BY-LAWS
OF
COSTAIN COAL INC.
ARTICLE I
OFFICES
Section 1. The registered office of the Corporation shall be in the City
of Dover, County of Kent, State of Delaware. The Corporation may also have
offices at such other places both within and without the State of Delaware as
the Board of Directors may from time to time determine or the business of the
Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Time and Place of Meetings. All meetings of the stockholders
for the election of directors or for any other purpose shall be held at such
time and place, within or without the State of Delaware, as shall be
designated by the Board of Directors. In the absence of any such designation by
the Board of Directors, each such meeting shall be held at the principal office
of the Corporation.
Section 2. Annual Meetings. An annual meeting of stockholders shall be
held for the purpose of electing Directors and transacting such other business
as may properly be brought before the meeting. The date of the annual meeting
shall be determined by the Board of Directors.
Section 3. Special Meetings. Special meetings of the stockholders, for any
purpose or purposes, unless otherwise prescribed by law, may be called by the
President and shall be called by the Secretary at the direction of a majority of
the Board of Directors, or at the request in writing of stockholders owning a
majority in amount of the entire capital stock of the Corporation issued and
outstanding and entitled to vote.
Section 4. Notice of Meetings. Written notice of each meeting of the
stockholders stating the place, date and time of the meeting shall be given not
less than ten nor more than sixty days before the date of the meeting, to each
stockholder entitled to vote at such meeting. The notice of any special meeting
of
stockholders shall state the purpose or purposes for which the meeting is
called.
Section 5. Quorum. The holders of a majority of the stock issued and
outstanding and entitled to vote thereat, present in person or represented by
proxy, shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by law. If a quorum is not
present or represented, the holders of the stock present in person or
represented by proxy at the meeting and entitled to vote thereat shall have
power, by the affirmative vote of the holders of a majority of such stock, to
adjourn the meeting to another time and/or place, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting, at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the original
meeting. If the adjournment is for more than thirty days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
Section 6. Voting. At all meetings of the stockholders, each stockholder
shall be entitled to vote, in person or by proxy, the shares of voting stock
owned by such stockholder of record on the record date for the meeting. When a
quorum is present or represented at any meeting, the vote of the holders of a
majority of the stock having voting power present in person or represented by
proxy shall decide any question brought before such meeting, unless the question
is one upon which, by express provision of law or of the certificate of
incorporation, a different vote is required, in which case such express
provision shall govern and control the decision of such question.
Section 7. Informal Action by Stockholders. Any action required to be
taken at a meeting of the stockholders, or any other action which may be
taken at a meeting of the stockholders, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
of the stockholders entitled to vote with respect to the subject matter
thereof.
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ARTICLE III
DIRECTORS
Section 1. General Powers. The business and affairs of the Corporation
shall be managed and controlled by or under the direction of a Board of
Directors, which may exercise all such powers of the Corporation and do all such
lawful acts and things as are not by law or by the Certificate of Incorporation
or by these By-Laws directed or required to be exercised or done by the
stockholders.
Section 2. Number, Qualification and Tenure. The Board of Directors shall
consist of not less than one (1) member and not more than ten (10) members.
Within the limits above specified, the number of Directors shall be determined
from time to time by resolution of the Board of Directors. The Directors shall
be elected at the annual meeting of the stockholders, except as provided in
Section 3 of this Article, and each Director elected shall hold office until
his successor is elected and qualified or until his earlier resignation
or removal. Directors need not be stockholders.
Section 3. Vacancies. Vacancies and newly created directorships resulting
from any increase in the number of directors may be filled by a majority of the
Directors then in office though less than a quorum, and each Director so chosen
shall hold office until his or her successor is elected and qualified or until
his earlier resignation or removal. If there are no Directors in office, then an
election of Directors may be held in the manner provided by law.
Section 4. Place of Meetings. The Board of Directors may hold meetings,
both regular and special, either within or without the State of Delaware.
Section 5. Regular Meetings. The Board of Directors shall hold a regular
meeting, to be known as the annual meeting, immediately following each annual
meeting of the stockholders. Other regular meetings of the Board of Directors
shall be held at such time and at such place as shall from time to time be
determined by the Board. No notice of regular meetings need be given.
Section 6. Special Meetings. Special meetings of the Board may be called
by the President. Special meetings shall be called by the Secretary on the
written request of any Director. No notice of special meetings need be given.
