EXHIBIT 3.2
AMENDED AND RESTATED
BY-LAWS
OF
PEABODY ENERGY CORPORATION
ARTICLE I
MEETING OF STOCKHOLDERS
Section 1.1. Place of Meeting. Meetings of the stockholders of the
Corporation shall be held at such place either within or without the State of
Delaware as the Board of Directors may determine.
Section 1.2. Annual Meetings. (A) Annual meetings of stockholders shall be
held, at a date, time and place fixed by the Board of Directors and stated in
the notice of meeting, to elect a Board of Directors and to transact such other
business as may properly come before the meeting.
(B) Nominations of persons for election to the Board of Directors of the
Corporation and the proposal of business to be considered by the stockholders
may be made at an annual meeting of stockholders (1) pursuant to the
Corporation's notice of meeting delivered pursuant to Article 1, Section 4 of
these By-Laws, (2) by or at the direction of the Chairman of the Board or (3) by
any stockholder of the Corporation who is entitled to vote at the meeting, who
complied with the notice procedures set forth in subparagraphs (B) and (C) of
this Section 2 and who was a stockholder of record at the time such notice is
delivered to the Secretary of the Corporation.
(C) For nominations or other business to be properly brought before an
annual meeting by a stockholder pursuant to clause (3) of paragraph (B) of these
By-Laws, the stockholder must have given timely notice thereof in writing to the
Secretary of the Corporation, and, in the case of business other than
nominations, such other business must be a proper matter for stockholder action.
To be timely, a stockholder's notice shall be delivered to the Secretary at the
principal executive offices of the Corporation not less than ninety (90) days
nor more than one hundred and twenty (120) days prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is advanced by more than twenty (20) days,
or delayed by more than seventy (70) days, from such anniversary date, notice by
the stockholder to be timely must be so delivered not earlier than one hundred
and twenty (120) days prior to such annual meeting and not later than the close
of business on the later of the ninetieth (90th) day prior to such annual
meeting or the tenth (10th) day following the day on which public announcement
of the date of such meeting is first made. Such stockholder's notice shall set
forth (1) as to each person whom the stockholder proposes to nominate for
election or re-election as a director all information relating to such person
that is required to be disclosed in solicitations of proxies for election of
directors, or is otherwise required, in each case pursuant to Regulation 14A
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including such person's written consent to being named in the proxy statement as
a nominee and to serving as a director if elected; (2) as to any other business
that the
stockholder proposes to bring before the meeting, a brief description of the
business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is
made; and (3) as to the stockholder giving the notice and the beneficial owner,
if any, on whose behalf the nomination or proposal is made (a) the name and
address of such stockholder, as they appear on the Corporation's books, and of
such beneficial owner and (b) the class and number of shares of the Corporation
which are owned beneficially and of record by such stockholder and such
beneficial owner.
(D) Notwithstanding anything in the second sentence of paragraph (C) of
these By-Laws to the contrary, in the event that the number of directors to be
elected to the Board of Directors of the Corporation is increased and there is
no public announcement naming all of the nominees for director or specifying the
size of the increased Board of Directors made by the Corporation at least eighty
days prior to the first anniversary of the preceding year's annual meeting, a
stockholder's notice required by this By-Law shall also be considered timely,
but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the tenth
(10th) day following the day on which such public announcement is first made by
the Corporation.
Section 1.3. Special Meetings. (A) Except as otherwise required by law,
special meetings of the stockholders may be called pursuant to the provisions of
the Third Amended and Restated Certificate of Incorporation of the Corporation,
filed with the Delaware Secretary of State on May 21, 2001 (the "Charter").
(B) Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant to the
Corporation's notice of meeting pursuant to Article I, Section 4 of these By-
Laws. Nominations of persons for election to the Board of Directors may be made
at a special meeting of stockholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (1) by or at the direction of
the Board of Directors or (2) by any stockholder of the Corporation who is
entitled to vote at the meeting, who complies with the notice procedures set
forth in these By-Laws and who is a stockholder of record at the time such
notice is delivered to the Secretary of the Corporation. Nominations by
stockholders of persons for election to the Board of Directors may be made at
such a special meeting of stockholders if the stockholder's notice as required
by paragraph (C) of Section 2 shall be delivered to the Secretary at the
principal executive offices of the Corporation not earlier than the ninetieth
day prior to such special meeting and not later than the close of business on
the later of the seventieth day prior to such special meeting or the tenth day
following the day on which public announcement is first made of the date of the
special meeting and of the nominees proposed by the Board of Directors to be
elected at such meeting.
