BYLAWS OF
AMERICAN RESOURCES CORPORATION
Incorporated
under the Laws of the State of Florida
Date of
Adoption: November 7, 2018
ARTICLE I
OFFICES
AND RECORDS
SECTION
1.1.
Registered Office
. The
registered office of American Resources Corporation (the
“Corporation”) in the State of Florida shall be as set
forth in the Certificate of Incorporation of the Corporation, as it
may be amended, restated, supplemented and otherwise modified from
time to time (the “Certificate of Incorporation”), and
the name of the Corporation’s registered agent at such
address is as set forth in the Certificate of Incorporation. The
registered office and registered agent of the Corporation may be
changed from time to time by the board of directors of the
Corporation (the “Board”) in the manner provided by
applicable law.
SECTION
1.2.
Other Offices
. The Corporation
may have such other offices, either within or without the State of
Florida, as the Board may designate or as the business of the
Corporation may from time to time require.
SECTION
1.3.
Books and Records
. The books
and records of the Corporation may be kept outside the State of
Florida at such place or places as may from time to time be
designated by the Board.
ARTICLE II
STOCKHOLDERS
SECTION
2.1.
Annual
Meetings
. If required by applicable law, an annual meeting
of the stockholders of the Corporation shall be held at such date,
time and place, if any, either within or outside of the State of
Florida, as may be fixed by resolution of the Board. The Board may
postpone, reschedule or cancel any annual meeting of stockholders
previously scheduled by the Board.
SECTION
2.2.
Special
Meetings
. Special meetings of stockholders of the
Corporation may be called only by the Board pursuant to a
resolution adopted by the affirmative vote of a majority of the
Whole Board. The Board may postpone, reschedule or cancel any
special meeting of the stockholders previously scheduled by the
Board. For purposes of these Bylaws, the term “Whole
Board” shall mean the total number of authorized directors
whether or not there exist any vacancies in previously authorized
directorships.
SECTION
2.3.
Record
Date
.
(A)
In order that the
Corporation may determine the stockholders entitled to notice of
any meeting of stockholders or any adjournment thereof, the Board
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, and which record date shall, unless otherwise required by
applicable law, not be more than 60 nor less than five days before
the date of such meeting. If the Board so fixes a date, such date
shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board determines, at
the time it fixes such record date, that a later date on or before
the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of or to vote
at a meeting of stockholders shall be at the close of business on
the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next
preceding the day on which the meeting is held. A determination of
stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record
date for determination of stockholders entitled to vote at the
adjourned meeting, and in such case shall also fix as the record
date for stockholders entitled to notice of such adjourned meeting
the same date as that fixed for determination of stockholders
entitled to vote in accordance herewith at the adjourned
meeting.
(B)
In order that the
Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board may fix a record date, which record
date shall not precede the date upon which the resolution fixing
the record date is adopted, and which record date shall not be more
than 60 days prior to such action. If no such record date is fixed,
the record date for determining stockholders for any such purpose
shall be at the close of business on the day on which the Board
adopts the resolution relating thereto.
(C)
Unless otherwise
restricted by the Certificate of Incorporation, in order that the
Corporation may determine the stockholders entitled to express
consent to corporate action in writing without a meeting, the Board
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, and which record date shall not be more than ten days after
the date upon which the resolution fixing the record date is
adopted by the Board. If no record date for determining
stockholders entitled to express consent to corporate action in
writing without a meeting is fixed by the Board, (i) when no prior
action of the Board is required by applicable law, the record date
for such purpose shall be the first date on which a signed written
consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, and
(ii) if prior action by the Board is required by applicable law,
the record date for such purpose shall be at the close of business
on the day on which the Board adopts the resolution taking such
prior action.
SECTION
2.4.
Place of
Meeting
. The Board, the Chairman of the Board, the Chief
Executive Officer or the President, as the case may be, may
designate the place of meeting for any annual meeting or for any
special meeting of the stockholders. If no designation is so made,
the place of meeting shall be the principal executive offices of
the Corporation.
SECTION
2.5.
Notice of
Meeting
. Written notice, stating the place, if any, date and
time of the meeting, shall be given, not less than five days nor
more than 60 days before the date of the meeting, to each
stockholder of record entitled to vote at such meeting. The notice
shall specify:
(A)
the record date for
determining the stockholders entitled to vote at the meeting (if
such date is different from the record date for stockholders
entitled to notice of the meeting),
(B)
the place, if any,
date and time of such meeting,
(C)
the means of remote
communications, if any, by which stockholders and proxyholders may
be deemed to be present in person and vote at such meeting,
and
(D)
in the case of a
special meeting, the purpose or purposes for which such meeting is
called. If the meeting of stockholders is to be held solely by
means of electronic communications, the notice of meeting must
provide the information required to access such stockholder list
during the meeting. If mailed, such notice shall be deemed to be
delivered when deposited in the United States mail with postage
thereon prepaid, addressed to the stockholder at his address as it
appears on the stock transfer books of the Corporation. The
Corporation may provide stockholders with notice of a meeting by
electronic transmission provided such stockholders have consented
to receiving electronic notice should Florida state laws allow.
Such further notice shall be given as may be required by applicable
law. Only such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting pursuant
to the notice of meeting.
SECTION
2.7.
Quorum and
Adjournment of Meetings
.
(A)
Except as otherwise
required by applicable law or by the Certificate of Incorporation,
the holders of a majority of the voting power of all of the
outstanding shares of stock of the Corporation entitled to vote at
the meeting, represented in person or by proxy, shall constitute a
quorum at a meeting of stockholders.
(B)
Any meeting of
stockholders, annual or special, may adjourn or recess from time to
time to reconvene at the same or some other place, and notice need
not be given of any such adjourned or recessed meeting if the date,
time and place thereof are announced at the meeting at which the
adjournment or recess is taken; provided, however, that if the
adjournment or recess is for more than 30 days, a notice of the
adjourned or recessed meeting shall be given to each stockholder of
record entitled to vote at the meeting. At the adjourned or
recessed meeting, the Corporation may transact any business that
might have been transacted at the original meeting.
SECTION
2.8.
Proxies
.
At all meetings of stockholders, a stockholder may vote by proxy
executed in writing (or in such other manner prescribed by the
Florida state law) by the stockholder or by his duly authorized
attorney-in-fact. Any copy, facsimile transmission or other
reliable reproduction of the writing or transmission created
pursuant to this section may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which
the original writing or transmission could be used, provided that
such copy, facsimile transmission or other reproduction shall be a
complete reproduction of the entire original writing or
transmission. No proxy may be voted or acted upon after the
expiration of three years from the date of such proxy, unless such
proxy provides for a longer period. Every proxy is revocable at the
pleasure of the stockholder executing it unless the proxy states
that it is irrevocable and applicable law makes it irrevocable. A
stockholder may revoke any proxy that is not irrevocable by
attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or by filing another duly
executed proxy bearing a later date with the Secretary of the
Corporation.
SECTION
2.9.
Notice of
Stockholder Business and Nominations
.
(A)
Annual Meetings of
Stockholders.
(1) Nominations
of persons for election to the Board and the proposal of other
business to be considered by the stockholders at an annual meeting
of stockholders may be made only (a) pursuant to the
Corporation’s notice of meeting (or any supplement thereto),
(b) by or at the direction of the Board or any committee thereof or
(c) by any stockholder of the Corporation who (i) was a stockholder
of record at the time of giving of notice provided for in these
Bylaws and at the time of the annual meeting, (ii) is entitled to
vote at the meeting and (iii) complies with the notice procedures
and other requirements set forth in these Bylaws and applicable
law. Section 2.9(A)(1)(c) of these Bylaws shall be the exclusive
means for a stockholder to make nominations or submit other
business (other than matters properly brought under Rule 14a-8
under the Exchange Act and included in the Corporation’s
notice of meeting) before an annual meeting of the
stockholders.
(2) For
any nominations or any other business to be properly brought before
an annual meeting by a stockholder pursuant to
Section 2.9(A)(1)(c)
of these Bylaws,
(a) the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation, (b) such other
business must otherwise be a proper matter for stockholder action
under Florida state law. To be timely, a stockholder’s notice
must be received by the Secretary of the Corporation at the
principal executive offices of the Corporation not earlier than the
close of business on the 120
th
day and not later than the close of business on the 90
th
day prior to the first anniversary of
the preceding year’s annual meeting. In no event shall any
adjournment, recess or postponement of an annual meeting or the
announcement thereof commence a new time period for the giving of a
stockholder’s notice as described above. To be in proper
form, a stockholder’s notice (whether given pursuant to this
Section 2.9(A)(2)
or
Section 2.9(B)
) to the
Secretary of the Corporation must:
(a) set
forth, as to the stockholder giving the notice and the beneficial
owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation’s books, and of such stockholder’s
Stockholder Associated Person (as defined in
Section 2.9(C)(2)
), if any, (ii) (A) the
class or series and number of shares of the Corporation that are,
directly or indirectly, owned beneficially and of record by such
stockholder and such beneficial owner, (B) any option, warrant,
convertible security, stock appreciation right, or similar right
with an exercise or conversion privilege or a settlement payment or
mechanism at a price related to any class or series of shares of
the Corporation or with a value derived in whole or in part from
the value of any class or series of shares of the Corporation,
whether or not such instrument or right shall be subject to
settlement in the underlying class or series of stock of the
Corporation or otherwise (a “Derivative Instrument”),
directly or indirectly owned beneficially by such stockholder or by
any Stockholder Associated Person and any other direct or indirect
opportunity to profit or share in any profit derived from any
increase or decrease in the value of shares of the Corporation, (C)
a complete and accurate description of any agreement, arrangement
or understanding between or among such stockholder and such
stockholder’s Stockholder Associated Person and any other
person or persons in connection with such stockholder’s
director nomination and the name and address of any other person(s)
or entity or entities known to the stockholder to support such
nomination, (D) a description of any proxy, contract, arrangement,
understanding or relationship pursuant to which such stockholder or
any Stockholder Associated Person has a right to vote, directly or
indirectly, any shares of any security of the Corporation, (E) any
short interest in any security of the Corporation held by such
stockholder or any Stockholder Associated Person (for purposes of
these Bylaws, a person shall be deemed to have a “short
interest” in a security if such person directly or
indirectly, through any contract, arrangement, understanding,
relationship or otherwise, has the opportunity to profit or share
in any profit derived from any decrease in the value of the subject
security), (F) any rights to dividends on the shares of the
Corporation owned beneficially by such stockholder or by any
Stockholder Associated Person that are separated or separable from
the underlying shares of the Corporation, (G) any proportionate
interest in shares of the Corporation or Derivative Instruments
held, directly or indirectly, by a general or limited partnership
in which such stockholder or any Stockholder Associated Person is a
general partner or, directly or indirectly, beneficially owns an
interest in a general partner and (H) any performance-related fees
(other than an asset-based fee) that such stockholder or any
Stockholder Associated Person is entitled to based on any increase
or decrease in the value of shares of the Corporation or Derivative
Instruments, if any, as of the date of such notice, including,
without limitation, any such interests held by members of such
stockholder’s or any Stockholder Associated Person’s
immediate family sharing the same household (which information
shall be supplemented by such stockholder and any Stockholder
Associated Person, if any, not later than ten days after the record
date for determining the stockholders entitled to vote at the
meeting to disclose such ownership as of the record date; provided,
that if such date is after the date of the meeting, not later than
the day prior to the meeting), (iii) any other information relating
to such stockholder and any Stockholder Associated Person, if any,
that would be required to be disclosed in a proxy statement or
other filing required to be made in connection with solicitations
of proxies for, as applicable, the proposal or for the election of
directors in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder,
(iv) a representation that the stockholder is a holder of record of
stock of the Corporation entitled to vote at such meeting and
intends to appear in person or by proxy at the meeting to bring
such nomination or other business before the meeting, and (v) a
representation as to whether or not such stockholder or any
Stockholder Associated Person will deliver a proxy statement or
form of proxy to holders of at least the percentage of the voting
power of the Corporation’s outstanding stock required to
approve or adopt the proposal or, in the case of a nomination or
nominations, at least the percentage of the voting power of the
Corporation’s outstanding stock reasonably believed by the
stockholder or Stockholder Associated Person, as the case may be,
to be sufficient to elect such nominee or nominees (such
representation, a “Solicitation
Statement”).
