Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
Filed by the Registrant [X]
Filed by a Party other than the Registrant [ ]
Check the appropriate box:
[ ] Preliminary Proxy Statement
[ ] Confidential, for Use of the Commission Only (as permitted by rule
14-a-6(e)(2))
[X] Definitive Proxy Statement
[ ] Definitive Additional Materials
[ ] Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
CENTRAL COAL & COKE CORPORATION
-----------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(I)(4)
and 0-11.
1) Title of each class of securities to which transaction applies:
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2) Aggregate number of securities to which transaction applies:
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3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on
which the filing fee is calculated and state how it was determined):
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4) Proposed maximum aggregate value of transaction:
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[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the offsetting
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statement number, or the Form or Schedule and the date of filing.
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4) Date Filed:
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<PAGE>
CENTRAL COAL & COKE CORPORATION
127 W. 10th Street, Suite 666
Kansas City, Missouri 64105
December 11, 2000
NOTICE OF CONSENT SOLICITATION BY THE BOARD OF DIRECTORS
To Our Stockholders:
This Consent Statement and the accompanying consent card are being
furnished to you by the Board of Directors (the "Board") in connection with
the solicitation by the Board of written consents from the holders of shares
of the $1.00 par value common stock (the "Common Stock") of Central Coal &
Coke Corporation (the "Company") to take the following actions without a
meeting of the stockholders as permitted under the Delaware General
Corporation Law:
1. The adoption of the Amended and Restated Certificate of Incorporation
substantially identical to Exhibit A attached hereto and incorporated herein
by this reference. Included in the Amended and Restated Certificate are
provisions for a new name for the Corporation, a more descriptive business
purpose, an increase in the number of authorized shares of common stock and
new authorized shares of preferred stock of the Company.
Only those stockholders of record as of the close of business on November
17,2000 are entitled to execute a consent pursuant to this consent
solicitation (the "Record Date").
The Board has declared the amendments set forth in the Amended and
Restated Certificate of Incorporation are advisable and believes that the
Company should make these changes at this time.
The actions recommended to be taken by the Board pursuant to this consent
solicitation may be taken as soon as duly signed consents in favor thereof
are received from the holders of a majority of the shares of Common Stock
outstanding on the Record Date. However, in order to be effective under the
Delaware General Corporation Law, the required number of duly signed consents
must be delivered to the Company not later than February 9, 2001.
Accordingly, we urge you to complete, date and sign the enclosed consent card
and return it as promptly as possible in the enclosed envelope.
We greatly appreciate your consideration of this proposal and look forward
to working with you in the future.
Sincerely,
/s/ Phelps M. Wood
President
Enclosures
December 11, 2000
Please mark, date, sign and return the
accompanying consent card in the
enclosed envelope as promptly as possible.
A failure to sign and return the
consent card will have the same effect as
a vote against the Board's proposal.
<PAGE>
CENTRAL COAL & COKE CORPORATION
127 W. 10th Street, Suite 666
Kansas City, Missouri 64105
December 11, 2000
CONSENT STATEMENT
REASONS FOR THE CONSENT SOLICITATION
The Board is proposing the Amendment and Restatement of Certificate of
Incorporation as set forth in Exhibit A to the Notice of Consent Solicitation
by the Board of Directors for several reasons. The Company has been in
existence over sixty-four years and during that time the emphasis of its
business has changed or been redirected. Although a significant component of
the Company's business still is and relates to coal, an even greater portion
of its business activities involves oil, gas and other minerals, and expansion
into other areas of natural resources is a possibility. The reference
to "coke" in the Company's name relates to the historical use of coal in steel
production which seems no longer to be paramount. Indeed, the United States
as a whole has seen a dramatic decrease in the domestic production of steel
and steel by-products since the Company's incorporation. Accordingly, the
Board believes that the new name and amended corporate purposes more
accurately reflect the Company's current activities and future direction.
The Board is also proposing to change the Company's capital structure by
authorizing additional common stock and authorizing preferred stock.
