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Exhibit 3.16
AMENDED BY-LAWS
of
ANKER WEST VIRGINIA MINING COMPANY, INC.
(formerly Philippi Development, Inc.)
(A West Virginia Corporation)
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ARTICLE I
OFFICES
The principal office or place of business shall be located in the City of
Morgantown, County of Monongalia, State of West Virginia. The corporation may
have other offices, either within or without the State of West Virginia, at such
place or places as the board of directors may from time to time designate or the
business of the corporation may require.
ARTICLE II
SHAREHOLDERS
2.1 Annual Meetings. Annual meetings of shareholders for the election of
directors, for the approval of the annual report and for such other business as
may properly come before the meeting shall be held within the first six months
of the calendar year at such place, either within or without the State of West
Virginia, and at such time and date as may be fixed from time to time by the
board of directors.
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2.2 Special Meetings. Special meetings of shareholders may be held at any
time and place, within or without the State of West Virginia. Special meetings
of the shareholders for any purpose or purposes, unless otherwise prescribed by
law, may be called by the board of directors, the President or Secretary, or by
the holders of not less than one-tenth of all outstanding shares of the
corporation entitled to vote at the meeting.
2.3 Notice of Meetings. Written notice, stating the place, date 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 ten nor more than
fifty 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 person calling the
meeting, to each shareholder of record entitled to vote at such meeting.
2.4 Action Without Meeting. Any action required or permitted to be taken
at an annual or special meeting of shareholders may be taken without a meeting
and without prior notice if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders who would have been entitled
to vote upon the action if such meeting were held. Such action by unanimous
written consent may be taken without regard to any provision of these By-Laws or
any resolution of the board of directors fixing the time, date or place of
meetings of shareholders.
2.5 Quorum. Except as otherwise required by law, by the Articles of
Incorporation, or by these By-Laws, the holders of a majority of the outstanding
shares entitled to vote, represented in person or by proxy, shall constitute a
quorum at a meeting of the shareholders. If, however, such a quorum shall not be
present at any meeting, a majority in interest of the shareholders who are
entitled to vote thereat and are present in
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person or by proxy, shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until the requisite
number of shares entitled to vote shall be present. At such adjourned meeting at
which the requisite number of shares entitled to vote shall be represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. The shareholders present at a duly organized meeting may
continue to transact business until adjournment, notwithstanding the withdrawal
of enough shareholders to leave less than a quorum.
2.6 Voting. If a quorum is present, the affirmative vote of a majority of
the shares represented at the meeting shall be the act of the shareholders,
unless the vote of a greater number of shares is required by law, the Articles
of Incorporation, or these By-Laws.
Each outstanding share having voting power shall be entitled to one vote
on each matter submitted to a vote at a meeting of shareholders. A shareholder
may vote either in person or by proxy executed in writing by the shareholder or
by his duly authorized attorney-in-fact. No proxy shall be valid after eleven
months from the date of its execution, unless otherwise provided in the proxy.
At each election for directors every shareholder entitled to vote at such
election shall have the right to vote, in person or by proxy, the number of
shares owned by him for as many persons as there are directors to be elected and
for whose election he has a right to vote.
2.7 Power. The shareholders shall have all of the powers granted to them
by the West Virginia Corporation Act, the general laws of the State of West
Virginia and the
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Articles of Incorporation, as the same may be in effect from time to time and,
except as may be otherwise provided by law or by the Articles of Incorporation:
(a) The shareholders shall, without limitation, have the sole power to:
(i) elect and remove directors,
(ii) provide for and set the compensation of directors, and
(iii) select the auditors of the corporation;
(b) The approval of the shareholders, either by unanimous written consent
or at an annual or special meeting of shareholders, shall be required for:
(i) amendment of the Articles of Incorporation, including, without
limitation, any amendment altering the capital structure of
the corporation,
(ii) merger or consolidation of the corporation with another
corporation,
(iii) sale, lease, exchange or other disposition of all or
substantially all of the property and assets of the
corporation if not in the usual and regular course of its
business, and
(iv) voluntary dissolution of the corporation.
