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Exhibit 3.10
AMENDED AND RESTATED
BYLAWS
OF
THE ELK HORN COAL CORPORATION
(A WEST VIRGINIA CORPORATION)
ARTICLE I
SHAREHOLDERS
1. SHARE CERTIFICATES. Certificates representing shares of the
corporation shall set forth thereon the statements prescribed by Section 31-1-87
of the West Virginia Corporation Act and by any other applicable provision of
law, 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. The signatures of the President or a
Vice-President and the Secretary or an Assistant Secretary upon a certificate
may be facsimile if the certificate is manually signed on behalf of a transfer
agent or a registrar, which may be the corporation itself, a subsidiary of the
corporation, or an independent corporation. In case any officer who has signed
or whose facsimile signature has been placed upon such certificate has ceased to
be such officer before the certificate is issued, it may be issued by the
corporation with the same effect as if he were the officer at the date of its
issue.
No certificate shall be issued for any share until such share is fully
paid.
2. FRACTIONAL SHARE INTERESTS OR SCRIP. The corporation may issue
fractions of a share, arrange for the disposition of fractional interests by
those entitled thereto, pay in cash the fair value of fractions of a share as of
the time when those entitled to receive such fractions are determined, or scrip
in registered or bearer form which shall entitle the holder to receive a
certificate for a full share upon the surrender of such scrip aggregating a full
share. A certificate for a fractional share shall, but scrip shall not unless
otherwise provided therein, entitle the holder to exercise voting rights, to
receive dividends thereon, and to participate in any of the assets of the
corporation in the event of liquidation. The Board of Directors may cause scrip
to be issued subject to the condition that it shall become void if not exchanged
for certificates representing full shares before a specified date, or subject to
the condition that the shares for which scrip is exchangeable may be sold by the
corporation and the proceeds thereof distributed to the holders of scrip, or
subject to any other conditions which the Board of Directors may deem advisable.
3. SHARE TRANSFERS. Upon compliance with any provisions restricting the
transferability of shares that may be set forth in the Articles of
Incorporation, these Bylaws, or any written agreement in respect thereof,
transfers of shares of the corporation shall be made
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only on the books of the corporation by the registered holder thereof, or by his
attorney thereunto authorized by power of attorney duly executed and filed with
the Secretary of the corporation, or with a transfer agent or a registrar and on
surrender of the certificate or certificates for such shares properly endorsed
and the payment of all taxes thereon, if any. Except as may be otherwise
provided by law, the person in whose name shares stand on the books of the
corporation shall be deemed the owner thereof for all purposes as regards the
corporation; provided that whenever any transfer of shares shall be made for
collateral security, and not absolutely, such fact, if known to the Secretary of
the corporation, shall be so expressed in the entry of transfer.
4. RECORD DATE FOR SHAREHOLDERS. 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 of Directors of the corporation may provide that the stock transfer books
shall be closed for a stated period not to exceed in any case fifty days. If the
stock transfer books shall be closed for the purpose of determining shareholders
entitled to notice of or to vote at a meeting of shareholders, such books shall
be closed for at least ten days immediately preceding the meeting. In lieu of
closing the stock transfer books, the Board of Directors may fix in advance a
date as the record date for any such determination of shareholders, such date in
any case 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 the
stock transfer books are not closed and 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.
5. MEANING OF CERTAIN TERMS. As used herein in respect of the right to
notice of a meeting of shareholders or a waiver thereof or to participate or
vote thereat or to consent or dissent in writing in lieu of a meeting, as the
case may be, the term "share" or "shares" or "shareholder" or "shareholders"
refers to an outstanding share or shares and to a holder or holders of record of
outstanding shares when the corporation is authorized to issue only one class of
shares, and said reference is also intended to include any outstanding share or
shares and any holder or holders of record of outstanding shares of any class
upon which or upon whom the Articles of Incorporation confer such rights where
there are two or more classes or series of shares or upon which or upon whom the
West Virginia Corporation Act confers such rights notwithstanding that the
Articles of Incorporation may provide for more than one class or series of
shares, one or more of which are limited or denied such rights thereunder.
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6. SHAREHOLDER MEETINGS.
(a) TIME. The annual meeting shall be held on the date fixed by the
Board of Directors. A special meeting shall be held on the date fixed by the
directors except when the West Virginia Corporation Act confers the right to
call a special meeting upon the shareholders.
(b) PLACE. Annual meetings and special meetings shall be held at such
place within or without the State of West Virginia as the Board of Directors
shall from time to time fix, or, in the absence of such fixing, at the
principal office of the corporation in the State of West Virginia.
(c) CALL. Annual meetings may be called by the directors or the
President or the Secretary or by any officer instructed by the directors or
the President to call the meeting. Special meetings may be called in like
manner or by the holders of at least one-tenth of the shares.
