Exhibit 3.2
ALPHA NATURAL RESOURCES, LLC
AMENDMENT TO AMENDED AND RESTATED
LIMITED LIABILITY Company Agreement
THIS AMENDMENT TO AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
(this "Amendment") is entered into to be effective as of April 12, 2005, by ANR
Holdings, LLC, a Delaware limited liability company, as the sole member (the
"Sole Member") of Alpha Natural Resources, LLC, a Delaware limited liability
company (the "Company").
WHEREAS, the Sole Member and the Company are parties to that certain
Amended and Restated Limited Liability Company Agreement dated as of December
13, 2002 (the "Agreement");
WHEREAS, the Sole Member desires to amend the Agreement as provided in this
Amendment pursuant to Article XIV, Section 14.2 of the Agreement;
NOW, THEREFORE, the Sole Member hereby amends the Agreement as set forth
below.
1. Amendment. Article IX of the Agreement is hereby amended and restated
to read in full as set forth below:
ARTICLE IX
Indemnification Of Officers And managers
9.1 Indemnification. To the fullest extent permitted by the Act, the
Company shall indemnify and hold harmless its Managers, Officers, employees and
agents, or persons serving at the request of the Company as a manager, director,
officer, employee or agent of another entity, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(each, an "Indemnitee"), against and from any personal loss, liability or damage
incurred as a result of any act or omission that the Board of Managers believes
in good faith to be within the scope of authority conferred by this Agreement,
except for willful misconduct or gross negligence, and shall advance or
reimburse each such Indemnitee for all legal and other expenses and attorneys'
fees reasonably incurred by him or her in connection with any such claim or
liability. A person otherwise permitted indemnification under this Section 9.1
shall not be denied indemnification because the person had an interest in the
transaction with respect to which this indemnification applies if the
transaction was otherwise permitted by the terms of this Agreement. THE
PROVISIONS OF THIS SECTION 9.1 ARE INTENDED BY THE PARTIES TO APPLY EVEN IF SUCH
PROVISIONS HAVE THE EFFECT OF EXCULPATING THE Indemnitee FROM LEGAL
RESPONSIBILITY FOR THE CONSEQUENCES OF SUCH Indemnitee's OWN SIMPLE, FULL,
PARTIAL OR CONCURRENT NEGLIGENCE. The Company's indemnification of such
Indemnitee shall be only with respect to such loss, liability or damage that is
not otherwise compensated for by insurance carried for
the benefit of the Company. The Company may purchase and maintain insurance on
behalf of any person who is or was an Officer or a Manager against any liability
asserted against or incurred by such person in any such capacity, whether or not
the Company would have the power to indemnify such person under the provisions
of the Act.
9.2 Exculpation of Liability of Managers and Officers. No Manager,
Officer, employee and agent, or person serving at the request of the Company as
a manager, director, officer, employee or agent of another entity, shall be
liable for errors in judgment or for any act or omission if such person acts in
good faith. Notwithstanding anything to the contrary set forth in this
Agreement, no Manager, Officer, employee and agent, or person serving at the
request of the Company as a manager, director, officer, employee or agent of
another entity, shall be liable to the Company or to the Sole Member for
monetary damages or losses sustained or liabilities incurred as a result of any
act or omission constituting a breach of such Manager's or Officer's, employee's
or agent's fiduciary duty, except: (i) for a breach of such person's duty of
loyalty to the Company or the Sole Member; (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; or (iii) for any transaction from which the Manager, Officer, employee and
agent, or person serving at the request of the Company as a manager, director,
officer, employee or agent of another entity, derived an improper personal
benefit. If the D.G.C.L. is amended after the date of this Agreement to
authorize Delaware corporations to further eliminate or limit the personal
liability of directors of Delaware corporations, then the liability of a Manager
to the Company, in addition to the personal limitations provided herein, shall
be further limited to the fullest extent permitted of Delaware corporations
under the D.G.C.L. as so amended."
2. Effect of Amendment. Except to the extent specifically set forth in
this Amendment, the Agreement remains in full force and effect.
3. Governing Law. This Amendment shall be construed in accordance with
and governed by the laws of the State of Delaware.
[Signature on next page]
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IN WITNESS WHEREOF, the Sole Member has executed this Amendment as of April
12, 2005.
