Form 8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report(Date of earliest event reported):
June 18, 1999
WESTMORELAND COAL COMPANY
-------------------------
(Exact name of registrant as specified in its charter)
DELAWARE 0-752 23-1128670
-------- ----- ----------
(State or other jurisdiction (Commission File (I.R.S. Employer
of incorporation or Number Identification No.)
organization)
2 North Cascade Avenue, 14th Floor, Colorado Springs, Colorado 80903
- -------------------------------------------------------------- -----
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: 719-442-2600
------------
Item 5. Other Events
On June 11, 1999, the Virginia Supreme Court agreed to hear the appeal by
Virginia Power of the December 2, 1998 decision of the Circuit Court of the City
of Richmond, which was previously reported in Note 2 of the Form 10-Q for the
quarter ended March 31, 1999.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit (3)(b) -- Bylaws as amended on June 18, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
WESTMORELAND COAL COMPANY
Date: June 21, 1999 /s/ Robert J. Jaeger
--------------------------
By: Robert J. Jaeger
Senior Vice President-Finance
and Treasurer
<PAGE 1>
EXHIBIT (3)(b)
As adopted 6/18/1999
WESTMORELAND COAL COMPANY
(A Delaware Corporation)
BYLAWS
ARTICLE 1
OFFICES
Section 1.1. Registered Office. The registered office of the
Company within the State of Delaware shall be in the City of Wilmington, County
of New Castle, State of Delaware.
Section 1.2. Other Offices. The Company may also have an
office or offices other than said registered office at such place or places,
either within or without the State of Delaware, as the Board of Directors shall
from time to time determine or the business of the Company may require.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
Section 2.1. Place of Meetings. All meetings of the
stockholders for the election of directors of the Company ("Directors") or for
any other purpose shall be held in Colorado Springs, Colorado, or at such place,
either within or without the State of Delaware, as shall be designated from time
to time by the Board of Directors and stated in the notice of meeting or in a
duly executed waiver thereof.
Section 2.2. Annual Meeting. The annual meeting of
stockholders shall be held on the second Tuesday in May of each year or on such
other date and at such time as shall be designated from time to time by the
Board of Directors and stated in the notice of meeting or in a duly executed
waiver thereof. At such annual meeting, the stockholders shall elect, by a
plurality vote, Directors and transact such other business as may properly be
brought before the meeting.
Section 2.3. Special Meetings. Special meetings of
stockholders, unless otherwise prescribed by statute, may be called at any time
by the chief executive officer of the Company or a majority of the Board of
Directors. The only business that may be conducted at a special meeting shall be
that which is set forth in the notice of special meeting.
Section 2.4. Notice of Meetings. Except as otherwise expressly
required by statute, written notice of each annual and special meeting of
stockholders stating the date, place and hour of the meeting, and, in the case
of a special meeting, the purpose or purposes for which the meeting is called,
shall be given to each stockholder of record entitled to vote thereat not less
than ten nor more than sixty days before the date of the meeting. Notice shall
be given personally or by mail and, if by mail, shall be sent in a postage
prepaid envelope, addressed to the stockholder at his address as it appears on
the records of the Company. Notice by mail shall be deemed given at the time
when the same shall be deposited in the United States mail, postage prepaid.
Notice may also be given by nationally recognized overnight delivery services
such as Federal Express, UPS or Airborne Express; in case notice is given by
such service, notice shall be deemed given when deposited with any such service
with which the Company or its agent has an account. Notice of any meeting shall
not be required to be given to any person who attends such meeting, except when
such person attends the meeting in person or by proxy 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, or who, either before or
after the meeting, shall submit a signed written waiver of notice, in person or
by proxy. Neither the business to be transacted at, nor the purpose of, an
annual or special meeting of stockholders need be specified in any written
waiver of notice.