(b) if
the notice relates to any business other than a nomination of a
director or directors that the stockholder proposes to bring before
the meeting, set forth (i) a brief description of the business
desired to be brought before the meeting, the reasons for
conducting such business at the meeting and any material interest
of such stockholder and Stockholder Associated Person, if any, in
such business and (ii) the text of the proposal or business
(including the text of any resolutions proposed for consideration)
and (iii) a complete and accurate description of all agreements,
arrangements and understandings between or among such stockholder
and such stockholder’s Stockholder Associated Person, if any,
and the name and address of any other person(s) or entity or
entities in connection with the proposal of such business by such
stockholder;
(c) set
forth, as to each person, if any, whom the stockholder proposes to
nominate for election or reelection to the Board (i) all
information relating to such person that would be required to be
disclosed in a proxy statement or other filing required to be made
in connection with solicitations of proxies for election of
directors in a contested election pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder
(including such person’s written consent to being named in
the proxy statement as a nominee and to serving as a director if
elected), and (ii) a description of all direct and indirect
compensation and other material monetary agreements, arrangements
and understandings during the past three years, and any other
material relationships, between or among such stockholder and
Stockholder Associated Person, if any, and their respective
affiliates and associates, or others acting in concert therewith,
on the one hand, and each proposed nominee, and his respective
affiliates and associates, or others acting in concert therewith,
on the other hand, including, without limitation, all information
that would be required to be disclosed pursuant to Rule 404
promulgated under Regulation S-K if the stockholder making the
nomination and any beneficial owner on whose behalf the nomination
is made, if any, or any affiliate or associate thereof or person
acting in concert therewith, were the “registrant” for
purposes of such rule and the nominee were a director or executive
officer of such registrant; and
(d)
with respect to each nominee for election or reelection to the
Board, include (i) a completed and signed questionnaire,
representation and agreement in a form provided by the Corporation,
which form the stockholder must request from the Secretary of the
Corporation in writing with no less than 7 days advance notice, and
(ii) a written representation and agreement (in the form provided
by the Secretary of the Corporation upon written request) that such
person (A) is not and will not become a party to (1) any agreement,
arrangement or understanding with, and has not given any commitment
or assurance to, any person or entity as to how such person, if
elected as a director of the Corporation, will act or vote on any
issue or question (a “Voting Commitment”) that has not
been disclosed to the Corporation or (2) any Voting Commitment that
could limit or interfere with such person’s ability to
comply, if elected as a director of the Corporation, with such
person’s fiduciary duties under applicable law, (B) is not
and will not become a party to any agreement, arrangement or
understanding with any person or entity other than the Corporation
with respect to any direct or indirect compensation, reimbursement
or indemnification in connection with service or action as a
director that has not been disclosed therein, (C) if elected as a
director of the Corporation, intends to serve a full term, and (D)
in such person’s individual capacity and on behalf of any
person or entity on whose behalf the nomination is being made,
would be in compliance, if elected as a director of the
Corporation, and will comply with all applicable publicly disclosed
corporate governance, conflict of interest, confidentiality and
stock ownership and trading policies and guidelines of the
Corporation. The Corporation may require any proposed nominee to
furnish such other information as may reasonably be required by the
Corporation to determine the eligibility of such proposed nominee
to serve as an independent director of the Corporation or that
could be material to a reasonable stockholder’s understanding
of the independence, or lack thereof, of such nominee.
(3) A
stockholder providing notice of a nomination or proposal of other
business to be brought before a meeting shall further update and
supplement such notice so that the information provided or required
to be provided in such notice shall be true and correct (i) as of
the record date for the meeting and (ii) as of the date that is ten
business days prior to the meeting or any adjournment, recess,
cancellation, rescheduling or postponement thereof, and such update
and supplement shall be delivered to, or mailed and received by,
the Secretary of the Corporation at the principal executive offices
of the Corporation not later than five business days after the
record date for the meeting (in the case of the update and
supplement required to be made as of the record date) and not later
than seven business days prior to the date for the meeting, if
practicable (or, if not practicable, on the first practicable date
prior to any adjournment, recess or postponement thereof (in the
case of the update and supplement required to be made as of ten
business days prior to the meeting or any adjournment, recess or
postponement thereof)).
(B)
Special Meetings of
Stockholders
.
Only
such business shall be conducted at a special meeting of
stockholders as shall have been brought before the meeting by or at
the direction of the Board. Nominations of persons for election to
the Board may be made at a special meeting of stockholders at which
directors are to be elected pursuant to a notice of meeting (1) by
or at the direction of the Board or any committee thereof or (2) if
the Board has determined that directors shall be elected at such
meeting, by any stockholder of the Corporation who (a) is a
stockholder of record at the time of giving of notice provided for
in these Bylaws and at the time of the special meeting, (b) is
entitled to vote at the meeting, and (c) complies with the notice
procedures set forth in these Bylaws and applicable law. In the
event a special meeting of stockholders is called for the purpose
of electing one or more directors to the Board, any stockholder of
record among such requesting stockholders may nominate a person or
persons (as the case may be), for election to such position(s) as
specified in the Corporation’s notice of meeting, if such
stockholder delivers notice with the information required by
Section
2.9(A)(1)(c)
of these Bylaws with respect to any nomination
(including the completed and signed questionnaire, representation
and agreement required by
Section 2.9(A)(1)(c)
of these
Bylaws). Such notice shall be delivered to the Secretary of the
Corporation at the principal executive offices of the Corporation
not earlier than the close of business on the 120
th
day prior to such special meeting and
not later than the close of business on the later of the
90
th
day prior to such special
meeting or the 10
th
day
following the day on which public announcement is first made of the
date of the special meeting and of the nominees proposed by the
Board to be elected at such meeting. In no event shall any
adjournment, recess or postponement or the announcement thereof of
a special meeting commence a new time period for the giving of a
stockholder’s notice as described above.
(C)
General
.
(1)
Only such persons who are nominated in accordance with the
procedures set forth in these Bylaws and applicable law shall be
eligible to serve as directors, and only such business shall be
conducted at a meeting of stockholders as has been brought before
the meeting in accordance with the procedures set forth in these
Bylaws and applicable law. Except as otherwise provided by
applicable law, the Certificate of Incorporation or these Bylaws,
the Chairman of the Meeting shall have the power and duty to
determine whether a nomination or any business proposed to be
brought before the meeting was made or proposed, as the case may
be, in accordance with the procedures set forth in these Bylaws and
applicable law and, if any proposed nomination or business is not
in compliance with these Bylaws and applicable law, to declare that
such defective proposal or nomination shall be
disregarded.
(2) For
purposes of these Bylaws, “public announcement” shall
mean disclosure in a press release reported by any national news
service or in a document publicly filed by the Corporation with the
Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act and the rules and regulations promulgated
thereunder, and “Stockholder Associated Person” shall
mean, for any stockholder, (a) any person or entity controlling,
directly or indirectly, or acting in concert with, such
stockholder, (b) any beneficial owner of shares of stock of the
Corporation owned of record or beneficially by such stockholder or
(c) any person or entity controlling, controlled by or under common
control with any person or entity referred to in the preceding
clauses (a) or (b).
(3)
Notwithstanding the foregoing provisions of these Bylaws, a
stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth in these Bylaws; provided,
however, that any references in these Bylaws to the Exchange Act or
the rules promulgated thereunder are not intended to and shall not
limit the requirements applicable to nominations or proposals as to
any other business to be considered pursuant to
Section 2.9(A)
or
Section 2.9(B)
of these Bylaws.
Nothing in these Bylaws shall be deemed to affect any rights (a) of
stockholders to request inclusion of proposals in the
Corporation’s proxy statement pursuant to Rule 14a-8 under
the Exchange Act or (b) of the holders of any series of Preferred
Stock if and to the extent provided for under applicable law, the
Certificate of Incorporation, the Articles of Incorporation, or
these Bylaws.
(4)
Unless otherwise required by law, if the stockholder (or a
qualified representative of the stockholder) making a nomination or
proposal under this
Section 2.9
does not appear at
a meeting of stockholders to present such nomination or proposal,
the nomination shall be disregarded and the proposed business shall
not be transacted, as the case may be, notwithstanding that proxies
in favor thereof may have been received by the Corporation. For
purposes of this
Section
2.9
, to be considered a qualified representative of the
stockholder, a person must be a duly authorized officer, manager or
partner of such stockholder or must be authorized by a writing
executed by such stockholder or an electronic transmission
delivered by such stockholder to act for such stockholder as proxy
at the meeting of stockholders and such person must produce such
writing or electronic transmission, or a reliable reproduction of
the writing or electronic transmission, at the meeting of
stockholders.
