidence of right or evidence of interest; provided, however that in
lieu of closing the stock transfer books as aforesaid the Board of
Directors may fix a date not exceeding forty (40) days preceding the
date fixed for the payment of any such dividend or the making of any
such distribution or for the delivery of any such evidence of right or
interest as a record time for the determination of the stockholders
entitled to receive any such dividend, distribution, right or interest,
and in such case only stockholders of record at the time so fixed shall
be entitled to receive such dividend, distribution, right or interest.
SECTION 6. Lost and Destroyed Certificates. The Board of
Directors or Executive Committee may direct a new certificate or
certificates of stock to be issued in the place of any certificate or
certificates theretofore issued and alleged to have been lost or
destroyed; but the Board of Directors or Executive Committee when
authorizing such issue of a new certificate or certificates, may in its
discretion require the owner of the stock represented
13.
by the certificate so lost or destroyed or his legal representative to
furnish proof by affidavit or otherwise to the satisfaction of the
Board of Directors or Executive Committee of the ownership of the stock
represented by such certificate alleged to have been lost or destroyed
and the facts which tend to prove its loss or destruction. The Board of
Directors or Executive Committee may also require such person to
execute and deliver to the corporation a bond, with or without sureties
in such sum as the Board of Directors or Executive Committee may
direct, indemnifying the corporation against any claim that may be made
against it by reason of the issue of such new certificate. The Board of
Directors or Executive Committee, however, may, in its discretion,
refuse to issue any such new certificate, except pursuant to court
order.
ARTICLE VII
SEAL
The corporate seal of the corporation shall be circular in
form, shall bear around the circumference the words "AFFINITY MINING
COMPANY - WEST VIRGINIA" and in the center the words "INCORPORATED -
1970," or words of similar import. Said seal may be used by causing it
or a facsimile thereof to be impressed or affixed or in any manner
reproduced.
ARTICLE VIII
MISCELLANEOUS
SECTION 1. Examination of Books and Records. The Board of
Directors or Executive Committee may determine from time to time
whether and to what extent and at what times and places and under what
conditions and regulations the accounts and books of the corporation,
or any of them, shall be open to the inspection of the stockholders,
and no stockholder shall have any right to inspect any account or book
or document of the corporation, except as provided by the statutes of
the State of West Virginia, or authorized by the Board of Directors or
Executive Committee.
SECTION 2. Voting of Stock in Other Corporations. Any shares
of stock in any other corporation, which may from time to time be held
by the corporation, may be represented and voted at any of the
stockholders' meetings thereof by the President or a Vice-President of
the corporation or by proxy appointed by the President or one of the
Vice-Presidents of the corporation. The Board of Directors or Executive
Committee, however, may by resolution appoint any other person or
persons to vote such shares, in which case such other person or persons
shall be entitled to vote such shares upon the production of a
certified copy of such resolution.
14.
SECTION 3. Fiscal Year. The fiscal year of the corporation
shall be fixed by resolution of the Board of Directors or the
Shareholders.
ARTICLE IX
INDEMNIFICATION
Any person made a party to any action, suit or proceeding by
reason of the fact that he, his testator or intestate, is or was a
director, officer or employee of the corporation or of any corporation
which he served as such at the request of the corporation, shall be
indemnified by the corporation against the reasonable expenses,
including attorney's fees, actually and necessarily incurred by him in
connection with the defense of such action, suit, proceeding, or in
connection with any appeal therein, except in relation to matters as to
which it shall be adjudged in such action, suit or proceeding that such
officer, director or employee is liable for negligence or misconduct in
the performance of his duties; provided, however, that if any such
amount is paid otherwise than pursuant to court order or action by the
stockholders, the corporation shall within eighteen (18) months from
the date of such payment mail to its stockholders at the time entitled
to vote for the election of directors a statement specifying the person
paid, the amount of the payment and the final disposition of the
litigation. Except as otherwise provided by law, and in addition to any
other right provided by law, every such person shall be entitled,
without demand by him upon the corporation, or any action by the
corporation, to enforce the right of indemnification or reimbursement
hereinabove provided in an action at law against the corporation. The
right of indemnification or reimbursement hereinabove provided or under
any applicable statutes shall not be deemed exclusive of any other
right to which any such person may now or hereafter be otherwise
entitled.
ARTICLE X
AMENDMENTS
SECTION 1. By Stockholders. These by-laws may be made,
amended, altered or repealed, by the affirmative vote of the holders of
a majority of the stock of the corporation, or their proxies, who shall
be present and entitled to vote at any annual or special meeting of
stockholders, provided that notice of the proposed amendment,
alteration or repeal shall have been included in the notice of the
meeting.
SECTION 2. By Directors. The Board of Directors shall have the
power, by a vote of a majority of the Directors then in office, at a
meeting upon waiver of notice or called pursuant to a notice in which
any such proposed modification of the
15.
by-laws is set forth, to make, amend, alter or repeal these by-laws
except that the Board of Directors shall have no power to alter, amend,
or repeal a by-law adopted by the stockholders subsequent to any
original adoption of these by-laws by the stockholders.
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Thereupon, the Secretary reported that the Articles of
Incorporation had been filed in the office of the Secretary of State of
the State of West Virginia, and that a certificate had been issued by
that officer, which bears date on the 29th day of July, 1970, and which
certificate has been duly recorded in the office of the Clerk of the
County Court of Raleigh County, West Virginia, in Book No. 490, at page
No. 242.
Thereupon, the meeting proceeded to the election of ten (10)
directors as prescribed by Article II of the by-laws. An election was
held and each person entitled to vote announced his vote to the
Secretary in accordance with the by-laws of the company, and after the
same had been done, it was ascertained and reported by the Secretary
that the following named persons had been elected and were thereupon
duly declared to be the Directors of this company for the ensuing year
and until their successors shall be duly elected and shall qualify,
namely:
R. S. Bailey
H. H. Cobb
R. H. Freeman
Eli Goldston
F. S. Holway
William Laird
J. N. Philips
D. B. Shupe
DaCosta Smith, Jr.
C. A. Stefl
AFFINITY MINING COMPANY
Amendment of Bylaws
RESOLVED, That Section 1 of Article I of the Bylaws of the Company is
repealed in its entirety and the following provision substituted in
lieu thereof.
"Section 1. The annual meeting of the stockholders, commencing
with the year 1988, shall be held in April, at such time as shall be
determined by the Board of Directors, for the purpose of electing
directors, and for the transaction of such other business as may be
brought before the meeting."