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Exhibit 3.40
BYLAWS
OF
ANKER VIRGINIA MINING COMPANY, INC.
(Formerly Anker-Virginia Mining Company, Inc.)
July 29, 1997
ARTICLE I
OFFICES
Section 1. The registered office of Anker Virginia Mining Company,
Inc. (the "Corporation") shall be located at 5511 Staples Mill Road, Richmond,
Henrico County, Virginia.
Section 2. The Corporation may also have offices at such other
places both within and without the Commonwealth of Virginia as the board of
directors may from time to time determine or the business of the Corporation may
require.
ARTICLE II
ANNUAL MEETINGS OF SHAREHOLDERS
Section 1. Annual meetings of shareholders, commencing with the year
1998, shall be held during the first calendar quarter of each year, at such
time, date and place as the board shall from time to time determine, at which
they shall elect a board of directors and transact such other business as may
properly be brought before the meeting.
Section 2. Written or printed notice of the annual meeting stating
the date, time and place of the meeting shall be delivered not less than ten nor
more than sixty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, the secretary, or the officer or
persons calling the meeting to each shareholder of record entitled to vote at
such meeting.
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ARTICLE III
SPECIAL MEETING OF SHAREHOLDERS
Section 1. Special meetings of shareholders for any purpose other
than the election of directors may be held at such time and place within or
without the State of Virginia as shall be stated in the notice of the meeting or
in a duly executed waiver of notice thereof.
Section 2. Special meetings of the shareholders, for any purpose or
purposes, unless otherwise prescribed by statute or by the articles of
incorporation, may be called by the chairman of the board of directors, the
president, or the board of directors.
Section 3. Written or printed notice of a special meeting stating
the date, time and place of the meeting and the purpose or purposes for which
the meeting is called, shall be delivered not less than ten nor more than sixty
days before the date of the meeting, either personally or by mail, by or at the
direction of the president, the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting.
Notice of a shareholders' meeting to act on an amendment of the
articles of incorporation, on a plan of merger or share exchange, on a proposed
sale of assets other than in the regular course of business, or on a plan of
dissolution shall be given, in the manner provided herein, not less than
twenty-five nor more than sixty days before the date of the meeting. Any such
notice shall be accompanied by a copy of the proposed amendment, plan of merger,
or share exchange, or plan of proposed sale of assets.
Section 4. The business transacted at any special meeting of
shareholders shall be limited to the purposes stated in the notice.
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ARTICLE IV
QUORUM AND VOTING OF SHARES
Section 1. A majority of the votes entitled to be cast on a matter
by the voting group constitutes a quorum of that voting group for action on that
matter except as otherwise provided by statute or by the articles of
incorporation. If, however, such quorum shall not be present or represented at
any meeting of the shareholders, the shareholders present in person or
represented by proxy shall have power to adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be
present or represented. 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.
Section 2. If a quorum is present, action on a matter by a voting
group is approved if the votes cast within the voting group favoring the action
exceed the votes cast opposing the action unless the vote of a greater number of
affirmative votes is required by law or the articles of incorporation.
Section 3. Each outstanding share, regardless of class, shall be
entitled to one vote on each matter submitted to a vote at a meeting of
shareholders unless the articles of incorporation or law provides otherwise. A
shareholder may vote either in person or by proxy executed in writing by the
shareholder or by his duly authorized attorney-in-fact.
In all elections for directors each outstanding share, regardless of
class, is entitled to one vote for as many persons as there are directors to be
elected, or if the articles of incorporation so provide to cumulate their votes
and give one candidate as many votes as the number of directors multiplied by
the number of his shares shall equal, or to distribute the votes on the same
principle among as many candidates as he may see fit.
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Section 4. Any action required to be taken at a meeting of the
shareholders may be taken without a meeting if one or more consents 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. All consents shall
be delivered to the secretary for inclusion in the minutes or filing with the
corporate records. The action taken shall be effective according to its terms
when all consents are in the possession of the corporation. Any action taken
without a meeting is effective as of the date specified in the consent provided
the consent states the date of execution by each shareholder.