At the present time, the Company has no definite commitments or plans to
issue either additional Common or additional Preferred stock (other than in
connection with the possible exercise of Director Stock Options as disclosed
in the table of ownership hereinafter set forth), but the Board believes that
the proposed increase is desirable so, that, as the need may arise, the
Company will have more financial flexibility and be able to issue additional
shares, without the expense and delay of a special stockholders' meeting in
connection with future opportunities for expanding the business through
acquisitions, expansion, or investments, possible stock splits or stock
dividends, equity financing, possible management incentive programs and for
other purposes. If the Board deems it to be in the interest of the Company
and its stockholders to issue additional shares of Common stock or Preferred
stock in the future, the Board generally will not seek further authorization
by vote of the Company's stockholders unless such authorization is otherwise
required by applicable law or regulation.
Currently, there are authorized 500,000 shares of $1.00 par value Common
stock and no Preferred stock. The Common stock to be authorized will be
2,500,000 shares with a par value of $1.00 and the Preferred stock to be
authorized is 100,000 shares with a par value of $1.00. Because no offering
of Preferred stock is contemplated in the proximate future, additional terms
cannot be set forth at this time. With respect to any future offering of
such Preferred stock, the terms of such stock to be authorized, including
dividend rates, conversion prices, voting rights, redemption prices,
maturity dates, and similar matters will be determined by the Board.
Currently, the Common stock carries no preemptive or preferential right
to purchase or subscribe for any stock of the Corporation.
<PAGE>
BOARD OF DIRECTORS' PROPOSAL AND PROCEDURE FOR RESTATEMENT AND
AMENDMENT OF THE CERTIFICATE OF INCORPORATION
Sections 242 and 245 of the Delaware General Corporation Law (the "DGCL")
provide that a corporation, may amend its certificate of incorporation as may
be desired, so long as a certificate of incorporation as amended would
contain only such provisions as would be lawful and proper in any original
certificate of incorporation. A corporation's Board of Directors may adopt a
resolution setting forth the amendment proposed , declaring its advisability,
and then submit the proposal to the stockholders for approval. Upon approval
of the amendments by a majority of the outstanding stock of each class
entitled to vote on such amendment, a certificate setting forth the amendment
certifying that such amendment has been duly adopted in accordance with the
provisions of Section 242 of the DGCL shall be executed, acknowledged, filed
and recorded with the Delaware Secretary of State. Section 245 of the DGCL
provides that a corporation may integrate into a single instrument all of the
provisions of its certificate of incorporation which are then in effect and
operative, together with the amendments then being approved, by adopting a
restated certificate of incorporation. Therefore, pursuant to Sections 242
and 245 of the DGCL, the Board of the Company hereby declares advisable and
proposes that the Company's certificate of incorporation be amended and
restated as set forth in Exhibit A attached hereto, which Exhibit is hereby
incorporated herein by this reference as if reproduced in full. The proposal
to amend and restate the certificate of incorporation in this manner was
approved by the unanimous vote of the Directors at a meeting held November 7,
2000. The Board requests the stockholders approve this proposal to amend and
restate the certificate of incorporation by virtue of the consent procedure
set forth below.
CONSENT PROCEDURE
Section 228 of the DGCL provides that, unless otherwise provided in the
certificate of incorporation, any action that may be taken at any annual
or special meeting of stockholders may be taken without a meeting, without
prior notice and without a vote, if 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 those consents are delivered to the
corporation. In the case of this consent solicitation, written, unrevoked
consents of the holders of a majority of the outstanding shares of Common
Stock as of the Record Date must be delivered to the Company to effect the
actions as to which consents are being solicited hereunder. Section 228 of
the DGCL further provides that no written consent shall be effective to take
the corporate action referred to therein unless, within 60 days of the
earliest dated consent delivered in the manner required by Section 228,
written consents signed by a sufficient number of holders to take such
action are delivered to the corporation in the manner required by Section
228.
