Exhibit 3.4
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AMENDED AND RESTATED BY-LAWS
of
NECHES RIVER HOLDING CORP.
Adopted on June 6, 2002
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Table of Contents
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ARTICLE I Meeting of Shareholders ..................................................... 1
SECTION 1.1. Place of Meetings ................................................... 1
SECTION 1.2. Meetings ............................................................ 1
SECTION 1.3. Notice of Meetings .................................................. 1
SECTION 1.4. Quorum .............................................................. 2
SECTION 1.5. Voting .............................................................. 2
SECTION 1.6. Organization and Order of Business .................................. 2
SECTION 1.7. Inspectors .......................................................... 2
SECTION 1.8. Action Without Meeting .............................................. 3
ARTICLE II Board of Directors ......................................................... 3
SECTION 2.1. Number, Election, Term and Qualifications ........................... 3
SECTION 2.2. Powers .............................................................. 3
SECTION 2.3. Resignations ........................................................ 3
SECTION 2.4. Vacancies ........................................................... 3
SECTION 2.5. Actions by Directors ................................................ 4
SECTION 2.6. Committees of the Board ............................................. 4
SECTION 2.7. Meetings of the Board of Directors .................................. 4
SECTION 2.8. Organization ........................................................ 5
SECTION 2.9. Directors' Compensation ............................................. 5
ARTICLE III Notices ................................................................... 5
SECTION 3.1. Notice to Shareholders .............................................. 5
SECTION 3.2. Waivers of Notice ................................................... 6
ARTICLE IV Officers ................................................................... 6
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SECTION 4.1. Officers .............................................................. 6
SECTION 4.2. Other Officers and Agents ............................................. 6
SECTION 4.3. Compensation .......................................................... 6
SECTION 4.4. Removal; Resignation .................................................. 6
SECTION 4.5. Chairman .............................................................. 7
SECTION 4.6. President ............................................................. 7
SECTION 4.7. Vice President ........................................................ 7
SECTION 4.8. Secretary ............................................................. 7
SECTION 4.9. Assistant Secretary ................................................... 7
SECTION 4.10. Treasurer and Assistant Treasurer .................................... 7
SECTION 4.11. Delegation of Duties ................................................. 8
SECTION 4.12. Limitations on Officers .............................................. 8
ARTICLE V Ownership; Certificates of Shares ............................................. 8
SECTION 5.1. Certificates .......................................................... 8
SECTION 5.2. Lost Certificates ..................................................... 8
SECTION 5.3. Share Record; Issuance and Transferability of Shares .................. 9
SECTION 5.4. Fixing Record Date .................................................... 9
SECTION 5.5. Transfer Agent; Dividend Disbursing Agent and Registrar ............... 10
ARTICLE VI General Provisions ........................................................... 10
SECTION 6.1. Dividends ............................................................. 10
SECTION 6.2. Checks ................................................................ 10
SECTION 6.3. Depositories .......................................................... 11
SECTION 6.4. Books of Account and Records .......................................... 11
SECTION 6.5. Information for Inspection ............................................ 11
SECTION 6.6. Fiscal Year ........................................................... 11
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SECTION 6.7. Share Ledger ................................................................ 11
SECTION 6.8. Seal ........................................................................ 11
ARTICLE VII Indemnification .................................................................. 11
SECTION 7.1. Indemnification of Directors and Officers ................................... 11
SECTION 7.2. Nonexclusivity of Indemnification and Advancement of Expenses ............... 12
SECTION 7.3. Insurance ................................................................... 12
ARTICLE VIII Amendments ...................................................................... 12
SECTION 8.1. Board of Directors .......................................................... 12
SECTION 8.2. Shareholders ................................................................ 12
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AMENDED AND RESTATED BY-LAWS
of
NECHES RIVER HOLDING CORP.
Adopted on June 6, 2002
Capitalized terms used herein and not defined herein shall have the following
meanings:
"Corporation" means Neches River Holding Corp.
"Shares" means the shares of common stock of the Corporation.
"Shareholders" means, at any time, all holders of record of outstanding
Shares at such time.