<PAGE 2>
Section 2.5. Advance Notice of Business. At the annual meeting
of the stockholders, only such business shall be conducted as shall have been
properly brought before the meeting. To be properly brought before an annual
meeting, business must be (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
otherwise properly brought before the meeting by or at the direction of the
Board of Directors or (c) otherwise properly brought before the meeting by a
stockholder. For business to be properly brought before an annual meeting by a
stockholder, the stockholder must have given timely notice thereof in writing to
the Secretary of the Company. To be timely, a stockholder's notice must be
delivered to or mailed and received at the principal executive offices of the
Company, not less than 90 days nor more than 120 days in advance of the
anniversary date of the preceding year's annual meeting of stockholders (or
special meeting in lieu of an annual meeting), except that if no annual meeting
(or special meeting in lieu of an annual meeting) was held in the previous year
or the date of the annual meeting has been changed by more than 30 calendar days
from the anniversary of the preceding year's annual meeting date (or date of the
special meeting in lieu of an annual meeting), written notice of a stockholder
proposal shall be delivered to the Secretary of the Company not later than the
close of business on the 10th day following the first public announcement of the
date of such annual meeting. In no event shall the public announcement of an
adjournment of an annual meeting commence a new time period for the giving of
stockholder's notice. A stockholder's notice shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (a) a description of
the business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (b) the name and address, as
they appear on the Company's books, of the stockholder proposing such business,
(c) the class and number of shares of capital stock of the Company which are
beneficially owned by the stockholder, (d) any material interest of the
stockholder in such business and (e) a representation that the stockholder is a
holder of record of shares of capital stock of the Company entitled to vote with
respect to such business and intends to appear in person or by proxy at the
meeting to propose the consideration of such business. Notwithstanding anything
in the Bylaws to the contrary, no business shall be conducted at any annual
meeting except in accordance with the procedures set forth in this Section 2.5.
The chairman of the annual meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
and in accordance with the provisions of this Section 2.5, and if he should so
determine, he shall so declare to the meeting and any such business not properly
brought before the meeting shall not be transacted. For purposes of these
by-laws, "public announcement" shall mean disclosure in a press release reported
by the Dow Jones News Service, Associated Press, PR Newswire, Bloomberg, Reuters
or comparable national news service, or in a document publicly filed by the
Company with the Securities and Exchange Commission pursuant to Section 13, 14
or 15(d) of the Securities Exchange Act of 1934, as amended.
<PAGE 3>
Section 2.6. Advance Notice of Nominees. Only persons who are
nominated in accordance with the procedures set forth in this Section 2.6 shall
be eligible for election as Directors. Nominations of persons for election to
the Board of Directors of the Company may be made at a meeting of stockholders
by or at the direction of the Board of Directors or by any stockholder of the
Company entitled to vote for the election of Directors at the meeting who
complies with the notice procedures set forth in this Section 2.6. For a
nomination to be properly brought before a meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Company. To be timely, a stockholder's notice must be delivered to or mailed
and received at the principal executive offices of the Company: (i) with respect
to an election to be held at an annual meeting of stockholders, not less than 90
days nor more than 120 days in advance of the anniversary date of the preceding
year's annual meeting of stockholders (or special meeting in lieu of an annual
meeting), except that if no annual meeting (or special meeting in lieu of an
annual meeting) was held in the previous year or the date of the annual meeting
has been changed by more than 30 calendar days from the anniversary of the
preceding year's annual meeting date (or date of the special meeting in lieu of
an annual meeting), written notice of a nominee proposal shall be delivered to
the Secretary of the Company not later than the close of business on the 10th
day following the first public announcement of the date of such annual meeting
and (ii) with respect to an election to be held at a special meeting of
stockholders for the election of directors, not later than the close of business
on the 10th day following the first public announcement of the date of such
meeting. In no event shall the public announcement of an adjournment of any
annual or special meeting commence a new time period for the giving of a
stockholder's notice. A stockholder's notice shall set forth (a) as to each
person whom the stockholder proposes to nominate for election or re-election as
a Director, (i) the name, age, business address and residence address of such
nominee, (ii) the principal occupation or employment of such nominee, (iii) the
class and number of shares of capital stock of the Company which are
beneficially owned by such nominee, (iv) a description of all agreements,
arrangements or understandings between the stockholder and such nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination is to be made by such stockholder, (v) any other information relating
to such nominee that is required to be disclosed in solicitations of proxies for
election of Directors, or is otherwise required, in each case pursuant to
Regulation 14A under the Securities Exchange Act of 1934, as amended and (vi)
such nominee's written consent to being named in the proxy statement as a
nominee and to serving as a Director if elected; and (b) as to the stockholder
giving the notice, (i) the name and address, as they appear on the Company's
books, of such stockholder, (ii) the class and number of shares of the capital
stock of the Company which are beneficially owned by such stockholder and (iii)
a representation that the stockholder is a holder of record of capital stock of
the Company entitled to vote at such meeting for such nominee and intends to
appear in person or by proxy at the meeting to nominate the person or persons
specified in the notice. At the request of the Board of Directors any person
nominated by the Board of Directors for election as a Director shall furnish to
the Secretary of the Company that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. No person
shall be eligible for election as a Director of the Company unless nominated in
accordance with the procedures set forth in this Section 2.6. The chairman of
the meeting shall, if the facts warrant, determine and declare to the meeting
that a nomination was not made in accordance with the provisions of this Section
2.6, and if he should so determine, he shall so declare to the meeting and the
defective nomination shall be disregarded.
