Exhibit 3.28
AMENDED AND RESTATED BY-LAWS
OF
BLACK DOG COAL CORP.
ARTICLE I - OFFICES
The principal office of the corporation in the State of Virginia shall be
located at 406 West Main Street, Abingdon, Virginia 24210. The corporation may
have such other offices, either within or without the State of Incorporation as
the Board of Directors may designate or as the business of the corporation may
from time to time require.
ARTICLE II - STOCKHOLDERS
1. ANNUAL MEETING.
The annual meeting of the stockholders shall be held on December 15 beginning
with the year 1993, for the purpose of electing directors and for the
transaction of such other business as may come before the meeting. If the day
fixed for the annual meeting shall be a legal holiday, such meeting shall be
held on the next succeeding business day.
2. SPECIAL MEETING.
Special meetings of the stockholders, for any purpose or purposes, unless
otherwise prescribed by statute, may be called by the President or by the
directors, and shall be called by the President at the request of the holders of
not less than 10% of all the outstanding shares of the corporation entitled to
vote at the meeting.
3. PLACE OF MEETING.
The directors may designate any place, either within or without the State unless
otherwise prescribed by statute, as the place of meeting for any annual meeting
or for any special meeting called by the directors. A waiver of notice signed by
all stockholders entitled to vote at a meeting may designate any place, within
or without the State unless otherwise prescribed by statute, as the place for
holding such meeting. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the principal office of the
Corporation.
4. NOTICE OF MEETINGS.
Written or printed notice stating the place, day and hour of the meeting and, in
case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less than 10 days nor more than 30 days before
the date of the meeting, either personally or by mail, by or at the direction of
the President, or the Secretary, or the officer or persons calling the meeting,
to each stockholder 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, addressed to the stockholder at his address as it appears on the stock
transfer books of the corporation, with postage thereon prepaid.
5. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE.
For the purpose of determining stockholders entitled to notice of or to vote at
any meeting of stockholders or any adjournment thereof, or stockholders entitled
to receive payment of any dividend, or in order to make a determination of
stockholders for any other proper purposes, the directors of the corporation may
provide that the stock transfer books shall be closed for a stated period but
not to exceed, in any case, 60 days. If the stock transfer books shall be closed
for the purpose of determining stockholders entitled to notice of or to vote at
a meeting of stockholders, such books shall be closed for closing the stock
transfer books, the directors may fix in advance a date as the record date for
any such determination of stockholders, such date in any case to be not more
than 25 days and, in case of a meeting of stockholders, not less than 25 days
prior to the date on which the particular action requiring such determination of
stockholders is to be taken. If the stock transfer books are not closed and no
record date is fixed for the determination of stockholders entitled to notice of
or to vote at a meeting of stockholders, or stockholders entitled to receive
payment of a dividend, the date on which notice of the meeting is mailed or the
date on which the resolution of the directors declaring such dividend is
adopted, as the case may be, shall be the record date for such determination of
stockholders. When a determination of stockholders entitled to vote at any
meeting of stockholders has been made as provided in this section, such
determination shall apply to any adjournment thereof.
6. VOTING LISTS.
The officer or agent having charge of the stock transfer books for shares of the
corporation shall make, at least 10 days before each meeting of stockholders, a
complete list of the stockholders entitled to vote at such meeting, or any
adjournment thereof, arranged in alphabetical order, with the address of and the
number of shares held by each which list, for a period of 8 days prior to such
meeting, shall be kept on file at the principal office of the corporation and
shall be subject to inspection by any stockholder at anytime during usual
business hours. Such list shall be also produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any stockholder
during the whole time of the meeting. The original stock transfer book shall be
prima facie evidence as to who are the stockholders entitled to examine such
list or transfer books or to vote at the meeting of stockholders.
7. QUORUM.
At any meeting of stockholders, the holders of a majority of the outstanding
shares of the corporation entitled to vote, represented in person or by proxy,
shall constitute a quorum at a meeting of stockholders. If less than said number
of outstanding shares are represented at the meeting, a majority of the shares
so represented may adjourn the meeting from time to time without further notice.
At such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally notified. The stockholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
8. PROXIES.
At all meetings of stockholders, a stockholder may vote by proxy executed in
writing by the stockholder or by his duly authorized attorney in fact. Such
proxy shall be filed with the Secretary of the corporation before or at
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the time of the meeting. Each stockholder entitled to vote in accordance with
the terms and provisions of the Certificate of Incorporation and these by-laws
shall be entitled to one vote, in person or by proxy, for each share of stock
entitled to vote held by such stockholders. Upon the demand of any stockholder,
the vote for directors and upon any question before the meeting shall be by
ballot. All elections for directors shall be decided by plurality vote; all
other questions shall be decided by majority vote except as otherwise provided
by the Certificate of Incorporation or the laws of this State.