ARTICLE I
Meeting of Shareholders
SECTION 1.1. Place of Meetings. Meetings of Shareholders shall be
held at such place within the United States as shall be designated from time to
time by the Board of Directors and stated in the notice of meeting or in a duly
executed waiver of notice thereof.
SECTION 1.2. Meetings. (a) Annual meetings of Shareholders shall be
held at such place, date and hour as shall be fixed by the Board of Directors
and stated in the notice of meeting, at which the directors shall be elected and
any other proper business of the Corporation may be conducted. Any business of
the Corporation may be transacted at the annual meeting without being specially
designated in the notice, except such business as is specifically required by
law to be stated in the notice.
(b) Special meetings of the Shareholders may be called at any time by
the chief executive officer of the Corporation or by a majority of the directors
and shall be called by an officer of the Corporation upon the written request of
one or more Shareholders holding in the aggregate not less than 25% of the
outstanding Shares entitled to vote at such meeting. If there shall be no
directors, the officers of the Corporation shall promptly call a special meeting
of the Shareholders entitled to vote for the election of successor directors.
Notice of any special meeting shall state the purpose or purposes of the
meeting.
SECTION 1.3. Notice of Meetings. Not less than 10 nor more than 60
days before the date of every Shareholders' meeting, the secretary shall give to
each Shareholder entitled to vote at such meeting, and to each Shareholder not
entitled to vote who is entitled by law to notice, written notice stating the
time and place of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called.
In the case of a special meeting of Shareholders convened at the
request of Shareholders, the notice herein provided for shall be given by the
secretary, in the manner herein provided, within 10 days after receipt of such
request of Shareholders. Any such special meeting shall be held not less than 20
nor more than 60 days after receipt of said request of Shareholders.
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SECTION 1.4. Quorum. At any meeting of Shareholders, the presence in
person or by proxy of Shareholders entitled to cast a majority of the votes
authorized to be cast by Shares then outstanding and entitled to vote shall
constitute a quorum; but this section shall not affect any requirement of law or
under the Certificate of Incorporation for the vote necessary for the adoption
of any measure. If, however, such quorum shall not be present in person or by
proxy at any meeting of the Shareholders, the Shareholders entitled to vote
thereat, present in person or by proxy, shall have power to adjourn the meeting
from time to time, without notice other than announcement at the meeting, until
a quorum shall be present in person or by proxy. At such adjourned meeting at
which a quorum shall be present, in person or by proxy, any business may be
transacted which could have been transacted at the meeting as originally
noticed.
SECTION 1.5. Voting. Except as otherwise required by the Certificate
of Incorporation or by law, whenever any action is to be taken by the
Shareholders at a meeting, it shall be authorized by the affirmative vote of the
holders of Shares representing a majority of the total number of votes cast by
Shares then outstanding and entitled to vote. At all elections of directors,
voting by Shareholders shall be conducted under the noncumulative method and the
election of directors shall be by a plurality of the votes cast by Shares then
outstanding and entitled to vote.
Unless any statute or the Certificate of Incorporation provide
otherwise, each outstanding Share shall be entitled to one vote on each matter
submitted to a vote at a meeting of Shareholders. A Shareholder may vote only
the Shares owned by him as shown on the record of Shareholders of the
Corporation as of the record date determined pursuant to these By-laws or
pursuant to applicable law. All persons who were holders of record of Shares at
such time, and no others, shall be entitled to vote at such meeting and any
adjournment thereof. A Shareholder may vote the Shares owned of record by him
either in person or by proxy executed in writing by the Shareholder or by his
duly authorized attorney-in-fact and filed with the secretary prior to the
meeting. No proxy shall be valid after eleven months from the date of its
execution. At all meetings of Shareholders, unless the voting is conducted by
inspectors, all questions relating to the qualification of voters and the
validity of proxies and the acceptance or rejection of votes shall be decided by
the chairman of the meeting.