Section 1.4. Notice. Except as otherwise provided by law, at least ten (10)
and not more than sixty (60) days before each meeting of stockholders, written
notice of the time, date and place of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be given
to each stockholder.
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Section 1.5. Quorum. At any meeting of stockholders, the holders of record,
present in person or by proxy, of a majority of the Corporation's issued and
outstanding capital stock shall constitute a quorum for the transaction of
business, except as otherwise provided by law. In the absence of a quorum, any
officer entitled to preside at or to act as secretary of the meeting shall have
power to adjourn the meeting from time to time until a quorum is present.
Section 1.6. Voting. Except as otherwise provided by law or by the Charter,
all matters submitted to a meeting of stockholders shall be decided by vote of
the holders of record of a majority of the Corporation's issued and outstanding
capital stock present in person or by proxy.
Section 1.7. General. (A) Only persons who are nominated in accordance with
the procedures set forth in these By-Laws shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in these By-Laws. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the Chairman of the meeting shall have the
power and duty to determine whether a nomination or any business proposed to be
brought before the meeting was made in accordance with the procedures set forth
in this By-Law and, if any proposed nomination or business is not in compliance
with these By-Laws, to declare that such defective nomination shall be
disregarded or that such proposed business shall not be transacted.
(B) For purposes of these By-Laws, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or disclosure in a document publicly
filed by the Corporation with the Securities and Exchange Commission pursuant to
Section 13, 14 or 15(d) of the Exchange Act.
(C) For purposes of this By-Law, no adjournment nor notice of adjournment
of any meeting shall be deemed to constitute a new notice of such meeting for
purposes of this Article, and in order for any notification required to be
delivered by a stockholder pursuant to this Article to be timely, such
notification must be delivered within the periods set forth above with respect
to the originally scheduled meeting. Subject to applicable law, the Board of
Directors may elect to postpone any previously scheduled meeting of
stockholders.
(D) Notwithstanding the foregoing provisions of this Article, a stockholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in these
By-Laws. Nothing in these By-Laws shall be deemed to affect any rights of
stockholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act.
ARTICLE II
DIRECTORS
Section 2.1. Number, Election and Removal of Directors. The number of
Directors that shall constitute the Board of Directors shall be not less than
three nor more than
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15. Within the limits specified in the Charter, the number of Directors shall be
determined by the Board of Directors or by the stockholders. The Directors shall
be elected by the stockholders at their annual meeting in the manner set forth
in the Charter. Vacancies and newly created directorships resulting from any
increase in the number of Directors may be filled pursuant to the terms of the
Charter. Directors may be removed only for cause, and only by the affirmative
vote of at least 75 percent in voting power of all shares of the Corporation
entitled to vote generally in the election of directors, voting as a single
class.
Section 2.2. Meetings. Regular meetings of the Board of Directors shall be
held at such times and places as may from time to time be fixed by the Board of
Directors or as may be specified in a notice of meeting. Special meetings of the
Board of Directors may be held at any time upon the call of the Chairman or
President and shall be called by the President or Secretary if directed by a
majority of the Directors. Telegraphic or written notice of each special meeting
of the Board of Directors shall be sent to each Director not less than two days
before such meeting. A meeting of the Board of Directors may be held without
notice immediately after the annual meeting of the stockholders. Notice need not
be given of regular meetings of the Board of Directors.
Section 2.3. Quorum. One-third of the entire Board of Directors shall
constitute a quorum for the transaction of business. If a quorum is not present
at any meeting of the Board of Directors, the Directors present may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until such a quorum is present. Except as otherwise provided by law,
the Certificate of Incorporation of the Corporation, these By-Laws or any
contract or agreement to which the Corporation is a party, the act of a majority
of the Directors present at any meeting at which there is a quorum shall be the
act of the Board of Directors.
