RESTATED CERTIFICATE OF INCORPORATION
ALPHA NATURAL RESOURCES, INC.
Alpha Natural Resources, Inc., a Delaware corporation, hereby certifies
The name of the corporation is Alpha Natural Resources, Inc. The date of
filing its original Certificate of Incorporation with the Secretary of State was
November 29, 2004.
The Corporation has not received any payment for any of its stock.
This Restated Certificate of Incorporation of the corporation attached
hereto as Exhibit "1", which is incorporated herein by this reference, and which
restates, integrates and further amends the provisions of the Certificate of
Incorporation of this corporation as heretofore amended or supplemented, has
been duly adopted by the Corporation's Board of Directors in accordance with
Sections 241 and 245 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, said corporation has caused this Restated Certificate of
Incorporation to be signed by its duly authorized officer and foregoing facts
stated herein are true and correct.
Dated: February 11, 2005
ALPHA NATURAL RESOURCES, INC.
By: /s/ Vaughn R. Groves
Name: Vaughn R. Groves
Title: Vice President, Secretary &
RESTATED CERTIFICATE OF INCORPORATION
ALPHA NATURAL RESOURCES, INC.
The date of filing the original Certificate of Incorporation of Alpha
Natural Resources, Inc. with the Secretary of State of the State of Delaware was
November 29, 2004.
NAME OF CORPORATION
The name of this corporation (the "Corporation") is Alpha Natural
The address of the registered office of the Corporation in the State
of Delaware is 2711 Centerville Road, Suite 400, Wilmington, New Castle County,
Delaware and the name of its registered agent at that address is Corporation
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware (the "DGCL").
AUTHORIZED CAPITAL STOCK
4.1 Number of Shares. The total number of shares of stock that the
Corporation shall have authority to issue is One Hundred Ten Million
(110,000,000) shares, consisting of (i) One Hundred Million (100,000,000) shares
of common stock, each with a par value of $.01 (the "Common Stock") and (ii) Ten
Million (10,000,000) shares of preferred stock, each with a par value of $.01
(the "Preferred Stock").
4.2 Preferred Stock. The shares of Preferred Stock may be issued from
time to time in one or more series. The Board of Directors is hereby vested with
to fix by resolution or resolutions the designations and the powers, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations, or restrictions thereof, including without
limitation, the dividend rate, conversion rights, redemption price and
liquidation preference, of such series of Preferred Stock, and to fix the number
of shares constituting any such series, and to increase or decrease the number
of shares of any series of Preferred Stock (but not below the number of shares
thereof then outstanding). In case the number of shares of any series shall be
so decreased, the shares constituting such decrease shall resume the status of
undesignated shares of Preferred Stock.
4.3 Common Stock. The following is a statement of the relative powers,
preferences and participating, optional or other special rights, and the
qualifications, limitations and restrictions of the Common Stock of the
(a) Except as otherwise provided by law, the provisions of this
Certificate of Incorporation shall not be modified, revised, altered or amended,
repealed or rescinded in whole or in part, without the approval of a majority of
the votes entitled to be cast by the holders of the Common Stock; provided,
however, that with respect to any proposed amendment of this Certificate of
Incorporation (including any certificate of designations relating to any series
of Preferred Stock) which would alter or change the powers, preferences or
special rights of any series of Preferred Stock so as to affect them adversely,
the approval of a majority of the votes entitled to be cast by the holders of
the series affected by the proposed amendment, voting separately as a class,
shall be obtained in addition to the approval of a majority of the votes
entitled to be cast by the holders of the Common Stock as herein provided. Any
increase or decrease (but not below the number of shares then outstanding) in
the authorized number of shares of any class or classes of stock of the
Corporation or creation, authorization or issuance of any securities convertible
into, or warrants, options or similar rights to purchase, acquire or receive,
shares of any such class or classes of stock shall be deemed not to affect
adversely the powers, preferences or special rights of the shares of Preferred
(b) In the event of any voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Corporation, subject to the
rights, if any, of the holders of any outstanding series of Preferred Stock or
any class or series of stock having a preference over 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 remaining assets and funds of the Corporation shall be distributed pro rata
to the holders of Common Stock. For purposes of this Section 4.2(b), the
voluntary sale, conveyance, lease, exchange or transfer (for cash, shares of
stock, securities or other consideration) of all or substantially all of the
assets of the Corporation or a consolidation or merger of the Corporation with
one or more other corporations or other Persons (whether or not the Corporation
is the corporation surviving such consolidation or merger) shall not be deemed
to be a liquidation, dissolution or winding up, voluntary or involuntary. For
purposes hereof "Person" shall mean an individual, corporation, partnership,
limited liability company, trust, unincorporated organization, or other legal
(c) Each holder of record of Common Stock shall have one vote for each
share of Common Stock which is outstanding in his, her or its name on the books
of the Corporation and which is entitled to vote. In the election of directors,
each stockholder shall be entitled to cast for any one candidate no greater
number of votes than the number of shares held by such stockholder; no
stockholder shall be entitled to cumulate votes on behalf of any candidate.