SECTION 1.6. Organization and Order of Business. At each meeting of
the Shareholders, the chairman of the Board of Directors, or in his absence or
inability to act, the president, or in the absence or inability to act of the
chairman of the Board of Directors and the president, a vice president, shall
act as chairman of the meeting. The secretary, or in his absence or inability to
act, any person appointed by the chairman of the meeting, shall act as secretary
of the meeting and keep the minutes thereof. The order of business at all
meetings of the Shareholders shall be as determined by the chairman of the
meeting.
SECTION 1.7. Inspectors. The Board of Directors may, and shall if
required by law, in advance of any meeting of Shareholders, appoint one or more
inspectors to act at such meeting or any adjournment thereof. If the inspectors
shall not be so appointed or if any of them shall fail to appear or act, the
chairman of the meeting may, and on the request of any Shareholder entitled to
vote thereat shall, appoint inspectors. Each inspector, before entering upon the
discharge of his duties, shall take and sign an oath to execute faithfully the
duties of inspector at such meeting with strict impartiality and according to
the best of his ability. The inspectors shall determine the number of Shares
represented at the meeting, the existence of a quorum, the validity and effect
of proxies, and shall receive votes, ballots or consents, hear and
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determine all challenges and questions arising in connection with the right to
vote, count and tabulate all votes ballots or consents, determine the result,
and do such acts as are proper to conduct the election or vote with fairness to
all Shareholders. On request of the chairman of the meeting or any Shareholder
entitled to vote thereat, the inspectors shall make a report in writing of any
challenge, request or matter determined by them and shall execute a certificate
of any fact found by them. No director or candidate for the office of director
shall act as inspector of an election of directors. Inspectors need not be
Shareholders.
SECTION 1.8. Action Without Meeting. Except as otherwise provided by
statute or the Certificate of Incorporation, any action required or permitted to
be taken at any meeting of Shareholders may be taken without a meeting, without
prior notice and without a vote, if a consent in writing, setting forth such
action, is signed by Shareholders representing such proportion of the total
number of votes authorized to be cast by Shares then outstanding and entitled to
vote on such action as would be required to approve such action at a meeting at
which all holders of Shares then outstanding and entitled to vote thereon were
present and voting on such action, and any other Shareholders entitled to notice
of a meeting of Shareholders but not to vote thereat have waived in writing any
rights which they may have to dissent from such action, and such consent and
waiver are filed with the records of Shareholders' meetings.
ARTICLE II
Board of Directors
SECTION 2.1. Number, Election, Term and Qualifications. The Board of
Directors of the Corporation shall consist of not less than one nor more than
five directors and, subject to the terms and conditions of the Certificate of
Incorporation. The first Board of Directors shall consist of three directors
appointed by the Sole Incorporator, subject to the terms and conditions
contained in the Certificate of Incorporation. Thereafter, within the limits
specified above and subject to the terms and conditions of the Certificate of
Incorporation, the number of directors shall be determined by the Board of
Directors. The directors, other than the first board of directors, shall be
elected at the annual meeting of the Shareholders, except as provided in Section
2.4, and each director elected shall hold office until his successor is elected
and qualified. Unless otherwise restricted by law or the Certificate of
Incorporation, any director or the entire Board of Directors may be removed,
with or without cause, by a majority of Shareholders entitled to vote at an
election of directors.
SECTION 2.2. Powers. The business and affairs of the Corporation shall
be managed in accordance with the Certificate of Incorporation by the Board of
Directors, which may exercise all of the powers of the Corporation except such
as are by law or by the Certificate of Incorporation or by these By-laws
conferred upon or reserved to the Shareholders.
SECTION 2.3. Resignations. Any director or member of a committee may resign at
any time. Such resignation shall be made in writing and shall take effect at the
time specified therein, or if no time be specified, at the time of the receipt
by the chairman of the Board of Directors, the president or the secretary. The
acceptance of a resignation shall not be necessary to make it effective.
SECTION 2.4. Vacancies. Vacancies (including vacancies created by
increases in number) may be filled only by a majority of the remaining
directors, or if only one director shall remain, by the remaining director
(although less than a quorum). If at any time there shall
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be no directors in office, successor directors shall be elected by the
Shareholders in accordance with Article I. A director elected by the Board of
Directors to fill a vacancy shall be elected to hold office until the next
annual meeting of Shareholders or until his successor is elected and qualified.