<PAGE>
IT IS CURRENTLY THE INTENTION OF THE BOARD TO CEASE THE SOLICITATION
OF CONSENTS ONCE THE COMPANY HAS DETERMINED THAT VALID AND UNREVOKED
CONSENTS REPRESENTING A MAJORITY OF THE ISSUED AND OUTSTANDING SHARES
OF COMMON STOCK AS OF THE RECORD DATE HAVE BEEN OBTAINED BY THE COMPANY
IN THE MANNER REQUIRED BY SECTION 228 OF THE DGCL AS SOON AS
PRACTICABLE THEREAFTER. WHEN CONSENTS FOR A MAJORITY OF THE COMPANY'S
COMMON STOCK HAVE BEEN OBTAINED BY THE COMPANY, A SHAREHOLDER WILL BE
UNABLE TO REVOKE HIS CONSENT. IF THE COMPANY HAS NOT RECEIVED CONSENTS
SUFFICIENT TO TAKE THE ACTIONS PROPOSED HEREIN BY THE CLOSE OF BUSINESS
ON FEBRUARY 9, 2001, THE COMPANY WILL CEASE THE SOLICITATION OF
CONSENTS PURSUANT TO THIS CONSENT SOLICITATION.
Please date, sign, and return the consent card
as soon as possible. A failure to do so will
have the same effect as a vote against the Board's
proposals.
STOCK OWNERSHIP OF BENEFICIAL OWNERS
As of November 1, 2000
<TABLE>
<CAPTION>
Title Name, and Business Address Amount and Nature of Percent
of Class of Beneficial Owner Beneficial Ownership of Class
________ ________________________ _______________________ _________
<S> <C> <C> <C>
Common Phelps M. Wood 6,250 shares direct 42.21%
P.O. Box 660729 beneficial ownership;
Arcadia, CA 91066 101,821 shares indirect
beneficial ownership
(See note 7 following
Information Concerning
Directors below)
Common Patrick J. Moran 34,114 shares direct 13.52%
Suite 517 beneficial ownership
1221 Lamar
Houston, Texas 77010
</TABLE>
Phelps M. Wood is President of Tektest, Inc. and is a Director and President
of the Corporation. Patrick J. Moran is President of Moran Resources
Company, and is a Director and Vice President of the Corporation.
<PAGE>
STOCK OWNERSHIP INFORMATION
CONCERNING DIRECTORS AND OFFICERS
Information Concerning Directors:
The information appearing in the following table with respect to principal
occupation, age and beneficial ownership of Common Stock of the Corporation
has been furnished to the Corporation by the Directors. Ownership is given
as of November 1, 2000, except as otherwise noted.
<TABLE>
<CAPTION>
*Amount and
Nature of
Principal Occupation Director Beneficial Percent
Name And Age Since Ownership of Class
______________ ____________________ ________ _____________ ________
<S> <C> <C> <C> <C>
Bruce L. Franke Oil and Gas and 1999 500 shares 0.20%
Real Estate (Note 2)
Business And
Pipeline Right-
of-Way Maintenance
53 years
Ray A. Infantino Retired Insurance 1999 7,900 shares 3.13%
Executive, (Note 3)
Management
Consultant, and
Investor
64 years
Patrick J. Moran President of Moran 1999 34,114 shares 13.52%
Resources Company (Note 4)
51 years
James R. Ukropina Partner O'Melveny 1999 7,900 shares 3.13%
& Meyers, LLP, (Note 5)
Attorneys At Law,
Los Angeles,
California
63 years
Phelps C. Wood Director of Product 1999 500 shares 0.20%
Management at (Note 6)
eCoupons.com
32 years
Phelps M. Wood President of 1980 106,571 shares 42.21%
Tektest, Inc. (Note 7)
(Manufacturers of
Electronic Testing
Accessories)
64 years
TOTAL FOR SIX DIRECTORS 154,485 61.76%
<FN>
*The Corporation has only one outstanding class of stock, that being Common
Stock.
</TABLE>
(1) The shares shown include shares of Common stock of which each Director
has the right to acquire beneficial ownership within sixty (60) days pursuant
to the Central Coal & Coke Corporation Directors Non-Qualified Option Plan
(2) Mr. Franke has been engaged in the oil and gas and real estate business
and pipeline right-of-way maintenance business for over five years as a sole
proprietor. Mr. Franke owns no shares of the Corporation beneficially. The
Frost National Bank in Houston, Texas, as a trustee of a Trust for the
benefit of Mr. Franke's mother owns 12,447 shares. While Mr. Franke has a
remainder interest in that trust, currently he has no voting power,
dispositive power, or right to income from those shares. He has the option
to acquire 500 shares as described in Note 1 above.