<PAGE 4>
Section 2.7. List of Stockholders. The officer who has charge
of the stock ledger of the Company shall prepare and make, at least 10 days
before each meeting of stockholders, a complete list of the stockholders
entitled to vote at the meeting, arranged in alphabetical order, showing the
address of 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, during ordinary business hours, for a period of at least
10 days prior to the meeting, either at a place within the city, town or village
where the meeting is to be held, which place shall be specified in the notice of
meeting, or, if not specified, at the place where the meeting is to be held. The
list shall be produced and kept at the time and place of the meeting during the
whole time thereof, and may be inspected by any stockholder who is present.
Section 2.8. Quorum, Adjournments. The presence, in person or
by proxy, of the holders of a majority of the voting power of the issued and
outstanding stock of the Company entitled to vote thereat shall constitute a
quorum for the transaction of business at all meetings of stockholders, except
as otherwise provided by statute or by the Certificate of Incorporation. If,
however, such quorum shall not be present or represented by proxy at any meeting
of stockholders, the stockholders entitled to vote thereat, present in person or
represented by proxy, shall have the power to adjourn the meeting from time to
time, without notice other than announcement at the meeting, until a quorum
shall be present or represented by proxy. If a quorum shall be present or
represented by proxy, any business may be transacted which might have been
transacted at the meeting as originally called. If the adjournment is for more
than 30 days, or, if after adjournment a new record date is set, a notice of the
adjourned meeting shall be given to each stockholder of record entitled to vote
at the meeting.
Section 2.9. Organization of Meetings. At each meeting of
stockholders, the Chairman, if one shall have been elected, or, in his absence
or if one shall not have been elected, the President, shall act as chairman of
the meeting. If the Chairman (if one shall have been elected) and the President
shall be absent or unable to act, any officer of the Company designated by the
Chairman (if one shall have been elected) or the President (if a Chairman shall
not have been elected) shall act as chairman of the meeting. The Secretary or,
in his absence or inability to act, the person whom the chairman of the meeting
shall appoint secretary of the meeting shall act as secretary of the meeting and
keep the minutes thereof.
Section 2.10. Conduct of Meetings. The agenda or order of
business at all meetings of the stockholders shall be as determined by the
chairman of the meeting. The date and time of the opening and closing of the
polls for each matter upon which the stockholders will vote at a meeting shall
be as determined by the chairman of the meeting and shall be announced at the
meeting. The Board of Directors may to the extent not prohibited by law adopt by
resolution such rules and regulations for the conduct of the meeting of the
stockholders as it shall deem appropriate. Except to the extent inconsistent
with such rules and regulations adopted by the Board of Directors, the chairman
of the meeting shall have the right and authority to prescribe such rules,
regulations and procedures to do all such acts as, in the judgment of such
chairman, 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 chairman of the meeting, may to the extent not prohibited by
law include the following: (i) rules and procedures for maintaining order at the
meeting and the safety of those present; (ii) limitations on attendance at or
participation in the meeting to stockholders of record of the Company, their
duly authorized and constituted proxies or such other persons as the chairman of
the meeting shall determine; (iii) restrictions on entry to the meeting after
the time fixed for the commencement thereof and (iv) limitations on the time
allotted to questions or comments by participants. Unless, and to the extent,
determined by the Board of Directors or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with rules of
parliamentary procedure.
<PAGE 5>
Section 2.11. Voting. (a) Except as otherwise provided by
statute or by or pursuant to the Certificate of Incorporation, each stockholder
of the Company shall be entitled at each meeting of stockholders to one vote for
each share of capital stock of the Company standing in his name on the record of
stockholders of the Company:
(1) on the date fixed as the record date for the
determination of the stockholders who shall be entitled to notice of and to vote
at such meeting; or
(2) if no such record date shall have been so fixed,
then at the close of business on the day next preceding the day on which notice
thereof shall be given, or, if notice is waived, at the close of business on
the date next preceding the day on which the meeting is held.
(b) Except as may otherwise be provided by statute, in the
Certificate of Incorporation or these Bylaws:
(1) Directors shall be elected by the affirmative
votes of a plurality of the votes of the shares present in person or by proxy at
the meeting and entitled to vote on the election of Directors; and
(2) In all matters other than the election of
Directors, the affirmative vote of the majority of shares present in person or
by proxy at the meeting and entitled to vote on the subject matter shall be the
act of the stockholders.
(c) Each stockholder entitled to vote at any meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for him by a
proxy signed by such stockholder or his attorney-in-fact, but no proxy shall be
voted after three years from its date, unless the proxy provides for a longer
period. Any such proxy shall be delivered to the secretary of the meeting or his
designee at or prior to the time designated in the order of business for so
delivering such proxies.
