Attached files
file | filename |
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8-K - FORM 8-K - International Coal Group, Inc. | c65177e8vk.htm |
EX-4.6 - EX-4.6 - International Coal Group, Inc. | c65177exv4w6.htm |
EX-4.3 - EX-4.3 - International Coal Group, Inc. | c65177exv4w3.htm |
EX-3.1 - EX-3.1 - International Coal Group, Inc. | c65177exv3w1.htm |
Exhibit 3.2
INTERNATIONAL COAL GROUP, INC.
FOURTH AMENDED AND RESTATED BYLAWS
ARTICLE I
Meetings of Stockholders
Section 1.1. Annual Meetings. If required by applicable law, an annual meeting of
stockholders shall be held for the election of directors at such date, time and place, if any,
either within or without the State of Delaware, as may be designated by resolution of the Board of
Directors from time to time. Any other proper business may be transacted at the annual meeting.
Section 1.2. Special Meetings. Special meetings of stockholders for any purpose or
purposes may be called at any time by the Board of Directors, but such special meetings may not be
called by any other person or persons. Business transacted at any special meeting of stockholders
shall be limited to the purposes stated in the notice.
Section 1.3. Notice of Meetings. Whenever stockholders are required or permitted to
take any action at a meeting, a notice of the meeting shall be given that shall state the place, if
any, date and hour of the meeting and, in the case of a special meeting, the purpose or purposes
for which the meeting is called. Unless otherwise provided by law, the certificate of
incorporation or these bylaws, the notice of any meeting shall be given not less than ten (10) nor
more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at
such meeting. If mailed, such notice shall be deemed to be given when deposited in the United
States mail, postage prepaid, directed to the stockholder at such stockholders address as it
appears on the records of the corporation.
Section 1.4. Adjournments. Any meeting of stockholders, annual or special, may
adjourn from time to time to reconvene at the same or some other place, and notice need not be
given of any such adjourned meeting if the time and place thereof are announced at the meeting at
which the adjournment is taken. At the adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting. If the adjournment is for more than
thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting,
notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at
the meeting.
Section 1.5. Quorum. Except as otherwise provided by law, the certificate of
incorporation or these bylaws, at each meeting of stockholders the presence in person or by proxy
of the holders of a majority in voting power of the outstanding shares of stock entitled to vote at
the meeting shall be necessary and sufficient to constitute a quorum. In the absence of a quorum,
the stockholders so present may, by a majority in voting power thereof, adjourn the meeting from
time to time in the manner provided in Section 1.4 of these bylaws until a quorum shall attend.
Shares of its own stock belonging to the corporation or to another corporation, if a
majority of the shares entitled to vote in the election of directors of such other corporation
is held, directly or indirectly, by the corporation, shall neither be entitled to vote nor be
counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the
corporation or any subsidiary of the corporation to vote stock, including but not limited to its
own stock, held by it in a fiduciary capacity.
Section 1.6. Organization. Meetings of stockholders shall be presided over by the
Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the Board, if
any, or in his or her absence by the President, or in his or her absence by a Vice President, or in
the absence of the foregoing persons by a chairperson designated by the Board of Directors, or in
the absence of such designation by a chairperson chosen at the meeting. The Secretary shall act as
secretary of the meeting, but in his or her absence the chairperson of the meeting may appoint any
person to act as secretary of the meeting.