ARTICLE III
DIRECTORS
3.1 Number and Term. The number of directors shall be not less than one
and not more than seven, as shall be determined from time to time by election of
directors or other action of the shareholders. The total number of directors as
most recently set by such election, action or resolution shall constitute the
"full board". Directors need not be
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residents of the State of West Virginia nor shareholders of the corporation. The
directors, other than the first board of directors, shall be elected at the
annual meeting of the shareholders, and each director elected shall serve until
the next succeeding annual meeting and until his successor shall have been
elected and qualified. The first board of directors shall hold office until the
first meeting of the shareholders.
3.2 Resignations and Removal. Any director may resign at any time. Such
resignation shall be made in writing, and shall take effect at the time
specified therein, and if no time be specified, at the time of its receipt by
the President or Secretary. The acceptance of a resignation shall not be
necessary to make it effective.
At a meeting of shareholders called expressly for that purpose, any
director or the entire board of directors may be removed, with or without cause,
by a vote of the holders of a majority of the shares entitled to vote at an
election of directors.
3.3 Vacancies. Any vacancy occurring in the board of directors and any
directorship to be filled by reason of an increase in the number of directors
may be filled only by the affirmative vote of a majority of the shares. A
director elected to fill a vacancy shall be elected for the unexpired portion of
the term of his predecessor in office.
3.4 Powers. The business and affairs of the corporation shall be managed
by its board of directors. The board of directors shall have all of the powers
granted to them by the West Virginia Corporation Act, the general laws of the
State of West Virginia and the Articles of Incorporation, as the same may be in
effect from time to time, including, without limitation, except as otherwise
provided by law or by the Articles of Incorporation, the power to:
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(i) establish basic business strategy and policies for the corporation
to be executed by the officers under the general supervision of the
board of directors,
(ii) elect and remove officers, and set and provide for their
compensation,
(iii) require regular reports of officers as to the affairs of the
corporation and the conduct of its business,
(iv) make determinations regarding any proposed transactions by the
corporation which are not in the ordinary course of its business,
(v) authorize and cause to be executed, without the assent or vote of
the shareholders, liens upon the real and personal property of the
corporation, including after-acquired property.
The board of directors may by resolution specify those actions which shall not
be undertaken on behalf of the corporation without the specific approval in each
instance of the board of directors.
3.5 Compensation. Reasonable compensation of all directors for services to
the corporation as directors or otherwise shall be established by action of the
shareholders of the corporation.
3.6 Meetings. The newly elected directors may hold their first meeting for
the purpose of organization and the transaction of business, if a quorum is
present, immediately after the annual meeting of the shareholders; or the time
and place of such meeting may be fixed by consent in writing of all the
directors.
Regular meetings of the directors may be held without notice at such
places and times as shall be determined from time to time by resolution of the
directors.
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Special meetings of the directors may be called by the President or
Secretary or by any two directors on at least two days' notice to each director
and shall be held at such place or places as may be determined by the directors,
or as shall be stated in the notice of meeting.
Any directors' meeting may be held either within or without the State of
West Virginia.
3.7 Telephonic Meetings Permitted. One or more directors may participate
in a meeting of the board or a committee of the board by means of conference
telephone or similar electronic communications equipment by means of which all
persons participating in the meeting can hear each other.
Whenever a vote of the directors is required or permitted in connection
with any corporate action this vote may be taken orally during this electronic
conference. The agreement thus reached shall have like effect and validity as
though the action were duly taken by the action of the directors at a meeting of
directors if the agreement is reduced to writing and approved by the directors
at the next regular meeting of the directors after the conference.
3.8 Quorum of Directors. A majority of the full board of directors shall
constitute a quorum for the transaction of business at any meeting of the board
of directors, but if less than such majority is present at a meeting, a majority
of the directors present may adjourn the meeting from time to time without
further notice.
The act of the majority of the directors present at a meeting at which a
quorum is present shall be the act of the board of directors.
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3.9 Action by Directors Without a Meeting. Any action required or
permitted to be taken at a meeting of the directors may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the directors entitled to vote with respect to the subject
matter thereof.