SECTION 2.5. Actions by Directors. Subject to the provisions of the
Certificate of Incorporation, the directors may act with or without a meeting in
accordance with the following. Unless specifically provided otherwise in these
By-laws, any action of the directors may be taken (i) at a meeting, by vote of a
majority of the directors or (ii) without a meeting, by unanimous written
consent of the directors, whose written consents shall be filed with the records
of meetings of the directors. Any action or actions permitted to be taken by the
directors in connection with the business of the Corporation may be taken
pursuant to authority granted by a meeting of the directors conducted by a
telephone conference call, and the transaction of business represented thereby
shall be of the same authority and validity as if transacted at a meeting of the
directors held in person or by written consent. The minutes of any Board of
Directors' meeting held by telephone shall be prepared in the same manner as a
meeting of the Board of Directors held in person.
SECTION 2.6. Committees of the Board. The Board of Directors may
appoint from among its members an executive committee, an audit committee and
other committees composed of three or more directors. The Board of Directors may
delegate to any committees any of the powers of the Board of Directors.
Notice of committee meetings shall be given in the same manner as
notice for special meetings of the Board of Directors. Not less than three, of
the members of any committee shall be present in person or by telephone at any
meeting of such committee in order to constitute a quorum for the transaction of
business at such meeting, and the act of a majority present shall be the act of
such committee. The Board of Directors may designate a chairman of any committee
and such chairman or any three members of any committee may fix the time and
place of its meetings unless the Board of Directors shall otherwise provide. In
the absence or disqualification of any member of any such committee, the members
thereof present at any meeting and not disqualified from voting, whether or not
they constitute a quorum, may unanimously appoint another director to act at the
meeting in the place of such absent or disqualified members.
The committees shall keep minutes of their proceedings and shall
report the same to the Board of Directors at the meeting next succeeding, and
any action by the committees shall be subject to revision and alteration by the
Board of Directors, provided that no rights of third persons shall be affected
by any such revision or alteration.
The Board of Directors shall have the power at any time to change the
membership of any committee, to fill all vacancies, to designate alternate
members to replace any absent or disqualified member or to dissolve any such
committee.
SECTION 2.7. Meetings of the Board of Directors. Meetings of the Board
of Directors, regular or special, may be held at any place as the Board of
Directors may from time to time determine or as shall be specified in the notice
of such meeting.
As soon as practicable after each annual meeting of Shareholders, a
regular meeting of the directors shall be held for the purpose of organizing,
electing officers and
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transacting other business. The meeting may be held at such time and place as
shall be specified in a notice given as hereinafter provided for special
meetings of the Board of Directors, or as shall be specified in a written waiver
signed by all of the directors as provided in Article III, except that no notice
shall be necessary if such meeting is held immediately after the adjournment,
and at the site, of the annual meeting of Shareholders.
Regular meetings of the Board of Directors may be held without notice
at such time and place as shall from time to time be determined by the Board of
Directors.
Special meetings of the Board of Directors may be called at any time
by three or more directors or by the chairman of the Board of Directors or the
president. Special meetings may be held at such place or places as may be
designated from time to time by the Board of Directors; in the absence of such
designation, such meetings shall be held at such places as may be designated in
the notice of meeting.
Notice of the place and time of every special meeting of the Board of
Directors shall be delivered by the secretary to each director by (a) United
States mail, postage prepaid, (b) express mail or overnight delivery or courier
service, (c) telecopy or other facsimile transmission, (d) personal delivery or
(e) telephone, to the address, telecopy or telephone number of such director
appearing on the books of the Corporation or theretofore given by such director
to the Corporation for the purpose of notice. Such notice shall be deemed given
(i) if given by telecopier, when transmitted to the number specified for such
purpose and the appropriate answerback or confirmation is received (or, if such
time is not during a Business Day, at the beginning of the next Business Day),
(ii) if given by mail, when deposited in the United States mail, postage
prepaid, directed to such Shareholder at his address as it appears on the record
of the Corporation or (iii) if given by any other means, when delivered to such
director.