(d) Unless required by statute, or determined by the chairman
of the meeting to be advisable, the vote on any question need not be by written
ballot. On a vote by written ballot, each ballot shall be signed by the
stockholder voting, or by his proxy, if there be such proxy.
<PAGE 6>
Section 2.12. Inspectors. The Company shall, in advance of any
meeting of stockholders, appoint one or more inspectors, who may be employees of
the Company, to act at such meeting or any adjournment and make a written report
thereof. The Company may designate one or more persons as alternate inspectors
to replace any inspector who fails to act. If no inspector or alternate is able
to act at a meeting of stockholders, the chairman of the meeting shall appoint
one or more inspectors to act at the meeting. Each inspector, before entering
upon the discharge of the duties of inspector, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of such inspector's ability. The inspectors shall: (i)
ascertain the number of shares outstanding and the voting power of each; (ii)
determine the shares represented at a 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 represented at the meeting, and their count of all votes and
ballots. The inspectors may appoint or retain other persons or entities to
assist the inspectors in the performance of the duties of the inspectors. 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 Company, 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. Inspectors
need not be stockholders.
Section 2.13. Consent Solicitation. (a) In order that the
Company may determine the stockholders entitled to consent to corporate action
in writing without a meeting, 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 date shall not
be more than ten days after the date upon which the resolution fixing the record
date is adopted by the Board of Directors. Any stockholder of record seeking to
have the stockholders authorize or take corporate action by written consent
shall, by written notice to the Secretary, request the Board of Directors to fix
a record date. The Board of Directors shall promptly, but in all events within
ten days after the date on which such a request is received, adopt a resolution
fixing the record date. If no record date has been fixed by the Board of
Directors within ten days of the date on which such a request is received, the
record date for determining stockholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the Board of Directors is
required by applicable 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 Company by delivery to its registered office in the State of Delaware, its
principal place of business or an officer or agent of the Company having custody
of the book in which proceedings of meetings of stockholders are recorded.
Delivery made to the Company's registered office shall be by hand or by
certified or registered mail, return receipt requested. If no record date has
been fixed by the Board of Directors and prior action by the Board of Directors
is required by applicable law, the record date for determining stockholders
entitled to consent to corporate action in writing without a meeting shall be at
the close of business on the day on which the Board of Directors adopts the
resolution taking such prior action.
(b) In the event of the delivery to the Company of a written
consent or consents purporting to authorize or take corporate action and/or
related revocations (such written consent or consents together with any related
revocations is referred to in this section as a "Consent"), the Secretary of the
Company shall provide for the safekeeping of such Consent and shall immediately
appoint duly qualified and independent inspectors to: (i) conduct promptly such
reasonable ministerial review as such inspectors deem necessary or appropriate
for the purpose of ascertaining the sufficiency and validity of such Consent and
all matters incident thereto, including whether holders of shares having the
requisite voting power to authorize or take the action specified in the Consent
have given consent; and (ii) deliver to the Secretary a written report regarding
the foregoing. If after such investigation and report the Secretary shall
determine that the Consent is valid and that holders of shares having the
requisite voting power to authorize or take the action specified in the Consent
have given consent, that fact shall be certified on the records of the Company
kept for the purpose of recording the proceedings of meetings of stockholders,
and the Consent shall be filed in such records, at which time the Consent shall
become effective as stockholder action.
<PAGE 7>
Section 2.14. Voting Rights of Holders of Series A Preferred
Stock. Nothing in these Bylaws is intended to provide greater voting rights to
the holders of the Series A Convertible Exchangeable Preferred Stock ("Series A
Preferred Stock") than are required by applicable law or the Certificate of
Incorporation.
ARTICLE 3
BOARD OF DIRECTORS
Section 3.1. General Powers. The business and affairs of the
Company shall be managed by or under the direction of the Board of Directors.
The Board of Directors may exercise all such authority and powers of the Company
and do all such lawful acts and things as are not by statute or the Certificate
of Incorporation directed or required to be exercised or done by the
stockholders.
Section 3.2. Number, Election, Term, etc. The number of
Directors of the Company shall be fixed, from time to time, by the affirmative
vote of a majority of the entire Board of Directors but in no event shall be
less than five (5) or more than eleven (11), which number shall include the
number of Preferred Stock Directors (as such term is defined in the Certificate
of Incorporation). If no number is fixed by the Board, the number of Directors
shall be seven (7), which number shall include the number of Preferred Stock
Directors. The Directors shall be elected at the annual meeting of stockholders,
and each Director shall be elected to hold office until the next annual meeting
of stockholders and until his successor shall be elected and qualified, or until
his death, or until he shall have resigned or have been removed, as hereinafter
provided in these Bylaws. Directors need not be stockholders.