SOLE MEMBER:
ANR Holdings, LLC
a Delaware limited liability company
By: /s/ Michael J. Quillen
-------------------------------
Name: Michael J. Quillen
Title: President and Manager
Acknowledged and agreed:
THE COMPANY:
Alpha Natural Resources, LLC,
a Delaware limited liability company
By: /s/ Michael J. Quillen
--------------------------------
Name: Michael J. Quillen
Title: President and Manager
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ALPHA NATURAL RESOURCES, LLC
A LIMITED LIABILITY COMPANY
LIMITED LIABILITY COMPANY AGREEMENT
(AMENDED & RESTATED AS OF DECEMBER 13, 2002)
THIS LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") is entered
into to be effective, as amended and restated, as of the 13th day of December,
2002, by ANR Holdings, LLC a Delaware limited liability company agreement, as
the sole member (the "Sole Member") of the Company.
ARTICLE I
FORMATION OF THE LIMITED LIABILITY COMPANY
1.1 FORMATION. On August 22, 2002, the Company was formed by filing a duly
executed Certificate of Formation with the Delaware Secretary of State in
accordance with and pursuant to the provisions of the Act (as hereinafter
defined). If there is a direct conflict between the provisions of this Agreement
and any mandatory, non-waivable provision of the Act, such provision of the Act
shall control. If any provision of the Act provides that it may be varied or
superseded in the limited liability company agreement (or otherwise by agreement
of the members or managers of a limited liability company), such provision shall
be deemed superseded and waived in its entirety if this Agreement contains a
provision addressing the same issue or subject matter. If any provisions of this
Agreement would cause the Company not to be disregarded for federal income tax
purposes under the provisions of the Code, such provisions of the Agreement
shall be void to the extent necessary to ensure the Company is disregarded for
federal income tax purposes. If there is a conflict between this Agreement and
the Certificate of Formation, the provisions of the Certificate of Formation
shall control.
1.2 NAME. The name of the Company is Alpha Natural Resources, LLC.
1.3 BUSINESS. The business of the Company shall be to carry on any lawful
business.
1.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be located at 406 West Main Street, Abingdon, VA 24210, or at such
other place or places as the Managers (as defined below) may from time to time
determine.
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ARTICLE II
DEFINITIONS
The following terms shall have the following meanings:
2.1 ACT. "Act" shall mean the Delaware Limited Liability Company Act at
D.G.C.L. Section 18-101, et seq., as amended.
2.2 CAPITAL CONTRIBUTION. "Capital Contribution" means any contribution to
the capital of the Company in cash or property by the Sole Member pursuant to
Article V.
2.3 CODE. "Code" means the Internal Revenue Code, as amended.
2.4 D.G.C.L. "D.G.C.L." means the Delaware General Corporation Law, as
amended.
2.5 "MEMBERSHIP INTEREST" shall mean the Sole Member's entire interest in
the Company and such other rights and privileges that the Sole Member may enjoy
by being Sole Member.
2.6 "SOLE MEMBER" shall refer to ANR Holdings, LLC, a Delaware limited
liability company.
ARTICLE III
SOLE MEMBER
The name and mailing address of the Sole Member is ANR Holdings,
LLC, 406 West Main Street, Abingdon, VA 24210.
ARTICLE IV
LIMITED LIABILITY
The Sole Member and the Managers (as defined below), their agents,
employees and affiliates shall not have any liability under a judgment, decree,
or order of a court, or in any other manner, for a debt, obligation or liability
of the Company, except to the extent provided in the Act.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1 INITIAL CAPITAL. On August 22, 2002, Alpha Natural Resources, Inc.
contributed $1,000 as its initial capital contribution to the Company in
exchange for one (1) membership unit of the Company. On December 13, 2002 Alpha
Natural Resources, Inc. contributed its one membership unit of the Company to
ANR Holdings, LLC.
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5.2 ADDITIONAL CAPITAL CONTRIBUTIONS. The Sole Member is not required to
make any additional capital contribution to the Company. To the extent
determined by the Sole Member, the Sole Member is permitted to make additional
capital contributions if and to the extent it determines that such additional
capital contributions are appropriate.
5.3 PAYMENTS BY THE COMPANY. All costs and expenses of the Company shall
be paid from its funds.
5.4 UNITS. The Sole Member's Membership Interest shall be divided into
"Units." The Units shall be evidenced by the issuance to the Sole Member of a
Unit certificate. The number of Units held by the Sole Member shall be one (1).
ARTICLE VI
DISTRIBUTIONS
Distributions shall be made to the Sole Member at the times and in the
aggregate amounts determined by the Sole Member. No distribution shall be
declared and paid (a) unless, after the distribution is made, the fair value of
the Company's assets is at least equal to all of the Company's liabilities or
(b) if the declaration or payment would cause the Company or any of its
subsidiaries to breach any material agreement.
ARTICLE VII
ALLOCATIONS
The Company's profits and losses shall be allocated to the Sole Member.