ARTICLE IV
NOTICES
4.1 Notices. Whenever, under any provision of law, or of the Articles of
Incorporation or of these By-Laws, notice is required to be given to any
director or shareholder, such notice shall be given by telex to such director or
shareholder at his telex address as it appears on the records of the
corporation, or, with respect to any director or shareholder who does not
possess such a telex address, by mailing such notice, postage prepaid, to the
director or shareholder at his mailing address as it appears on the records of
the corporation. Notice shall be deemed to be given at the time of transmission
with respect to telexes, and at the time when deposited in the mail with respect
to notices by mail.
With the exception of special meetings of directors for the purpose of
amending the By-Laws, or of endorsing and recommending for shareholder approval
the sale of all or substantially all of the assets of the corporation, and the
exception of special meetings of shareholders, neither the business to be
transacted at, nor the purpose of, any regular or special meeting of
shareholders or of the board of directors need be specified in the notice or
waiver of notice of such meeting.
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4.2 Waiver of Notice. Whenever any notice is required to be given to any
shareholder or director of the corporation under the provisions of these By-Laws
or the Articles of Incorporation or by law, a waiver thereof in 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.
4.3 Waiver by Attendance. The attendance of a shareholder, in person or by
proxy, or a director at a meeting shall constitute a waiver of notice of such
meeting, except where a shareholder or 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.
ARTICLE V
OFFICERS
5.1 Officers. The officers of the corporation shall in general be
responsible for managing the corporation's daily operations and the ordinary
course of the corporation's business, and for executing as agents of the
corporation basic business policies and strategy established by the board of
directors. The officers shall consist of a President, a Secretary and a
Treasurer, each of whom shall be elected by the board of directors. The board of
directors may also elect a Chairman, a Vice Chairman, an Executive Vice
President, one or more Vice Presidents, one or more Assistant Secretaries and
Assistant Treasurers, one or more Presidents of operating divisions of the
Corporation, one or more Vice Presidents of Operations of operating divisions of
the Corporation, and such other officers, with such powers and duties not
inconsistent with these By-Laws, as may be appointed by the board of directors.
None of the officers of
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the corporation need be directors. Any two or more offices, except those of
President and Secretary, may be held by the same person.
5.2 Election. The officers shall be elected at the first meeting of the
board of directors after each annual meeting.
5.3 Term and Vacancies. The officers of the corporation shall hold office
until their successors are chosen and qualify. Any officers elected or appointed
by the board of directors may be removed at any time by the board of directors
but such removal shall be without prejudice to the contract rights, if any, of
the officer so removed. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
5.4 Chairman. The Chairman of the board of directors, if one be elected,
shall preside at all meetings of the board of directors and shall have and
perform such other duties as from time to time may be assigned to him by the
board of directors.
5.5 Vice Chairman. The Vice Chairman of the board of directors, if one be
elected, shall have such powers and perform such duties as from time to time may
be assigned to him by the board of directors.
5.6 President. The President shall be the chief executive officer of the
corporation and shall have the general powers and duties of supervision and
management usually vested in the office of president of a corporation,
including, except as otherwise provided by law, by the Articles of
Incorporation, by these By-Laws or by resolution of the board of directors, the
power and duty to:
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(i) exercise general supervision over the daily business of the
corporation and give directions with respect to matters arising in
the ordinary course of the business of the corporation,
(ii) supervise implementation of the basic business policies and strategy
established by the board of directors,
(iii) preside at all meetings of the shareholders if present thereat and,
in the absence of the Chairman or if none was elected, at all
meetings of the board of directors,
(iv) execute bonds, mortgages and other contracts on behalf of the
corporation, causing the seal of the corporation to be affixed to
any instrument requiring it, which seal shall be attested by the
signature of the Secretary or the Treasurer or an Assistant
Secretary or an Assistant Treasurer.
Neither the President nor any other officer of the corporation shall be
empowered to take those actions reserved to the shareholders or the board of
directors by law, by the Articles of Incorporation or by these By-Laws, and they
shall not act without the approval of the board of directors as to those matters
specified by the board of directors as requiring action by the board of
directors in each instance.