9. ORDER OF BUSINESS.
The order of business at all meetings of the stockholders shall be as follows:
1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Reports of Officers.
5. Reports of Committees.
6. Election of Directors.
7. Unfinished Business.
8. New Business.
10. INFORMAL ACTION BY STOCKHOLDERS.
Unless otherwise provided by law, any action required to be taken at a meeting
of the shareholders, or any other action which may be taken at a meeting of the
shareholders may be taken without a meeting if a consent 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.
ARTICLE III - BOARD OF DIRECTORS
1. GENERAL POWERS.
The business and affairs of the corporation shall be managed by its Board of
Directors. The directors shall in all cases act as a Board, and they may adopt
such rules and regulations for the conduct of their meetings and the management
of the corporation, as they may deem proper, not inconsistent with these by-laws
and the laws of this State.
2. NUMBER, TENURE AND QUALIFICATIONS.
The number of directors of the Corporation shall be one. Each director shall
hold office until the next annual meeting of stockholders and until his
successor shall have been elected and qualified.
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3. REGULAR MEETINGS.
A regular meeting of the directors shall be held without other notice than this
by-laws immediately after, and at the same place as the annual meeting of
stockholders. The directors may provide, by resolution, the time and place for
the holding of additional regular meetings without other notice than such
resolution.
4. SPECIAL MEETINGS.
Special meetings of the directors may be called by or at the request of the
President or any one of the directors. The person or persons authorized to call
special meetings of the directors may fix the place for holding any special
meeting of the directors called by them.
5. NOTICE.
Notice of any special meeting shall be given at least 10 days previous thereto
by written notice delivered personally, or by telegram or mailed to each
director at his business address. If mailed, such notice shall be deemed to be
delivered when deposited in the United States Mail so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be deemed to
be delivered when the telegram is delivered to the telegraph company. The
attendance of a director at a meeting shall constitute a waiver of notice of
such meeting, except where a director attends a meeting for the express purpose
of objecting to the transaction of any business because the meeting is not
lawfully called or convened.
6. QUORUM.
At any meeting of the directors a majority of the total number of directors
shall constitute a quorum for the transaction of business. In the absence of a
quorum, a majority of the directors present may adjourn the meeting from time to
time without further notice.
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 directors.
8. NEWLY CREATED DIRECTORSHIPS AND VACANCIES.
Newly created directorships resulting from an increase in the number of
directors and vacancies occurring in the Board for any reason except the removal
of directors without cause may be filled by a vote of a majority of the
directors then in office, although less than a quorum exists. Vacancies
occurring by reason of the removal of directors without cause shall be filled by
vote of the stockholders. A director elected to fill a vacancy caused by
resignation, death or removal shall be elected to hold office for the unexpired
term of his predecessor.
9. REMOVAL OF DIRECTORS.
Any or all of the directors may be removed for cause by vote of the stockholders
or by action of the Board. Directors may be removed without cause only by vote
of the stockholders.
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10. RESIGNATION.
A director may resign at any time by giving written notice to the Board, the
President or the Secretary of the corporation.
Unless otherwise specified in the notice, the resignation shall take effect upon
receipt their by the Board or such officer, and the acceptance of the
resignation shall be necessary to make it effective.
ARTICLE IV - OFFICERS
1. NUMBER.
The officers of the corporation shall be a President, Vice-President, Secretary,
and a Treasurer, each of whom shall be elected by the directors. Such other
officers and assistant officers as may be deemed necessary may be elected or
appointed by the directors.
2. ELECTION AND TERM OF OFFICE.
The officers of the corporation to be elected by the directors shall be elected
annually at the first meeting of the directors held after each annual meeting of
the stockholders. 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 in the manner hereinafter provided.
3. REMOVAL.
Any officer or agent elected or appointed by the directors may be removed by the
directors whenever in their judgment the best interests 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.
4. VACANCIES.
A vacancy in any office because of death, resignation, removal, disqualification
or otherwise, may be filled by the directors for the unexpired portion of the
term.
5. PRESIDENT.
The President shall be the principal executive officer of the corporation and,
subject to the control of the directors, shall in general supervise and control
all of the business and affairs of the corporation. He shall, when present,
preside at all meetings of the stockholders and of the directors. He may sign,
with the Secretary or any other proper officer of the corporation thereunto
authorized by the directors, certificates for shares of the corporation, any
deeds, mortgages, bonds, contracts, or other instruments which the directors
have execution thereof shall be expressly delegated by the directors of the
corporation, or shall be required by law to be otherwise signed or executed; and
in general shall perform all duties incident to the office of the President and
such other duties as may be prescribed by the directors from time to time.