<PAGE>
(3) Mr. Infantino has been retired from his principal occupation as an
insurance executive for more than five years. He now serves as a management
consultant and individual investor. Of the 7,900 shares shown above which
Mr. Infantino owns beneficially, 3,700 shares are owned by a contributory
individual retirement account for the benefit of Mr. Infantino, and 3,700
shares are owned of record by Mr. Infantino as trustee of the Infantino
Family Trust Under Agreement Dated October 3,1990. Also included is the
option to acquire 500 shares as described in Note 1 above. Mr. Infantino
is Treasurer and Secretary of the Company.
(4) Mr. Moran has been President of Moran Resources Company, an oil and gas
exploration and production company, for more than five years, and prior to
that time was an attorney engaged in the private practice of law. Mr. Moran
owns beneficially and directly the 34,114 shares shown above, including the
option to acquire 500 shares as described in Note 1 above. In addition,
Mr. Moran shares voting power as a co-trustee of the Moran Employee Trust
which owns 3,143 shares. Mr. Moran disclaims any beneficial interest in
those 3,143 shares.
(5) Mr. Ukropina has been a partner with the Los Angeles, California law
firm of O'Melveny & Myers LLP for more than five years. Mr. Ukropina owns
the 7,900 shares shown above directly including the option to acquire 500
shares as described in Note 1 above. Mr. Ukropina is also a Director of
Lockheed Martin Corporation, Pacific Life Insurance Company, and Trust
Company of the West.
(6) Mr. Phelps C. Wood is currently the director of product management at
eCoupons.com, a company that provides third party promotional solutions for
businesses over the Internet. Prior to joining eCoupons.com in October, 1999,
Mr. Wood worked as an independent consultant, providing strategy, business
development and marketing advice to early-stage companies. From April 1998
to April 1999, Mr. Wood was a senior manager of corporate development with
Point Cast, Inc., an Internet news provider. From August 1996 to April 1998,
Mr. Wood worked as an associate at Bank of America in the Technology
Corporate Finance Group and the Mezzanine Investment Group. Mr. Wood owns
no other shares directly or beneficially, but he is a limited partner in
PACW Limited, a limited partnership, owning 59,461 shares described in
Note 7 hereafter. Mr. Wood has no voting power or dispositive power over the
shares owned by PACW Limited, but his father, Phelps M. Wood, is a general
partner and has sole voting power over those shares as described in Note 7
hereafter. He has the option to acquire 500 shares as described in Note 1
above.
(7) As of November 7, 2000, Mr. Phelps M.Wood was the owner of 6,250 of the
Corporation's shares. He and his wife, Beverly G. Wood, were the joint
owners of an additional 300 shares. His wife also was the sole owner of
record of 100 of the Corporation's shares. Mr. Wood as co-trustee of a trust
settled by him and his wife has a beneficial interest in an additional 651
shares. An additional 1,030 shares are held in Individual Retirement Plan
Accounts for the benefit of Mr. Wood and his wife, over which they have the
power to direct investments. As trustee or co-trustee of three additional
trusts, not settled by him, Mr. Wood has an indirect beneficial interest in
another 38,279 shares. Mr. Wood also has an indirect beneficial interest in
another 59,461 shares owned of record by PACW Limited, a limited partnership
of which he is a partner and has sole voting power over such shares. Mr. Wood
thus has a direct or indirect beneficial interest in a total of 106,071
shares, in addition to 500 shares he has the option to acquire within sixty
(60) days pursuant to the Central Coal & Coke Corporation Directors
Non-Qualified Stock Options Plan. In addition, other members of Mr. Wood's
family collectively have an interest in approximately 4,190 of the
Corporation's shares. Mr. Wood disclaims any beneficial interest in
these 4,190 shares.
<PAGE>
Executive Officers:
There are no Executive Officers of the Corporation who are not also
Directors and listed in the table above.