5.7 Vice President. Each Vice President shall have such powers and shall
perform such duties as shall be assigned to him by the directors. The Vice
President, or if there is more than one Vice President, the senior Vice
President, shall, if no Executive Vice President has been elected, in the
absence or disability of the President , perform the duties and exercise the
powers of the President.
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5.8 Treasurer. The Treasurer shall have the custody of the corporate funds
and securities and shall keep full and accurate account of receipts and
disbursements in books belonging to the corporation. He shall deposit all moneys
and other valuables in the name and to the credit of the corporation in such
depositories as may be designated by the board of directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the board of directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and board of directors at
the regular meetings of the board of directors, or whenever they may request it,
an account of all his transactions as Treasurer and of the financial condition
of the corporation. If required by the board of directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the board shall prescribe.
5.9 Secretary. The Secretary shall give, or cause to be given, notice of
all meetings of shareholders and directors and all other notices required by law
or by these By-Laws, but any such notice may be given by any other person as
authorized or directed. He shall record all the proceedings of the shareholders
and directors in books maintained for that purpose, and shall have custody of
the seal of the corporation. He shall affix the seal of the corporation to all
instruments requiring it and attest the same.
5.10 Assistant Treasurers and Assistant Secretaries. Assistant Treasurers
and Assistant Secretaries, if any shall be elected, shall have such powers and
shall perform such duties as shall be assigned to them, respectively, by the
directors.
5.ll Executive Vice President. The Executive Vice President, if one should
be elected, shall assist the President in the supervision and management of the
Corporation
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and shall have such powers and perform such duties as shall be assigned to him
by the President or by the directors. The Executive Vice President, if one be
elected, shall, in the absence or disability of the President, perform the
duties and exercise the powers of the President.
5.12 President/Operating Divisions. The Presidents of Operating Divisions,
if one or more shall be elected, shall have the general powers and duties of
supervision and management of the respective operating division(s) they are
assigned to by the board of directors, including, except as otherwise provided
by law, by the Articles of Incorporation, by these By-Laws or by resolution of
the board of directors, the power and duty to:
(i) exercise general supervision over the daily business of the
operating division(s) assigned to and give directions with respect
to matters arising in the ordinary course of the business of the
operating division(s).
(ii) supervise implementation of the basic business policies and strategy
established by the board of directors for their respective operating
divisions(s).
(iii) execute bonds, mortgages and other contracts on behalf of their
respective operating division(s).
5.13 Vice Presidents of Operations/Operating Divisions. The Vice
Presidents of Operations/Operating Divisions, if one or more shall be elected,
shall have such powers and shall perform such duties with respect to the
applicable operating division(s) as shall be assigned to him by the President of
the Corporation, the President of the applicable operating division(s) or by the
board of directors of the Corporation. The
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Vice President of Operations of an operating division shall, in the absence or
disability of the President of the applicable operating division, perform the
duties and exercise the powers of the President of the operating division.
ARTICLE VI
INDEMNIFICATION
To the full extent permitted by Section 31-1-9 of the West Virginia
Corporation Act or any successor provision thereto, the corporation may
indemnify any person and his heirs, distributees, next of kin, successors,
appointees, executors, administrators, legal representatives and assigns who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding by reason of the fact that he is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
domestic or foreign, against expenses, attorneys' fees, court costs, judgments,
fines, amounts paid in settlement and other losses actually and reasonably
incurred by him in connection with such action, suit or proceeding.
ARTICLE VII
MISCELLANEOUS
7.1 Share Certificates. The shares of the corporation shall be represented
by certificates signed by the President or a Vice-President and the Secretary or
an Assistant Secretary of the corporation, and may be sealed with the seal of
the corporation or a facsimile thereof. Such certificates shall be issued to
each shareholder certifying the
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number of shares owned by him in the corporation. When such certificates are
countersigned by a transfer agent or registrar, other than the corporation or
its employee, the required officers' signatures thereupon may be facsimiles. No
certificates shall be issued for any share unless such share is fully paid.
