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Exhibit 3.1
THIRD
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ANKER COAL GROUP, INC.
Anker Coal Group, Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (the "Corporation"), certifies
to the Secretary of State of the State of Delaware as follows:
FIRST: That the original Certificate of Incorporation of the
Corporation was filed with the Secretary of State of the State of Delaware on
June 28, 1996;
SECOND: That an Amended and Restated Certificate of Incorporation of
the Corporation was filed with the Secretary of State of the State of Delaware
on August 8, 1996;
THIRD: That a Second Amended and Restated Certificate of Incorporation
of the Corporation was filed with the Secretary of the State of the State of
Delaware on April 12, 2001;
FOURTH: That the Board of Directors has duly adopted resolutions
proposing to amend and restate the Second Amended and Restated Certificate of
Incorporation of the Corporation, declaring said amendment and restatement to be
advisable and in the best interests of the Corporation and its stockholders, and
authorizing the appropriate officers of the Corporation to solicit the written
consent of the stockholders therefor, which resolution setting forth the
proposed amendment and restatement is as follows:
RESOLVED, that pursuant to Sections 242 and 245 of the General
Corporation Law of the State of Delaware, the Second Amended and Restated
Certificate of Incorporation of Anker Coal Group, Inc. be amended and restated
in its entirety as follows:
1. The name of the Corporation is Anker Coal Group, Inc.
2. The address of its registered office in the State of Delaware is
2711 Centerville Road, Suite 400, Wilmington, Delaware, 19808, New Castle
County. The name of its registered agent at such address is Corporation Service
Company.
3. The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
4. The total number of shares of all classes of capital stock which the
Corporation is authorized to issue shall be 2,236,000 shares, which shall be
divided into the following classes: a) 2,000,000 shares of common stock having a
par value of $0.01 per share, b) 25,000 shares of Class A Preferred Stock having
a par value of $2,500 per share, c) 10,000 shares of Class B Preferred Stock
having a par value of $1,000 per share, d) 1,000 shares of Class D Preferred
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Stock having a par value of $7,000 per share and e) 200,000 shares of Class E
Preferred Stock having a par value of $1,000 per share.
5. As of 9:00 a.m., eastern time, on April 12, 2001 (the "Effective
Time"), each share of common stock, par value $0.01 per share, issued and
outstanding immediately prior to the Effective Time ("Old Common Stock"), shall
automatically and without any action on the part of the holder thereof, be
reclassified and changed, pursuant to a reverse stock split, into .001 shares of
outstanding common stock of the Corporation, par value $0.01 per share ("New
Common Stock"). Each holder of a certificate or certificates that immediately
prior to the Effective Time represented outstanding shares of Old Common Stock
(the "Old Certificates," whether one or more) shall be entitled to receive upon
surrender of such Old Certificates to the Corporation's Transfer Agent for
cancellation, a certificate or certificates (the "New Certificates," whether one
or more) representing the number of shares of New Common Stock into and for
which the shares of Old Common Stock formerly represented by such Old
Certificates so surrendered are reclassified under the terms hereof. From and
after the Effective Time, Old Certificates shall thereupon be deemed for all
corporate purposes to evidence ownership of New Common Stock in the
appropriately reduced whole or fractional number of shares. If more than one Old
Certificate shall be surrendered at one time for the account of the same
stockholder, the number of shares of New Common Stock for which New Certificates
shall be issued shall be computed on the basis of the aggregate number of shares
represented by the Old Certificates so surrendered. Certificates representing
fractional share interests in New Common Stock may be issued, and such
fractional share interests will entitle the holder thereof to vote, and to any
and all rights of a stockholder of the Corporation. If any New Certificate is to
be issued in a name other than that in which it was issued, the Old Certificates
so surrendered shall be properly endorsed and otherwise in proper form for
transfer, and the stock transfer tax stamps to the Old Certificates so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, and the person or persons requesting such exchange shall affix any
requisite stock transfer tax stamps to the Old Certificates surrendered, or
provide funds for their purchase, or establish to the satisfaction of the
Transfer Agent that such taxes are not payable. From and after the Effective
Time, the amount of capital shall be represented by the shares of New Common
Stock into which and for which the shares of Old Common Stock are reclassified,
until thereafter reduced or increased in accordance with applicable law. All
references elsewhere in the Second Amended and Restated Certificate of
Incorporation to the "Common Stock" shall, after the Effective Time, refer to
the New Common Stock.
