Exhibit 3.44
KINGWOOD MINING COMPANY, LLC
A LIMITED LIABILITY COMPANY
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this
"Agreement") of Kingwood Mining Company, LLC (the "Company"), is entered into as
of the 11th of March, 2003, by AMFIRE WV, L.P., a Delaware limited partnership
and AMFIRE, LLC, a Delaware limited liability company as the members (the
"Members") of the Company.
ARTICLE I
FORMATION OF THE LIMITED LIABILITY COMPANY
1.1 FORMATION. January 21, 2003, the Company was formed by filing a duly
executed Certificate of Formation with the Delaware Secretary of State in
accordance with and pursuant to the provisions of the Act (as hereinafter
defined). The Members became Members of the Company on March 11, 2003 when the
original Member of the Company, Xxxxxx Run Mining Company, LLC transferred 99
Units of the Company to AMFIRE, LLC and 1 Unit to AMFIRE WV, L.P. If there is a
direct conflict between the provisions of this Agreement and any mandatory,
non-waivable provision of the Act, such provision of the Act shall control. If
any provision of the Act provides that it may be varied or superseded in the
limited liability company agreement (or otherwise by agreement of the members or
managers of a limited liability company), such provision shall be deemed
superseded and waived in its entirety if this Agreement contains a provision
addressing the same issue or subject matter. If any provisions of this Agreement
would cause the Company not to be taxed as a partnership for federal income tax
purposes under the provisions of the Code, such provisions of the Agreement
shall be void to the extent necessary to ensure the Company is taxed as a
partnership for federal income tax. If there is a conflict between this
Agreement and the Certificate of Formation, the provisions of the Certificate of
Formation shall control.
1.2 NAME. The name of the Company is Kingwood Mining Company, LLC.
1.3 BUSINESS. The business of the Company shall be to carry on any lawful
business.
1.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Company shall be located at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, or at such
other place or places as the Managers (as defined below) may from time to time
determine.
ARTICLE II
DEFINITIONS
The following terms shall have the following meanings:
2.1 ACT. "Act" shall mean the Delaware Limited Liability Company Act at
D.G.C.L. Section 18-101, et seq., as amended.
2.2 CAPITAL CONTRIBUTION. "Capital Contribution" means any contribution to
the capital of the Company in cash or property by the Members pursuant to
Article V.
2.3 CODE. "Code" means the Internal Revenue Code, as amended.
2.4 D.G.C.L. "D.G.C.L." means the Delaware General Corporation Law, as
amended.
2.5 "MEMBERSHIP INTEREST" shall mean the Members' entire interest in the
Company and such other rights and privileges that the Members may enjoy by being
the Members.
2.6 "MEMBERS" shall refer to AMFIRE WV, L.P., a Delaware limited
partnership and AMFIRE, LLC, a Delaware limited liability company.
ARTICLE III
MEMBERS
The names and mailing addresses of the Members are AMFIRE WV, L.P.,
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000 and AMFIRE, LLC, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, XX 00000.
ARTICLE IV
LIMITED LIABILITY
The Members and the Managers (as defined below), their agents,
employees and affiliates shall not have any liability under a judgment, decree,
or order of a court, or in any other manner, for a debt, obligation or liability
of the Company, except to the extent provided in the Act.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1 ADDITIONAL CAPITAL CONTRIBUTIONS. The Members are not required to make
any additional capital contribution to the Company. To the extent determined by
the Members, the Members are permitted to make additional capital contributions
if and to the extent they determine that such additional capital contributions
are appropriate.
2
5.2 PAYMENTS BY THE COMPANY. All costs and expenses of the Company shall
be paid from its funds.
5.3 UNITS. The Members' Membership Interest shall be divided into "Units."
The Units shall be evidenced by the issuance to the Members of a Unit
certificate. The number of Units held by AMFIRE WV, L.P. shall be 1. The number
of Units held by AMFIRE, LLC shall be 99.
ARTICLE VI
DISTRIBUTIONS
Distributions shall be made to the Members at the times and in the
aggregate amounts determined by the Members. No distribution shall be declared
and paid (a) unless, after the distribution is made, the fair value of the
Company's assets is at least equal to all of the Company's liabilities or (b) if
the declaration or payment would cause the Company or any of its subsidiaries to
breach any material agreement.
ARTICLE VII
ALLOCATIONS
The Company's profits and losses shall be allocated to the Members.