ARTICLE V
DIRECTORS
Section 1. The number of directors shall be not less than one nor
more than three. The number of directors may be fixed or changed within the
minimum or maximum by the shareholders or by the board of directors. Only the
shareholders may change the range or switch to a fixed size board. Directors
need not be residents of the State of 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 directors 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 annual meeting of shareholders.
Section 2. Any vacancy occurring in the board of directors,
including a vacancy resulting from an increase in the number of directors, may
be filled by the shareholders, the board of directors, or if the directors
remaining in office constitute fewer than a quorum of the board, the vacancy may
be filled by the affirmative vote of the directors remaining in office.
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Section 3. The business affairs of the Corporation shall be managed
by its board of directors which may exercise all such powers of the corporation
and do all such lawful acts and things as are not by statute or by the articles
of incorporation or by these bylaws directed or required to be exercised or done
by the shareholders.
Section 4. The directors may keep the books of the Corporation,
except such as are required by law to be kept within the Commonwealth of
Virginia, outside of said Commonwealth, at such place or places as they may from
time to time determine.
Section 5. The board of directors, by the affirmative vote of a
majority of the directors then in office, and irrespective of any personal
interest of any of its members, shall have authority to establish reasonable
compensation of all directors for services to the corporation as directors,
officers or otherwise.
ARTICLE VI
MEETINGS OF THE BOARD OF DIRECTORS
Section 1. Meetings of the board of directors, regular of special,
may be held either within or without the Commonwealth of Virginia.
Section 2. The first meeting of each newly elected board of
directors shall be held at such time and place as shall be fixed by the vote of
the shareholders at the annual meeting and no notice of such meeting shall be
necessary to the newly elected directors in order legally to constitute the
meeting, provided a quorum shall be present, or it may convene at such place and
time as shall be fixed by the consent in writing of all the directors.
Section 3. Regular meetings of the board of directors may be held
upon such notice, or without notice, and at such time and at such place as shall
from time to time be determined by the board.
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Section 4. Special meetings of the board of directors may be called
by the President on three days' notice to each director, either personally or by
mail or by telegram: special meetings shall be called by the president or
secretary in like manner and on like notice on the written request of any
director.
Section 5. Attendance of a director at any meeting shall constitute
a waiver of notice of such meeting, except where a director attends for the
express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the board
of directors need be specified in the notice or waiver of notice of such
meeting.
Section 6. A majority of the directors then in office shall
constitute a quorum for the transaction of business unless a greater number is
required by law or by the articles of incorporation. The act of a majority of
the directors present at any meeting at which a quorum is present shall be the
act of the board of directors, unless the act of a greater number is required by
law or by the articles of incorporation. If a quorum shall not be present at any
meeting of directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
Section 7. Any action required or permitted to be taken at a meeting
of the directors may be taken without a meeting if one or more consents in
writing, setting forth the action so taken, shall be signed by each director
entitled to vote with respect to the subject matter thereof and included in the
minutes or filed with the corporate records reflecting the action taken. Said
action shall become effective when the last director signs the consent unless a
different effective date is specified in the consent. If a different effective
date is specified in the
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consent, the action taken shall be effective as of the date specified therein
provided the consent states the date of execution by each director.
ARTICLE VII
COMMITTEES OF DIRECTORS
Section 1. A majority of the number of directors fixed by the bylaws
or otherwise, may create one or more committees and appoint members of the board
to serve on the committee or committees. To the extent provided by the board of
directors or articles of incorporation, each committee shall have and exercise
all of the authority of the board of directors in the management of the
corporation, except as otherwise required by law. Each committee shall have two
or more members who serve at the pleasure of the board of directors. Each
committee shall keep regular minutes of its proceedings and report the same to
the board when required.
ARTICLE VIII
NOTICES
Section 1. Whenever, under the provisions of the statutes or of the
articles of incorporation or of these bylaws, notice is required to be given to
any director or shareholder, it shall not be construed to mean personal notice,
but such notice may be given in writing, by mail, addressed to such director or
shareholder, at his address as it appears on the records or the corporation,
with postage thereon prepaid, and such notice shall be deemed to be given at the
time when the same shall be deposited in the United States mail. Notice to
directors may also be given by telegrams.