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Section 7. Quorum. At all meetings of the Board a majority of the total
number of Directors shall constitute a quorum for the transaction of business
and 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, except as may be
otherwise specifically provided by law. If a quorum shall not be present at any
meeting of the Board of Directors, the Directors present thereat may adjourn the
meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
Section 8. Organization. The Chairman of the Board, if elected, shall act
as chairman at all meetings of the Board of Directors. If a Chairman of the
Board is not elected or, if elected, is not present, the President or, in the
absence of the President, a Vice Chairman (who is also a member of the Board
and, if more than one, in the order designated by the Board of Directors or, in
the absence of such designation, in the order of their election), if any, or if
no such Vice Chairman is present, a Director chosen by a majority of the
Directors present, shall act as chairman at meetings of the Board of Directors.
Section 9. Executive Committee. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more Directors to
constitute an Executive Committee, to serve as such, unless the resolution
designating the Executive Committee is sooner amended or rescinded by the Board
of Directors, until the next annual meeting of the Board or until their
respective successors are designated. The Board of Directors, by resolution
adopted by a majority of the whole Board, may also designate additional
Directors as alternate members of the Executive Committee to serve as members of
the Executive Committee in the place and stead of any regular member or members
thereof who may be unable to attend a meeting or otherwise unavailable to act as
a member of the Executive Committee. In the absence or disqualification of a
member and all alternate members who may serve in the place and stead of such
member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not such member or members constitute a
quorum, may unanimously appoint another Director to act at the meeting in the
place of any such absent or disqualified member.
Except as expressly limited by the General Corporation Law of the State of
Delaware or the Certificate of Incorporation, the Executive Committee shall have
and may exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation between the meetings
of the Board of Directors. The Executive Committee shall keep a record of its
acts and proceedings, which shall form a part of the records of the Corporation
in the custody of the Secretary,
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and all actions of the Executive Committee shall be reported to the Board of
Directors at the next meeting of the Board.
Meetings of the Executive Committee may be called at any time by the
Chairman of the Board, the President or any two of its members. No notice of
meetings need be given. A majority of the members of the Executive Committee
shall constitute a quorum for the transaction of business and, except as
expressly limited by this Section, the act of a majority of the members present
at any meeting at which there is a quorum shall be the act of the Executive
Committee. Except as expressly provided in this Section, the Executive Committee
shall fix its own rules of procedure.
Section 10. Other Committees. The Board of Directors, by resolution
adopted by a majority of the whole Board, may designate one or more other
committees, each such committee to consist of one or more Directors. Except
as expressly limited by the General Corporation Law of the State of Delaware
or the Certificate of Incorporation, any such committee shall have and may
exercise such powers as the Board of Directors may determine and specify in
the resolution designating such committee. The Board of Directors, by
resolution adopted by a majority of the whole Board, also may designate one
or more additional Directors as alternate members of any such committee to
replace any absent or disqualified member at any meeting of the committee,
and at any time may change the membership of any committee or amend or
rescind the resolution designating the committee. In the absence or
disqualification of a member or alternate member of a committee, the member
or members thereof present at any meeting and not disqualified from voting,
whether or not such member or members constitute a quorum, may unanimously
appoint another Director to act at the meeting in the place of any such
absent or disqualified member, provided that the Director so appointed meets
any qualifications stated in the resolution designating the committee. Each
committee shall keep a record of proceedings and report the same to the Board
of Directors to such extent and in such form as the Board of Directors may
require. Unless otherwise provided in the resolution designating a committee,
a majority of all members of any such committee may select its Chairman, fix
its rules or procedure, fix the time and place of its meetings and specify
what notice of meetings, if any, shall be given.
Section 11. Action without Meeting. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all members of the Board or committee, as the
case may be, consent thereto in writing, and the writing or writings are filed
with the minutes of proceedings of the Board or committee.
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Section 12. Attendance by Telephone. Members of the Board of Directors, or
of any committee designated by the Board of Directors, may participate in a
meeting of the Board of Directors, or any committee, by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other, and such participation in a
meeting shall constitute presence in person at a meeting.
Section 13. Compensation. The Board of Directors shall have the
authority to fix the compensation of Directors, which may include their
expenses, if any, of attendance at each meeting of the Board of Directors or
of a committee.
ARTICLE IV
OFFICERS
Section 1. Enumeration. The officers of the Corporation shall be chosen
by the Board of Directors and shall be a President and a Secretary. The Board
of Directors may also elect a Chairman of the Board, one or more Vice
Chairmen, one or more Vice Presidents, a Treasurer, one or more Assistant
Secretaries and Assistant Treasurers and such other officers and agents as it
shall deem appropriate. Any number of offices may be held by the same person.
Section 2. Term of Office. The officers of the Corporation shall be
elected at the annual meeting of the Board of Directors and shall hold office
until their successors are elected and qualified. Any officer elected or
appointed by the Board of Directors may be removed at any time by the Board of
Directors. Any vacancy occurring in any office of the Corporation required by
this Article shall be filled by the Board of Directors, and any vacancy in any
other office may be filled by the Board of Directors.