ARTICLE VIII
MANAGEMENT POWERS
8.1 GENERAL POWERS. Management of the Company's business and affairs shall
be exclusively vested in a Board of one or more managers (the "Board of
Managers") elected by the Members. The Members, by virtue of having the status
as the Members, shall have no management power over the business and affairs of
the Company or actual or apparent authority to enter into contracts on behalf
of, or to otherwise bind, the Company, provided, however that the Members shall
have the right to execute certain required filings with governmental authorities
on behalf of the Company, including filings to qualify to do business and
filings with the United States Internal Revenue Service. The Board of Managers
shall elect and remove such officers (the "Officers") and hire such employees as
it deems appropriate. The Officers shall have the titles, terms, power,
authority, and duties as determined by the Board of Managers. The Board of
Managers and the Officers shall have full power and authority or all things on
such terms as they, in their individual sole discretion, may deem necessary or
appropriate to conduct, or to cause to be conducted, the business and affairs of
the Company. Without limiting the generality of the foregoing, the Board of
Managers shall have the right, power and authority on behalf of the Company:
(i) to develop, review and approve annual budgets, policies,
operating guidelines, and other key operational items for the Company;
3
(ii) to arrange for such personnel as may be necessary or convenient
to carry out the business and affairs of the Company;
(iii) to establish such reasonable cash reserves to provide for
anticipated expenses of the Company as the Board of Managers determines to be
necessary for timely payment of such expenses; and
(iv) to direct the appropriate officers of the Company to make,
execute, assign, acknowledge and file on behalf of the Company any and all
documents or instruments of any kind which the Board of Managers may deem
necessary or appropriate in carrying out the business and affairs of the
Company, including without limitation, powers of attorney, agreements of
indemnification, documents or instruments of any kind or character, and
amendments thereto (and no person, firm or corporation dealing with the Board of
Managers shall be required to determine or inquire into the authority or power
of the Board of Managers to bind the Company or to execute, acknowledge or
deliver any and all documents in connection therewith).
8.2 BOARD OF MANAGERS. The Managers need not be Members of the Company.
The initial Manager serving on the Board of Managers shall be Xxxxx X. Xxxxxxxx.
Except as otherwise provided herein, all decisions to be made or actions to be
taken by the Company with respect to the Company's business shall be made by a
majority vote of the Managers serving on the Board of Managers at which a quorum
is present. Each Manager shall have one vote. Successor or additional Managers
shall be elected by the Members. Any Manager may be removed as a Manager, with
or without cause, by the Members.
8.3 MEETINGS OF BOARD OF MANAGERS; ACTION IN LIEU OF MEETINGS. If at any
time there is more than one Manager, (a) meetings of the Board of Managers may
be held upon the written or telephonic request of any Manager, (b) attendance at
a meeting of a majority of the Board of Managers shall constitute a quorum for
the purpose of transacting business at that meeting, (c) the act of a majority
of the Managers present at a meeting of the Board of Managers at which a quorum
is present shall be deemed to constitute the act of the Board of Managers and
(d) the Board of Managers may conduct meetings by means of a conference
telephone or similar equipment, and may take action by written consent of a
majority of the Managers without a meeting if a majority of the Managers consent
in writing.
8.4 DUTIES OF THE MANAGERS; FIDUCIARY RELATIONSHIP. Each Manager shall
perform his duties in good faith, in a manner he reasonably believes to be in
the best interests of the Company, and with such care as an ordinarily prudent
person in a like position would use under similar circumstances. Except as
provided in Section 9.2, no Manager shall have any liability to the Company or
its Members or Assignees for monetary damages for breach of fiduciary duty.
8.5 POWERS OF THE BOARD OF MANAGERS; RELIANCE ON EXPERTS.
(a) Except as otherwise provided in this Agreement, the Board of Managers
shall
4
have all the powers conferred upon managers by the Act and this Agreement,
including but not limited to, (i) the right to choose and hire employees; and
(ii) the right to select the provider of any insurance to or for the benefit
of the Company, and purchase, modify or terminate any such insurance. The
Board of Managers shall have no authority to do any act in contravention of
either the Certificate of Formation or this Agreement.
(b) In performing its duties, the Board of Managers shall be entitled to
rely on information, opinions, reports or statements of one or more agents of
the Company whom the Managers reasonably believes to be reliable and
competent in the matters presented or any attorney, public accountant or
other person as to matters which the Managers reasonably believe to be within
such person's professional or expert competence.
8.6 RESIGNATIONS. Any Manager may resign at any time upon notice given in
writing or by electronic transmission. The resignation shall take effect at the
time specified therein, and if no time is specified, at the time of its receipt
by the President or Secretary of the Company. The acceptance of a resignation
shall not be necessary to make it effective.