SECTION
2.10.
Conduct of
Business
. The date and time of the opening and the closing
of the polls for each matter upon which the stockholders will vote
at a meeting shall be announced at the meeting by the chairman of
the meeting. The Board may adopt by resolution such rules and
regulations for the conduct of the meeting of stockholders as it
shall deem appropriate in its sole discretion. The Chairman of the
Board, if one shall have been elected, or in the Chairman of the
Board’s absence or if one shall not have been elected, the
director or officer designated by the majority of the Whole Board,
shall preside at all meetings of the stockholders as
“Chairman of the Meeting.” Except to the extent
inconsistent with such rules and regulations as adopted by the
Board, the Chairman of the Meeting shall have the right and
authority to convene and for any reason to recess and/or adjourn
the meeting, to prescribe such rules, regulations and procedures
and to do all such acts as, in the judgment of the Chairman of the
Meeting, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board
or prescribed by the Chairman of the Meeting, may include, without
limitation, the following: (A) the establishment of an agenda or
order of business for the meeting; (B) rules and procedures for
maintaining order at the meeting and the safety of those present;
(C) limitations on attendance at or participation in the meeting to
stockholders entitled to vote at the meeting, their duly authorized
and constituted proxies or such other persons as the presiding
person of the meeting shall determine; (D) restrictions on entry to
the meeting after the time fixed for the commencement thereof; (E)
limitations on the time allotted to questions or comments by
participants; and (F) restrictions of the use of audio and video
recording devices. The Chairman of the Meeting, in addition to
making any other determinations that may be appropriate to the
conduct of the meeting, shall, if the facts warrant, determine and
declare to the meeting that a matter or business was not properly
brought before the meeting, and if such Chairman of the Meeting
should so determine, such chairman of the meeting shall so declare
to the meeting and any such matter or business not properly brought
before the meeting shall not be transacted or considered. Unless
and to the extent determined by the Board or the Chairman of the
Meeting, meetings of stockholders shall not be required to be held
in accordance with the rules of parliamentary
procedure.
SECTION
2.11.
Required
Vote
. Directors shall be elected by a plurality of the votes
validly cast in such election. Unless otherwise provided in the
Certificate of Incorporation, cumulative voting for the election of
directors shall be prohibited. Except as otherwise required by
applicable law, the rules and regulations of any stock exchange
applicable to the Corporation, the Certificate of Incorporation or
these Bylaws, in all matters other than the election of directors
and certain non-binding advisory votes described below, the
affirmative vote of a majority of the voting power of the
outstanding shares present in person or represented by proxy at the
meeting and entitled to vote on the matter shall be the act of the
stockholders. In non-binding advisory matters with more than two
possible vote choices, the affirmative vote of a plurality of the
voting power of the outstanding shares present in person or
represented by proxy at the meeting and entitled to vote on the
matter shall be the recommendation of the
stockholders.
SECTION
2.12.
Treasury
Stock
. The Corporation shall not vote, directly or
indirectly, shares of its own stock belonging to it or any other
corporation, if a majority of shares entitled to vote in the
election of directors of such corporation is held, directly or
indirectly by the Corporation, and such shares will not be counted
for quorum purposes; provided, however, that the foregoing shall
not limit the right of the Corporation or such other corporation,
to vote stock of the Corporation held in a fiduciary
capacity.
SECTION
2.13.
Inspectors of
Elections; Opening and Closing the Polls
. The Corporation
may, and when required by applicable law, shall, appoint one or
more inspectors, which inspector or inspectors may include
individuals who serve the Corporation in other capacities,
including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of stockholders and make a
written report thereof. One or more persons may be designated as
alternate inspectors to replace any inspector who fails to act. If
no inspector or alternate has been appointed to act or is able to
act at a meeting of stockholders and the appointment of an
inspector is required by applicable law, the Chairman of the
Meeting shall appoint one or more inspectors to act at the meeting.
Each inspector, before discharging his duties, shall take and sign
an oath to faithfully execute the duties of inspector with strict
impartiality and according to the best of his ability. The
inspectors shall have the duties prescribed by applicable
law.
SECTION
2.14.
Stockholder
Action by Written Consent
.
(A) Any
action required or permitted to be taken at any annual meeting or
special meeting of the stockholders of the Corporation may be taken
without a meeting, without prior notice and without a vote of
stockholders, if a consent or consents in writing, setting forth
the action so taken, is or are 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.
(B)
Any action required or permitted to be taken by the stockholders of
the Corporation must be taken at a duly held annual or special
meeting of stockholders and may not be taken by any consent in
writing of such stockholders.
ARTICLE III
BOARD OF DIRECTORS
SECTION
3.1.
General
Powers
. The business and affairs of the Corporation shall be
managed by or under the direction of the Board elected in
accordance with these Bylaws. In addition to the powers and
authorities by these Bylaws expressly conferred upon them, the
Board may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the
Certificate of Incorporation or by these Bylaws required to be
exercised or done by the stockholders. The directors shall act only
as a Board, and the individual directors shall have no power as
such.
SECTION
3.2.
Number, Tenure and
Qualifications
. If any, the number of directors shall be
fixed from time to time exclusively pursuant to a resolution
adopted by the affirmative vote of a majority of the Whole Board.
The election and term of directors shall be as set forth in the
Certificate of Incorporation.
SECTION
3.3.
Regular
Meetings
. Subject to
Section
3.5
, regular meetings of the Board shall be held on such
dates, and at such times and places, as are determined from time to
time by resolution of the Board.
SECTION
3.4.
Special
Meetings
. Special meetings of the Board shall be called at
the request of the Chairman of the Board, the Executive Chairman
the President and Chief Executive Officer or a majority of the
Board then in office. The person or persons authorized to call
special meetings of the Board may fix the place, if any, date and
time of the meetings. Any business may be conducted at a special
meeting of the Board.
SECTION
3.5.
Notice
. Notice
of any special meeting of directors shall be given to each director
at his business or residence in writing by hand delivery,
first-class or overnight mail, courier service or facsimile or
electronic transmission or orally by telephone. If mailed by
first-class mail, such notice shall be deemed adequately delivered
if deposited in the United States mails so addressed, with postage
thereon prepaid, at least five days before such meeting. If by
overnight mail or courier service, such notice shall be deemed
adequately delivered if the notice is delivered to the overnight
mail or courier service company at least 24 hours before such
meeting. If by facsimile or electronic transmission, such notice
shall be deemed adequately delivered if the notice is transmitted
at least 24 hours before such meeting. If by telephone or by hand
delivery, the notice shall be given at least 24 hours prior to the
time set for the meeting and shall be confirmed by facsimile or
electronic transmission that is sent promptly thereafter. Neither
the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board need be specified in the notice of
such meeting, except for amendments to these Bylaws, as provided
under
Section
8.1
.
SECTION
3.6.
Action by Consent of
Board
. Any action required or permitted to be taken at any
meeting of the Board or of any committee thereof may be taken
without a meeting if all members of the Board or committee, as the
case may be, consent thereto in writing, including by electronic
transmission, and the writing or writings or electronic
transmissions are filed with the minutes of proceedings of the
Board or committee. Such filing shall be in paper form if the
minutes are maintained in paper form and shall be in electronic
form if the minutes are maintained in electronic form. Such consent
shall have the same force and effect as a unanimous vote at a
meeting, and may be stated as such in any document or instrument
filed with the Secretary of State of the State of
Florida.
SECTION
3.7.
Conference
Telephone Meetings
. Members of the Board or any committee
thereof may participate in a meeting of the Board or such committee
by means of conference telephone or other communications equipment
by means of which all persons participating in the meeting can hear
each other, and such participation in a meeting shall constitute
presence in person at such meeting.
SECTION
3.8.
Quorum
.
A whole number of directors equal to at least a majority of the
Whole Board shall constitute a quorum for the transaction of
business, but if at any meeting of the Board there shall be less
than a quorum present, a majority of the directors present may, to
the fullest extent permitted by law, adjourn the meeting from time
to time without further notice unless (A) the date, time and place,
if any, of the adjourned meeting are not announced at the time of
adjournment, in which case notice conforming to the requirements of
Section 3.5
of these Bylaws
shall be given to each director, or (B) the meeting is adjourned
for more than 24 hours, in which case the notice referred to in
clause (A) shall be given to those directors not present at the
announcement of the date, time and place of the adjourned meeting.
Except as otherwise expressly required by law, the Certificate of
Incorporation or these Bylaws, all matters shall be determined by
the affirmative vote of a majority of the directors present at a
meeting at which a quorum is present. To the fullest extent
permitted by law, the directors present at a duly organized meeting
may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less
than a quorum.
SECTION
3.9.
Vacancies
.
Subject to applicable law, any newly created directorship that
results from an increase in the number of directors or any vacancy
on the Board that results from the death, resignation,
disqualification or removal of any director or from any other cause
shall, unless otherwise required by law or by resolution of the
Board, be filled by the affirmative vote of a majority of the total
number of directors then in office, even if less than a quorum, or
by a sole remaining director, and shall not be filled by the
stockholders. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall hold office for
the remaining term of his predecessor. No decrease in the number of
authorized directors constituting the Board shall shorten the term
of any incumbent director.
SECTION
3.10.
Removal
. Any
director may be removed with or without cause, upon the affirmative
vote of the holders of at least a 50% of the voting power of the
outstanding shares of stock of the Corporation entitled to vote
generally for the election of directors, voting together as a
single class and acting at a meeting of the stockholders in
accordance with the Florida state law, the Certificate of
Incorporation and these Bylaws.
SECTION
3.11.
Records
. The
Board shall cause to be kept a record containing the minutes of the
proceedings of the meetings of the Board and of the stockholders,
appropriate stock books and registers and such books of records and
accounts as may be necessary for the proper conduct of the business
of the Corporation.
SECTION
3.12.
Compensation
.
Unless otherwise restricted by the Certificate of Incorporation or
these Bylaws, the Board shall have authority to fix the
compensation of directors, including fees and reimbursement of
expenses.
SECTION
3.13.
Regulations
.
To the extent consistent with applicable law, the Certificate of
Incorporation and these Bylaws, the Board may adopt such rules and
regulations for the conduct of meetings of the Board and for the
management of the affairs and business of the Corporation as the
Board may deem appropriate.
ARTICLE IV
COMMITTEES
SECTION
4.1.
