EXHIBIT 3.1
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PEABODY ENERGY CORPORATION
PEABODY ENERGY CORPORATION (the "Corporation"), a corporation
organized and existing under the laws of the State of Delaware, DOES HEREBY
CERTIFY:
1. The name of the corporation is Peabody Energy Corporation. The
date of the filing of its original Certificate of Incorporation with the
Secretary of State of the State of Delaware was February 27, 1998 under the name
of P&L Coal Holdings Corporation; the date of the filing of its Amended and
Restated Certificate of Incorporation with he Secretary of State of the State of
Delaware was May 15, 1998 under the name of P&L Coal Holdings Corporation; the
date of the filing of its Second Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of Delaware was November
12, 1998; and the date of the filing of a Certificate of Amendment to its Second
Amended and Restated Certificate of Incorporation, changing the Corporation's
name to Peabody Energy Corporation, with the Secretary of State of the State of
Delaware was April , 2001.
2. This Third Amended and Restated Certificate of Incorporation has
been duly adopted in accordance with Sections 103, 242 and 245 of the General
Corporation Law of the State of Delaware. The Corporation has received payment
for its stock.
3. The Board of Directors of the Corporation, pursuant to a
unanimous written action in lieu of a meeting pursuant to Section 141(f) of the
General Corporation Law of the State of Delaware, adopted resolutions proposing
and declaring advisable that the Corporation amend and restate its Amended and
Restated Certificate of Incorporation to read in its entirety as follows:
First: The name of the corporation is Peabody Energy Corporation.
Second: The registered office and registered agent of the
Corporation in the State of Delaware is The Corporation Trust Company, 1209
Orange Street, Wilmington, New Castle County, Delaware 19801.
Third: The purposes of the Corporation are to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
Fourth: (1) The total number of shares of all classes of stock that
the Corporation shall have the authority to issue is 200,000,000, consisting of
150,000,000 shares of Common Stock, par value $0.01 per share (the "Common
Stock"), 10,000,000 shares of Preferred Stock, par value $0.01 per share (the
"Preferred Stock") and 40,000,000 shares of Series Common Stock, par value $0.01
per share ("Series Common Stock"). The number of authorized shares of any of the
Preferred Stock, the Common Stock or the Series Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority in voting power of the stock of
the Corporation entitled to vote thereon irrespective of the provisions of
Section 242(b)(2) of the General
Corporation Law of the State of Delaware (or any successor provision thereto),
and no vote of the holders of any of the Preferred Stock, the Common Stock or
the Series Common Stock voting separately as a class shall be required therefor.
(2) The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of Preferred
Stock, for series of Preferred Stock and, with respect to each such series, to
fix the number of shares constituting such series and the designation of such
series, the voting powers (if any) of the shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series. The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
(3) The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of Series
Common Stock, for series of Series Common Stock and, with respect to each such
series, to fix the number of shares constituting such series and the designation
of such series, the voting powers (if any) of the shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series. The powers, preferences and relative, participating, optional
and other special rights of each series of Series Common Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
(4) (a) Each holder of Common Stock, as such, shall be entitled to
one vote for each share of Common Stock held of record by such holder on all
matters on which stockholders generally are entitled to vote; provided, however,
that, except as otherwise required by law, holders of Common Stock, as such,
shall not be entitled to vote on any amendment to this Restated Certificate of
Incorporation (including any certificate of designations relating to any series
of Preferred Stock or Series Common Stock) that relates solely to the terms of
one or more outstanding series of Preferred Stock or Series Common Stock if the
holders of such affected series are entitled, either separately or together with
the holders of one or more other such series, to vote thereon pursuant to this
Certificate of Incorporation (including any certificate of designations relating
to any series of Preferred Stock or Series Common Stock) or pursuant to the
General Corporation Law of the State of Delaware.
(b) Except as otherwise required by law, holders of any series of
Preferred Stock or Series Common Stock, as such, shall be entitled only to such
voting rights, if any, as shall expressly be granted thereto by this Certificate
of Incorporation (including any certificate of designations relating to such
series).
(c) Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over or the right to participate with the
Common Stock with respect to the payment of dividends, dividends may be declared
and paid on the Common Stock at such times and in such amounts as the Board of
Directors in its discretion shall determine.
(d) Upon the dissolution, liquidation or winding up of the
Corporation, subject to the rights, if any, of the holders of any outstanding
series of Preferred Stock or Series Common Stock or any class or series of stock
having a preference over or the right to participate
with the Common Stock with respect to the distribution of assets of the
Corporation upon such dissolution, liquidation or winding up of the Corporation,
the holders of the Common Stock, as such, shall be entitled to receive the
assets of the Corporation available for distribution to its stockholders ratably
in proportion to the number of shares held by them.