Common stockholders of the Corporation shall not have preemptive rights.
(d) Except as otherwise required by law, holders of any series of
Preferred Stock, 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).
(e) Subject to applicable law and rights, if any, of the holders of
any outstanding series of Preferred Stock or any class or series of stock having
preference over 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
4.4 Record Holders. The Corporation shall be entitled to treat the
Person in whose name any share of its stock is registered as the owner thereof
for all purposes and shall not be bound to recognize any equitable or other
claim to, or interest in, such share on the part of any other Person, whether or
not the Corporation shall have notice thereof, except as expressly provided by
BOARD OF DIRECTORS' POWER REGARDING BYLAWS
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind the bylaws of the Corporation.
ELECTION OF DIRECTORS
Elections of directors need not be by written ballot unless the bylaws
of the Corporation shall so provide.
INDEMNIFICATION; LIMITATION OF DIRECTOR LIABILITY
7.1 Indemnification. The Corporation shall indemnify its directors,
officers, employees and agents, or persons serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
where such person is made party or threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal or administrative, by reason of the fact that the person is or was a
director, officer, employee or agent of the Corporation or serving such capacity
in another corporation at the request of the Corporation, in each case to the
fullest extent permitted by Section 145 of the DGCL as the same exists or may
hereafter be amended.
7.2 Limitation of Liability. To the fullest extent permitted by the
DGCL as the same exists or may hereafter be amended, a director of the
Corporation shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director.
7.3 Amendments. If the DGCL is amended after the date of the filing of
this Certificate of Incorporation to authorize corporate action further
eliminating or limiting the personal liability of directors or permitting
indemnification to a fuller extent, then the liability of a director of the
Corporation shall be eliminated or limited, and indemnification shall be
extended, in each case to the fullest extent permitted by the DGCL, as so
amended from time to time. No repeal or modification of this Article VII by the
stockholders shall adversely affect any right or protection of a director of the
Corporation existing by virtue of this Article VII at the time of such repeal or
The Corporation hereby expressly elects not to be governed by Section
203 of the DGCL.
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred on stockholders
herein are granted subject to this reservation.
COMPROMISE WITH CREDITORS
Whenever a compromise or arrangement is proposed between the
Corporation and its creditors or any class of them and/or between the
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of the Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for the Corporation under the
provisions of Section 291 of the DGCL or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of the DGCL order a meeting of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of the
Corporation, as the case may be, to be summoned in such manner as the said court
directs. If a majority in number representing three-fourths in value of the
creditors or class of creditors, and/or of the stockholders or class of
stockholders of the Corporation, as the case may be, agree to
any compromise or arrangement and to any reorganization of the Corporation as a
consequence of such compromise or arrangement, the said compromise or
arrangement and said reorganization shall, if sanctioned by the court to which
the said application has been made, be binding on all creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of the
Corporation, as the case may be, and also on the Corporation.
CERTAIN FIDUCIARY DUTIES
11.1 Certain Acknowledgments. In recognition and anticipation of the
facts that (i) the directors, officers and/or employees of First Reserve, and of
AMCI may serve as directors and/or officers of the Corporation, (ii) First
Reserve and AMCI engage and may continue to engage in the same or similar
activities or related lines of business as those in which the Corporation,
directly or indirectly, may engage and/or other business activities that overlap
with or compete with those in which the Corporation, directly or indirectly, may
engage, and (iii) the Corporation and Affiliated Companies thereof may engage in
material business transactions with First Reserve and AMCI and that the
Corporation is expected to benefit therefrom, the provisions of this Article XI
are set forth to regulate and define the conduct of certain affairs of the
Corporation as they may involve First Reserve and AMCI, their officers and
directors, and the powers, rights, duties and liabilities of the Corporation and
its officers, directors and stockholders in connection therewith.
11.2 Competition and Corporate Opportunities. None of First Reserve or
AMCI (collectively, the "Interested Parties") shall have any duty to refrain
from engaging directly or indirectly in the same or similar business activities
or lines of business as the Corporation or any of its Affiliated Companies.
Except with respect to an Express Opportunity, as defined in Section 11.3 below,
the Corporation renounces any interest or expectancy of the Corporation or any
of its Affiliated Companies in, or in being offered an opportunity to
participate in, any potential transaction or matter which may be a corporate
opportunity for both an Interested Party and the Corporation or any of its
Affiliated Companies, and therefore such Interested Party shall have no duty to
communicate or offer such corporate opportunity to the Corporation or any of its
Affiliated Companies and shall not be liable to the Corporation or its
stockholders for breach of any fiduciary duty as a stockholder of the
Corporation solely by reason of the fact that such Interested Party pursues or
acquires such corporate opportunity for itself, directs such corporate
opportunity to another person, or does not communicate information regarding
such corporate opportunity to the Corporation.