All Directors and officers as a group own 157,485 shares of the
Corporation's common stock which constitute 61.76% of the stock outstanding.
The principal occupations of the directors over the last five years are as
set forth above and in the footnotes thereto. Mr. Phelps M. Wood is the father
of Mr. Phelps C. Wood. Mr. Moran and Mr. Franke are first cousins. Other than
those relationships, none of the nominees has a family relationship with any
other officer or director of the Corporation.
GENERAL INFORMATION
Record Date and Stockholders Entitled to Consent
Section 213(b) of the DGCL provides that the Board of Directors may fix a
record date for determining the stockholders entitled to consent in writing
to a corporate action without a meeting. Accordingly, the record date for
purposes of this consent solicitation is November 17, 2000 (the "Record Date")
and only those stockholders of record as of the close of business on that
date are entitled to execute a consent pursuant to this consent solicitation.
Consents Required
The Proposal can be effected as soon as duly executed consents in favor
thereof are received from the holders of a majority of the shares of Common
Stock outstanding on the Record Date and are delivered to the Company.
However, in order for the foregoing proposals to be effected, the required
number of duly executed consents must be delivered to the Company within 60
days of the earliest dated consent (i.e., on or before February 9, 2001).
<PAGE>
Execution of Consents
YOUR CONSENT IS IMPORTANT TO THE BOARD, NO MATTER HOW MANY OR HOW FEW
SHARES OF COMMON STOCK YOU OWN. PLEASE SIGN AND RETURN THE ENCLOSED CONSENT
CARD IN ACCORDANCE WITH THE INSTRUCTIONS SET FORTH BELOW.
You may consent to or withhold consent form the Proposal by marking the
appropriate box on the enclosed consent card.
The Board recommends that you consent to the stockholder resolution
approving the Amendment and Restatement of the Certificate of Incorporation.
A broker non-vote, a direction to withhold authority to consent, an
abstention or a failure to return a duly signed consent will have the same
effect as withholding consent to the Board's proposals. If shares are held for
your account in "street name" by a brokerage firm, bank or other intermediary,
you must instruct the person who is responsible for your account to consent to
the Board's proposal. In order to do so, you must mark, date and sign the
instruction card which accompanied this Consent Statement and return it in the
enclosed envelope as soon as possible.
Revocation of Consent
A consent executed and delivered by a stockholder pursuant to this consent
solicitation may be revoked at any time before it is delivered to the Company
by means of: (i) a written revocation of such consent, duly signed and dated
by the stockholder, or (ii) a later dated consent covering the same shares.
A revocation may be in any written form, provided that it states clearly that
the consent previously given is thereby revoked and is duly signed and dated
by the record holder. Any such revocation or late Any such revocation or
later dated consent must be delivered to the Company at 127 W. 10th Street
Suite 666 Kansas City, Missouri 64105. In order to be effective, such
revocation or later dated consent must be delivered prior to the time that
written consents executed by the holders of a majority of the outstanding
shares of Common Stock have been delivered to the Company.
Solicitation of Consents
This Consent Statement is furnished in connection with the solicitation by
the Board of written consents in the accompanying form. The solicitation of
consents will be made by mail. Brokerage firms, banks and other nominees who
hold shares of Common Stock on behalf of beneficial owners will be reimbursed
by the Company for the reasonable out-of-pocket costs incurred by them in
forwarding consent materials to beneficial owners of shares of Common Stock.
The total expense of soliciting consents pursuant to this solicitation
will be borne by the Company.
<PAGE>
Notice of Stockholder Action
If the actions proposed to be taken by the Board pursuant to this Consent
Solicitation are in fact taken, the Company will promptly notify all
stockholders in writing, including those stockholders who have not consented
to such actions as required by the DGCL.
Principal Executive Offices of the Company
The mailing address of the principal executive offices of the Company is
as follows: Central Coal & Coke Corporation, 127 W. 10th Street, Suite 666,
Kansas City, Missouri 64105.
Outstanding Stock
There were 251,982 shares of Common Stock issued and outstanding on the
Record Date, each of which is entitled to one vote.