Section 3. Chairman of the Board. The Chairman of the Board, when
elected, shall be Chief Executive Officer of the Corporation and, as such,
shall have general supervision, direction and control of the business and
affairs of the Corporation, subject to the control of the Board of Directors,
shall preside at meetings of stockholders and shall have such other functions,
authority and duties as customarily appertain to the office of the chief
executive of a business corporation or as may be prescribed by the Board of
Directors.
Section 4. President. During any period when there shall be an office of
Chairman of the Board, the President shall be the
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Chief Operating Officer of the Corporation and shall have such functions,
authority and duties as may be prescribed by the Board of Directors or the
Chairman of the Board. During any period when there shall not be an office of
Chairman of the Board, the President shall be the Chief Executive Officer of the
Corporation and, as such, shall have the functions, authority and duties
provided for the Chairman of the Board when there is an office of Chairman of
the Board.
Section 5. Vice President. The Vice President shall perform such duties
and have such other powers as may from time to time be prescribed by the Board
of Directors, the Chairman of the Board or the President.
Section 6. Secretary. The Secretary shall keep a record of all proceedings
of the stockholders of the Corporation and of the Board of Directors, and shall
perform like duties for the standing committees when required. The Secretary
shall give, or cause to be given, notice, if any, of all meetings of the
stockholders and shall perform such other duties as may be prescribed by the
Board of Directors, the Chairman of the Board or the President. The Secretary
shall have custody of the corporate seal of the Corporation and the Secretary,
or in the absence of the Secretary any Assistant Secretary, shall have authority
to affix the same to any instrument requiring it, and when so affixed it may be
attested by the signature of the Secretary or an Assistant Secretary. The Board
of Directors may give general authority to any other officer to affix the seal
of the Corporation and to attest such affixing of the seal.
Section 7. Assistant Secretary. The Assistant Secretary, or if there be
more than one, the Assistant Secretaries in the order determined by the Board
of Directors (or if there be no such determination, then in the order of
their election), shall, in the absence of the Secretary or in the event of
the Secretary's inability or refusal to act, perform the duties and exercise
the powers of the Secretary and shall perform such other duties as may
from time to time be prescribed by the Board of Directors, the Chairman of
the Board, the President or the Secretary.
Section 8. Treasurer. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the Chairman of the Board, the President and
the Board of Directors, at its regular meetings or when the Board of Directors
so requires, an account of all transactions as Treasurer and of the financial
condition of the Corporation. The Treasurer shall
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perform such other duties as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the President or the Chief Financial
Officer.
Section 9. Assistant Treasurer. The Assistant Treasurer, or if there
shall be more than one, the Assistant Treasurers in the order determined by
the Board of Directors (or if there be no such determination, then in the
order of their election), shall, in the absence of the Treasurer or in the
event of the Treasurer's inability or refusal to act, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties and
have such other powers as may from time to time be prescribed by the Board of
Directors, the Chairman of the Board, the President or the Treasurer.
Section 10. Other Officers. Any officer who is elected or appointed from
time to time by the Board of Directors and whose duties are not specified in
these By-Laws shall perform such duties and have such powers as may be
prescribed from time to time by the Board of Directors, the Chairman of the
Board or the President.
ARTICLE V
CERTIFICATES OF STOCK
Section 1. Form. The shares of the Corporation shall be represented by
certificates; provided, however, that the Board of Directors may provide by
resolution or resolutions that some or all of any or all classes or series of
the Corporation's stock shall be uncertificated shares. Certificates of stock in
the Corporation, if any, shall be signed by or in the name of the Corporation by
the Chairman of the Board or the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Corporation. Where a certificate is countersigned by a transfer agent,
other than the Corporation or an employee of the Corporation, or by a registrar,
the signatures of the Chairman of the Board, the President or a Vice President
and the Treasurer or an Assistant Treasurer or the Secretary or an Assistant
Secretary may be facsimiles. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, the certificate may be issued by the Corporation with the
same effect as if such officer, transfer agent or registrar were such officer,
transfer agent or registrar at the date of its issue.
Section 2. Transfer. Upon surrender to the Corporation or the transfer
agent of the Corporation of a certificate for shares duly endorsed or
accompanied by proper evidence of succession, assignment or authority to
transfer, it shall be the duty of the Corporation to issue a new certificate of
stock or uncertificated
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shares in place of any certificate therefore issued by the Corporation to the
person entitled thereto, cancel the old certificate and record the transaction
on its books.