11.3 Allocation of Corporate Opportunities. Except as provided
elsewhere in this Section 11.3, the Corporation hereby renounces any interest or
expectancy of the Corporation or any of its Affiliated Companies in, or in being
offered an opportunity to participate in, any potential transaction or matter
which may be a corporate opportunity for both the Corporation or any of its
Affiliated Companies, on the one hand, and any Interested Party, on the other
hand, about which a director or officer of the Corporation who is also a
director or officer of First Reserve or AMCI acquires knowledge. Notwithstanding
the immediately preceding sentence, the Corporation does
not renounce any interest or expectancy of the Corporation or any of its
Affiliated Companies in, or in being offered an opportunity to participate in,
any potential transaction or matter which may be a corporate opportunity for
both the Corporation or any of its Affiliated Companies, on the one hand, and
any Interested Party, on the other hand, and about which a director or officer
of the Corporation who is also a director or officer of First Reserve or AMCI
acquires knowledge, if such opportunity is expressly offered to such person in
writing solely in, and as a direct result of, his or her capacity as a director
or officer of the Corporation (an "Express Opportunity"). Any director or
officer of the Corporation that fails to offer an opportunity to the Corporation
in accordance with this Section 11.3 shall not have committed thereby any breach
of fiduciary duty of such director or officer to the Corporation and its
11.4 Certain Matters Deemed Not Corporate Opportunities. In addition
to and notwithstanding the foregoing provisions of this Article XI, the
Corporation renounces any interest or expectancy of the Corporation or any of
its Affiliated Companies in, or in being offered an opportunity to participate
in, any business opportunity that the Corporation is not permitted to undertake
under the terms of Article XI or that the Corporation is not financially able or
contractually permitted or legally able to undertake, or that is, from its
nature, not in the line of the Corporation's business or is of no practical
advantage to it or that is one in which the Corporation has no interest or
11.5 Certain Definitions. For purposes of this Article XI:
"Affiliate" means with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For purposes of the foregoing definition, the term "controls," "is
controlled by," or "is under common control with" means the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Affiliated Company" in respect of the Corporation shall mean any
company controlled by the Corporation.
"AMCI" means the AMCI Stockholders and the AMCI Affiliates.
"AMCI Affiliates" shall mean the present and future Affiliates of the
"AMCI Stockholders" means Vollow Resources LLC, Redbank, Inc., REI,
Inc., Still Run Coal Company, Inc., Creekside Energy Development Company,
Newhall Pocahontas Energy, Inc., SCM, Inc., Tanoma Energy, Inc., Madison Mining
Company, LLC, Laurel Energy, L.P., Laurel Resources, L.P., I-22 Processing,
Inc., Dunamis Resources, Inc., Beta Resources, LLC, a Colorado limited liability
company, and RRD, Inc.
"First Reserve" means the First Reserve Corporation, the First Reserve
Stockholders and the First Reserve Affiliates.
"First Reserve Stockholders" means First Reserve Fund IX, L.P. and ANR
Fund IX Holdings, L.P.
"First Reserve Affiliates" shall mean each investment funds managed or
advised, directly or indirectly, by First Reserve Corporation (including funds
formed after the date hereof), and any subsidiaries, affiliates, or direct or
indirect general partners of any of the foregoing entities.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
11.6 Termination. The provisions of this Article XI shall have no
further force or effect (a) for First Reserve at such time as the First Reserve
Stockholders and First Reserve Affiliates shall first cease to be the owner, in
the aggregate, of Common Stock representing five percent (5%) or more of the
votes entitled to be cast by the holders of all the then outstanding shares of
Common Stock; and (b) for AMCI, at such time the AMCI Stockholders and the AMCI
Affiliates shall first cease to be the owner, in the aggregate, of Common Stock
representing five percent (5%) or more of the votes entitled to be cast by the
holders of all the then outstanding shares of Common Stock; provided, however,
that any such termination shall not terminate the effect of such provisions with
respect to (i) any agreement between the Corporation or an Affiliated Company
thereof and any Interested Party that was entered into before such time or any
transaction entered into in the performance of such agreement, whether entered
into before or after such time, or (ii) any transaction or agreement entered
into between the Corporation or an Affiliated Company thereof and any interested
11.7 Amendment of this Article. Notwithstanding anything to the
contrary elsewhere contained in the Corporation's certificate of incorporation,
the affirmative vote of the holders of at least at least ninety percent (90%) of
the combined voting power of all shares of Common Stock then outstanding, voting
together as a single class, shall be required to alter, amend or repeal, or to
adopt any provision inconsistent with, this Article XI.
11.8 Deemed Notice. Any person or entity purchasing or otherwise
acquiring any interest in any shares of the Corporation shall be deemed to have
notice and to have consented to the provisions of this Article XI.
11.9 Severability. The invalidity or unenforceability of any
particular provision, or part of any provision, of this Article XI shall not
affect the other provisions or parts hereof, and this Article XI shall be
construed in all respects as if such invalid or unenforceable provisions or
parts were omitted.