Designation;
Powers
. The Board may designate one or more committees, each
committee to consist of one or more of the directors of the
Corporation. Any such committee, to the extent permitted by
applicable law and to the extent provided in the resolution of the
Board, shall have and may exercise all the powers and authority of
the Board in the management of the business and affairs of the
Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it.
SECTION
4.2.
Procedure; Meetings;
Quorum
. Any committee designated pursuant to
Section 4.1
shall choose its own
chairman by a majority vote of the members then in attendance in
the event the chairman has not been selected by the Board, shall
keep regular minutes of its proceedings, and shall meet at such
times and at such place or places as may be provided by the charter
of such committee or by resolution of such committee or resolution
of the Board. At every meeting of any such committee, the presence
of a majority of all the members thereof shall constitute a quorum
and the affirmative vote of a majority of the members present shall
be necessary for the adoption by it of any resolution. The Board
shall adopt a charter for each committee for which a charter is
required by applicable laws, regulations or stock exchange rules,
may adopt a charter for any other committee, and may adopt other
rules and regulations for the governance of any committee not
inconsistent with the provisions of these Bylaws or any such
charter, and each committee may adopt its own rules and regulations
of governance, to the extent not inconsistent with these Bylaws or
any charter or other rules and regulations adopted by the
Board.
SECTION
4.3.
Substitution of
Members
. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or
disqualified member at any meeting of such committee. In the
absence or disqualification of a member of a committee, the member
or members present at any meeting and not disqualified from voting,
whether or not constituting a quorum, may unanimously appoint
another member of the Board to act at the meeting in the place of
the absent or disqualified member.
ARTICLE V
OFFICERS
SECTION
5.1.
Officers
. The
officers of the Corporation shall be a Chairman of the Board, a
Chief Executive Officer, a President, a Chief Financial Officer, a
Chief Operating Officer and such other officers as the Board from
time to time may deem proper. The Chairman of the Board shall be
chosen from among the directors. All officers elected by the Board
shall each have such powers and duties as generally pertain to
their respective offices, subject to the specific provisions of
this
Article V
. Such
officers shall also have such powers and duties as from time to
time may be conferred by the Board or by any committee thereof. The
Board or any committee thereof may from time to time elect, or the
Chairman of the Board, Chief Executive Officer, or President, if
any, may appoint, such other officers (including a Secretary,
Treasurer, one or more Senior Vice Presidents, Vice Presidents,
Assistant Secretaries and Assistant Treasurers) and such agents, as
may be necessary or desirable for the conduct of the business of
the Corporation.
Such
other officers and agents shall have such duties and shall hold
their offices for such terms as shall be provided in these Bylaws
or as may be prescribed by the Board or such committee thereof or
by the Chairman of the Board, Chief Executive Officer, or
President, as the case may be. Any number of offices may be held by
the same person.
SECTION
5.2.
Election and Term of
Office
. Each officer shall hold office until his successor
shall have been duly elected or appointed and shall have qualified
or until his death or until he shall resign, but any officer may be
removed from office at any time by the affirmative vote of a
majority of the Board or, except in the case of an officer or agent
elected by the Board, by the Chairman of the Board, Chief Executive
Officer, or President, if any. Such removal shall be without
prejudice to the contractual rights, if any, of the person so
removed. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election
beyond the date of the election of his successor, his death, his
resignation or his removal, whichever event shall first occur,
except as otherwise provided in an employment contract or under an
employee deferred compensation plan.
SECTION
5.3.
Chairman of the
Board
. The Chairman of the Board shall preside at all
meetings of the Board. The Chairman of the Board shall be
responsible for the general management of the affairs of the
Corporation and shall perform all duties incidental to his office
that may be required by law and all such other duties as are
properly required of him by the Board. He shall make reports to the
Board and shall see that all orders and resolutions of the Board
and of any committee thereof are carried into effect. The Chairman
of the Board may also serve as Chief Executive Officer, if so
elected by the Board.
SECTION
5.4.
Chief Executive
Officer
. The Chief Executive Officer, if any, shall act in a
general executive capacity and shall assist the Chairman of the
Board in the administration and operation of the
Corporation’s business and general supervision of its
policies and affairs. The Chief Executive Officer (if any and if he
or she shall be a director) shall, in the absence of or because of
the inability to act of the Chairman of the Board, perform all
duties of the Chairman of the Board and preside at all meetings of
the Board.
SECTION
5.5.
President
. The
President, if any, shall act in a general executive capacity and
shall assist the Chairman of the Board in the administration and
operation of the Corporation’s business and general
supervision of its policies and affairs. The President (if any and
if he or she shall be a director) shall, in the absence of or
because of the inability to act of the Chairman of the Board or
Chief Executive Officer, perform all duties of the Chairman of the
Board and preside at all meetings of the Board.
SECTION
5.6.
Chief Financial
Officer
. The Chief Financial Officer, if any, shall have
such powers and shall perform such duties as shall be assigned to
him by the Board. In the absence (or inability or refusal to act)
of the Chairman of the Board, Chief Executive Officer and
President, the Chief Financial Officer (if any and if he or she
shall be a director) shall preside when present at all meetings of
the Board.
SECTION
5.7.
Chief Accounting
Officer
. The Chief Accounting Officer, if any, shall have
such powers and shall perform such duties as shall be assigned to
him by the Board or the Chairman of the Board, Chief Executive
Officer, or Chief Financial Officer.
SECTION
5.8.
Chief Operating
Officer
. The Chief Operating Officer, if any, shall have
such powers and shall perform such duties as shall be assigned to
him by the Board or the Chairman of the Board, Chief Executive
Officer or the President.
SECTION
5.9.
Executive Vice
Presidents and Senior Vice Presidents
. Each Executive Vice
President and Senior Vice President, if any, shall have such powers
and shall perform such duties as shall be assigned to him by the
Board or the Chairman of the Board, Chief Executive Officer or the
President.
SECTION
5.10.
Treasurer
.
The Treasurer, if any, shall exercise general supervision over the
receipt, custody and disbursement of corporate funds. He shall have
such further powers and duties and shall be subject to such
directions as may be granted or imposed upon him from time to time
by the Board or the Chairman of the Board, Chief Executive Officer
or the President.
SECTION
5.11.
Secretary
.
The Secretary, if any, shall keep or cause to be kept in one or
more books provided for that purpose, the minutes of all meetings
of the Board, the committees of the Board and the stockholders; he
shall see that all notices are duly given in accordance with the
provisions of these Bylaws and as required by applicable law; he
shall be custodian of the records and the seal of the Corporation
and affix and attest the seal to all stock certificates of the
Corporation (unless the seal of the Corporation on such
certificates shall be a facsimile, as hereinafter provided) and
affix and attest the seal to all other documents to be executed on
behalf of the Corporation under its seal; and he shall see that the
books, reports, statements, certificates and other documents and
records required by law to be kept and filed are properly kept and
filed; and in general, he shall perform all the duties incident to
the office of Secretary and such other duties as from time to time
may be assigned to him by the Board or the Chairman of the Board,
Chief Executive Officer or the President.
SECTION
5.12.
Vacancies
. A
newly created elected office and a vacancy in any elected office
because of death, resignation or removal may be filled by the Board
for the unexpired portion of the term at any meeting of the Board.
Any vacancy in an office appointed by the Chairman of the Board,
Chief Executive Officer or the President and, if any, because of
death, resignation or removal may be filled by the Chairman of the
Board, Chief Executive Officer or the President.
SECTION
5.13.
Action with Respect
to Securities of Other Corporations
. Unless otherwise
directed by the Board, Chairman of the Board, Chief Executive
Officer or the President and or any officer authorized by the
Chairman of the Board, Chief Executive Officer or the President,
shall have power to vote and otherwise act on behalf of the
Corporation, in person or by proxy, at any meeting of security
holders of or with respect to any action of security holders of any
other corporation in which the Corporation may hold securities and
otherwise to exercise any and all rights and powers that the
Corporation may possess by reason of its ownership of securities in
such other corporation.
SECTION
5.14.
Delegation
.
The Board may from time to time delegate the powers and duties of
any officer to any other officer or agent, notwithstanding any
provision hereof.
ARTICLE VI
STOCK CERTIFICATES AND TRANSFERS
SECTION
6.1.
Stock Certificates
and Transfers
. The interest of each stockholder of the
Corporation shall be evidenced by certificates for shares of stock
in such form as the appropriate officers of the Corporation may
from time to time prescribe, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or
series of its stock may be uncertificated shares. The shares of the
stock of the Corporation shall be entered in the books of the
Corporation as they are issued and shall exhibit the holder’s
name and number of shares. Subject to the provisions of the
Certificate of Incorporation, the shares of the stock of the
Corporation shall be transferred on the books of the Corporation,
which may be maintained by a third-party registrar or transfer
agent, by the holder thereof in person or by his attorney, upon
surrender for cancellation of certificates for at least the same
number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the
authenticity of the signature as the Corporation or its agents may
reasonably require or upon receipt of proper transfer instructions
from the registered holder of uncertificated shares and upon
compliance with appropriate procedures for transferring shares in
uncertificated form, at which time the Corporation shall issue a
new certificate to the person entitled thereto (if the stock is
then represented by certificates), cancel the old certificate and
record the transaction upon its books.
Each
certificated share of stock shall be signed, countersigned and
registered in the manner required by law. In case any officer,
transfer agent or registrar who has signed or whose facsimile
signature has been placed upon a certificate has ceased to be such
officer, transfer agent or registrar before such certificate is
issued, it may be issued by the Corporation with the same effect as
if he were such officer, transfer agent or registrar at the date of
issue.
SECTION
6.2.
Lost, Stolen or
Destroyed Certificates
. No certificate for shares or
uncertificated shares of stock in the Corporation shall be issued
in place of any certificate alleged to have been lost, destroyed or
stolen, except on production of such evidence of such loss,
destruction or theft and on delivery to the Corporation of a bond
of indemnity in such amount, upon such terms and secured by such
surety, as the Board or any financial officer may in its or his
discretion require.
SECTION
6.3.
Ownership of
Shares
. The Corporation shall be entitled to treat the
holder of record of any share or shares of stock of the Corporation
as the holder in fact thereof and, accordingly, shall not be bound
to recognize any equitable or other claim to or interest in such
share or shares on the part of any other person, whether or not it
shall have express or other notice thereof, except as otherwise
required by the laws of the State of Florida.
SECTION
6.4.
Regulations
Regarding Certificates
. The Board shall have the power and
authority to make all such rules and regulations as they may deem
expedient concerning the issue, transfer and registration or the
replacement of certificates for shares of stock of the Corporation.