Section 3.3. Vacancies. Any vacancy in the office of a
Preferred Stock Director shall be filled in the manner specified in the
Certificate of Incorporation. If any vacancy (other than a vacancy in the office
of a Preferred Stock Director) or any new directorship is created by an increase
in the authorized number of Directors, such vacancy or newly created
directorship shall be filled by a majority vote of the Directors (other than the
Preferred Stock Directors) then in office, even if less than a quorum.
Section 3.4. Resignations. Any Director of the Company may
resign at any time by giving written notice of his resignation to the Company.
Any such resignation shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified therein, immediately
upon its receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it effective.
<PAGE 8>
Section 3.5. Removal of Directors. Any Director may be
removed, with or without cause, by the holders of a majority of the shares then
entitled to vote for the election of such Directors.
Section 3.6. Place of Meetings. Meetings of the Board of
Directors shall be held at such place or places, within or without the State of
Delaware, as the Board of Directors may from time to time determine or as shall
be specified in the notice of any such meeting.
Section 3.7. Annual Meeting. At its first meeting after each
annual meeting of stockholders, the Board of Directors shall meet for the
purpose of organization, the election of officers and the transaction of other
business. In the event such annual meeting is not held on the same day and at
the same place as the annual meeting of stockholders, the annual meeting of the
Board of Directors may be held at such other time or place (within or without
the State of Delaware) as shall be specified in a notice thereof given as
hereinafter provided in Section 3.10 of this Article 3.
Section 3.8. Regular Meetings. Regular meetings of the Board
of Directors shall be held at such time and place as the Board of Directors may
fix. Notice of regular meetings of the Board of Directors need not be given
except as otherwise required by statute or these Bylaws.
Section 3.9. Special Meetings. Special meetings of the
Board of Directors may be called by the chief executive officer or the Board of
Directors, acting by a majority of its members.
Section 3.10. Notice of Meetings. Notice of each special
meeting of the Board of Directors (and of each regular meeting for which notice
shall be required) shall be given by the Secretary as hereinafter provided in
this Section 3.10. Such notice shall state the time and place of the meeting,
but except as otherwise specifically required by these Bylaws, such notice need
not state the purposes of such meeting. Notice of each such meeting shall be
mailed, postage prepaid, to each Director, addressed to such person at such
person's residence or usual place of business, by first class mail, at least two
days before the day on which such meeting is to be held, or shall be sent
addressed to such person at such place by telegraph, cable, telex, overnight
delivery service, telecopier or other similar means, or be delivered to such
person personally or be given to such person by telephone or other similar
means, at least twenty-four hours before the time at which such meeting is to be
held. Notice of any such meeting need not be given to any Director who shall,
either before or after the meeting, submit a signed waiver of notice or who
shall attend such meeting, except when such Director shall attend 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.
<PAGE 9>
Section 3.11. Quorum and Manner of Acting. A majority of the
entire Board of Directors shall constitute a quorum for the transaction of
business at any meeting of the Board of Directors, and, except as otherwise
expressly required by statute or the Certificate of Incorporation or these
Bylaws, the vote of a majority of the Directors present at any meeting at which
a quorum is present shall be the act of the Board of Directors. In the absence
of a quorum at any meeting of the Board of Directors, a majority of the
Directors present thereat may adjourn such meeting to another time and place.
Notice of the time and place of any such adjourned meeting shall be given to all
of the Directors unless such time and place were announced at the meeting at
which the adjournment was taken, in which case such notice shall only be given
to the Directors who were not present thereat. At any adjourned meeting at which
a quorum is present, any business may be transacted which might have been
transacted at the meeting as originally called. The Directors shall act only as
a Board and the individual Directors shall have no power as such.
Section 3.12. Organization. At each meeting of the Board of
Directors, the Chairman, if one shall have been elected, or, in the absence of
the Chairman or if one shall not have been elected, the President (or, in his
absence, another Director chosen by a majority of the Directors present) shall
act as chairman of the meeting and preside thereat. The Secretary or, in his
absence, any person appointed by the chairman shall act as secretary of the
meeting and keep the minutes thereof.
Section 3.13. Compensation. The Board of Directors shall
have authority to fix the compensation, including fees and reimbursement of
expenses, of Directors for services to the Company in any capacity.
Section 3.14. Committees. (a) The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, each committee to consist of one or more of the Directors of
the Company. 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. Except to the extent restricted by
statute or the Certificate of Incorporation, each such committee, to the extent
provided in a resolution of the Board of Directors, shall have and may exercise
all the powers and authority of the Board of Directors and may authorize the
seal of the Company to be affixed to all papers which require it. Each such
committee shall serve at the pleasure of the Board of Directors and have such
name as may be determined from time to time by resolution adopted by the Board
of Directors. Each committee shall keep regular minutes of its meetings and
report the same to the Board of Directors.