SECTION 2.8. Organization. The chairman of the Board of Directors
shall be selected by a majority of the directors and shall preside at each
meeting of the Board of Directors. In the absence or inability of the chairman
to preside at a meeting, the president, or, in his absence or inability to act,
another director chosen by a majority of the directors present, shall act as
chairman of the meeting and preside thereat. The secretary (or, in his absence
or inability to act any person appointed by the chairman of the meeting) shall
act as secretary of the meeting and keep the minutes thereof.
SECTION 2.9. Directors' Compensation. Directors may receive
compensation for services to the Corporation in their capacities as directors or
otherwise in such manner and in such amounts as may be fixed from time to time
by the Board of Directors.
ARTICLE III
Notices
SECTION 3.1. Notice to Shareholders. Any notice of any meeting or
other notice, communication or report to any Shareholder shall be delivered to
such Shareholder by (a) United States mail, postage prepaid, (b) express mail or
overnight delivery or courier service, (c) telecopy or other facsimile
transmission or (d) personal delivery to the address or telecopy number of such
Shareholder appearing on the books of the Corporation or theretofore given by
such Shareholder to the Corporation for the purpose of notice. Such notice shall
be deemed given (i) if given by telecopier, when transmitted to the number
specified for such purpose and
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the appropriate answerback or confirmation is received (or, if such time is not
during a Business Day, at the beginning of the next Business Day), (ii) if given
by mail, when deposited in the United States mail, postage prepaid, directed to
such Shareholder at his address as it appears on the records of the Corporation
or (iii) if given by any other means, when delivered to such Shareholder.
SECTION 3.2. Waivers of Notice. Whenever any notice of the time, place
or purpose of any meeting of Shareholders, directors or committee is required to
be given under law or under the provisions of the Certificate of Incorporation
or these By-laws, a waiver thereof in writing, signed by the person or persons
entitled to such notice and filed with the records of the meeting, whether
before or after the holding hereof, or actual attendance at the meeting of
Shareholders in person or by proxy, or at the meeting of directors or a
committee in person, shall be deemed equivalent to the giving of such notice to
such persons. When a meeting of Shareholders is adjourned to another time and
place, unless the Board of Directors after the adjournment shall fix a new
record date for an adjourned meeting or the adjournment is for more than thirty
days, notice of such adjourned meeting need not be given if the time and place
to which the meeting shall be adjourned were announced at the meeting at which
the adjournment is taken.
ARTICLE IV
Officers
SECTION 4.1. Officers. The officers of the Corporation shall be chosen
by the Board of Directors in accordance with the Certificate of Incorporation or
by these By-Laws and shall be a president, a secretary and a treasurer. The
Board of Directors may also choose a chairman (or one or more co-chairmen) of
the Board of Directors, and one or more vice presidents, assistant secretaries
or assistant treasurers. Two or more offices, except those of chairman and/or
president and secretary, or chairman and/or president and assistant secretary,
may be held by the same person, but no officer shall execute, acknowledge or
verify any instrument in more than one capacity, if such instrument is required
by law, the Certificate of Incorporation or these By-laws to be executed,
acknowledged or verified by two or more officers.
SECTION 4.2. Other Officers and Agents. The Board of Directors may
appoint such other officers and agents as it shall deem necessary, who shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
SECTION 4.3. Compensation. The compensation of the officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 4.4. Removal; Resignation. The officers of the Corporation
shall serve until their successors are chosen and qualify. Any officer or agent
may be removed by the Board of Directors whenever, in its judgment, the best
interests of the Corporation will be served thereby. Any officer may resign at
any time. Such resignation shall be made in writing, and shall take effect at
the time specified herein, and if such time is not specified, at the time of its
receipt by the chairman, the president or the secretary. The acceptance of a
resignation shall not be necessary to make it effective. If the office of any
officer becomes vacant for any reason, the vacancy shall be filled by the Board
of Directors.