Stockholder Proposal
The deadline for submitting stockholder proposals for inclusion in the
Company's proxy statement for the Company's next annual meeting was
November 22, 2000, as noted in the Company's proxy statement dated
March 21, 2000.
<PAGE>
EXHIBIT "A"
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CENTRAL COAL & COKE CORPORATION
WHEREAS, the original Certificate of Incorporation of Central Coal & Coke
Corporation (hereinafter "the Corporation") was filed with the Secretary of
State of the State of Delaware on January 9, 1936;
WHEREAS, this Amended and Restated Certificate of Incorporation
restates, integrates and amends the Corporation's Certificate of
Incorporation filed on January 9, 1936, as amended, and has been duly adopted
in accordance with Sections 242 and 245 of the Delaware General Corporation
Law.
The text of the Amended and Restated Certificate of Incorporation of this
Corporation is hereby amended and restated to read in its entirety as
follows:
FIRST: The name of the Corporation is
Central Natural Resources, Inc.
SECOND: Its registered office in the State of Delaware is located at
1209 Orange Street, in the City of Wilmington, County of New Castle. The name
and address of its resident agent is the Corporation Trust Company, 1209
Orange Street, City of Wilmington, County of New Castle, Delaware.
THIRD: The nature of the business or objects or purposes to be
transacted, promoted or carried on are:
<PAGE>
To mine, purchase, or otherwise acquire, and to sell and deal in coal,
oil, gas and other minerals, selling at either wholesale or retail, and to
generally engage in any and all activities involving natural resources.
To acquire, own, enter or lease mines and mineral lands of every kind,
nature and description; also to acquire, own, enter, lease, sell, assign,
transfer or otherwise dispose of mill sites, water rights and terminal
facilities; to work, prospect or develop mines and mineral lands of every
nature or description, either for itself or other companies, corporations or
individuals, upon such terms and for such remuneration as it shall deem fit
and proper and to accept, take and hold mineral lands and claims and claims
of every kind and nature, either as an entirety or any portion thereof.
To manufacture, purchase or otherwise acquire, own, mortgage, pledge,
sell, assign and transfer, or otherwise dispose of, to invest, trade, deal in
and deal with goods, wares and merchandise and personal property of every
class and description.
To acquire, and pay for in cash, stock or bonds of this corporation or
otherwise, the good will, rights, assets and property, and to undertake or
assume the whole or any part of the obligations or liabilities of any person,
firm, association or corporation.
To acquire, hold, use, sell, assign, lease, grant licenses in respect of,
mortgage or otherwise dispose of letters patent of the United States or any
foreign country, patent rights, licenses and privileges, inventions,
improvements and processes, copyrights, trademarks and trade names, relating
to or useful in connection with any business of this corporation.
To acquire by purchase, subscription or otherwise, and to invest in, hold
or dispose of, bonds or other obligations or evidences of indebtedness of any
individual, partnership, association, government or subdivision thereof, and
stocks, bonds, securities or other obligations or evidences of indebtedness
of any individual, partnership, association, government or subdivision
thereof, and stocks, bonds, securities or other obligations or evidences of
indebtedness of any other corporation or association, domestic or foreign;
and , in any manner permitted by law, to exchange therefore its stock, bonds
or other obligations, as well as any other of its property; and while the
owner of any such stocks, bonds, securities, evidences of indebtedness or
other obligations, to exercise all the rights, powers and privileges of
ownership, including the right to vote thereon for any and all purposes; to
aid by loan, subsidy, guaranty or in any other manner whatsoever any
individual, firm, association, corporation or government whose stocks, bonds,
securities or other obligations are in any manner held; and to do any and
all acts or things towards the preservation, protection, improvement or
enhancement in value of any such stocks, bonds, securities or other
obligations, and to do any and all such acts and things designed to
accomplish any such purpose.
<PAGE>
To enter into, make and perform contracts of every kind and description
with any person, firm, association, corporation, municipality, county, state,
body politic or government or colony or dependency thereof.