Section 1.7. Voting; Proxies. Except as otherwise provided by or pursuant to the
provisions of the certificate of incorporation, each stockholder entitled to vote at any meeting of
stockholders shall be entitled to one (1) vote for each share of stock held by such stockholder
which has voting power upon the matter in question. Each stockholder entitled to vote at a meeting
of stockholders or to express consent to corporate action in writing without a meeting may
authorize another person or persons to act for such stockholder by proxy, but no such proxy shall
be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer
period. A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long
as, it is coupled with an interest sufficient in law to support an irrevocable power. A
stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in
person or by delivering to the Secretary of the corporation a revocation of the proxy or a new
proxy bearing a later date. Voting at meetings of stockholders need not be by written ballot. At
all meetings of stockholders for the election of directors at which a quorum is present a plurality
of the votes cast shall be sufficient to elect. All other elections and questions presented to the
stockholders at a meeting at which a quorum is present shall, unless otherwise provided by the
certificate of incorporation, these bylaws, the rules or regulations of any stock exchange
applicable to the corporation, or applicable law or pursuant to any regulation applicable to the
corporation or its securities, be decided by the affirmative vote of the holders of a majority in
voting power of the shares of stock of the corporation which are present in person or by proxy and
entitled to vote thereon.
Section 1.8. Fixing Date for Determination of Stockholders of Record. In order that
the corporation may determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or
exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a
record date, which record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date: (1) in the case of
determination of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; (2) in the case of determination of stockholders
entitled to
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express consent to corporate action in writing without a meeting, shall not be more than ten
(10) days from the date upon which the resolution fixing the record date is adopted by the Board of
Directors; and (3) in the case of any other action, shall not be more than sixty (60) days prior to
such other action. If no record date is fixed: (1) the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if notice is waived, at the close of
business on the day next preceding the day on which the meeting is held; (2) the record date for
determining stockholders entitled to express consent to corporate action in writing without a
meeting, when no prior action of the Board of Directors is required by law, shall be the first date
on which a signed written consent setting forth the action taken or proposed to be taken is
delivered to the corporation in accordance with applicable law, or, if prior action by the Board of
Directors is required by law, shall be at the close of business on the day on which the Board of
Directors adopts the resolution taking such prior action; and (3) the record date for determining
stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned
meeting.
Section 1.9. List of Stockholders Entitled to Vote. The officer who has charge of
the stock ledger shall prepare and make, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number of shares registered
in the name of each stockholder. Such list shall be open to the examination of any stockholder,
for any purpose germane to the meeting at least ten (10) days prior to the meeting (i) on a
reasonably accessible electronic network, provided that the information required to gain access to
such list is provided with the notice of meeting or (ii) during ordinary business hours at the
principal place of business of the corporation. The list of stockholders must also be open to
examination at the meeting as required by applicable law. Except as otherwise provided by law, the
stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list
of stockholders required by this Section 1.9 or to vote in person or by proxy at any meeting of
stockholders.
Section 1.10. Action By Written Consent of Stockholders. Unless otherwise restricted
by the certificate of incorporation, any action required or permitted to be taken at any annual or
special meeting of the stockholders may be taken without a meeting, without prior notice and
without a vote, if a consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to
vote thereon were present and voted and shall be delivered to the corporation by delivery to its
registered office in the State of Delaware, its principal place of business, or an officer or agent
of the corporation having custody of the book in which minutes of proceedings of stockholders are
recorded. Delivery made to the corporations registered office shall be by hand or by certified or
registered mail, return receipt requested. Prompt notice of the taking of the corporate action
without a meeting by less than unanimous written consent shall, to the extent required by law, be
given to those stockholders who have not consented in writing and who, if
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the action had been taken at a meeting, would have been entitled to notice of the meeting if
the record date for such meeting had been the date that written consents signed by a sufficient
number of holders to take the action were delivered to the corporation.
Section 1.11. Inspectors of Election. The corporation may, and shall if required by
law, in advance of any meeting of stockholders, appoint one or more inspectors of election, who may
be employees of the corporation, to act at the meeting or any adjournment thereof and to make a
written report thereof. The corporation may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. In the event that no inspector so appointed or
designated is able to act at a meeting of stockholders, the person presiding at the meeting shall
appoint one or more inspectors to act at the meeting. Each inspector, before entering upon the
discharge of his or her duties, shall take and sign an oath to execute faithfully the duties of
inspector with strict impartiality and according to the best of his or her ability. The inspector
or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock
of the corporation outstanding and the voting power of each such share, (ii) determine the shares
of capital stock of the corporation represented at the meeting and the validity of proxies and
ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a
record of the disposition of any challenges made to any determination by the inspectors, and (v)
certify their determination of the number of shares of capital stock of the corporation represented
at the meeting and such inspectors count of all votes and ballots. Such certification and report
shall specify such other information as may be required by law. In determining the validity and
counting of proxies and ballots cast at any meeting of stockholders of the corporation, the
inspectors may consider such information as is permitted by applicable law. No person who is a
candidate for an office at an election may serve as an inspector at such election.