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SECTION 4.5. Chairman. The chairman shall, if present, preside at all
meetings of the Board of Directors and Shareholders and exercise and perform
such other powers and duties as may be from time to time assigned to him by the
Board of Directors or prescribed by these By-laws and as may be set forth
herein.
SECTION 4.6. President. The president shall be the chief executive
officer of the Corporation. The president shall have general and active control
of the business, finances and affairs of the Corporation, subject to the control
of the Board of Directors. Except as may otherwise be provided by the Board of
Directors from time to time, the president shall have the general power to
execute bonds, deeds, contracts, conveyances and other instruments in the name
of the Corporation, to appoint all employees and agents of the Corporation whose
appointment is not otherwise provided for and to fix the compensation thereof
subject to the provisions of these By-laws and subject to the approval of the
Board of Directors; to remove or suspend any employee or agent who shall not
have been appointed by the Board of Directors; to suspend for cause, pending
final action by the body which shall have appointed him, any officer other than
an elected officer, or any employee or agent who shall have been appointed by
the Board of Directors; to delegate to a responsible agent any of the foregoing;
and to take any other such action as the President deems necessary, subject to
the oversight of the Board of Directors.
SECTION 4.7. Vice President. The vice president, or if there shall be
more than one, the vice presidents in the order determined by the Board of
Directors, shall, in the absence or disability of the president, perform the
duties and exercise the powers of the president, and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
SECTION 4.8. Secretary. The secretary shall attend all meetings of the
Board of Directors and all meetings of the Shareholders and record all the
proceedings of the meetings of the Corporation and of the Board of Directors in
a book to be kept for that purpose and perform like duties for the standing
committees when required. The secretary shall give, or cause to be given, notice
of all meetings of the Shareholders and special meetings of the Board of
Directors, and shall perform such other duties as may be prescribed by the Board
of Directors or president, under whose supervision the secretary shall be. The
secretary shall keep in safe custody the seal of the Corporation and, when
authorized by the Board of Directors, affix the same to any instrument requiring
it and, when so affixed, it shall be attested by the secretary's signature or by
the signature of an assistant secretary.
SECTION 4.9. Assistant Secretary. The assistant secretary, or if there
be more than one, the assistant secretaries in the order determined by the Board
of Directors, shall, in the absence or disability of the secretary, perform the
duties and exercise the powers of the secretary and shall perform such other
duties and have such other powers as the Board of Directors may from time to
time prescribe.
SECTION 4.10. Treasurer and Assistant Treasurer. The treasurer shall
have the custody of the corporate funds and securities and shall keep full and
accurate accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all moneys and other valuable effects in the name
and to the credit of the Corporation in such depositories as may be designated
by the Board of Directors.
The treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the
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president and the Board of Directors at its regular meetings, or when the Board
of Directors so requires, an account of all his transactions as treasurer and of
the financial condition of the Corporation.
If required by the Board of Directors, he shall give the Corporation a
bond in such sum and with such surety or sureties as shall be satisfactory, to
the Board of Directors for the faithful performance of the duties of his office
and for the restoration to the Corporation, in case of his death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his possession or under his control belonging
to the Corporation.
The assistant treasurer, or if there shall be more than one, the
assistant treasurers in the order determined by the Board of Directors, shall,
in the absence or disability of the treasurer, perform the duties and exercise
the powers of the treasurer and shall perform such other duties and have such
other powers as the Board of Directors may from time to time prescribe.
SECTION 4.11. Delegation of Duties. In the case of the absence of any
officer of the Corporation or for any other reason that the Board of Directors
may deem sufficient, the Board of Directors may confer for the time being the
powers or duties, or any of them, of such officer upon any director.
SECTION 4.12. Limitations on Officers. Notwithstanding anything to the
contrary in the By-laws, no officer of the Corporation is authorized to give any
consent of, or approval by, the Corporation until such consent or approval has
been approved by a majority of the directors and, if required, by the
Shareholders, in accordance with the Certificate of Incorporation.