ARTICLE VIII
MANAGEMENT POWERS
8.1 GENERAL POWERS. Management of the Company's business and affairs shall
be exclusively vested in a Board of one or more managers (the "Board of
Managers") elected by the Sole Member. The Sole Member, by virtue of having the
status as a Member, shall have no management power over the business and affairs
of the Company or actual or apparent authority to enter into contracts on behalf
of, or to otherwise bind, the Company, provided, however that the Sole Member
shall have the right to execute certain required filings with governmental
authorities on behalf of the Company, including filings to qualify to do
business and filings with the United States Internal Revenue Service. The Board
of Managers shall elect and remove such officers (the "Officers") and hire such
employees as it deems appropriate. The Officers shall have the titles, terms,
power, authority, and duties as determined by the Board of Managers. The Board
of Managers and the Officers shall have full power and authority to all things
on such terms as they, in their individual sole discretion, may deem necessary
or appropriate to conduct, or to cause to be conducted, the business and affairs
of the Company. Without limiting the generality of the foregoing, the Board of
Managers shall have the right, power and authority on behalf of the Company:
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(i) to develop, review and approve annual budgets, policies,
operating guidelines, and other key operational items for the Company;
(ii) to arrange for such personnel as may be necessary or convenient
to carry out the business and affairs of the Company;
(iii) to establish such reasonable cash reserves to provide for
anticipated expenses of the Company as the Board of Directors determines to be
necessary for timely payment of such expenses; and
(iv) to direct the appropriate officers of the Company to make,
execute, assign, acknowledge and file on behalf of the Company any and all
documents or instruments of any kind which the Board of Managers may deem
necessary or appropriate in carrying out the business and affairs of the
Company, including without limitation, powers of attorney, agreements of
indemnification, documents or instruments of any kind or character, and
amendments thereto (and no person, firm or corporation dealing with the Board of
Managers shall be required to determine or inquire into the authority or power
of the Board of Managers to bind the Company or to execute, acknowledge or
deliver any and all documents in connection therewith).
8.2 BOARD OF MANAGERS. The Managers need not be Members of the Company.
The initial Manager serving on the Board of Managers shall be Michael J.
Quillen. Except as otherwise provided herein, all decisions to be made or
actions to be taken by the Company with respect to the Company's business shall
be made by a majority vote of the Managers serving on the Board of Managers at
which a quorum is present. Each Manager shall have one vote. Successor or
additional Managers shall be elected by the Sole Member. Any Manager may be
removed as a Manager, with or without cause, by the Sole Member.
8.3 MEETINGS OF BOARD OF MANAGERS; ACTION IN LIEU OF MEETINGS. If at any
time there is more than one Manager, (a) meetings of the Board of Managers may
be held upon the written or telephonic request of any Manager, (b) attendance at
a meeting of a majority of the Board of Managers shall constitute a quorum for
the purpose of transacting business at that meeting, (c) the act of a majority
of the Managers present at a meeting of the Board of Managers at which a quorum
is present shall be deemed to constitute the act of the Board of Managers and
(d) the Board of Managers may conduct meetings by means of a conference
telephone or similar equipment, and may take action by written consent of a
majority of the Managers without a meeting if a majority of the Managers consent
in writing.
8.4 DUTIES OF THE MANAGERS; FIDUCIARY RELATIONSHIP. Each Manager shall
perform his duties in good faith, in a manner he reasonably believes to be in
the best interests of the Company, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. Except as
provided in Section 9.2, no Manager shall have any liability to the Company or
its Members or Assignees for monetary damages for breach of fiduciary duty.
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8.5 POWERS OF THE BOARD OF MANAGERS; RELIANCE ON EXPERTS.
(a) Except as otherwise provided in this Agreement, the Board of
Managers shall have all the powers conferred upon managers by the Act and this
Agreement, including but not limited to, (i) the right to choose and hire
employees; and (ii) the right to select the provider of any insurance to or
for the benefit of the Company, and purchase, modify or terminate any such
insurance. The Board of Managers shall have no authority to do any act in
contravention of either the Certificate of Formation or this Agreement.
(b) In performing its duties, the Board of Managers shall be entitled to
rely on information, opinions, reports or statements of one or more agents of
the Company whom the Managers reasonably believes to be reliable and competent
in the matters presented or any attorney, public accountant or other person as
to matters which the Managers reasonably believe to be within such person's
professional or expert competence.
8.6 RESIGNATIONS. Any Manager may resign at any time upon notice given in
writing or by electronic transmission. The resignation shall take effect at the
time specified therein, and if no time is specified, at the time of its receipt
by the President or Secretary of the Company. The acceptance of a resignation
shall not be necessary to make it effective.