6. The Corporation is to have perpetual existence.
7. The Corporation shall indemnify to the full extent authorized or
permitted by the laws of the State of Delaware, any person 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 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 and shall advance expenses
incurred by an officer or director in defending such civil or criminal action,
suit or proceeding to the full extent
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authorized or permitted by the laws of the State of Delaware upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized by Section 145 of the Delaware General Corporation
Law.
8. A director shall have no personal liability to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director; however, the foregoing provision shall not eliminate the liability of
a director (i) for breach of the director's duty of loyalty to the Corporation
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit. If the Delaware
General Corporation Law is amended to authorize the further elimination or
limitation of liability of directors, then the liability of a director of the
Corporation, in addition to the limitation on personal liability provided
herein, shall be limited to the fullest extent permitted by the Delaware General
Corporation Law, as amended. Any repeal or modification of this Article 8 by the
stockholders of the Corporation shall be prospective only and shall not
adversely affect any limitation on the personal liability of a director of the
Corporation existing at the time of such repeal or modification.
9. To the fullest extent permitted by Section 122 of the Delaware
General Corporation Law, the Corporation renounces any interest or expectancy of
the Corporation in, or in being offered an opportunity to participate in,
business opportunities that are presented to (i) any person that is now or
hereafter the actual or beneficial owner of any Class E Convertible Preferred
Stock of the Corporation (or any Common Stock into which such Class E Preferred
Stock is converted), (ii) any person that is now or hereinafter the actual or
beneficial holder of the 14.25% Series B Second Priority Senior Secured Notes
due 2007 (PIK due April 1, 2000) issued by the Corporation or any securities of
the Corporation into which such notes are hereinafter converted, (iii) any
director of the Corporation which is an employee or designee of any persons
described in the preceding clauses (i) and (ii) or their affiliates (persons
specified in clauses (i) through (iii) are referred to herein as the "Specified
Directors and Securities Holders"). Specifically and without limiting the
generality of the foregoing, the Corporation renounces any rights the
Corporation might have in any business venture or business opportunity of any
such Specified Directors and Securities Holders or any of their respective
affiliates, and none of the Specified Directors and Securities Holders or any of
their respective affiliates shall have any obligation to offer any interest in
any such business venture or business opportunity to the Corporation, or
otherwise account to the Corporation in respect of any such business ventures or
opportunities, and it shall not be deemed a breach of any fiduciary or other
duties, if any, whether express or implied, for any such Specified Directors or
Securities Holder to permit itself or one of its affiliates to engage in a
business opportunity in preference or to the exclusion of the Corporation.
Notwithstanding the foregoing, the Corporation does not renounce any interest or
expectancy in a business opportunity that is presented to a director of the
Corporation solely in, and as a direct result of, his or her capacity as a
director of the Corporation, unless such opportunity is separately presented to
any Specified Director or Securities Holders (including a separate presentation
to a Specified Securities Holder through a Specified Director in his or her
capacity as an employee of that Specified Securities Holder), in which case such
Specified Director or Securities Holder shall be free to pursue such business
opportunity.
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10. The principal place of business of the Corporation may be located
within or outside the State of Delaware. Meetings of the stockholders may be
held within or outside the State of Delaware, as the by-laws may provide. The
books of the Corporation may be kept (subject to any applicable provision of
law) outside the State of Delaware at such place or places as may be designated
from time to time by the board of directors or in the by-laws of the
Corporation.
11. For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation, its directors and its stockholders, it is
further provided that (a) the board of directors of the Corporation is expressly
authorized and empowered to adopt, amend or repeal by-laws subject to the power
of the stockholders to amend or repeal by-laws made by the board of directors
and (b) elections of directors of the Corporation need not be by written ballot.
[SIGNATURE APPEARS ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, Anker Coal Group, Inc. has caused this Third
Amended and Restated Certificate of Incorporation to be signed by its President,
Bruce Sparks, this 28th day of June, 2001.
/s/ Bruce Sparks
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Bruce Sparks
President