7.2 Lost Certificates. The board of directors may direct a new certificate
to be issued in place of any certificate theretofore issued by the corporation
alleged to have been lost or destroyed. When authorizing such issue of a new
certificate, the board of directors, in its discretion and as a condition
precedent to the issuance thereof, may prescribe such terms and conditions as it
deems expedient, and will require such indemnities as it deems adequate, to
protect the corporation from any claim that may be made against it with respect
to any such certificate alleged to have been lost or destroyed.
7.3 Transfer of Shares. Transfer of shares of the corporation shall be
made only on the transfer books of the corporation by the holder of record
thereof or by his legal representative, who shall furnish proper evidence of
authority to transfer, or by his attorney thereunto authorized by power of
attorney duly executed and filed with the Secretary of the corporation, and on
surrender for cancellation of the certificate for such shares. The person in
whose name shares stand on the books of the corporation shall be deemed by the
corporation to be the owner thereof for all purposes.
7.4 Closing of Transfer Books. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders or any
adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend, or in order
to make a determination of shareholders for any other proper purpose, the board
of directors may fix in advance a record date for any
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such determination of shareholders, such date to be not more than fifty days
and, in case of a meeting of shareholders, not less than ten days prior to the
date on which the particular action, requiring such determination of
shareholders, is to be taken. If no record date is fixed for the determination
of shareholders entitled to notice of or to vote at a meeting of shareholders,
or shareholders entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the resolution of the board
of directors declaring such dividend is adopted, as the case may be, shall be
the record date for such determination of shareholders. When a determination of
shareholders entitled to vote at any meeting of shareholders has been made as
provided in this section, such determination shall apply to any adjournment
thereof.
7.5 Voting Record. The officer or agent having charge of the transfer
books of the corporation shall make a complete record of the shareholders
entitled to vote at each meeting of shareholders or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each. Such record shall be produced and kept open at the time and place
of the meeting and shall be subject to the inspection of any shareholder during
the whole time of the meeting for the purposes thereof.
7.6 Dividends. The board of 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 and the Articles of Incorporation.
Before payment of any dividend, there may be set aside out of any funds of the
corporation available for dividends such sum or sums as the directors in their
absolute discretion deem proper as a reserve fund to meet contingencies, or for
equalizing dividends, or for repairing or
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maintaining any property of the corporation, or for such other purpose as the
directors shall deem conducive to the interests of the corporation, and the
directors may modify or abolish any such reserve in the manner in which it was
created.
In addition, the board of directors may, in its absolute discretion, and
pursuant to Article VI of the Articles of Incorporation, declare and pay
dividends in cash out of the depletion reserve; provided that each such dividend
shall be identified as a distribution of such reserves and the amount per share
paid from such reserve shall be disclosed to the shareholders receiving the same
concurrently with the distribution thereof.
7.7 Reliance on Records. Each officer and director shall in the
performance of his duties be fully protected in relying in good faith upon the
books of accounts of the corporation, or upon reports made to the corporation by
any of its officials, or by an independent certified public accountant, or by an
appraiser selected with reasonable care, or in relying in good faith upon other
records of the corporation.
7.8 Checks. All checks or demands for money and notes of the corporation
shall be signed by such officer or officers or such other person or persons as
the board of directors may from time to time designate by resolution.
7.9 Fiscal Year. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
7.10 Seal. The corporate seal shall be circular in form and shall contain
the name of the corporation, the year of its incorporation and the words
"Corporate Seal, West Virginia".
7.11 Amendments. These By-Laws may be amended or repealed and new By-Laws
may be adopted: (1) by the shareholders at any annual meeting, or at any special
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meeting if notice of the proposed amendment or repeal is contained in the notice
of such special meeting, by the affirmative vote of a majority of the shares
entitled to vote thereat; (2) by the board of directors at any regular meeting,
or at any special meeting if notice of the proposed amendment or repeal is
contained in the notice of such special meeting; or (3) by unanimous written
consent of the shareholders or directors.
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