The Corporation may enter into additional agreements with
stockholders to restrict the transfer of stock of the Corporation
in any manner not prohibited by the FLORIDA STATE LAW.
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION
7.1.
Fiscal Year
.
The fiscal year of the Corporation shall begin on the first day of
January and end on the 31
st
day of December of each year.
SECTION
7.2.
Dividends
.
Except as otherwise provided by law or the Certificate of
Incorporation, the Board may from time to time declare, and the
Corporation may pay, dividends on its outstanding shares of stock,
which dividends may be paid in either cash, property or shares of
stock of the Corporation. A member of the Board, or a member of any
committee designated by the Board, shall be fully protected in
relying in good faith upon the records of the Corporation and upon
such information, opinions, reports or statements presented to the
Corporation by any of its officers or employees, or committees of
the Board, or by any other person as to matters the director
reasonably believes are within such other person’s
professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation, as to the value
and amount of the assets, liabilities or net profits of the
Corporation, or any other facts pertinent to the existence and
amount of surplus or other funds from which dividends might
properly be declared and paid.
SECTION
7.3.
Seal
. If the
Board determines that the Corporation shall have a corporate seal,
the corporate seal shall have inscribed thereon the words
“Corporate Seal,” the year of incorporation and the
words “American Resources Corporation —
Florida.”
SECTION
7.4.
Waiver of
Notice
. Whenever any notice is required to be given to any
stockholder or director of the Corporation under the provisions of
the Florida state law, the Certificate of Incorporation or these
Bylaws, a waiver thereof in writing, including by electronic
transmission, signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be
deemed equivalent to the giving of such notice. Neither the
business to be transacted at, nor the purpose of, any annual or
special meeting of the stockholders or the Board or committee
thereof need be specified in any waiver of notice of such meeting.
Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting
for the express purpose of objecting at the beginning of the
meeting, to the transaction of any business because the meeting is
not lawfully called or convened.
SECTION
7.5.
Resignations
.
Any director or any officer, whether elected or appointed, may
resign at any time by giving written notice, including by
electronic transmission, of such resignation to the Chairman of the
Board, the Executive Chairman, the President and Chief Executive
Officer or the Secretary, and such resignation shall be deemed to
be effective as of the close of business on the date said notice is
received by the Chairman of the Board, the Executive Chairman, the
Chief Executive Officer, the President or the Secretary, or at such
later time as is specified therein. No formal action shall be
required of the Board or the stockholders to make any such
resignation effective.
SECTION
7.6.
Indemnification and
Advancement of Expenses
.
(A)
The Corporation
shall indemnify and hold harmless, to the fullest extent permitted
by applicable law as it presently exists or may hereafter be
amended, any person who was or is made a party or is threatened to
be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he, or a
person for whom he is the legal representative, is or was a
director or officer of the Corporation or, while a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent of
another corporation or of a partnership, joint venture, trust,
other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (a “Covered
Person”), whether the basis of such proceeding is alleged
action in an official capacity as a director, officer, trustee,
employee or agent, or in any other capacity while serving as a
director, officer, trustee, employee or agent, against all
expenses, liability and loss (including, without limitation,
attorneys’ fees, judgments, fines, ERISA excise taxes and
penalties and amounts paid in settlement) reasonably incurred or
suffered by such Covered Person in connection with such
proceeding.
(B)
The Corporation
shall, to the fullest extent not prohibited by applicable law as it
presently exists or may hereafter be amended, pay the expenses
(including attorneys’ fees) incurred by a Covered Person in
defending any proceeding in advance of its final disposition;
provided, however, that to the extent required by applicable law,
such payment of expenses in advance of the final disposition of the
proceeding shall be made only upon receipt of an undertaking by the
Covered Person to repay all amounts advanced if it should be
ultimately determined by final judicial decision from which there
is no further right to appeal (hereinafter, a “final
adjudication”) that the Covered Person is not entitled to be
indemnified under this
Section 7.6
or
otherwise.
(C)
The rights to
indemnification and advancement of expenses under this
Section 7.6
shall be contract
rights and such rights shall continue as to a Covered Person who
has ceased to be a director, officer, trustee, employee or agent
and shall inure to the benefit of his heirs, executors and
administrators. Notwithstanding the foregoing provisions of this
Section 7.6
, except
for proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall indemnify and
advance expenses to a Covered Person in connection with a
proceeding (or part thereof) initiated by such Covered Person only
if such proceeding (or part thereof) was authorized by the
Board.
(D)
If a claim for
indemnification under this
Section 7.6
(following the
final disposition of such proceeding) is not paid in full within 60
days after the Corporation has received a claim therefor by the
Covered Person, or if a claim for any advancement of expenses under
this
Section 7.6
is
not paid in full within 30 days after the Corporation has received
a statement or statements requesting such amounts to be advanced,
the Covered Person shall thereupon (but not before) be entitled to
file suit to recover the unpaid amount of such claim. If successful
in whole or in part, the Covered Person shall be entitled to be
paid the expense of prosecuting such claim, or a claim brought by
the Corporation to recover an advancement of expenses prior to the
terms of an undertaking, to the fullest extent permitted by
applicable law. In any such action, the Corporation shall have the
burden of proving that the Covered Person is not entitled to the
requested indemnification or advancement of expenses under
applicable law. In (1) any suit brought by a Covered Person to
enforce a right to indemnification hereunder (but not in a suit
brought by a Covered Person to enforce a right to an advancement of
expenses) it shall be a defense that, and (2) in any suit brought
by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the Corporation shall be entitled
to recover such expenses upon a final adjudication that, the
Covered Person has not met any applicable standard for
indemnification set forth in the Florida state law. Neither the
failure of the Corporation (including its directors who are not
parties to such action, a committee of such directors, independent
legal counsel or its stockholders) to have made a determination
prior to the commencement of such suit that indemnification of the
Covered Person is proper in the circumstances because the Covered
Person has met the applicable standard of conduct set forth in the
Florida state law, nor an actual determination by the Corporation
(including its directors who are not parties to such action, a
committee of such directors, independent legal counsel or its
stockholders) that the Covered Person has not met such applicable
standard of conduct, shall create a presumption that the Covered
Person has not met the applicable standard of conduct or, in the
case of such a suit brought by the Covered Person, be a defense to
such suit. In any suit brought by the Covered Person to enforce a
right to indemnification or to an advancement of expenses
hereunder, or brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the burden of
proving that the Covered Person is not entitled to be indemnified,
or to such advancement of expenses, under this
Section 7.6
or otherwise shall
be on the Corporation.
(E)
The rights
conferred on any Covered Person by this
Section 7.6
shall not be
exclusive of any other rights that such Covered Person may have or
hereafter acquire under any statute, any provision of the
Certificate of Incorporation, these Bylaws, any agreement or vote
of stockholders or disinterested directors or
otherwise.
(F)
This
Section 7.6
shall not limit the
right of the Corporation, to the extent and in the manner permitted
by applicable law, to indemnify and to advance expenses to persons
other than Covered Persons when and as authorized by appropriate
corporate action.
(G)
Any Covered Person
entitled to indemnification and/or advancement of expenses, in each
case pursuant to this
Section 7.6
, may have certain
rights to indemnification, advancement and/or insurance provided by
one or more persons with whom or which such Covered Person may be
associated (including, without limitation, any of the Sponsors).
The Corporation hereby acknowledges and agrees that (1) the
Corporation shall be the indemnitor of first resort with respect to
any proceeding, expense, liability or matter that is the subject of
this
Section 7.6
,
(2) the Corporation shall be primarily liable for all such
obligations and any indemnification afforded to a Covered Person in
respect of a proceeding, expense, liability or matter that is the
subject of this
Section
7.6
, whether created by law, organizational or constituent
documents, contract or otherwise, (3) any obligation of any persons
with whom or which a Covered Person may be associated (including,
without limitation, any of the Sponsors) to indemnify such Covered
Person and/or advance expenses or liabilities to such Covered
Person in respect of any proceeding shall be secondary to the
obligations of the Corporation hereunder, (4) the Corporation shall
be required to indemnify each Covered Person and advance expenses
to each Covered Person hereunder to the fullest extent provided
herein without regard to any rights such Covered Person may have
against any other person with whom or which such Covered Person may
be associated (including, without limitation, any of the Sponsors)
or insurer of any such person, and (5) the Corporation irrevocably
waives, relinquishes and releases any other person with whom or
which a Covered Person may be associated (including, without
limitation, any of the Sponsors) from any claim of contribution,
subrogation or any other recovery of any kind in respect of amounts
paid by the Corporation hereunder.
(H)
The Corporation
shall maintain insurance, at its expense, to protect itself and any
person who is or was serving as a director, officer, employee or
agent of the Corporation or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under Florida, Kentucky, or Indiana
state law, or any other jurisdiction that the Corporation does
business and deems it advisable to maintain insurance.
SECTION
7.7.
Facsimile and
Electronic Signatures
. In addition to the provisions for use
of facsimile or electronic signatures elsewhere specifically
authorized in these Bylaws, facsimile or electronic signatures of
any officer or officers of the Corporation may be used whenever and
as authorized by the Board or a committee thereof, the Chairman of
the Board, Chief Executive Officer or the President.
SECTION
7.8.
Time Periods
.
In applying any provision of these Bylaws that require that an act
be done or not done a specified number of days prior to an event or
that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the
doing of the act shall be excluded, and the day of the event shall
be included.
SECTION
7.9.
Reliance Upon Books,
Reports and Records
. Each director, each member of any
committee designated by the Board and each officer of the
Corporation shall, in the performance of his duties, be fully
protected in relying in good faith upon the records of the
Corporation and upon information, opinions, reports or statements
presented to the Corporation by any of the Corporation’s
officers or employees, or committees designated by the Board, or by
any other person as to the matters the member reasonably believes
are within such other person’s professional or expert
competence and who has been selected with reasonable care by or on
behalf of the Corporation.
ARTICLE VIII
AMENDMENTS
SECTION
8.1.
Amendments
. In
furtherance of, and not in limitation of, the powers conferred by
the laws of the State of Florida, the Board shall be expressly
authorized to adopt, amend or repeal by Bylaws of the Corporation
only with the approval of a majority of the Whole Board.