To borrow or raise monies for any of the purposes of the Corporation and,
from time to time, without limit as to amount, to draw, make, accept, endorse,
execute and issue promissory notes, drafts, bills of exchange, warrants,
bonds, debentures and other negotiable or nonnegotiable instruments and
evidences of indebtedness, and to secure the payment of any thereof and of
the interest thereon by mortgage upon or pledge, conveyance or assignment in
trust of the whole or any part of the property of the corporation, whether at
the time owned or thereafter acquired and to sell, pledge or otherwise
dispose of such bonds or other obligations of the Corporation for its
corporate purposes.
To purchase, hold, sell and transfer the shares of its own capital stock;
provided it shall not use its funds or property for the purchase of its own
shares of capital stock when such use would cause any impairment of its
capital except as otherwise permitted by law, and provided further that the
shares of its own capital stock belonging to it shall not be voted upon
directly or indirectly.
To have one or more offices, to carry on all or any of its operations and
business and without restriction or limit as to amount to purchase or
otherwise acquire, hold, own, mortgage, sell, convey, or otherwise dispose of
real and personal property of every class and description in any of the
States, Districts, Territories or Colonies of the United States, and in any
and all foreign countries, subject to the laws of such State, District,
Territory, Colony or Country.
To engage in any lawful act or activity for which a corporation may be
organized under the laws of the State of Delaware.
FOURTH: A. The Corporation is authorized to issue two classes of
stock to be designated respectively Preferred Stock ("Preferred Stock") and
Common Stock ("Common Stock"). The total number of shares of capital stock
that the Corporation is authorized to issue is 2,600,000. The total number
of shares of Preferred Stock the Corporation shall have authority to issue
is 100,000 at $1.00 par value. The total number of shares of Common Stock
the Corporation shall have authority to issue is 2,500,000 at $1.00 par value.
Any and all such shares may be issued for such consideration expressed in
dollars, as shall be fixed from time to time by the Board of Directors of the
Corporation. The consideration shall be paid, in whole or in part, in
tangible or intangible property or benefit to the Corporation, including
cash, services performed or other securities of the Corporation. The
promissory note of a subscriber or an affiliate of the subscriber for shares
shall not constitute consideration for the shares unless the note is
negotiable, is not nonrecourse and is secured by collateral, other than the
shares, having a fair market value at least equal to the principal amount of
the note. Upon receipt of the consideration fixed by the Board of Directors,
such shares shall be issued and deemed fully paid and nonassessable.
<PAGE>
B. The shares of Preferred Stock may be issued from time to time
in one or more series. The Board of Directors is expressly authorized by
resolution to provide for the issue of all or any of the shares of the
Preferred Stock in one or more series, and to fix the number of shares and to
determine or alter for each such series, such voting powers, full or limited,
or no voting powers, and such powers, designations, preferences, and relative,
participating, optional, or other rights and such qualifications, limitations,
or restrictions thereof, as shall be stated and expressed in a resolution
adopted by the Board of Directors and incorporated into a certificate of
designations filed with the Secretary of State.
C. Each holder of Common Stock shall be entitled to one vote for
each common share held.
D. No holder of stock of this Corporation of any class shall have
any preemptive or preferential right to purchase or subscribe for stock of
this Corporation, whether now or hereafter authorized, or to any obligations
convertible into stock of this Corporation issued or sold, or any right of
subscription to any thereof other than such, if any, as the Board of Directors
in its discretion may from time to time determine and at such price as the
Board of Directors may from time to time fix pursuant to the authorty
conferred by this certificate; and any shares of stock or convertible
obligations which the Board of Directors may determine to offer for
subscription to the holders of stock may, as the Board shall determine, be
offered exclusively to holders of one, more, or all classes of stock, or
partly to holders of one class of stock, and partly to holders of another
class or classes of stock, and in such case in such proportion as between
said classes of stock as the Board of Directors in its discretion may
determine.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: The private property of the stockholders shall not be subject to
the payment of corporate debts to any extent whatever.
SEVENTH: In furtherance, and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized:
To make, alter or repeal the by-laws of the Corporation.
To authorize and cause to be executed mortgages and liens upon
the real and personal property of the Corporation.
<PAGE>
To set apart out of any of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose or to abolish any such
reserve in the manner in which it was created.