(b) Without limiting the generality of the immediately
preceding subsection, the Board of Directors by resolution of a majority of the
number of directors fixed by these Bylaws may designate three or more Directors
to constitute an executive committee, which, to the extent provided in such
resolution, shall have and may exercise all the authority of the Board of
Directors except to amend the Company's Bylaws. If an executive committee is so
designated, it will elect one of its members to be its chairman.
Section 3.15. Action by Consent. Unless restricted by the
Certificate of Incorporation, any action required or permitted to be taken by
the Board of Directors or 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, and the writing or writings are filed with the
minutes of the proceedings of the Board of Directors or such committee, as the
case may be.
<PAGE 10>
Section 3.16. Telephonic Meeting. Unless restricted by the
Certificate of Incorporation, any one or more members of the Board of Directors
or any committee thereof may participate in a meeting of the Board of Directors
or such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other. Participation by such means shall constitute presence in person at a
meeting.
ARTICLE 4
OFFICERS
Section 4.1. Number and Qualifications. The officers of the
Company shall be elected by the Board of Directors and shall include the
President, the Secretary and the Treasurer. If the Board of Directors wishes, it
may also elect as an officer of the Company a Chairman and may elect other
officers as may be necessary or desirable for the business of the Company,
including one or more Executive Vice Presidents, Senior Vice Presidents, Vice
Presidents, Assistant Secretaries and Assistant Treasurers. The chief executive
officer of the Company may appoint officers of the Company. Any two or more
offices may be held by the same person, and no officer except the Chairman need
be a Director. Officers need not be stockholders. Each officer shall hold office
until his successor shall have been duly elected and shall have qualified, or
until his death, or until he shall have resigned or have been removed, as
hereinafter provided in these Bylaws.
Section 4.2. Resignations. Any officer of the Company may
resign at any time by giving written notice of his resignation to the Company.
Any such resignation shall take effect at the time specified therein or, if the
time when it shall become effective shall not be specified therein, immediately
upon receipt. Unless otherwise specified therein, the acceptance of any such
resignation shall not be necessary to make it effective.
Section 4.3. Removal. Any officer of the Company may be
removed, either with or without cause, at any time, by the Board of Directors at
any meeting thereof.
Section 4.4. Chairman and President. (a) The Board of
Directors, in its discretion, may determine that the Company shall have a
Chairman. If the Board of Directors shall so determine, it shall elect a
Director as Chairman. The Chairman shall, if present, preside at each meeting of
the Board of Directors or the stockholders. The Chairman shall be an officer of
the Company; may, in the discretion of the Board of Directors, be the chief
executive officer of the Company; and shall perform such other duties as may
from time to time be assigned to him by the Board of Directors.
(b) When the office of Chairman is not filled, or when the
Chairman is not the chief executive officer of the Company, the President shall
be the chief executive officer of the Company. The President shall, in the
absence of the Chairman or if a Chairman shall not have been elected, preside at
each meeting of the Board of Directors or the stockholders. He shall perform all
duties incident to the office of President and such other duties as may from
time to time be assigned to him by the Board of Directors.
<PAGE 11>
(c) In the event the President shall be the chief executive
officer, the Board of Directors may designate an Executive Vice President or
Senior Vice President as chief operating officer. In the absence of such
designation, the President shall also be the chief operating officer.
(d) Except as the Board of Directors may otherwise prescribe
by resolution, the chief executive officer shall have general supervision over
the business and operations of the Company and may act and execute any
instrument for the conduct of such business and operations.
Section 4.5. Other Officers. The duties of the other officers
shall be those usually related to their offices or those assigned by the
Company's chief executive officer, except as otherwise prescribed by statute,
the Certificate of Incorporation, these Bylaws or resolution of the Board of
Directors.
Section 4.6. General. (a) In the absence of the Chairman
and President, any officer designated by the Board shall exercise the powers and
perform the duties of the chief executive officer or the chief operating officer
or both.
(b) Except as otherwise determined by resolution of the Board
of Directors, the Chairman, President or any Executive Vice President, Senior
Vice President or Vice President may execute any instrument for the conduct of
the Company's business and operations.
Section 4.7. Agents. The chief executive officer or any
officer or employee authorized by him may appoint, remove or suspend agents or
employees of the Company and may determine their duties and compensation.
Section 4.8. Compensation. The compensation of the officers of
the Company for their services as such officers shall be fixed from time to time
by or pursuant to authority granted by the Board of Directors. An officer of the
Company shall not be prevented from receiving compensation by reason of the fact
that he is also a Director of the Company.