Stockholders shall also have the power to adopt, amend or repeal
the Bylaws of the Corporation without any requirement to obtain
separate Board approval; provided, however, that, in addition to
any vote of the holders of any class or series of stock of the
Corporation required by law or by the Certificate of Incorporation,
the Bylaws of the Corporation may be adopted, altered, amended or
repealed by the stockholders of the Corporation only by the
affirmative vote of holders of not less than 60% in voting power of
the then-outstanding shares of stock entitled to vote thereon,
voting together as a single class. No Bylaws hereafter made or
adopted, nor any repeal of or amendment thereto, shall invalidate
any prior act of the Board that was valid at the time it was taken.
So long as the Stockholders’ Agreement remains in effect, the
Board shall not approve any amendment, alteration or repeal of any
provision of these Bylaws, or the adoption of any new Bylaw, that
would be contrary to or inconsistent with the then applicable terms
of the Stockholders’ Agreement.
Notwithstanding the
foregoing, (1) no amendment to the Stockholders’ Agreement
(whether or not such amendment modifies any provision to the
Stockholders’ Agreement to which these Bylaws are subject)
shall be deemed an amendment of these Bylaws for purposes of this
Section 8.1
, and (2) no
amendment, alteration or repeal of
Section 7.6
shall adversely affect any
right or protection existing under these Bylaws immediately prior
to such amendment, alteration or repeal, including any right or
protection of a present or former director, officer or employee
thereunder in respect of any act or omission occurring prior to the
time of such amendment.
AMERICAN RESOURCES CORPORATION
CODE OF CONDUCT
(Adopted
as of November 7
th
, 2018)
The
Board of Directors (the “Board”) of American Resources
Corporation (the “Company”) has adopted this Code of
Conduct (this “Code”), which provides basic principles
and guidelines to assist directors, officers and other employees in
complying with the legal and ethical requirements governing the
Company’s business conduct. This Code covers a wide range of
business practices and procedures but does not cover every issue
that may arise.
The
Company reserves the right to add to, modify and rescind this Code
or any portion of it at any time. This Code governs in the event of
any conflict or inconsistency between this Code and any other
materials distributed by the Company. If a law conflicts with a
policy in this Code, you must comply with the law.
You
should read this Code carefully, ask questions of the
Company’s Compliance Officer, which shall be the
Company’s Chief Financial Officer or other officer as
designated by the Board, and promptly sign and return the
certification attached as
Annex A
,
acknowledging receipt of this Code to:
American
Resources Corporation
P.O.
Box 606
Fishers,
IN
Attention:
Compliance Officer
The
Company’s Compliance Officer is responsible for ensuring that
all of the Company’s directors and officers promptly sign and
return the attached certification acknowledging receipt of this
Code.
I.
Statement
of Principles
The
Company’s fundamental policy is to conduct its business with
honesty and integrity in accordance with the highest legal and
ethical standards. The Company and its directors, officers and
other employees must comply with all applicable legal requirements
of the United States and each other country in which the Company
conducts business.
B.
Individual
Responsibility and Compliance
This
Code provides guidance for specific situations that may arise.
However, each director, officer and employee has the responsibility
to exercise good judgment so as to act in a manner that will
reflect favorably upon the Company and the individual.
The
Company’s directors, officers and other employees must comply
with the spirit as well as the letter of this Code. Directors,
officers and other employees must not attempt to achieve
indirectly, through the use of agents or other intermediaries, what
is prohibited directly by this Code.
A.
Condition of
Employment
Each
employee must become familiar with and agree to comply with this
Code as a condition of such employee’s employment. All
officers and other employees, regardless of level, must be provided
with a copy of this Code at the time their employment commences
with the Company; provided, however, that individuals already
employed by the Company at the time of the adoption of this Code
must be provided with a copy of this Code shortly after its
adoption. All managers are responsible both for ensuring that all
employees under their supervision, regardless of level, are
familiar with this Code and for promoting compliance with this
Code.
B.
Condition of
Director Appointment/Election
Each
director must become familiar with and agree to comply with this
Code. All directors must be provided with a copy of this Code at
the time of their appointment or election to serve on the
Board.
C.
Compliance
Certificate
The
Company’s directors and officers (as well as any other
employees at the request of the Company) must execute compliance
certificates substantially in the form of
Annex A
of
this Code.
As
provided above, each officer and other employee must become
familiar with and agree to comply with this Code as a condition of
such person’s employment. Each new officer must execute the
Compliance Certificate upon his or her employment. In addition,
each newly elected director must execute the Compliance Certificate
upon election or appointment to serve on the Board as set forth
above.
The
Company’s Compliance Officer is responsible for ensuring that
all directors and officers of the Company execute and return the
Compliance Certificate to the Company’s Compliance Officer or
another officer designated by the Company’s Compliance
Officer.
D.
Letter to Vendors,
Suppliers and Contractors
The
Company must periodically send to its significant vendors,
suppliers and contractors a letter that:
o
Advises that it is
against the Company’s policy for directors, officers and
other employees to accept gifts or entertainment of more than
nominal value from any entity that does, or is seeking to do,
business with the Company;
o
States that the
provision of gifts and entertainment is not, and will not become, a
condition of doing business with the Company; and
o
Requests the
recipient to identify any director, officer or other employee or
representative of the Company who pressures or solicits the
recipient for gifts, entertainment or other special
favors.
E.
Interpretation
Questions
Directors, officers
or other employees who have questions on how to proceed or
interpret this Code should consult their supervisor, the
Company’s Compliance Officer or any other person(s)
designated by the Board to supervise the application of this Code.
In addition, please see
Annex B
for
a listing of compliance procedures.
Compliance with
this Code is essential. Violations will result in disciplinary
action, including dismissal of any officer or other employee where
warranted.
III.
Conflicts
of Interest
A
conflict of interest occurs when an individual’s private
interest interferes in any way with the interests of the Company as
a whole. This situation can arise when a director, officer or other
employee takes actions or has interests that may make it difficult
to perform his or her work objectively and effectively. Conflicts
of interest also arise when a director, officer or other employee,
or a member of such person’s family or household, receives
improper personal benefits as a result of the director’s,
officer’s or other employee’s position with the
Company. A conflict of interest is deemed to exist whenever, as a
result of the nature or responsibilities of his or her relationship
with the Company, a director, officer or other employee is in a
position to further any personal financial interest or the
financial interest of any member of such person’s
family.
No
director, officer or other employee, regardless of level, is
permitted to engage in any business or conduct or enter into any
agreement or arrangement that would give rise to actual or
potential conflicts of interest. Directors, officers and other
employees should not permit themselves to be placed in a position
that might give rise to the appearance that a conflict of interest
has arisen.
While
it is not possible to describe all circumstances where a conflict
of interest involving a director, officer or employee exists or may
exist, the following situations may involve actual or potential
conflicts of interest:
o
An officer’s
or employee’s interest in, or position with, any supplier,
customer or competitor of the Company (except for an investment in
publicly traded securities as described below).
o
The acceptance of
gifts or favors of more than nominal value by a director, officer
or employee (or a member of such person’s immediate family)
from an actual or prospective customer, supplier or competitor of
the Company or any governmental official or other employee. This
does not preclude the acceptance by a director, officer or employee
of reasonable business entertainment (such as a lunch or dinner or
events involving normal sales promotion, advertising or
publicity).
o
The disclosure or
use of confidential information gained by reason of employment with
the Company (or, in the case of a director, election or appointment
to the Board) for profit or advantage by a director, officer or
other employee or anyone else.
o
Competition with
the Company in the acquisition or disposition of rights or
property, unless a specific formal agreement references rights to
such activity.
The
following situations should not be considered conflicts of
interest:
o
Ownership of
publicly traded securities of a supplier, customer or competitor of
the Company that do not confer upon the holder any ability to
influence or direct the policies or management of the supplier,
customer or competitor.
o
A transaction with
one of the Company’s banks, where the transaction is
customary and conducted on standard commercially available terms
(such as a home mortgage or bank loan).
o
A transaction or
relationship disclosed in accordance with this Code and determined
by outside legal counsel not to be a prohibited conflict of
interest.
These
examples are given only to guide directors, officers and other
employees in making judgments about conflicts of interest. If any
director, officer or employee finds himself or herself in a
situation where a conflict of interest exists or may exist, he or
she should immediately report the matter as provided
below.
B.
Reporting Conflicts
of Interest Involving Non-Officer Employees
Actual
or potential conflicts of interest involving a non-officer
employee, or a member of such person’s immediate family, must
be reported in writing by the affected person (or by others having
knowledge of the existence of the actual or potential conflicts of
interest) to the employee’s immediate supervisor, who shall
consult with the Company’s Compliance Officer to determine
whether a conflict of interest actually exists and to recommend
measures to be taken to neutralize the adverse effect of the
conflict of interest reported, if such measures are available or
appropriate under the circumstances. This procedure will be applied
so as to minimize its effect on the personal affairs of employees
consistent with the protection of the Company’s interests.
The matter may also be referred to the Board for its approval or
rejection.
C.
Reporting Conflicts
of Interest Involving Directors or Officers
An
actual or potential conflict of interest involving a director or
officer, or a member of such person’s immediate family, must
be reported by the affected person (or by others having knowledge
of the existence of the actual or potential conflict of interest)
to the Company’s Compliance Officer, who shall promptly
disclose the possible conflict of interest to the Board at the
earliest time practicable under the circumstances. The possible
conflict of interest will be made a matter of record, and the Board
will determine whether the possible conflict of interest indeed
constitutes a conflict of interest. The Board’s approval will
be required prior to the consummation of any proposed transaction
or arrangement that is determined by the Board to constitute a
conflict of interest.
Any
member of the Board or any officer having a possible conflict of
interest in any proposed transaction or arrangement is not
permitted to vote (in the case of a member of the Board) or use his
or her personal influence on the matter being considered by the
Board. Any member of the Board having a possible conflict of
interest is not counted in determining the quorum for consideration
and vote on the particular matter. Finally, any member of the Board
or any officer having a possible conflict of interest must be
excused from any meeting of the Board during discussion (subject to
the exception set forth in the paragraph below) and vote on the
particular matter (in the case of an interested director). The
minutes of the Board meeting should reflect the disclosure, the
absence from the meeting of the interested director or officer, the
abstention from voting (in the case of an interested director) and
the presence of a quorum. The proposed transaction or arrangement
is considered approved if it receives the affirmative vote of a
majority of the disinterested members of the Board (even though the
disinterested members are less than a quorum).