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Section 2. Whenever any notice whatever is required to be given
under the provisions of the statutes or under the provisions of the articles of
incorporation or these bylaws, 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.
ARTICLE IX
OFFICERS
Section 1. The officers of the Corporation shall be chosen by the
board of directors and shall be a president, a vice-president, a secretary and a
treasurer. The board of directors may also choose additional vice-presidents,
and one or more assistant secretaries and assistant treasurers.
Section 2. The board of directors at its first meeting after each
annual meeting of shareholders shall choose a president and one or more
vice-presidents, a secretary and a treasurer, none of whom need be a member of
the board.
Section 3. The board of directors may appoint such other officers
and agents as it shall deem necessary who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined from time to time by the board of directors.
Section 4. The salaries of all officers and agents of the
corporation shall be fixed by the board of directors.
Section 5. The officers of the Corporation shall hold office until
the next succeeding annual election of officers and until their successors are
elected and qualified. Any officer elected or appointed by the board of
directors may be removed at any time by the affirmative vote of a majority of
the board of directors. Any vacancy occurring in any office of the corporation
shall be filled by the board of directors.
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THE PRESIDENT
Section 6. The president shall be the chief executive officer of the
corporation, shall preside at all meetings of the shareholders and the board of
directors, shall have general and active management of the business of the
corporation and shall see that all orders and resolutions of the board of
directors are carried into effect.
Section 7. He shall execute bonds, mortgages and other contracts
requiring a seal, under the seal of the corporation, except where required or
permitted by law to be otherwise signed and executed and except where the
signing and execution thereof shall be expressly delegated by the board of
directors to some other officer or agent of the corporation.
THE VICE-PRESIDENTS
Section 8. The vice-president, or if there shall be more than one,
the vice-presidents in the order determined by the board of directors, shall, in
the absence or disability of the president, perform the duties and exercise the
powers of the president and shall perform such other duties and have such other
powers as the board of directors may from time to time prescribe.
THE SECRETARY AND ASSISTANT SECRETARIES
Section 9. The secretary shall attend all meetings of the board of
directors and all meetings of the shareholders and record all the proceedings of
the meetings of the corporation and of the board of directors in a book to be
kept for that purpose and shall perform like duties for the standing committees
when required. He shall give, or cause to be given, notice of all meetings of
the shareholders and special meetings of the board of directors, and shall
perform such other duties as may be prescribed by the board of directors or
president, under whose supervision he shall be. He shall have custody of the
corporate seal of the corporation and he, or
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an assistant secretary, shall have authority to affix the same to any instrument
requiring it and when so affixed, it may be attested by his signature or by the
signature of such assistant secretary. The board of directors may give general
authority to any other officer to affix the seal of the corporation and to
attest the affixing by his signature.
Section 10. The assistant secretary, or if there be more than one,
the assistant secretaries in the order determined by the board of directors,
shall, in the absence or disability or the secretary, perform the duties and
exercise the powers of the secretary and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
THE TREASURER AND ASSISTANT TREASURERS
Section 11. The treasurer shall have the custody of the corporate
funds and securities and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the board of directors.
Section 12. He shall disburse the funds of the corporation as may be
ordered by the board of directors, taking proper vouchers for such
disbursements, and shall render to the president and the board of directors, at
its regular meetings, or when the board of directors so requires, an account of
all his transactions as treasurer and of the financial condition of the
corporation.
Section 13. If required by the board of directors, he shall give the
corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the board of directors for the faithful performance of the
duties of his office and for the restoration to the
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corporation, in case of his death, resignation, retirement or removal from
office, of all books, papers, vouchers, money and other property of whatever
kind in his possession or under his control belonging to the corporation.
Section 14. The assistant treasurer, or, if there shall be more than
one, the assistant treasurers in the order determined by the board of directors,
shall, in the absence or disability of the treasurer, perform the duties and
exercise the powers of the treasurer and shall perform such other duties and
have such other powers as the board of directors may from time to time
prescribe.
ARTICLE X
CERTIFICATES FOR SHARES
Section 1. The shares of the corporation shall be represented by
certificates or shall be uncertificated. Certificates shall be 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.