ARTICLE IX
INDEMNIFICATION OF OFFICERS AND MANAGERS
9.1 INDEMNIFICATION. To the fullest extent permitted by the Act, the
Company shall indemnify its Managers, officers, employees and agents, or persons
serving at the request of the Company as a manager, director, officer, employee
or agent of another entity, who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal or administrative (each, an "Indemnitee"), against and
from any personal loss, liability or damage incurred as a result of any act or
omission that such Indemnitee believes in good faith to be within the scope of
authority conferred by this Agreement, except for willful misconduct or gross
negligence.
9.2 EXCULPATION OF LIABILITY OF MANAGERS. No Manager shall be liable for
errors in judgment or for any act or omission if such person acts in good faith.
Notwithstanding anything to the contrary set forth in this Agreement, no Manager
shall be liable to the Company or to the Members for monetary damages or losses
sustained or liabilities incurred as a result of any act or omission
constituting a breach of such Manager's or Officer's, employee's or agent's
fiduciary duty, except: (i) for a breach of such person's duty of loyalty to the
Company or the Members; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; or (iii) for any
transaction from which the Manager derived an improper personal benefit. If the
D.G.C.L. is amended after the date of this Agreement to authorize Delaware
corporations to further eliminate or limit the personal liability of directors
of Delaware corporations, then the liability of a Manager to the Company, in
addition to the personal limitations provided herein, shall be further limited
to the fullest extent permitted of Delaware corporations under the D.G.C.L. as
so amended.
5
ARTICLE X
MEMBER
10.1 ADMISSION OF MEMBERS. A person may be admitted to the Company as an
additional Member only upon the written consent of the Members.
10.2 VOTING. Unless otherwise expressly provided herein or in the Act, all
Company business and decisions requiring a vote of the Members (including any
action required or permitted by the Act to be taken at a members' meeting) shall
be upon the written consent of the Members.
ARTICLE XI
ACCOUNTING
11.1 TITLE TO PROPERTY AND BANK ACCOUNTS. The Company's property shall be
held in the name of the Company. The funds of the Company shall be deposited in
the name of the Company in bank or brokerage accounts designated by the Board of
Managers and withdrawals therefrom shall be made upon the signature of the
Officers of the Company.
11.2 BOOKS. To the extent required by the Act, the Board of Managers shall
maintain or cause to be maintained complete and accurate records and books of
account of the Company's affairs at the principal office of the Company. The
Company's books shall be kept on a calendar year accounting period and in
accordance with generally accepted accounting principles applied on a consistent
basis. The records and books of the Company shall be available to the Members
for purposes relating to the Members' interest in the Company for inspection and
copying at reasonable times and pursuant to other reasonable standards set by
the Board of Managers.
ARTICLE XII
TRANSFER OF MEMBERSHIP INTEREST
The Members may transfer or assign in whole or in part their Membership
Interest in the Company. The Members' Membership Interest in the Company shall
be freely alienable.
ARTICLE XIII
DISSOLUTION
13.1 EVENTS OF DISSOLUTION. The Company shall dissolve, and its affairs
shall be wound up, upon the first to occur of the following:
(i) the written consent of the Members to dissolve the Company; or
6
(ii) the entry of a decree of judicial dissolution under Section
18-802 of the Act.
13.2 BANKRUPTCY OF MEMBERS. The bankruptcy of the Members will not cause
the Members to cease to be the Members of the Company and upon the occurrence of
such an event, the business of the Company shall continue without dissolution.
13.3 DISTRIBUTION OF ASSETS. In the event of dissolution, the Company
shall conduct any such activities as are necessary to wind up its affairs
(including the sale of the assets of the company in an orderly manner), and the
assets of the Company shall be distributed in the matter, and in the order of
priority, set forth in Section 18-804 of the Act.
ARTICLE XIV
GENERAL PROVISIONS
14.1 ENTIRE AGREEMENT. This Agreement embodies the entire understanding
and agreement of the Members concerning the Company and supersedes any and all
prior negotiations, understandings or agreements in regard thereto.
14.2 AMENDMENT. This Agreement may not be amended except pursuant to the
written consent of the Members.
14.3 HEIRS, SUCCESSORS AND ASSIGNS. Each and all of the covenants, terms,
provisions and agreements herein contained shall be binding upon and inure to
the benefit of the Members and, to the extent permitted by this Agreement, its
respective heirs, legal representatives, successors and assigns.
14.4 APPLICABLE LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware.
[Signature on next page]
7
IN WITNESS WHEREOF, the Members have executed this Agreement as of the
11th of March, 2003
MEMBERS:
AMFIRE WV, L.P.,
a Delaware limited partnership
By: AMFIRE Holdings, Inc.
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President
AMFIRE, LLC,
a Delaware limited liability
company
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President and Manager
THE COMPANY:
Kingwood Mining Company, LLC,
a Delaware limited liability
company
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: President and Manager
8