Section 1.12. Conduct of Meetings. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote at a meeting shall be announced
at the meeting by the person presiding over the meeting. The Board of Directors may adopt by
resolution such rules and regulations for the conduct of the meeting of stockholders as it shall
deem appropriate. Except to the extent inconsistent with such rules and regulations as adopted by
the Board of Directors, the person presiding over any meeting of stockholders shall have the right
and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and
procedures and to do all such acts as, in the judgment of such presiding person, are appropriate
for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by
the Board of Directors or prescribed by the presiding person of the meeting, may include, without
limitation, the following: (i) the establishment of an agenda or order of business for the meeting;
(ii) rules and procedures for maintaining order at the meeting and the safety of those present;
(iii) limitations on attendance at or participation in the meeting to stockholders of record of the
corporation, their duly authorized and constituted proxies or such other persons as the presiding
person of the meeting shall determine; (iv) restrictions on entry to the meeting after the time
fixed for the commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. The presiding person at any meeting of stockholders, in addition to
making any other determinations that may be appropriate to the conduct of the meeting, shall, if
the facts warrant, determine and declare to the meeting that a matter or business was not properly
brought before the meeting and if such presiding person
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should so determine, such presiding person shall so declare to the meeting and any such matter
or business not properly brought before the meeting shall not be transacted or considered. Unless
and to the extent determined by the Board of Directors or the person presiding over the meeting,
meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure.
ARTICLE II
Board of Directors
Section 2.1. Number; Qualifications. The Board of Directors shall consist of one or
more members, the number thereof to be determined from time to time by resolution of the Board of
Directors. Directors need not be stockholders.
Section 2.2. Election; Resignation; Vacancies. The Board of Directors shall
initially consist of the persons named as directors in the certificate of incorporation or elected
by the incorporator of the corporation, and each director so elected shall hold office until the
first annual meeting of stockholders or until his or her successor is duly elected and qualified.
At the first annual meeting of stockholders and at each annual meeting thereafter, the stockholders
shall elect directors each of whom shall hold office for a term of one (1) year or until his or her
successor is duly elected and qualified, subject to such directors earlier death, resignation,
disqualification or removal. Any director may resign at any time upon notice to the corporation.
Unless otherwise provided by law or the certificate of incorporation, any newly created
directorship or any vacancy occurring in the Board of Directors for any cause may be filled by a
majority of the remaining members of the Board of Directors, although such majority is less than a
quorum, or by a plurality of the votes cast at a meeting of stockholders, and each director so
elected shall hold office until the expiration of the term of office of the director whom he or she
has replaced or until his or her successor is elected and qualified.
Section 2.3. Regular Meetings. Regular meetings of the Board of Directors may be
held at such places within or without the State of Delaware and at such times as the Board of
Directors may from time to time determine.
Section 2.4. Special Meetings. Special meetings of the Board of Directors may be
held at any time or place within or without the State of Delaware whenever called by the President,
any Vice President, the Secretary, or by any member of the Board of Directors. Notice of a special
meeting of the Board of Directors shall be given by the person or persons calling the meeting at
least twenty-four (24) hours before the special meeting.
Section 2.5. Telephonic Meetings Permitted. Members of the Board of Directors, or
any committee designated by the Board of Directors, may participate in a meeting thereof by means
of conference telephone or other communications equipment by means of which all persons
participating in the meeting can hear each other, and participation in a meeting pursuant to these
bylaws shall constitute presence in person at such meeting.