Section 2.4. Committees of Directors. The Board of Directors may, by
resolution adopted by a majority of the entire Board, designate one or more
committees, including without limitation an Executive Committee, to have and
exercise such power and authority as the Board of Directors shall specify. In
the absence or disqualification of a member of a committee, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another Director
to act at the meeting in place of any such absent or disqualified member.
ARTICLE III
OFFICERS
Section 3.1. General. The officers of the Corporation shall consist of a
Chairman of the Board of Directors, a Chief Executive Officer, a President, one
or more Vice Presidents, a Secretary, a Treasurer and such other additional
officers with such titles (including, without limitation, a Chief Operating
Officer and a Chief Financial Officer) as the Board of Directors shall from time
to time determine, all of whom shall be elected by and shall serve at the
pleasure of the Board of Directors. Subject to applicable law, an officer may
hold more than one office, if so elected by the Board of Directors. Such
officers shall have the usual powers and shall perform all the usual duties
incident to their respective offices. Such officers shall also
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have such powers and duties as from time to time may be conferred by the Board
of Directors. All officers shall be subject to the supervision and direction of
the Board of Directors. The Chairman of the Board shall be chosen from among the
directors. The Board of Directors may from time to time elect, or the Chief
Executive Officer or President may appoint, such other officers (including one
or more Assistant Vice Presidents, Assistant Secretaries, Assistant Treasurers,
and Assistant Controllers) and such agents, as may be necessary or desirable for
the conduct of the business of the Corporation. Such other officers and agents
shall have such duties and shall hold their offices for such terms as may be
prescribed by the Board of Directors or by the Chief Executive Officer or
President, as the case may be. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board, need such officers be directors of the Corporation.
Section 3.2. Election and Term of Office. The officers of the Corporation
shall be elected annually by the Board of Directors at the regular meeting of
the Board of Directors held after the annual meeting of stockholders. If the
election of officers shall not be held at such meeting, such election shall be
held as soon thereafter as convenient. Each officer shall hold office until his
successor shall have been duly elected and shall have qualified or until his
death or until he shall resign, but any officer may be removed from office at
any time as provided in Section 3.3.
Section 3.3. Removal. Any officer elected, or agent appointed, by the Board
of Directors may be removed by the affirmative vote of a majority of the entire
Board of Directors whenever, in their judgment, the best interests of the
Corporation would be served thereby. Any officer or agent appointed by the Chief
Executive Officer or the President may be removed by the Chief Executive Officer
or the President, as the case may be, whenever, in such officer's judgment, the
best interests of the Corporation would be served thereby. Such removal shall be
without prejudice to the contractual rights, if any, of the person so removed;
provided that no elected officer shall have any contractual rights against the
Corporation for compensation beyond the date of the election of his successor,
his death, his resignation or his removal, whichever event shall first occur,
except as otherwise provided in an employment contract or under an employee
deferred compensation plan.
Section 3.4. Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation, or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Chief Executive
Officer or the President because of death, resignation, or removal may be filled
by the Chief Executive Officer or the President.
ARTICLE IV
INDEMNIFICATION
To the fullest extent permitted by the Delaware General Corporation Law,
the Corporation shall indemnify any current or former Director or officer of the
Corporation and may, at the discretion of the Board of Directors, indemnify any
current or former employee or agent of the Corporation against all expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with any threatened, pending or
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completed action, suit or proceeding brought by or in the right of the
Corporation or otherwise, to which he was or is a party or is threatened to be
made a party by reason of his current or former position with the Corporation or
by reason of the fact that he is or was serving, at the request of the
Corporation, as a director, officer, partner, trustee, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise.
ARTICLE V
GENERAL PROVISIONS
Section 5.1. Notices. Whenever any statute, the Certificate of
Incorporation or these By-Laws require notice to be given to any Director or
stockholder, such notice may be given in writing by mail, addressed to such
Director or stockholder at his address as it appears on the records of the
Corporation, with postage thereon prepaid. Such notice shall be deemed to have
been given when it is deposited in the United States mail. Notice to Directors
may also be given by telegram.
Section 5.2. Fiscal Year. The fiscal year of the Corporation shall be fixed
by the Board of Directors.
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