Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ARCH COAL, INC.
* * * * *
1. The name of the Corporation is Arch Coal, Inc. The Corporation's
original Certificate of Incorporation was filed with the Secretary of State of
the State of Delaware on June 20, 1969.
2. This Amended and Restated Certificate of Incorporation restates
and integrates and also further amends in certain respects the Corporation's
Restated Certificate of Incorporation.
3. This Amended and Restated Certificate of Incorporation was duly
adopted in accordance with the applicable provisions of Sections 242 and 245 of
the General Corporation Law of the State of Delaware.
* * * * *
FIRST: The name of the Corporation is Arch Coal, Inc. (hereinafter referred
to as the "Corporation").
SECOND: The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle,
and the name of its registered agent at such address is The Corporation Trust
Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which a Corporation may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is One Hundred Ten Million
(110,000,000), which shall be divided into two classes as follows:
A. One Hundred Million (100,000,000) shares of Common Stock, the par value
of which shares is One Cent ($.01) per share; and
B. Ten Million (10,000,000) shares of Preferred Stock, the par value of
which shares is One Cent ($.01) per share. The Corporation's Board of Directors
is hereby expressly authorized to provide by resolution or resolutions from time
to time for the issuance of the Preferred Stock in one or more series, the
shares of each of which series to have such voting rights and the terms
and conditions for the exercise thereof, provided that the holders of shares of
Preferred Stock (1) will not be entitled to more than the lesser of (x) one vote
per $100 of liquidation value or (y) one vote per share, when voting as a class
with the holders of shares of other capital stock, and (2) will not be entitled
to vote on any matter separately as a class, except to the extent required by
law or as specified with respect to each series with respect to (x) any
amendment or alteration of the provisions of this Certificate of Incorporation
that would adversely affect the powers, preferences, or special rights of the
applicable series of Preferred Stock or (y) the failure of the Corporation to
pay dividends on any series of Preferred Stock in full for any six quarterly
dividend payment periods, whether or not consecutive, in which event the number
of directors may be increased by two and the holders of outstanding shares of
Preferred Stock then similarly entitled shall be entitled to elect the two
additional directors until full accumulated dividends on all such shares of
Preferred Stock shall have been paid; and such designations, preferences and
relative, participating, optional or other special rights, and qualifications,
limitations or restrictions thereof, as shall be permitted under the General
Corporation Law of the State of Delaware and as shall be stated in the
resolution or resolutions providing for the issuance of such stock adopted by
the Board of Directors pursuant to the authority expressly vested in the Board
of Directors in the Bylaws.
FIFTH:
A. The business and affairs of the Corporation shall be managed by or
under the direction of a board of directors consisting of such number of
directors as is determined from time to time by resolution adopted by
affirmative vote of not less than two-thirds of the members of the entire board
of directors; provided, however, that in no event shall the number of directors
be less than three (3). Effective upon the filing of this Amended and Restated
Certificate of Incorporation, the directors shall be divided into three (3)
classes, designated Class I, Class II and Class III. Class I directors shall
initially serve for a term ending at the annual meeting of stockholders of the
Corporation held in year 2001, Class II directors shall initially serve for a
term ending at the annual meeting of stockholders of the Corporation held in
year 2002 and Class III directors shall initially serve for a term ending at the
annual meeting of stockholders of the Corporation held in year 2003. At each
succeeding annual meeting of stockholders beginning with the annual meeting of
stockholders held in year 2001, successors to the class of directors whose term
expires at such annual meeting shall be elected for a three-year term. If the
number of directors is changed, any increase or decrease shall be apportioned
among the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected to
fill a vacancy resulting from an increase in such class shall hold office for a
term that shall coincide with the remaining term of that class, but in no case
will a decrease in the number of directors shorten the term of any incumbent
director. A director shall hold office until the annual meeting for the year in
which his or her term expires and until his or her successor shall be elected
and shall qualify, subject, however, to prior death, resignation, incapacitation
or removal from office, and except as otherwise required by law. In the event
such election is not held at an annual meeting of stockholders, it shall be held
at any adjournment thereof or at a special meeting.
B. Except as otherwise required by law, any vacancy on the board of
directors that results from an increase in the number of directors shall be
filled only by a majority of the board of directors then in office, provided
that a quorum is present, and any other vacancy occurring in the board of
directors shall be filled by a majority of the directors then in office, even if
less than a quorum, or by a sole remaining director. Any director elected to
fill a vacancy not resulting from an increase in the number of directors shall
have the same remaining term as that of his or her predecessor.
C. Notwithstanding the foregoing, whenever the holders of any one or
more classes or series of stock issued by the Corporation shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Amended and Restated Certificate of Incorporation applicable thereto and such
directors so elected shall not be divided into classes pursuant to this Article
FIFTH, in each case unless expressly provided by such terms.
SIXTH: Except as otherwise fixed pursuant to the provisions of ARTICLE
FOURTH hereof relating to the voting rights of the holders of any class or
series of Preferred Stock:
1. The affirmative vote of the holders of not less than two-thirds of the
shares of Common Stock voting thereon, in the manner and to the extent permitted
in the Bylaws, shall be required to:
(i) Adopt an agreement or plan of merger or consolidation;
(ii) Authorize the sale, lease or exchange of all or substantially all
of the property and assets of the Corporation;
(iii) Authorize the disposition of the Corporation or the distribution
of all or substantially all of the assets of the Corporation to its
stockholders; or
(iv) Amend, alter, supplement, repeal or adopt any provision
inconsistent with Article FOURTH, Article FIFTH, this ARTICLE SIXTH or Article
TENTH.
2. On all other matters, the affirmative vote of a majority of the shares
of Common Stock voting therein will be required unless a greater vote is
required by law.
3. Voting by the stockholders for the election of directors or on any
other matter need not be by written ballot.
SEVENTH: All actions required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation must be taken at a
duly called annual or special meeting of stockholders, and cannot be taken by a
consent in writing without a meeting.
EIGHTH: Special meetings of the stockholders of the Corporation for any
purpose or purposes may be called at any time by any two or more directors. Such
special meetings may not be called by any other person or persons or in any
other manner. Only such business will be conducted at any such special meeting
as is brought before the meeting in accordance with the notice of the meeting.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, alter or repeal
the Bylaws of the Corporation as therein provided.
TENTH: The Corporation hereby expressly elects not to be governed by
Section 203 of the General Corporation Law of the State of Delaware.
ELEVENTH: No director shall be personally liable to the Corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of such 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) pursuant to Section 174 of the General Corporation Law of the State
of Delaware or (iv) for any transaction from which such director derived an
improper personal benefit. No repeal of or amendment to this Article ELEVENTH
shall apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of such
director occurring prior to such repeal or amendment. If the General Corporation
Law of the State of Delaware is amended to authorize corporate action further
eliminating the personal liability of directors, then the liability of a
director of the Corporation shall be eliminated or limited to the fullest extent
permitted by the General Corporation Law of the State of Delaware, as amended.
TWELFTH: The Corporation reserves the right to amend or repeal any
provision contained in this Amended and Restated Certificate of Incorporation in
the manner from time to time prescribed herein and by the laws of the State of
Delaware. All rights herein conferred are granted subject to this reservation.