ARTICLE 5
STOCK CERTIFICATES AND THEIR TRANSFER
Section 5.1. Stock Certificates. Every holder of stock in the
Company shall be entitled to have a certificate signed in the name of the
Company by the Chairman or the President or a Vice President and by the
Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary
of the Company, certifying the number of shares owned by him in the Company. If
the Company shall be authorized to issue more than one class of stock or more
than one series of any class, the designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights shall be set forth in full or summarized on the face or back of
the certificate which the Company shall issue to represent such class or series
of stock, provided that, except as otherwise provided in Section 202 of the
General Corporation Law of the State of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the Company shall issue to represent such class or series of stock a
statement that the Company will furnish without charge to each stockholder who
so requests the designations, preferences and relative, participating, optional
or other special rights of each class of stock or series thereof and the
qualifications, limitations or restrictions of such preferences and/or rights.
<PAGE 12>
Section 5.2. Facsimile Signatures. Any or all of the
signatures on a 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 Company
with the same effect as if he were such officer, transfer agent or registrar at
the date of issue.
Section 5.3. Lost Certificates. The appropriate officers of
the Company may direct a new certificate or certificates to be issued in place
of any certificates theretofore issued by the Company alleged to have been lost,
stolen or destroyed. When authorizing such issue of a new certificate or
certificates, the appropriate officers of the Company may, in their discretion
and as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed certificate or certificates, or his legal
representative, to give the Company a bond in such sum as it may direct
sufficient to indemnify it against any claim that may be made against the
Company on account of the alleged loss, theft or destruction of any such
certificate or the issuance of such new certificate.
Section 5.4. Transfers of Stock. Upon surrender to the Company
or the transfer agent of the Company 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 Company to issue a new certificate to the
person entitled thereto, cancel the old certificate and record the transaction
upon its records; provided, however, that the Company shall be entitled to
recognize and enforce any lawful restriction on transfer. Whenever any transfer
of stock shall be made for collateral security, and not absolutely, it shall be
so expressed in the entry of transfer if, when the certificates are presented to
the Company for transfer, both the transferor and the transferee request the
Company to do so.
Section 5.5. Transfer Agents and Registrars. The Board of
Directors may appoint, or authorize any officer or officers to appoint, one or
more transfer agents and one or more registrars.
Section 5.6. Regulations. The Board of Directors may make such
additional rules and regulations, not inconsistent with applicable law, the
Certificate of Incorporation and these Bylaws, as it may deem expedient
concerning the issue, transfer and registration of certificates for shares of
stock of the Company.
Section 5.7. Registered Stockholders. The Company shall be
entitled to recognize the exclusive right of a person registered on its records
as the owner of shares of stock to receive dividends and to vote as such owner
and shall not be bound to recognize any equitable or other claim to or interest
in such share or shares of stock on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
the laws of the State of Delaware.
<PAGE 13>
ARTICLE 6
GENERAL PROVISIONS
Section 6.1. Dividends. Subject to the provisions of statute
and the Certificate of Incorporation, dividends upon the shares of capital stock
of the Company may be declared by the Board of Directors at any regular or
special meeting. Dividends may be paid in cash, in property or in shares of
stock of the Company, unless otherwise provided by statute or the Certificate of
Incorporation.
Section 6.2. Reserves. Before payment of any dividend, there
may be set aside out of any funds of the Company available for dividends such
sum or sums as the Board of Directors may, from time to time, in its absolute
discretion, think proper as a reserve or reserves to meet contingencies, or for
equalizing dividends, or for repairing or maintaining any property of the
Company or for such other purpose as the Board of Directors may think conducive
to the interests of the Company. The Board of Directors may modify or abolish
any such reserves in the manner in which it was created.
Section 6.3. Seal. The seal of the Company shall be in
such form as shall be approved by the Board of Directors.
Section 6.4. Fiscal Year. The fiscal year of the Company
shall be the calendar year unless changed by resolution of the Board of
Directors.
Section 6.5. Checks, Notes, Drafts, Etc. All checks, notes,
drafts or other orders for the payment of money of the Company shall be signed,
endorsed or accepted in the name of the Company by the Treasurer or such other
officer, officers, person or persons as from time to time may be designated by
the Board of Directors or by an officer or officers authorized by the Board of
Directors to make such designation.
Section 6.6. Execution of Contracts, Deeds, Etc. The Board of
Directors may authorize any officer or officers, agent or agents, in the name
and on behalf of the Company to enter into or execute and deliver any and all
deeds, bonds, mortgages, contracts and other obligations or instruments, and
such authority may be general or confined to specific instances.
