Exhibit 3.3
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NECHES RIVER HOLDING CORP.
June 6, 2002
Neches River Holding Corp., a corporation organized and
existing under the laws of the State of Delaware (the "Corporation"), hereby
certifies that:
FIRST: The name of the Corporation is Neches River Holding Corp.;
SECOND: The Certificate of Incorporation of the Corporation was filed
with the Delaware Secretary of State on the 3rd day of May, 1999;
THIRD: The Board of Directors of the Corporation (the "Board of
Directors") has duly adopted this amendment and restatement of the
Certificate of Incorporation in accordance with the provisions of
Sections 242 and 245 of the Delaware General Corporation Law; and
FOURTH: The Certificate of Incorporation of the Corporation is hereby
restated and amended in its entirety to read as follows:
1. Name. The name of the corporation is Neches River Holding
Corp. (the "Corporation").
2. Address; Registered Agent. The address of the Corporation's
registered office in the State of Delaware is located at 1209 Orange Street, in
the City of Wilmington, County of New Castle. The name of its registered agent
at such address is The Corporation Trust Company.
3. Purpose. The purpose of the Corporation is to engage
exclusively in the following activities:
(a) to engage in the ownership of a ninety nine percent (99%)
partnership interest in Port Arthur Coker Company L.P. (the
"Partnership");
(b) to act as a limited partner of the Partnership;
(c) to issue one or more guarantees of the debt of Port Arthur
Finance Corp. (the "Financing Company"; together with the Corporation,
the Partnership and Sabine River Holding Corp., the "Project
Companies") to be incurred in connection with the Project
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(as defined in Article 9 below) (the "Guarantees") and to enter into
any and all documents in furtherance of its obligations thereunder;
(d) to pledge its ownership interest in the Partnership to the
Financing Parties (as defined in Article 9 below) to secure the
financing of the Project;
(e) to enter into one or more equity contribution agreements in
connection with the equity funding of the Project by Blackstone Capital
Partners III Merchant Banking Fund L.P., Blackstone Offshore Capital
Partners III L.P. and Blackstone Family Investment Partnership III L.P.
(together with each of the direct and indirect owners thereof,
"Blackstone") and Occidental Petroleum Corporation ("Occidental"); and
(f) to engage in any lawful act or activity, and to exercise
such powers permitted to corporations organized under the laws of the
State of Delaware.
4. Capitalization. The total number of shares of capital stock
which the Corporation shall have authority to issue is one thousand (1,000)
shares of Common Stock with a par value of $0.01 per share.
5. By-Laws. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors of the Corporation is expressly
authorized to adopt, amend or repeal the By-Laws of the Corporation.
6. Liability of Directors. Except as otherwise provided by the
General Corporation Law of the State of Delaware as the same exists or may
hereafter be amended, the liability of the directors of the Corporation for
monetary damages shall be eliminated to the fullest extent permissible under
Delaware law. Any repeal or modification of this Article 6 by the stockholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or modification.
7. Indemnification. The Corporation shall, to the fullest
extent permitted by the provisions of the General Corporation Law of Delaware,
as now or hereafter in effect, indemnify all persons whom it may indemnify under
such provisions. Any repeal or modification of this Article 7 shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
8. Amendment of Certificate of Incorporation. The Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are granted subject
to this reservation.
9. Additional Definitions. The following terms use herein shall
have the following meanings:
"Financing Documents" means any and all documents to be executed
in connection with the Project which evidence or secure the financing
of the construction of
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new delayed coking unit, hydrocracker, sulfur complex and related
assets by the Partnership at the Clark refinery in Port Arthur, Texas
or the on-going working capital requirements of the Partnership
including, without limitation (i) a common security agreement, (ii) one
or more loan agreements, (iii) a transfer restrictions agreement, (iv)
an intercreditor agreement, (v) a guaranty insurance policy and
reimbursement agreement, (vi) a debt service reserve account insurance
guarantee, (vii) a note purchase agreement, (viii) an indenture, (ix)
notes, (x) one or more mortgages, (xi) one or more pledge agreements,
(xii) a registration rights agreement and (xiii) any other documents
delivered under or in connection with any of the foregoing.
"Financing Parties" means any financing parties that may at any
time be party to the Financing Documents and any trustee or agent
action on their behalf.
"Project" means the financing, construction, ownership and
operation by the Partnership of a new delayed coking unit,
hydrocracker, sulfur complex and related assets to be located at the
Port Arthur, Texas refinery of Clark and the leasing from Clark, and
operation of, the crude unit, the vacuum tower, two distillate
hydrotreaters and one naphtha hydrotreater owned by Clark and located
at its Port Arthur, Texas refinery.
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IN WITNESS WHEREOF, Neches River Holding Corp. has caused this
Amended and Restated Certificate of Incorporation to be signed by
Dennis Eichholz, its Senior Vice President - Finance and Controller on
the date first written above.
NECHES RIVER HOLDING CORP.
______________________________
Name: Dennis R. Eichholz
Title: Senior Vice President -
Finance and Controller