Section 3. Replacement. In case of the loss, destruction or theft of a
certificate for any stock of the Corporation, a new certificate of stock or
uncertificated shares in place of any certificate therefore issued by the
Corporation may be issued upon satisfactory proof of such loss, destruction or
theft and upon such terms as the Board of Directors may prescribe. The Board of
Directors may in its discretion require the owner of the lost, destroyed or
stolen certificate, or his legal representative, to give the Corporation a bond,
in such sum and in sum form and with such surety or sureties as it may direct,
to indemnify the Corporation against any claim that may be made against it with
respect to a certificate alleged to have been lost, destroyed or stolen.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 1. The Corporation shall indemnify 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 (other than an action by or in the right of the Corporation) 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, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 2. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor 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 against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit if he acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the Corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have
been adjudged to be liable for negligence or misconduct in the performance of
his duty to the Corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
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Section 3. To the extent that a director, officer, employee or agent of
the Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article, or
in defense of any claim, issue or matter therein, he shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him in connection therewith.
Section 4. Any indemnification under Sections 1 and 2 of this Article
(unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 1 and 2 of this Article.
Such determination shall be made (1) by the Board of Directors by a majority
vote of a quorum consisting of directors who were not parties to such action,
suit or proceeding, or (2) if such a quorum is not obtainable, or, even if
obtainable and a quorum of disinterested directors so directs, by independent
legal counsel in a written opinion, or (3) by the stockholders.
Section 5. Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding as authorized by the Board of Directors in
the manner provided in Section 4 of this Article upon receipt of an undertaking
by or on behalf of the director, officer, employee or agent to repay such amount
unless it shall ultimately be determined that he is entitled to be indemnified
by the Corporation under this Article.
Section 6. The Corporation shall indemnify 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 (i) arising under the Employee Retirement Income Security Act of
1974 or regulations promulgated thereunder, or under any other law or regulation
of the United States or any agency or instrumentality thereof or law or
regulation of any state or political subdivision or any agency or
instrumentality of either, or under the common law of any of the foregoing,
against expenses (including attorneys' fees), judgments, fines, penalties, taxes
and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding by reason of the fact that he is
or was a fiduciary, disqualified person or party in interest with respect to an
employee benefit plan covering employees of the Corporation or of a subsidiary
corporation, or is or was serving in any other capacity with respect to such
plan, or has or had any obligations or duties with respect to such plan by
reason of such laws or regulations, provided that any person was or is a
director, officer, employee or agent of the Corporation, or (ii) in connection
with any matter arising under federal, state or local revenue or taxation laws
or regulations, against expenses
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(including attorneys' fees), judgments, fines, penalties, taxes, amounts paid in
settlement and amounts paid as penalties or fines necessary to contest the
imposition of such penalties or fines, actually and reasonably incurred by him
in connection with such action, suit or proceeding 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 and had responsibility for or participated in activities relating to
compliance with such revenue or taxation laws and regulations; provided,
however, that such person did not act dishonestly or in willful or reckless
violation of the provisions of the law or regulation under which such suit or
proceeding arises. Unless the Board of Directors determines that under the
circumstances then existing, it is probable that such director, officer,
employee or agent will not be entitled to be indemnified by the Corporation
under this section, expenses incurred in defending such suit or proceeding,
including the amount of any penalties or fines necessary to be paid to contest
the imposition of such penalties or fines, shall be paid by the Corporation in
advance of the final disposition of such suit or proceeding upon receipt of an
undertaking by or on behalf of the director, officer, employer or agent to repay
such amount if it shall ultimately be determined that he is not entitled to be
indemnified by the Corporation under this Section.
Section 7. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
Section 8. The Corporation may purchase and maintain insurance on behalf
of any person who 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 against any liability asserted against him
and incurred by him in any such capacity, or arising out of his status as such,
whether or not he would be entitled to indemnity against such liability under
the provisions of this Article.
ARTICLE VII
GENERAL PROVISIONS
Section 1. Fiscal Year. The fiscal year of the Corporation shall be the
calendar year.
Section 2. Corporate Seal. The corporate seal shall be in such form as
may be approved from time to time by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in any
other manner reproduced.
Section 3. Waiver of Notice. Whenever any notice is required to be given
under law or the provisions of the Certificate of Incorporation or these
By-Laws, a waiver thereof in writing, signed by the person or persons entitled
to said notice, whether before or after the time stated therein, shall be deemed
equivalent to notice.
ARTICLE VIII
AMENDMENTS
These By-Laws may be altered, amended or repealed or new By-Laws may be
adopted by the Board of Directors. The fact that the power to amend, alter,
repeal or adopt the By-Laws has been conferred upon the Board of Directors
shall not divest the stockholders of the same powers.
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