Section 6.7. Voting of Stock in Other Corporations. Unless
otherwise provided by resolution of the Board of Directors, the Chairman or the
President, from time to time, may (or may appoint one or more attorneys or
agents to) cast the votes which the Company may be entitled to cast as a
shareholder or otherwise in any other corporation, any of whose shares or
securities may be held by the Company, at meetings of the holders of the shares
or other securities of such other corporation. In the event one or more
attorneys or agents are appointed, the Chairman or the President may instruct
the person or persons so appointed as to the manner of casting such votes or
giving such consent. The Chairman or the President may, or may instruct the
attorneys or agents appointed to, execute or cause to be executed in the name
and on behalf of the Company and under its seal or otherwise such written
proxies, consents, waivers or other instruments as may be necessary or proper in
the circumstances.
<PAGE 14>
ARTICLE 7
INDEMNIFICATION
Section 7.1. Right to Indemnification. The Company 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, either
civil, criminal, administrative or investigative, by reason of the fact that he
is or was a director, officer or supervisor or manager of the Company or a
constituent corporation absorbed in a consolidation or merger, or while a
director, officer or supervisor or manager of the Company is or was serving at
the request of the Company or a constituent corporation absorbed in a
consolidation or merger, as a director, officer or supervisor or manager 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, whether or not the indemnified liability arises or
arose from any threatened, pending or completed action by or in the right of the
corporation to the extent that such person is not otherwise indemnified and to
the extent such indemnification is not prohibited by applicable law.
Section 7.2. Advance of Expenses. The Company shall pay the
expenses incurred by a director, officer or supervisor or manager of the Company
who was or is a party or is threatened to be made a party to any action, suit or
proceeding, either civil, criminal, administrative or investigative, by reason
of the fact that he is or was a director, officer or supervisor or manager of
the Company or a constituent corporation absorbed in a consolidation or merger,
or while a director, officer or supervisor or manager of the Company is or was
serving at the request of the Company or a constituent corporation absorbed in a
consolidation or merger, as a director, officer or supervisor or manager of
another corporation, partnership, joint venture, trust or other enterprise in
advance of the final disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of the director, officer or supervisor or
manager to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Company.
Section 7.3. Procedure for Determining Permissibility. The
procedure for determining the permissibility of indemnification under the
standards contained in this Article 7 (including the advance of expenses) shall
be that set forth in Section 145(d) of the Delaware General Corporation Law,
provided that, if there has been a change in control of the Company between the
time of the action or failure to act giving rise to the claim for
indemnification and such claim, and at the option of the person seeking
indemnification, the permissibility of indemnification shall be determined by
independent legal counsel selected jointly by the Company and the person seeking
indemnification. The reasonable expenses of any director, officer or supervisor
or manager in prosecuting a successful claim for indemnification, and the fees
and expenses of any special legal counsel engaged to determine permissibility of
indemnification, shall be borne by the Company.
<PAGE 15>
Section 7.4. Contractual Obligation. The obligations of the
Company to indemnify a director, officer or supervisor or manager under this
Article 7, including the duty to advance expenses, shall be considered a
contract between the Company and such director, officer or supervisor or manager
and no modification or repeal of any provision of this Article 7 shall affect,
to the detriment of the director, officer or supervisor or manager, such
obligations of the Company in connection with a claim based on any act or
failure to act occurring before such modification or repeal.
Section 7.5. Indemnification Not Exclusive: Inuring of
Benefit. The indemnification and advance of expenses provided by this Article 7
shall not be deemed exclusive of any other right to which one indemnified may be
entitled, both as to action in his official capacity and as to action in another
capacity while holding such office, and shall inure to the benefit of the heirs,
executors and administrators of any such person.
Section 7.6. Insurance and Other Indemnification. The Board of
Directors shall have the power to (i) authorize the Company to purchase and
maintain, at the Company's expense, insurance on behalf of the Company and on
behalf of others to the extent that power to do so has not been prohibited by
applicable law, and (ii) give other indemnification to the extent permitted by
law.
ARTICLE 8
PROHIBITION OF BANKRUPTCY FILING
Westmoreland Coal Company shall not, nor shall it take any
action to enable its subsidiary companies Westmoreland Resources, Inc.,
Westmoreland Energy, Inc., Westmoreland Terminal Company or Westmoreland Coal
Sales Company, Inc., to, file a voluntary petition under Title 11 of the US Code
or institute an action under any other state or federal liquidation, insolvency
or reorganization statute for five years after January 4, 1999.
ARTICLE 9
AMENDMENTS
These Bylaws may be amended or repealed at any meeting of the
Directors or, subject to applicable law and stockholders' rights thereunder, by
the stockholders at any stockholders' meeting if such business is properly
brought before the meeting.