ARTICLE IX
INDEMNIFICATION OF OFFICERS AND MANAGERS
9.1 INDEMNIFICATION. To the fullest extent permitted by the Act, the
Company shall indemnify its Managers, officers, employees and agents, or persons
serving at the request of the Company as a manager, director, officer, employee
or agent of another entity, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal or administrative (each, an "Indemnitee"), against and
from any personal loss, liability or damage incurred as a result of any act or
omission that such Indemnitee believes in good faith to be within the scope of
authority conferred by this Agreement, except for willful misconduct or gross
negligence.
9.2 EXCULPATION OF LIABILITY OF MANAGERS. No Manager shall be liable for
errors in judgment or for any act or omission if such person acts in good faith.
Notwithstanding anything to the contrary set forth in this Agreement, no Manager
shall be liable to the Company or to the Sole Member for monetary damages or
losses sustained or liabilities incurred as a result of any act or omission
constituting a breach of such Manager's or Officer's, employee's or agent's
fiduciary duty, except: (i) for a breach of such person's duty of loyalty to the
Company or the Sole Member; (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; or (iii) for
any transaction from which the Manager derived an improper personal benefit. If
the D.G.C.L. is amended after the date of this Agreement to authorize Delaware
corporations to further eliminate or limit the personal liability of directors
of Delaware corporations, then the liability of a Manager to the Company, in
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addition to the personal limitations provided herein, shall be further limited
to the fullest extent permitted of Delaware corporations under the D.G.C.L. as
so amended.
ARTICLE X
SOLE MEMBER
10.1 ADMISSION OF MEMBERS. A person may be admitted to the Company as an
additional Member only upon the written consent of the Sole Member.
10.2 VOTING. Unless otherwise expressly provided herein or in the Act, all
Company business and decisions requiring a vote of the Sole Member (including
any action required or permitted by the Act to be taken at a members' meeting)
shall be upon the written consent of the Sole Member.
ARTICLE XI
ACCOUNTING
11.1 TITLE TO PROPERTY AND BANK ACCOUNTS. The Company's property shall be
held in the name of the Company. The funds of the Company shall be deposited in
the name of the Company in bank or brokerage accounts designated by the Board of
Managers and withdrawals therefrom shall be made upon the signature of the
Officers of the Company.
11.2 BOOKS. To the extent required by the Act, the Board of Managers shall
maintain or cause to be maintained complete and accurate records and books of
account of the Company's affairs at the principal office of the Company. The
Company's books shall be kept on a calendar year accounting period and in
accordance with generally accepted accounting principles applied on a consistent
basis. The records and books of the Company shall be available to the Sole
Member for purposes relating to the Sole Member's interest in the Company for
inspection and copying at reasonable times and pursuant to other reasonable
standards set by the Board of Managers.
ARTICLE XII
TRANSFER OF MEMBERSHIP INTEREST
The Sole Member may transfer or assign in whole or in part its Membership
Interest in the Company. The Sole Member's Membership Interest in the Company
shall be freely alienable.
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ARTICLE XIII
DISSOLUTION
13.1 EVENTS OF DISSOLUTION. The Company shall dissolve, and its affairs
shall be wound up, upon the first to occur of the following:
(i) the written consent of the Sole Member to dissolve the Company;
or
(ii) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
13.2 BANKRUPTCY OF SOLE MEMBER. The bankruptcy of the Sole Member will not
cause the Sole Member to cease to be a Member of the Company and upon the
occurrence of such an event, the business of the Company shall continue without
dissolution.
13.3 DISTRIBUTION OF ASSETS. In the event of dissolution, the Company
shall conduct any such activities as are necessary to wind up its affairs
(including the sale of the assets of the company in an orderly manner), and the
assets of the Company shall be distributed in the matter, and in the order of
priority, set forth in Section 18-804 of the Act.
ARTICLE XIV
GENERAL PROVISIONS
14.1 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
and agreement of the Sole Member concerning the Company and supersedes any and
all prior negotiations, understandings or agreements in regard thereto.
14.2 AMENDMENT. This Agreement may not be amended except pursuant to the
written consent of the Sole Member.
14.3 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants, terms,
provisions and agreements herein contained shall be binding upon and inure to
the benefit of the Sole Member and, to the extent permitted by this Agreement,
its respective heirs, legal representatives, successors and assigns.
14.4 APPLICABLE LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware.
[Signature on next page]
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IN WITNESS WHEREOF, the Sole Member has executed this Agreement as of the
13th day of December, 2002.
SOLE MEMBER:
ANR Holdings, LLC
a Delaware limited liability company
By: /s/ Michael J. Quillen
Name: Michael J. Quillen
Title: President and Manager
THE COMPANY:
Alpha Natural Resources, LLC,
a Delaware limited liability company
By: /s/ Michael J. Quillen
Name: Michael J. Quillen
Title: President and Manager
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