Fifth: The Board of Directors shall be authorized to make, amend,
alter, change, add to or repeal the By-Laws of the Corporation in any manner not
inconsistent with the laws of the State of Delaware, subject to the power of the
stockholders to amend, alter, change, add to or repeal the By-Laws made by the
Board of Directors. Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
75 percent in voting power of all the shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single class, shall
be required in order for the stockholders to alter, amend or repeal any
provision of the By-Laws which is to the same effect as Article Fifth, Article
Seventh, and Article Eighth of this Certificate of Incorporation or to adopt any
provision inconsistent therewith.
Sixth: To the fullest extent permitted by the laws of the State of
Delaware:
(1) The Corporation shall indemnify any person (and such person's
heirs, executors or administrators) who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding
(brought in the right of the Corporation or otherwise), whether civil, criminal,
administrative or investigative, and whether formal or informal, including
appeals, by reason of the fact that such person is or was a director or officer
of the Corporation or, while a director or officer of the Corporation, 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, limited liability company or other enterprise, for and against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person or such heirs,
executors or administrators in connection with such action, suit or proceeding,
including appeals. Notwithstanding the preceding sentence, the Corporation shall
be required to indemnify a person described in such sentence in connection with
any action, suit or proceeding (or part thereof) commenced by such person only
if the commencement of such action, suit or proceeding (or part thereof) by such
person was authorized by the Board of Directors of the Corporation. The
Corporation may indemnify any person (and such person's heirs, executors or
administrators) who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding (brought in the
right of the Corporation or otherwise), whether civil, criminal, administrative
or investigative, and whether formal or informal, including appeals, by reason
of the fact that such person is or was an employee or agent of the Corporation
or 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, limited liability company or other enterprise, for and against
all expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person or such heirs,
executors or administrators in connection with such action, suit or proceeding,
including appeals.
(2) The Corporation shall promptly pay expenses incurred by any
person described in the first sentence of Section (1) of this Article SIXTH in
defending any action, suit or proceeding in advance of the final disposition of
such action, suit or proceeding, including appeals, upon presentation of
appropriate documentation.
(3) The Corporation may purchase and maintain insurance on behalf of
any person described in Section (1) of this Article SIXTH against any liability
asserted against such person, whether or not the Corporation would have the
power to indemnify such person against such liability under the provisions of
this Article SIXTH or otherwise.
(4) The provisions of this Article SIXTH shall be applicable to all
actions, claims, suits or proceedings made or commenced after the adoption
hereof, whether arising from acts or omissions to act occurring before or after
its adoption. The provisions of this Article SIXTH shall be deemed to be a
contract between the Corporation and each director or officer who serves in such
capacity at any time while this Article SIXTH and the relevant provisions of the
laws of the State of Delaware and other applicable law, if any, are in effect,
and any repeal or modification hereof shall not affect any rights or obligations
then existing with respect to any state of facts or any action, suit or
proceeding then or theretofore existing, or any action, suit or proceeding
thereafter brought or threatened based in whole or in part on any such state of
facts. If any provision of this Article SIXTH shall be found to be invalid or
limited in application by reason of any law or regulation, it shall not affect
the validity of the remaining provisions hereof. The rights of indemnification
provided in this Article SIXTH shall neither be exclusive of, nor be deemed in
limitation of, any rights to which an officer, director, employee or agent may
otherwise be entitled or permitted by contract, this Third Amended and Restated
Certificate of Incorporation, vote of stockholders or directors or otherwise, or
as a matter of law, both as to actions in such person's official capacity and
actions in any other capacity while holding such office, it being the policy of
the Corporation that indemnification of any person whom the Corporation is
obligated to indemnify pursuant to the first sentence of Section (1) of this
Article SIXTH shall be made to the fullest extent permitted by law.
(5) For purposes of this Article SIXTH, references to "other
enterprises" shall include employee benefit plans; references to "fines" shall
include any excise taxes assessed on a person with respect to an employee
benefit plan; and references to "serving at the request of the Corporation"
shall include any service as a director, officer, employee or agent of the
Corporation which imposes duties on, or involves services by, such director,
officer, employee, or agent with respect to an employee benefit plan, its
participants, or beneficiaries.
(6) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent such exemption from liability or
limitation thereof is not permitted under the General Corporation Law of the
State of Delaware as the same exists or may hereafter be amended. Any amendment,
modification or repeal of the foregoing sentence shall not adversely affect any
right or protection of a director of the Corporation hereunder in respect of any
act or omission occurring prior to the time of such amendment, modification or
repeal.