The
foregoing requirements do not prohibit the interested director or
officer from briefly stating his or her position on the matter or
from answering pertinent questions of the disinterested members of
the Board, as the interested director’s knowledge may be of
assistance to the other Board members in their consideration of the
matter.
A.
Company Books and
Records
1.
Books and Records.
The Company requires honest and accurate recording and reporting of
information in order to make responsible business decisions. As
such, the Company’s books, records and accounts must
accurately and fairly reflect the Company’s transactions in
reasonable detail and in accordance with the Company’s
accounting practices and policies. The following examples are given
for purposes of illustration and are not intended to limit the
generality of the foregoing in any way:
o
No false or
deliberately inaccurate entries (such as overbilling or advance
billing) are permitted. Discounts, rebates, credits and allowances
do not constitute overbilling when lawfully granted. The reasons
for the grant should generally be set forth in the Company’s
records, including the party requesting the treatment.
o
No payment shall be
made with the intention or understanding that all or any part of it
is to be used for any person other than that described by the
documents supporting the payment.
o
No undisclosed,
unrecorded or “off-book” funds or assets are
permitted.
o
No false or
misleading statements, written or oral, shall be intentionally made
to any internal accountant or auditor or the Company’s
independent registered public accounting firm with respect to the
Company’s financial statements or documents to be filed with
the Securities and Exchange Commission (the “SEC”) or
other governmental authority.
2.
Internal Accounting
Controls. The Company’s principal executive officer and
principal financial officer are responsible for implementing and
maintaining a system of internal accounting controls sufficient to
provide reasonable assurances that:
o
Transactions are
executed in accordance with management’s general or specific
authorization;
o
Transactions are
recorded as necessary to: (a) permit the preparation of financial
statements in conformity with generally accepted accounting
principles or any other applicable criteria and (b) maintain
accountability for assets;
o
Access to assets is
permitted only in accordance with management’s general or
specific authorization; and
o
The recorded
accountability of assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
3.
Employee Conduct.
No director, officer or other employee of the Company is permitted
to willfully, directly or indirectly:
o
Falsify, or cause
to be falsified, any book, record or account of the
Company;
o
Make, or cause to
be made, any materially false or misleading statement or omit to
state, or cause another person to omit to state, any material fact
necessary in order to make statements made, in light of the
circumstances under which the statements were made, not misleading
to an accountant in connection with (a) any audit or examination of
the Company’s financial statements or (b) the preparation or
filing of any document or report required to be filed by the
Company with the SEC or other governmental agency; or
o
Take any action to
fraudulently influence, coerce, manipulate or mislead the
Company’s independent registered public accounting
firm.
Directors, officers
and other employees must exercise reasonable due diligence in order
to avoid the events described above. If an employee believes that
the Company’s books and records are not being maintained in
accordance with these requirements, the employee should follow the
procedures outlined in the Company’s Policy for Employee
Complaint Procedures for Accounting and Compliance
Matters.
The
Company and its directors, officers and other employees must comply
with the United States Foreign Corrupt Practices Act, which makes
it illegal for U.S. companies to win, retain or direct business by
offering, paying or approving payments to foreign government
workers, political parties or their officials. For additional
information, please contact the Company’s Compliance
Officer.
V.
Use
of Company Property and Resources
A.
Protection and
Proper Use of Company Assets
The use
of any Company funds or assets for any unlawful or improper purpose
is prohibited. All employees should endeavor to protect the
Company’s assets and ensure their efficient use. Theft,
carelessness and waste have a direct impact on the Company’s
profitability. Any suspected incident of fraud or theft should be
reported immediately for investigation. Company equipment should
not be used for non-business related purposes, though incidental
personal use may be permitted (such as occasional use of the
Company’s stationery, supplies, copying facilities or
telephone when the cost to the Company is
insignificant).
The
obligation of employees to protect the Company’s assets
includes an obligation to protect the Company’s proprietary
information. Proprietary information includes intellectual property
such as trade secrets, patents, trademarks and copyrights, as well
as business, marketing and service plans, databases, records,
salary information and any unpublished financial data and reports.
Unauthorized use or distribution of this information violates
Company policy and could also be illegal and result in civil or
criminal penalties.
B.
Questionable or
Improper Payments and Gifts
1.
Payments or Gifts
Made. No payments or gifts from the Company’s funds or assets
shall be made to or for the benefit of a representative of any
domestic or foreign government (or subdivision thereof), labor
union or any current or prospective customer or supplier for the
purpose of improperly obtaining a desired government action or any
sale, purchase, contract or other commercial benefit. This
prohibition applies to direct or indirect payments made through
third parties and employees and is also intended to prevent bribes,
kickbacks or any other form of payoff.
2.
Payments or Gifts
Received. Directors, officers and other employees of the Company
shall not accept payments or gifts of the kinds described in this
Section V.
3.
Gifts to Government
Personnel. In the United States, nothing of value (for example,
gifts or entertainment) may be provided to government personnel
unless permitted by law and any applicable regulation. Commercial
business entertainment and transportation that is reasonable in
nature, frequency and cost is permitted. Reasonable business
entertainment or transportation includes, without limitation, a
lunch, dinner or occasional athletic or cultural event; gifts of
nominal value ($100 or less); entertainment at the Company’s
facilities or other authorized facilities; or authorized and
reasonable transportation in the Company’s vehicles. In
addition, reasonable business entertainment covers traditional
promotional events sponsored by the Company.
4.
Proper
Documentation. All arrangements with third parties (such as
distributors or agents) should be evidenced or memorialized in a
written contract, order or other document that describes the goods
or services that are in fact to be performed or provided and should
be for reasonable fees or costs.
5.
Extension of Credit
by the Company. No director, officer or employee may seek or accept
from the Company credit, an extension of credit or the arrangement
of an extension of credit in the form of a personal loan. Any
personal loan existing at the time of adoption of this Code shall
not be materially modified, extended or renewed.
C.
Corporate
Opportunities
Except
as otherwise permitted under the Company’s Certificate of
Incorporation or Bylaws (as amended from time to time), without the
written consent of the Board, directors, officers and other
employees are prohibited from taking for themselves an opportunity
that is (1) a potential transaction or matter that may be an
investment or business opportunity or be of prospective economic or
competitive advantage in which the Company could reasonably have an
interest or expectancy or (2) discovered through the use of
corporate property, information or position. In addition,
directors, officers and other employees are prohibited from using
corporate property, information or position for personal gain and
competing with the Company directly or indirectly. Directors,
officers and other employees of the Company owe a primary duty to
the Company to advance its legitimate interests when the
opportunity to do so arises.
VI.
Business
and Trade Practices
A.
Compliance with
Laws, Rules and Regulations
1.
Compliance with
Laws. Obeying the law, both in letter and in spirit, is the
foundation upon which the Company’s ethical standards are
built. All directors, officers and other employees must respect and
obey the laws of the cities, states and countries in which the
Company operates. Although directors, officers and other employees
are not expected to know every law that is applicable to the
Company, it is important that directors, officers and other
employees know enough to ask questions and seek advice from
supervisors, managers, lawyers or other appropriate personnel if
they have any doubt regarding the legality of an action taken, or
not taken, on behalf of the Company.
2.
Insider Trading.
Purchasing or selling, whether directly or indirectly, the
Company’s securities while in possession of material
non-public information is both unethical and illegal. Directors,
officers and other employees also are prohibited by law from
disclosing material non-public information to others who might use
the information to directly or indirectly place trades in the
Company’s securities. Directors, officers and other employees
also shall not recommend the purchase or sale of the
Company’s securities. All directors, officers and other
employees shall comply with the Company’s Insider Trading
Policy.
3.
Section 16
Reporting. Pursuant to Section 16 of the Securities Exchange Act of
1934, as amended, most purchases or sales of the Company’s
securities by directors, executive officers and 10% stockholders
must be disclosed within two business days of the transaction.
Directors, officers and other employees who are subject to these
reporting requirements must comply with the Company’s
Short-Swing Trading and Reporting Policy.
Directors, officers
and other employees should endeavor to deal fairly with the
Company’s customers, suppliers, competitors and employees. No
director, officer or other employee should take unfair advantage of
anyone through manipulation, concealment, abuse of privileged
information, misrepresentation of material facts or any other
practice involving unfair dealing.
Directors, officers
and other employees shall maintain the confidentiality of
information entrusted to them by the Company or its customers,
except when disclosure is authorized or legally mandated.
Confidential information includes all non-public information that,
if disclosed, might be of use to competitors or harmful to the
Company or its customers. Confidential information also includes
written material provided and information discussed at all meetings
of the Board or any committee thereof and all information that is
learned about the Company’s suppliers and customers that is
not in the public domain. The obligation to preserve confidential
information continues even after employment or agency with the
Company ends. Any documents, papers, records, or other tangible
items that contain trade secrets or proprietary information are the
Company’s property.
D.
Health, Safety and
Environmental Policy
The
Company is committed to conducting its business in compliance with
applicable health, safety and environmental laws, rules and
regulations in a manner that has the highest regard for the health
and safety of human life and the environment. Each employee has the
responsibility for maintaining a healthy, safe and
environmentally-friendly workplace by following health, safety and
environmental laws, rules and regulations and reporting accidents,
injuries and unsafe equipment, practices or
conditions.
Directors, officers
and other employees should be aware that health and safety laws may
provide for significant civil and criminal penalties against
individuals and the Company for the failure to comply with
applicable requirements. Accordingly, each director, officer and
other employee must comply with all applicable safety and health
laws, rules and regulations, including occupational safety and
health standards.
Directors, officers
and other employees should be aware that environmental laws may
provide for significant civil and criminal penalties against
individuals and/or the Company for failure to comply with
applicable requirements. Accordingly, each director, officer and
other employee must comply with all applicable environmental laws,
rules and regulations.
Employees shall
comply with all substance abuse standards and requirements set
forth under their applicable job description, as determined by
management of the Company, as well as all applicable local, state
and federal laws regarding substance abuse. All employees,
regardless of position shall report to work in a condition allowing
them to perform their duties free from the influence of drugs,
alcohol or other controlled substances. The use of illegal drugs in
the workplace will not be tolerated.
Violence and
threatening behavior are not permitted.
E.
Retention of
Documents and Records
It is
the Company’s policy to cooperate with all governmental
investigative authorities. Each director, officer and other
employee shall retain any record, document or tangible object of
the Company that is known to be the subject of an investigation or
litigation.