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Section 2.6. Quorum; Vote Required for Action. At all meetings of the Board of
Directors the directors entitled to cast a majority of the votes of the whole Board of Directors
shall constitute a quorum for the transaction of business. Except in cases in which the
certificate of incorporation, these bylaws or applicable law otherwise provides, a majority of the
votes entitled to be cast by the directors present at a meeting at which a quorum is present shall
be the act of the Board of Directors.
Section 2.7. Organization. Meetings of the Board of Directors shall be presided over
by the Chairperson of the Board, if any, or in his or her absence by the Vice Chairperson of the
Board, if any, or in his or her absence by the President, or in their absence by a chairperson
chosen at the meeting. The Secretary shall act as secretary of the meeting, but in his or her
absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
Section 2.8. Action by Unanimous Consent of Directors. Unless otherwise restricted
by the certificate of incorporation or these bylaws, 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 of Directors or such committee, as the case may be, consent
thereto in writing or by electronic transmission and the writing or writings or electronic
transmissions are filed with the minutes of proceedings of the board or committee in accordance
with applicable law.
ARTICLE III
Committees
Section 3.1. Committees. The Board of Directors may designate one or more
committees, each committee to consist of one or more of the directors of the corporation. The
Board of Directors may designate one or more directors as alternate members of any committee, who
may replace any absent or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of the committee, the member or members thereof present at any meeting
and not disqualified from voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the meeting in place of any
such absent or disqualified member. Any such committee, to the extent permitted by law and to the
extent provided in the resolution of the Board of Directors, 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, and may authorize the seal of the corporation to be affixed to all papers which may
require it.
Section 3.2. Committee Rules. Unless the Board of Directors otherwise provides, each
committee designated by the Board of Directors may make, alter and repeal rules for the conduct of
its business. In the absence of such rules each committee shall conduct its business in the same
manner as the Board of Directors conducts its business pursuant to Article II of these bylaws.
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ARTICLE IV
Officers
Section 4.1. Officers; Election; Qualifications; Term of Office; Resignation; Removal;
Vacancies. The Board of Directors shall elect a President and Secretary, and it may, if it so
determines, choose a Chairperson of the Board and a Vice Chairperson of the Board from among its
members. The Board of Directors may also choose one or more Vice Presidents, one or more Assistant
Secretaries, a Treasurer and one or more Assistant Treasurers and such other officers as it shall
from time to time deem necessary or desirable. Each such officer shall hold office until the first
meeting of the Board of Directors after the annual meeting of stockholders next succeeding his or
her election, and until his or her successor is elected and qualified or until his or her earlier
resignation or removal. Any officer may resign at any time upon written notice to the corporation.
The Board of Directors may remove any officer with or without cause at any time, but such removal
shall be without prejudice to the contractual rights of such officer, if any, with the corporation.
Any number of offices may be held by the same person. Any vacancy occurring in any office of the
corporation by death, resignation, removal or otherwise may be filled for the unexpired portion of
the term by the Board of Directors at any regular or special meeting.
Section 4.2. Powers and Duties of Officers. The officers of the corporation shall
have such powers and duties in the management of the corporation as may be prescribed in a
resolution by the Board of Directors and, to the extent not so provided, as generally pertain to
their respective offices, subject to the control of the Board of Directors. The Board of Directors
may require any officer, agent or employee to give security for the faithful performance of his or
her duties.
Section 4.3. Appointing Attorneys and Agents; Voting Securities of Other Entities.
Unless otherwise provided by resolution adopted by the Board of Directors, the Chairperson of the
Board, the President or any Vice President may from time to time appoint an attorney or attorneys
or agent or agents of the corporation, in the name and on behalf of the corporation, to cast the
votes which the corporation may be entitled to cast as the holder of stock or other securities in
any other corporation or other entity, any of whose stock or other securities may be held by the
corporation, at meetings of the holders of the stock or other securities of such other corporation
or other entity, or to consent in writing, in the name of the corporation as such holder, to any
action by such other corporation or other entity, and may instruct the person or persons so
appointed as to the manner of casting such votes or giving such consents, and may execute or cause
to be executed in the name and on behalf of the corporation and under its corporate seal or
otherwise, all such written proxies or other instruments as he or she may deem necessary or proper.