In addition to the above officers the treasurer or an assistant
treasurer may sign in lieu of the secretary or an assistant secretary.
When the corporation is authorized to issue shares of more than one
class there shall be set forth upon the face or back of each certificate, or
each certificate shall have a statement that the corporation will furnish to any
shareholder upon request and without charge, a full statement of the
designations, preferences, limitations, and relative rights of the shares of
each class authorized to be issued and, if the corporation is authorized to
issue different series within a class, the variations in the relative rights and
preferences between the shares of each
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such series so far as the same have been fixed and determined and the authority
of the board of directors to fix and determine the relative rights and
preferences of subsequent series.
Section 2. The signatures of the officers upon a certificate may be
facsimiles if the certificate is countersigned by a transfer agent, or
registered by a registrar, other than the corporation itself or an employee of
the corporation. In case any officer who has signed or whose facsimile signature
has been placed upon such certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the corporation with the
same effect as if he were such officer at the date of its issue.
LOST CERTIFICATES
Section 3. The board of directors may direct a new certificate or
uncertificated security 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 or uncertificated security, 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 may 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.
TRANSFERS OF SHARES
Section 4. Upon surrender to the corporation or the transfer agent
of the corporation of a certificate representing shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, a new certificate shall be issued to the person entitled thereto, and
the old certificate cancelled and the transaction recorded upon the books of the
corporation.
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CLOSING OF TRANSFER BOOKS
Section 5. For the purpose of determining shareholders entitled to
notice of or to vote at any meeting of shareholders, or any adjournment thereof
or entitled to receive payment of any dividend, or in order to make a
determination of shareholders for any other proper purpose, the board or
directors may fix in advance a date as the record date for the determination of
shareholders, such date in any case to be not more than seventy days. 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.
REGISTERED SHAREHOLDERS
Section 6. The corporation shall be entitled to recognize the
exclusive right of a person registered on its books as the owner of shares to
receive dividends, and to vote as such owner, and to hold liable for calls and
assessments a person registered on its books as the owner of shares, and shall
not be bound to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it shall have
express or other notice thereof, except as otherwise provided by the laws of
Virginia.
LIST OF SHAREHOLDERS
Section 7. The officer or agent having charge of the transfer books
for shares shall make, at least ten days before each meeting of shareholders, a
complete list of the
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shareholders entitled to vote at such meeting, arranged by voting group and
within each voting group by class or series of shares, with the address of each
and the number of shares held by each, which list, for a period of ten days
prior to such meeting, shall be kept on file at the principal business office of
the corporation and shall be subject to inspection by any shareholder at any
time during usual business hours. Such list shall also 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 whose time of the meeting. The original share
transfer book, or a duplicate thereof, shall be prima facie evidence as to who
are the shareholders entitled to examine such list or share transfer book or to
vote at any meeting of the shareholders.
ARTICLE XI
GENERAL PROVISIONS
DIVIDENDS
Section 1. Subject to the provisions of the articles of
incorporation relating thereto, if any, dividends may be declared by the board
of directors at any regular of special meeting, pursuant to law. Dividends may
be paid in money or other property subject to any provisions of the articles of
incorporation.
Section 2. 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 from time to time, in their absolute discretion, think proper as a
reserve fund to meet contingencies, or for equalizing dividends, or for
repairing or maintaining any property of the corporation, or for such other
purpose as the directors shall think conducive to the interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
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CHECKS
Section 3. All checks or demands for money and notes of the
corporation shall be signed by such officer of officers or such other person or
persons as the board of directors may from time to time designate.
FISCAL YEAR
Section 4. The fiscal year of the corporation shall be fixed by
resolution of the board of directors.
SEAL
Section 5. The corporate seal shall have inscribed thereon the name
of the corporation, the year of its organization and the words "Corporate Seal,
Virginia". The seal may be used by causing it or a facsimile thereof to be
impressed or affixed or in any manner reproduced.
ARTICLE XII
AMENDMENTS
Section 1. These bylaws may be amended or repealed or new bylaws may
be adopted by the affirmative vote of a majority of the board of directors at
any regular or special meeting of the board unless the articles of incorporation
or law reserve this power to the shareholders.
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