ARTICLE V
Ownership; Certificates of Shares
SECTION 5.1. Certificates. Each Shareholder shall be entitled to, upon
request to the secretary, a certificate or certificates which shall represent
and certify the number and kind and class of Shares owned by him in the
Corporation. In all other cases certificates will not be issued. Each
certificate shall be signed by the chairman of the Board of Directors or the
president or a vice president and countersigned by the secretary or an assistant
secretary or the treasurer or an assistant treasurer and may be sealed with the
seal specified in Section 6.8 (the "Seal").
The signatures may be either manual or facsimile signatures and the Seal
may be either facsimile or any other form of Seal. In the case any officer who
has signed any certificate ceases to be an officer of the Corporation before the
certificate is issued, the certificate may nevertheless be issued by the
Corporation with the same effect as if the officer had not ceased to be such
officer as of the date of its issue. Each Share certificate shall include on its
face the name of the Corporation, the name of the Shareholder and the class of
Shares and number of Shares represented by the certificate.
SECTION 5.2. Lost Certificates. The Board of Directors may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued
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by the Corporation alleged to have been stolen, lost or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate to be
stolen, lost or destroyed. When authorizing such issue of a new certificate or
certificates, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof require the owner of such stolen, lost or
destroyed certificate or certificates, or his legal representative, to advertise
the same in such manner as it shall require and to give a bond, with sufficient
surety, to the Corporation to indemnify it against any loss or claim which may
arise by reason of the issuance of a new certificate.
SECTION 5.3. Share Record; Issuance and Transferability of Shares. (a)
Records shall be kept by or on behalf of and under the direction of the
directors or the officers of the Corporation, which shall contain the names and
addresses of the Shareholders, the number of Shares held by them respectively,
the numbers of certificates representing the Shares and the amount of any
installment or remaining commitment payable thereon, if any, and in which there
shall be recorded all transfers of Shares. Certificates shall be issued, listed
and transferred in accordance with these By-laws. The Corporation, the directors
and the officers, employees and agents of the Corporation shall be entitled to
deem the Persons in whose names certificates are registered on the records of
the Corporation to be the absolute owners of the Shares represented thereby for
all purposes of the Corporation; but nothing herein shall be deemed to preclude
the directors or officers, employees or agents of the Corporation from inquiring
as to the actual ownership of Shares. Until a transfer is duly effected on the
records of the Corporation, the directors shall not be affected by any notice of
such transfer, either actual or constructive.
(b) Shares shall be transferable on the records of the Corporation only
by the record holder thereof or by his agent thereunto duly authorized in
writing upon delivery to the directors or a transfer agent of the certificate or
certificates therefor, properly endorsed or accompanied by duly executed
instruments of transfer and accompanied by all necessary documentary stamps
together with such evidence of the genuineness each such endorsement, execution
or authorization and of other matters as may reasonably be required by the Board
of Directors or such transfer agent. Upon such delivery, the transfer shall be
recorded in the records of the Corporation and a new certificate for the Shares
so transferred shall be issued to the transferee and, in case of a transfer of
only a part of the Shares represented by any certificate, a new certificate for
the balance shall be issued to the transferor. Until a transfer is duly effected
on the records of the Corporation, the directors shall not be affected by any
notice of such transfer, either actual or constructive. Any Person becoming
entitled to any Shares in consequence of the death of a Shareholder or otherwise
by operation of law shall be recorded as the holder of such Shares and shall
receive a new certificate therefor but only upon delivery to the Board of
Directors or a transfer agent of instruments and other evidence required by the
Board of Directors or the transfer agent to demonstrate such entitlement, the
existing certificate for such Shares and such releases from applicable
governmental authorities as may be required by the Board of Directors or
transfer agent. Nothing in these By-laws shall impose upon the Board of
Directors or a transfer agent a duty or limit their rights to inquire into
adverse claims.