(d) NOTICE OR WAIVER OF NOTICE. Written 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
ten days (or not less than any such other minimum period of days as may be
prescribed by the West Virginia Corporation Act) nor more than fifty 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. The notice of any annual or special
meeting shall also include, or be accompanied by, any additional statements,
information, or documents prescribed by the West Virginia Corporation Act.
If mailed, such notice shall be deemed to be delivered when deposited in the
United States mail addressed to the shareholder at his address as it appears
on the stock transfer books of the corporation, with postage thereon
prepaid. Whenever any notice is required to be given to any shareholder, a
waiver thereof in writing signed by him, whether before or after the time
stated therein, shall be the equivalent to the giving of such notice. Notice
otherwise required may be dispensed with if all of the shareholders are
represented at the meeting.
(e) VOTING RECORD. The officer or agent having charge of the stock
transfer books for shares of the corporation shall make a complete record of
the shareholders entitled to vote at the meeting 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 such meeting and shall be subject to inspection of any shareholder
during the whole time of the meeting for the purposes thereof.
(f) CONDUCT OF MEETING. Meetings of the shareholders shall be presided
over by one of the following officers in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, the President, a Vice-President, or, if none of the
foregoing is in office and present and acting, by a chairman to be chosen by
the shareholders. The Secretary of the corporation,
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or in his absence, an Assistant Secretary, shall act as secretary of every
meeting, but, if neither the Secretary nor an Assistant Secretary is
present, the Chairman of the meeting shall appoint a secretary of the
meeting.
(g) PROXY REPRESENTATION. Every shareholder may authorize another
person or persons to act for him by proxy in all matters in which a
shareholder is entitled to participate, whether for the purposes of
determining his presence at a meeting, or whether by waiving notice of any
meeting, voting or participating at a meeting, or expressing consent or
dissent without a meeting, or otherwise. Every proxy shall be executed in
writing by the shareholder, or by his duly authorized attorney-in-fact, and
filed with the Secretary of the corporation. No proxy shall be valid after
eleven months from the date of its execution, unless otherwise provided in
the proxy.
(h) QUORUM. Except as the Articles of Incorporation may otherwise
provide, a majority of the shares shall constitute a quorum. Any number less
than a quorum present may adjourn any meeting until a quorum is present.
(i) VOTING. Except in the election of directors in which the
shareholders entitled to vote shall be entitled to cumulative voting, and
except as the West Virginia Corporation Act, the Articles of Incorporation,
or these Bylaws shall otherwise provide, the affirmative vote of the
majority of the shares represented at the meeting, a quorum being present,
shall be the act of the shareholders.
One or more shareholders may participate in a meeting of
shareholders 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 shareholders 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 shareholders at a meeting of shareholders if the action is
reduced to writing and approved by the shareholders at the next regular
meeting of the shareholders after the conference.
7. WRITTEN ACTION. Any action required to be taken or which may be
taken at a meeting of the shareholders may be taken without a meeting and
without a vote if a consent in writing, setting forth the action so taken, shall
be signed by all of the shareholders and shall be filed with the Secretary of
the corporation.
ARTICLE II
BOARD OF DIRECTORS
1. FUNCTIONS GENERALLY AND COMPENSATION. The business and the affairs
of the corporation shall be managed by a Board of Directors. The Board may fix
the compensation of directors.
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2. QUALIFICATIONS AND NUMBER. Each director shall be a natural person
of full age. A director need not be a shareholder, a citizen of the United
States, or a resident of the State of West Virginia. The initial Board of
Directors shall consist of three (3) persons, which is the number of directors
fixed in the Articles of Incorporation, and which shall be the fixed number of
directors until changed. The number of directors may be increased or decreased
by an amendment to these Bylaws, but no decrease in the number of directors
shall have the effect of shortening the term of any incumbent director. The
number of directors shall never be less than one.
3. ELECTION AND TERM. The initial Board of Directors shall consist of
the directors named in the Articles of Incorporation and shall hold office until
the first annual meeting of shareholders and until their successors have been
elected and qualified. Thereafter, directors who are elected at an annual
meeting of shareholders, and directors who are elected in the interim to fill
vacancies and newly created directorships, shall hold office until the next
succeeding annual meeting of shareholders and until their successors have been
elected and qualified. In the interim between annual meetings of shareholders or
of special meetings of shareholders called for the election of directors, any
vacancies in the Board of Directors, including vacancies resulting from newly
created directorships and including vacancies resulting from the removal of
directors by the shareholders which have not been filled by said shareholders,
may be filled by the affirmative vote of a majority of the remaining directors,
although less than a quorum exists.
4. MEETINGS.
(a) TIME. Meetings shall be held at such time as the Board shall fix,
except that the first meeting of a newly elected Board shall be held as soon
after its election as the directors may conveniently assemble.
(b) PLACE. Meetings shall be held at such place within or without the
State of West Virginia as shall be fixed by the Board.
(c) CALL. No call shall be required for regular meetings for which the
time and place have been fixed. Special meetings may be called by or at the
direction of the Chairman of the Board, if any, the Vice-Chairman of the
Board, if any, or the President, or of a majority of the directors in
office.