Any of the rights set forth in this Section 4.3 which may be delegated to an attorney or agent may
also be exercised directly by the Chairperson of the Board, the President or the Vice President.
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ARTICLE V
Stock
Section 5.1. Certificates. The shares of the corporation shall be represented by
certificates, provided that the Board of Directors may provide by resolution or resolutions that
some or all of any or all classes or series of stock shall be uncertificated shares. Any such
resolution shall not apply to shares represented by a certificate until such certificate is
surrendered to the corporation. Every holder of stock represented by certificates shall be
entitled to have a certificate signed by or in the name of the corporation by the Chairperson or
Vice Chairperson of the Board of Directors, if any, 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 certifying the number of shares owned by such holder in the corporation. Any of or all
the signatures on the certificate may be a facsimile. 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, it may
be issued by the corporation with the same effect as if such person were such officer, transfer
agent, or registrar at the date of issue.
Section 5.2. Lost, Stolen or Destroyed Stock Certificates; Issuance of New
Certificates. The corporation may issue a new certificate of stock in the place of any
certificate theretofore issued by it, alleged to have been lost, stolen or destroyed, and the
corporation may require the owner of the lost, stolen or destroyed certificate, or such owners
legal representative, to give the corporation a bond sufficient to indemnify it against any claim
that may be made against it on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
ARTICLE VI
Miscellaneous
Section 6.1. Fiscal Year. The fiscal year of the corporation shall be January 1
through December 31.
Section 6.2. Seal. The corporate seal shall have the name of the corporation
inscribed thereon and shall be in such form as may be approved from time to time by the Board of
Directors.
Section 6.3. Manner of Notice. Except as otherwise provided herein or permitted by
applicable law, notices to directors and stockholders shall be in writing and delivered personally
or mailed to the directors or stockholders at their addresses appearing on the books of the
corporation. Without limiting the manner by which notice otherwise may be given effectively to
stockholders, and except as prohibited by applicable law, any notice to stockholders given by the
corporation under any provision of applicable law, the certificate of incorporation, or these
bylaws shall be effective if given by a single written notice to
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stockholders who share an address if consented to by the stockholders at that address to whom
such notice is given. Any such consent shall be revocable by the stockholder by written notice to
the corporation. Any stockholder who fails to object in writing to the corporation, within 60 days
of having been given written notice by the corporation of its intention to send the single notice
permitted under this Section 6.3, shall be deemed to have consented to receiving such single
written notice. Notice to directors may be given by telecopier, telephone or other means of
electronic transmission.
Section 6.4. Waiver of Notice of Meetings of Stockholders, Directors and Committees.
Any waiver of notice, given by the person entitled to notice, whether before or after the time
stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall
constitute a waiver of notice of such meeting, except when the person attends a meeting for the
express purpose of objecting, at the beginning of the meeting, to the transaction of any business
because the meeting is not lawfully called or convened. Neither the business to be transacted at
nor the purpose of any regular or special meeting of the stockholders, directors, or members of a
committee of directors need be specified in a waiver of notice.
Section 6.5. Form of Records. Any records maintained by the corporation in the
regular course of its business, including its stock ledger, books of account, and minute books, may
be kept on, or by means of, or be in the form of, any information storage device or method,
provided that the records so kept can be converted into clearly legible paper form within a
reasonable time.
Section 6.6. Amendment of Bylaws. These bylaws may be altered, amended or repealed,
and new bylaws made, by the Board of Directors as provided in the Certificate of Incorporation of
the Corporation, but the stockholders may make additional bylaws and may alter and repeal any
bylaws whether adopted by them or otherwise.
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