It is a
violation of this Code for any director, officer or other employee
to knowingly alter, destroy, mutilate, conceal, cover up, falsify
or make a false entry in any record, document or tangible object
with the intent to impede, obstruct or influence the investigation
or proper administration of any matter within the jurisdiction of
any state, federal department or agency or any bankruptcy, or in
relation to or contemplation of any such matter or
case.
VII.
Preparation
and Certification of 1934 Act Reports
A.
Internal Control
Report
Once
required, the Company’s Annual Report on Form 10-K shall
contain an internal control report that (1) states the
responsibility of management for establishing and maintaining an
adequate internal control structure and procedures for financial
reporting; (2) contains an assessment, as of the end of the
Company’s most recent fiscal year, of the effectiveness of
the Company’s internal control structure and procedures for
financial reporting; (3) includes a statement that the
Company’s independent registered public accounting firm has
issued a report on the Company’s internal controls and
procedures for financial reporting; (4) includes the report of the
Company’s independent registered public accounting firm; and
(5) otherwise complies with Section 404 of the Sarbanes-Oxley Act
of 2002 and the rules promulgated thereunder by the
SEC.
It is
the Company’s policy to promote full, fair, accurate, timely
and understandable disclosure in reports and documents that the
Company files with, or submits to, the SEC and in other public
communications made by the Company. The Disclosure Committee shall
oversee the Company’s internal controls and will take the
actions that are necessary and appropriate to fulfill the
Company’s disclosure requirements. The Disclosure Committee
will report to senior management, including the Company’s
principal executive officer and principal financial officer. The
Disclosure Committee shall consider the materiality of information
and determine disclosure obligations on a timely
basis.
The
Company’s principal executive officer and principal financial
officer shall make the certifications required by Section 302 and
Section 906 of the Sarbanes-Oxley Act of 2002, the text of which
are set forth in Item 601(b) (31) and (32) of Regulation S-K
promulgated by the SEC.
VIII.
Employment
Practices and Work Environment
All
directors, officers and other employees, regardless of position,
shall do their best to work together to meet the following
objectives:
o
Respect each
employee, worker and representative of customers, suppliers and
contractors as an individual, showing courtesy and consideration
and fostering personal dignity;
o
Make a commitment
to and demonstrate equal treatment of all employees, workers,
customers, suppliers and contractors of the Company without regard
to race, color, gender, religion, age, national origin, citizenship
status, military service or reserve or veteran status, sexual
orientation or disability;
o
Provide a workplace
free of harassment of any kind, including on the basis of race,
color, gender, religion, age, national origin, citizenship status,
military service or reserve or veteran status, sexual orientation
or disability;
o
Provide and
maintain a safe, healthy and orderly workplace; and
o
Assure uniformly
fair compensation and benefit practices that will attract, reward
and retain quality employees.
o
In addition to the
objectives set forth above, members of the management team are
expected to:
■
Use good judgment
and exercise appropriate use of their influence and authority in
their interactions with employees, customers, suppliers,
contractors and partners of the Company; and
■
Keep other
employees generally informed of the Company’s policies, plans
and progress through regular communications.
B.
Non-Discrimination
Policy
The
Company values the diversity of its employees and is committed to
providing an equal opportunity in all aspects of employment to all
employees without regard to race, color, gender, religion, age,
national origin, citizenship status, military service or reserve or
veteran status, sexual orientation or disability. Directors,
officers and other employees should use reasonable efforts to seek
business partners for the Company that do not discriminate in
hiring or in their employment practices, and who make decisions
about hiring, salary, benefits, training opportunities, work
assignments, advancement, discipline, termination and retirement
solely on the basis of a person’s ability to perform the
tasks required by their position.
C.
Freedom of
Association
The
Company recognizes and respects the right of employees to exercise
their lawful rights of free association, including joining or
electing not to join any association. The Company expects its
business partners to also adhere to these principles.
D.
Disciplinary
Practices
The
Company will not condone any type of harassment, abuse or
punishment, whether corporal, mental or physical, of an employee by
a director, officer or other employee or any partner, customer or
supplier of the Company.
IX.
Political
Contributions
The
Company encourages the personal and financial participation of its
directors, officers and other employees in federal, state and local
elective processes. Federal law prohibits the Company from making
any direct contribution or expenditure to a candidate or
candidate’s campaign in any federal election. Although there
are exceptions, most states also prohibit the use of corporate
treasury funds to influence state elections.
B.
Political
Contributions in U.S. Elections
It is
the Company’s policy not to make direct or indirect political
contributions in support of any party or candidate in any U.S.
election, whether federal, state or local, except as stated above.
For the purposes of this policy, advertising in political program
booklets, compensated employee activity, employee contributions
reimbursed through expense accounts and similar donations in kind
are considered political contributions. These are merely examples
of political contributions, and the preceding list is not intended
to be exhaustive.
C.
Political
Contributions in State and Local Elections
The
Company may on occasion contribute to state and local office
candidate committees and to state and local initiatives or
referendum campaigns where the Company’s interests are
directly involved and where permitted by state and local law.
Proposed political contributions require a brief description of the
purpose of the proposed contribution and a written legal opinion
that confirms that the proposed contribution is lawful under all
applicable laws. The documentation for proposed contributions shall
be approved in advance by the Company’s Chief Executive
Officer or the Chairman of the Board to ensure full compliance with
applicable state and local regulations and reporting
requirements.
D.
Political Action
Committees
To the
extent permitted by law, the Company’s resources may be used
to establish and administer a political action committee or
separate segregated fund. All proposed activities shall be
submitted for review and approval by the Board prior to their
implementation.
In
countries where corporate political contributions are permitted by
law and encouraged by local custom, contributions may be
appropriate and are permitted where approved by the proper
corporate officer and the Board.
The
Company proactively promotes ethical behavior.
Directors, officers
and other employees should report violations of applicable laws,
rules and regulations (including, without limitation, the listing
requirements of The NASDAQ Stock Market LLC
(“NASDAQ”)), this Code or any other code, policy or
procedure of the Company (including, without limitation, the
Company’s Financial Code of Ethics) to appropriate personnel
or follow the procedures outlined in the Company’s Policy for
Employee Complaint Procedures for Accounting and Compliance Matters
(as appropriate).
Directors, officers
and other employees are expected to cooperate in internal
investigations of misconduct.
Any
waiver of a provision of this Code may be made only by the Board or
a committee thereof. Any waiver for directors or executive officers
will be promptly disclosed if and as required by law and the
listing requirements of the NASDAQ.
XII.
Amendments
to this Code
Any
amendment to this Code shall be made only by the Board. If an
amendment to this Code is made, appropriate disclosure will be made
in accordance with legal requirements and the listing requirements
of the NASDAQ.
XIII.
Posting
Requirement
The
Company shall post this Code on the Company’s website as
required by applicable rules and regulations. In addition, the
Company shall disclose in its proxy statement for its annual
meeting of stockholders or, if the Company does not file a proxy
statement, in its Annual Report on Form 10-K, that a copy of this
Code is available both in print to any stockholder who requests it
and on the Company’s website, which address the Company shall
provide.
* *
*
This
document states a policy of American Resources Corporation and is
not intended to be regarded as the rendering of legal
advice.
ANNEX A CODE OF CONDUCT CERTIFICATION
I have
read and understand the Code of Conduct (the “Code”) of
American Resources Corporation (the “Company”). I agree
that I will comply with the policies and procedures set forth in
the Code. I understand and agree that, if I am an employee of the
Company or one of its subsidiaries or other affiliates, my failure
to comply in all respects with the Company’s policies,
including the Code, is a basis for termination for cause of my
employment with the Company and any subsidiary or other affiliate
to which my employment now relates or may in the future
relate.
In
addition, I agree to promptly submit a written report to the
Company’s Compliance Officer describing any circumstances in
which:
1.
I have reasonable
basis for belief that a violation of the Code by any person has
occurred;
2.
I have, or any
member of my family has or may have engaged in any activity that
violates the letter or the spirit of the Code;
3.
I have, or any
member of my family has or may have an interest that violates the
letter or the spirit of the Code; and
4.
I or any member of
my family may be contemplating an activity or acquisition that
could be in violation of the Code.
I am
unaware of any violations or suspected violations of the Code by
any employee except as described below or on the attached sheet of
paper. (If no exceptions are noted, please check the space provided
below.)
No
exceptions
To the
best of my knowledge and belief, neither I nor any member of my
family has any interest or affiliation or has engaged in any
activity that might conflict with the Company’s interest,
except as described below or on the attached sheet of paper. (If no
exceptions are noted, please check the space provided
below.)
No
exception
I am
aware that this signed Certification will be filed with my personal
records in the Company’s Human Resources
Department.
________________________________
Signature
________________________________
Type or
Print Name
________________________________
Date
ANNEX B CODE OF CONDUCT COMPLIANCE PROCEDURES
Directors,
officers and other employees must work together to ensure prompt
and consistent action against violations of the Code. However, a
director, officer or other employee may encounter a situation in
which it is difficult to determine how to proceed while also
complying with the Code. Since not every situation that will arise
can be anticipated, it is important to have a way to approach a new
question or problem. When considering these situations, a director,
officer or other employee should:
1.
Make sure to have
all the facts. In order to reach the right solution, all relevant
information must be known.
2.
Consider what he or
she specifically is being asked to do and whether it seems
unethical or improper. This will enable the individual to focus on
the specific question and the alternatives he or she has. If
something seems unethical or improper, it probably is.
3.
Understand his or
her individual responsibility and role. In most situations, there
is shared responsibility. Are other colleagues informed? It may
help to get other individuals involved and discuss the
problem.
4.
Discuss the problem
with a supervisor. In many cases, supervisors will be more
knowledgeable about the question and will appreciate being brought
into the decision-making process. Employees should remember that it
is the responsibility of supervisors to help solve problems and
ensure that the Company complies with this Code.
5.
Seek help from
Company resources. In the rare case in which it may not be
appropriate to discuss an issue with a supervisor or a supervisor
is not available to answer a question, employees should discuss it
locally with the office manager or Human Resources manager. If that
is not appropriate or if a satisfactory resolution is not obtained,
call or send concerns to the Company’s Compliance Officer or
follow the procedures outlined in the Company’s Policy for
Employee Complaint Procedures for Accounting and Compliance
Matters.
6.
Report ethical
violations in confidence and without fear of retaliation. If the
situation so requires, anonymity will be protected. The Company
does not permit retaliation of any kind for good faith reports of
ethical violations.
7.
Always ask first,
act later. When unsure of what to do in any situation, the
individual should seek guidance and ask questions before the action
in question is taken.