(d) NOTICE OR ACTUAL OR CONSTRUCTIVE WAIVER. No notice shall be
required for regular meetings for which the time and place have been fixed.
Written, oral, or any other mode of notice of the time and place shall be
given for special meetings in sufficient time for the convenient assembly of
the directors thereat. The notice of any meeting need not specify the
business to be transacted or the purpose of the meeting, except when the
meeting is being called for the purpose of amending the Bylaws or for the
purpose of authorizing the sale of all or substantially all of the assets of
the corporation. Any requirement of furnishing a notice shall be waived by
any director who signs a waiver of notice before or after the meeting.
Attendance of a director at a meeting shall constitute a waiver of notice of
the meeting, except where the director attends the
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meeting for the express purpose of objecting to the transaction of any
business because the meeting is not lawfully called or convened. If every
director is present at a meeting, any notice otherwise required may be
dispensed with.
(e) QUORUM AND ACTION. A majority of the full Board of Directors shall
constitute a quorum. Any number less than a quorum present may adjourn any
meeting until a quorum is present. Except as herein otherwise provided, and
except as may be otherwise provided by the West Virginia Corporation Act,
the Articles of Incorporation, or these Bylaws the act of the Board shall be
the act of a majority of the directors present at a meeting at which a
quorum is present.
One or more directors may participate in a meeting of directors 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 action is reduced to writing
and approved by the directors at the next regular meeting of the directors
after the conference.
(f) CHAIRMAN OF THE MEETING. Meetings of the Board of Directors shall
be presided over by the following directors in the order of seniority and if
present and acting: the Chairman of the Board, if any, the Vice-Chairman of
the Board, if any, the President, or any other director chosen by the Board.
5. REMOVAL OF DIRECTORS. The entire Board of Directors or any
individual director may be removed from office with or without cause by the vote
of the shareholders holding at least a majority of the shares at a meeting
expressly called for that purpose. If less than the entire board is to be
removed, no one of the directors may be removed if the votes cast against his
removal would be sufficient to elect him. In case the entire Board or any one or
more directors be so removed, new directors may be elected at the same meeting
called for that purpose.
6. COMMITTEES. Whenever the number of directors is three or more, the
Board of Directors may, by resolution adopted by a majority of the full Board,
designate from among its members an Executive Committee and one or more other
committees which, to the extent provided in the resolution, shall have and may
exercise all of the authority of the Board of Directors except such authority as
may not be delegated under the West Virginia Corporation Act.
7. WRITTEN ACTION. Any action required to be taken at a meeting of
directors, or any action which may be taken at a meeting of directors may be
taken without a meeting and without a vote if a consent in writing, setting
forth the action so taken, shall be signed by all of the directors.
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ARTICLE III
OFFICERS
The corporation shall have a President, a Secretary, and a Treasurer,
each of whom shall be elected by the directors, and may have one or more
Vice-Presidents, who shall be elected by the directors, and such other officers
and assistant officers and agents as may be deemed necessary, each or any of
whom may be elected or appointed by the directors or may be chosen in such
manner as the directors shall determine. Any two or more offices may be held by
the same person, except the offices of President and Secretary.
Unless otherwise provided in the resolution of election or appointment,
each officer shall hold office until the meeting of the Board of Directors
following the next annual meeting of shareholders and until his successor has
been elected and qualified.
The officers and agents of the corporation shall have the authority and
perform the duties in the management of the corporation as determined by the
resolution electing or appointing them, as the case may be.
The Board of Directors may remove any officer or agent whenever in its
judgment the best interests of the corporation will be served thereby.
ARTICLE IV
PRINCIPAL OFFICE AND DESIGNEE - SHAREHOLDERS RECORD
The address of the initial principal office of the corporation is set
forth in the original Articles of Incorporation.
The name and the address of the initial person designated to which the
Secretary of State of the State of West Virginia is to transmit notice and
process served upon, or accepted by, said Secretary of State upon behalf of the
corporation is Corporation Service Company, 1600 Laidley Tower, Charleston,
West Virginia 25301.
The corporation shall keep at its principal office or at the office of
its transfer agent or registrar, a record of its shareholders, giving the names
and addresses of all shareholders and the number and class of the shares held by
each shareholder. Any books, records and minutes may be in written form or in
any other form capable of being converted into written form within a reasonable
time.
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ARTICLE V
CORPORATE SEAL
The corporate seal shall have inscribed thereon the name of the
corporation and shall be in such form and contain such other words and/or
figures as the Board of Directors shall determine or the law require.
ARTICLE VI
FISCAL YEAR
The fiscal year of the corporation shall be fixed, and shall be subject
to change, by the Board of Directors.
ARTICLE VII
CONTROL OVER BYLAWS
The power to alter, amend, and repeal the Bylaws and to adopt new
Bylaws shall be vested in the Board of Directors, subject to repeal or change by
action of the shareholders.