Seventh: (1) The business and affairs of the Corporation shall be
managed by or under the direction of a Board of Directors consisting of not less
than three directors, the exact number of directors to be determined from time
to time by resolution adopted by affirmative vote of a majority of the Board of
Directors. The directors shall be divided into three classes designated Class I,
Class II and Class III. Each class shall consist, as nearly as possible, of
one-third of the total number of directors constituting the entire Board of
Directors. Class I directors shall be originally elected for a term expiring at
the succeeding annual meeting of stockholders, Class II directors shall be
originally elected for a term expiring at the second succeeding annual meeting
of stockholders, and Class III directors shall be originally elected for a term
expiring at the third
succeeding annual meeting of stockholders. At each succeeding annual meeting of
stockholders following 2001, successors to the class of directors whose term
expires at that annual meeting shall be elected for a term expiring at the third
succeeding annual meeting. 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 newly created directorship 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 shall a decrease in the
number of directors remove or shorten the term of any incumbent director. A
director shall hold office until the annual meeting for the year in which his
term expires and until his successor shall be elected and shall qualify,
subject, however, to prior death, resignation, retirement, disqualification or
removal from office. Any newly created directorship on the Board of Directors
that results from an increase in the number of directors and any vacancy
occurring in the Board of Directors shall be filled only by a majority of the
directors then in office, although less than a quorum, or by a sole remaining
director. If any applicable provision of the General Corporation Law of the
State of Delaware expressly confers power on stockholders to fill such a
directorship at a special meeting of stockholders, such a irectorship may be
filled at such meeting only by the affirmative vote of at least 75 percent of
the voting power of all shares of the Corporation entitled to vote generally in
the election of directors voting as a single class. 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 predecessor. 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.
(2) Notwithstanding the foregoing, whenever the holders of any one
or more series of Preferred Stock or Series Common Stock issued by the
Corporation shall have the right, voting separately as a series or separately as
a class with one or more such other series, to elect directors at an annual or
special meeting of stockholders, the election, term of office, removal, filling
of vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation (including any certificate of
designations relating to any series of Preferred Stock or Series Common Stock)
applicable thereto, and such directors so elected shall not be divided into
classes pursuant to this Article Seventh unless expressly provided by such
terms.
(3) Unless and except to the extent that the By-Laws of the
Corporation shall so require, the election of the directors of the Corporation
need not be by written ballot.
Eighth: Any action required or permitted to be taken by the holders
of the Common Stock of the Corporation must be effected at a duly called annual
or special meeting of such holders and may not be effected by any consent in
writing by such holders. Except as otherwise required by law and subject to the
rights of the holders of any series of Preferred Stock or Series Common Stock,
special meetings of stockholders of the Corporation may be called only by the
Chief Executive Officer of the Corporation or by the Board of Directors pursuant
to a resolution approved by the Board of Directors. Meetings of stockholders may
be held within or without the State of Delaware, as the By-Laws of the
Corporation may provide. The books of the Corporation may be kept outside the
State of Delaware at such place or places as may be designated by the Board of
Directors or in the By-Laws of the Corporation.
Ninth: Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at least
75 percent in voting power of all the shares of the Corporation
entitled to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend or repeal Article Fifth, Article
Seventh, Article Eighth or this Article Ninth or to adopt any provision
inconsistent therewith.
* * *
IN WITNESS WHEREOF, the undersigned has executed this Third Amended
and Restated Certificate of Incorporation this __th day of _______ 2001.
PEABODY ENERGY CORPORATION
By:
-------------------------------------
Name: Irl F. Engelhardt
Title: Chairman and Chief
Executive Officer
CERTIFICATE OF AMENDMENT
OF
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
PEABODY ENERGY CORPORATION
It is hereby certified that:
1. The name of the corporation (hereinafter called the "Corporation")
is Peabody Energy Corporation.
2. Section (1) of Article numbered "Fourth" of the Third Amended and
Restated Certificate of Incorporation of the Corporation, as
amended, is amended to read as follows:
Fourth: (1) The total number of shares of all classes of
stock that the Corporation shall have the authority to issue
is 850,000,000 shares, consisting of 800,000,000 shares of
Common Stock, par value $0.01 per share (the "Common Stock"),
10,000,000 shares of Preferred Stock, par value $0.01 per
share (the "Preferred Stock") and 40,000,000 shares of Series
Common Stock, par value $0.01 per share ("Series Common
Stock"). The number of authorized shares of any of the
Preferred Stock, the Common Stock or the Series Common Stock
may be increased or decreased (but not below the number of
shares thereof then outstanding) by the affirmative vote of
the holders of a majority in voting power of the stock of the
Corporation entitled to vote thereon irrespective of the
provisions of Section 242(b)(2) of the General Corporation Law
of the State of Delaware (or any successor provision thereto),
and no vote of the holders of any of the Preferred Stock, the
Common Stock or the Series Common Stock voting separately as a
class shall be required therefor.
3. The amendment of the Third Amended and Restated Certificate of
Incorporation, as amended, herein certified has been duly adopted in
accordance with the provisions of Section 242 of the General
Corporation Law of the State of Delaware.
Signed on May 10, 2006
/s/ JEFFERY L. KLINGER
-------------------------------
Name: Jeffery L. Klinger
Title: Vice President, General
Counsel & Secretary