By resolution or resolutions, passed by a majority of the whole Board, to
designate one or more committees, each committee to consist of one or more of
the directors of the Corporation, which, to the extent provided in said
resolution or resolutions or in the by-laws of the Corporation, shall have
and may exercise the powers of the Board of Directors in the management of
the business and affairs of the Corporation, and may have the power to
authorize the seal of the Corporation to be affixed to all papers which may
require it. Such committee or committees shall have such name or names as
may be stated in the by-laws of the Corporation or as may be determined from
time to time by resolution adopted by the Board of Directors.
When and as authorized by the affirmative vote of the holders of a majority
of the stock issued and outstanding having voting power given at a
stockholders' meeting duly called for that purpose, or when authorized by the
written consent of the holders of a majority of the voting stock issued and
outstanding, to sell, lease or exchange all of the property and assets of the
corporation, including its good will and its corporate franchises, upon such
terms and conditions and for such consideration, which may be in whole or in
part shares of stock in, and/or other securities of, any other corporation or
corporations, as its Board of Directors shall deem expedient and for the best
interests of the Corporation.
The Corporation may in its by-laws confer powers upon its Board of
Directors in addition to the foregoing, and in addition to the powers and
authorities expressly conferred upon it by statute.
EIGHTH: Both stockholders and directors shall have power if the
by-laws so provide, to hold their meetings, and to have one or more offices
within or without the State of Delaware, and to keep the books of this
Corporation (subject to the provisions of the statutes), outside of the State
of Delaware at such places as may be from time to time designated by the
Board of Directors.
NINTH: The Corporation reserves the right to amend, alter, change or
repeal any provisions contained in this certificate of incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
<PAGE>
TENTH: 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, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or
a knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived
any improper personal benefit. If the Delaware General Corporation Law is
amended after approval by the stockholders of this certificate of
incorporation to authorize corporation action further eliminating or limiting
the personal liability of directors then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the Delaware General Corporation Law as so amended.
Any repeal or modification of the foregoing provisions of this Tenth
Article by the stockholders of the Corporation shall not adversely affect any
right or protection of a director of the Corporation existing at the time of
such repeal or modification.
Executed this ________ day of _________________, 2000.
______________________________
Phelps M. Wood
President
<PAGE>
CONSENT CENTRAL COAL & COKE CORPORATION CONSENT
WRITTEN CONSENT TO STOCKHOLDER ACTION
Pursuant to Section 228(a) of the Delaware General Corporation Law, the
undersigned, being the holder of record on November 17, 2000 (the "Record
Date") of shares of the $1.00 par value common stock (the "Common Stock") of
Central Coal & Coke Corporation (a Delaware corporation hereinafter referred
to as the "Company") or being duly authorized to act on behalf of such a
holder, hereby consents in writing to the following action, such consent to
be applicable to all of the shares of Common Stock held of record on the
Record Date by any person who has duly authorized the undersigned to act on
his behalf:
RESOLVED, that the Amended and Restated Certificate of Incorporation of
Central Coal & Coke Corporation of November 7, 2000 be, and hereby is,
adopted, confirmed and approved.
[ ] Consent/For [ ] Consent Withheld
THIS CONSENT IS SOLICITED ON BEHALF OF THE COMPANY, AND THE COMPANY'S
BOARD OF DIRECTORS RECOMMENDS CONSENT/FOR THE PROPOSAL.
PLEASE SEE REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE
SEE REVERSE SIDE FOR MATTERS TO BE VOTED ON.
IN WITNESS WHEREOF, this Written Consent is duly executed on the date
set forth below Dated_________________
_________________________
Signature
_________________________
Signature (If held jointly)
_________________________________
Title or Authority (If applicable)
Please sign exactly as your name appears hereon and date the consent. If
stock is held jointly, each joint owner should sign. If signing for a
corporation or partnership or as attorney-in-fact or other fiduciary, please
indicate your full title.
PLEASE MARK, DATE AND SIGN THIS CONSENT CARD AND RETURN IT AS PROMPTLY AS
POSSIBLE IN THE ENCLOSED ENVELOPE.