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6. VICE-PRESIDENT.
In the absence of the President or in the event of his death, inability or
refusal to act, the Vice-President shall perform the duties of the President,
and when so acting, shall have the powers of and be subject to all the
restrictions upon the President. The Vice-President shall perform such other
duties as from time to time may be assigned to him by the President or by the
directors.
7. SECRETARY.
The Secretary shall keep the minutes of the stockholders and of the directors
meetings in one or more books provided for that purpose, see that all notices
are duly given in accordance with the provisions of these by-laws or as
required, be custodian of the corporate records and of the seal of the
corporation and keep a register of the post office address of each stockholder
which shall be furnished to the Secretary by such stockholder, have general
charge of the stock transfer books of the corporation and in general perform all
duties incident to the office of the Secretary and such other duties as from
time to time may be assigned to him by the President or by the directors.
8. TREASURER.
If required by the directors, the Treasurer shall give a bond for the faithful
discharge of his duties in such sum and with such surety or sureties as the
directors shall determine. He shall have charge and custody of and be
responsible for all funds and securities of the corporation; receive and give
receipts for moneys due and payable to the corporation from any source whatever,
and deposit all such moneys in the name of the corporation in such banks, trust
companies or other depositories as shall be selected in accordance with these
by-laws and in general perform all of the duties incident to the office of
Treasurer and such other duties as from time to time may be assigned to him by
the President or by the directors.
9. SALARIES.
The salaries of the officers shall be fixed from time to time by the directors
and no officer shall be prevented from receiving such salary by reason of the
fact that he is also a director of the corporation.
ARTICLE V - CONTRACTS, LOANS, CHECKS AND DEPOSITS
1. CONTRACTS.
The directors may authorize any officer or officers, agent or agents, to enter
into any contract or execute and deliver any instrument in the name of and on
behalf of the corporation, and such authority may be general or confined to
specific instances.
2. LOANS.
No loans shall be contracted on behalf of the corporation and no evidences of
indebtedness shall be issued in its name unless authorized by a resolution of
the directors. Such authority may be general or confined to specific instances.
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3. CHECKS, DRAFTS, 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
to 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 directors.
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 directors may elect.
ARTICLE VI - CERTIFICATES FOR SHARES & TRANSFER
1. CERTIFICATES FOR SHARES.
Certificates representing shares of the corporation shall be in such form as
shall be determined by the directors. Such certificates shall be signed by the
President and by the Secretary or by such other officers authorized bylaws and
by the directors. All certificates for shares shall be consecutively numbered or
otherwise identified. The name and address of the stockholders, the number of
shares and date of issue, shall be entered on the stock transfer books of the
corporation. 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 case of a lost, destroyed or mutilated certificate a new one may be
issued directors may prescribe.
2. TRANSFERS OF SHARES.
(a) Upon surrender to the corporation or the transfer agent of the
corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, it shall be the
duty of the corporation to issue a new certificate to the person entitled
thereto, and cancel the old certificate; every such transfer shall be entered on
the transfer book of the corporation which shall be kept at its principal
office.
(b) The corporation shall be entitled to treat the holder of record of
any share as the holder in fact thereof, and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such share on the part
of any other person whether or not it shall have express or other notice
thereof, except as expressly provided by the laws of this State.
ARTICLE VII - FISCAL YEAR
The fiscal year of the corporation shall end on the 31st day of
December in each year.
ARTICLE VIII - DIVIDENDS
The directors may from time to time declare, and the corporation may pay
dividends on its outstanding shares in the manner and upon the terms and
conditions provided by law.
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ARTICLE IX - SEAL
The directors shall provide a corporate seal which shall be circular in form and
shall have inscribed therefor the name of the corporation, the State of
Incorporation, year of incorporation and the words, "Corporate Seal".
ARTICLE X - WAIVER OF NOTICE
Unless otherwise provided by law, whenever any notice is required to be given to
any stockholder or director of the corporation under the provisions of these
by-laws or under the writing, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be deemed
equivalent to the giving of such notice.
ARTICLE XI - AMENDMENTS
These by-laws may be altered, amended or repealed and new by-laws may be adopted
by a vote of the stockholders representing a majority of all the shares issued
and outstanding, at any annual stockholders' meeting or at any special
stockholders' meeting or at any special stockholders' meeting when the proposed
amendment has been set out in the notice of such meeting.
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