SECTION 5.4. Fixing Record Date. In order that the Corporation may
determine the Shareholders entitled to notice of or to vote at any meeting of
Shareholders or any adjournment thereof, or to express consent to corporate
action in writing without a meeting, or 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 of Directors may fix a
record date, which
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record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board of Directors, and which record date: (a) in
the case of determination of Shareholders entitled to vote at any meeting of
Shareholders or adjournment thereof, shall, unless otherwise required by law,
not be more than 60 nor less than 10 days before the date of such meeting; (b)
in the case of determination of Shareholders entitled to express consent to
corporate action in writing without a meeting, shall not be more than 10 days
from the date upon which the resolution fixing the record date is adopted by the
Board of Directors; and (c) in the case of any other action, shall not be more
than 60 days prior to such other action. If no record date is fixed: (i) the
record date for determining Shareholders entitled to notice of or to vote at a
meeting of Shareholders 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; (ii) the record date for determining Shareholders entitled to express
consent to corporate action in writing without a meeting, when no prior action
of the Board of Directors is required by law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation in accordance with applicable law, or, if prior
action by the Board of Directors is required by law, shall be at the close of
business on the day on which the Board of Directors adopts the resolution taking
such prior action; and (iii) the record date for determining Shareholders for
any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
Shareholders of record entitled to notice of or to vote at a meeting of
Shareholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 5.5. Transfer Agent; Dividend Disbursing Agent and Registrar.
The Board of Directors shall have power to employ one or more transfer agents,
dividend disbursing agents and registrars and to authorize them on behalf of the
Corporation to keep records, to hold and to disburse any dividends or
distributions, and to have and perform, in respect of all original issues and
transfers of Shares, dividends and distributions and reports and communications
to Shareholders, the powers and duties usually had and performed by transfer
agents, dividend disbursing agents and registrars of a Delaware corporation.
ARTICLE VI
General Provisions
SECTION 6.1. Dividends. Dividends, if any, upon the capital stock of the
Corporation, subject to the provisions of the Corporation's Certificate of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting, pursuant to law. Dividends may be paid in cash, in property, or
in its own shares, subject to the provisions of law and of the Corporation's
Certificate of Incorporation.
Before payment of any dividend, there may be set aside out of any funds
of the Corporation available for dividends such sums as the Board of Directors
from time to time, in their absolute discretion, think proper as a reserve fund
to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, and the Board of Directors may
modify or abolish any such reserve in the manner in which it was created.
SECTION 6.2. Checks. All checks, drafts and orders for the payment of
money, notes and other evidences of indebtedness, issued in the name of the
Corporation shall be signed
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by the president or the treasurer or by such officer or officers as the Board of
Directors may from time to time designate.
SECTION 6.3. Depositories. The funds of the Corporation shall be
deposited with such banks or other depositories as the Board of Directors of the
Corporation may from time to time determine.
SECTION 6.4. Books of Account and Records. The Corporation shall
maintain at its office in the City of Port Arthur, Texas, correct and complete
books and records of account of all the business and transactions of the
Corporation. Upon request of any Shareholder, there shall be made available in
accordance with the provisions of Delaware law, a record containing the number
of Shares of stock issued during a special period not to exceed 12 months and
the consideration received by the Corporation for each such Share.
SECTION 6.5. Information for Inspection. Any Shareholder of the
Corporation or his agent may inspect and copy during usual business hours the
By-laws, minutes of the proceedings of its Shareholders' meetings, annual
statements of its affairs and voting trust agreements on file at its principal
office.
SECTION 6.6. Fiscal Year. The fiscal year of the Corporation shall be
the calendar year.
SECTION 6.7. Share Ledger. The Corporation shall maintain at its office
in the City of Port Arthur, Texas, an original Share ledger containing the names
and addresses of all Shareholders, the number of Shares held by each
Shareholder, the number of certificates representing such Shares and the amount
of any installment or remaining commitment payable thereon, if any. Such Share
ledger may be in written form or any other form capable of being converted into
written form within a reasonable time for visual inspection.
SECTION 6.8. Seal. The Corporation shall have a seal containing the
words: "Neches River Holding Corp." and "Incorporated in the State of Delaware
1999".
ARTICLE VII
Indemnification
SECTION 7.1. Indemnification of Directors and Officers. Any person made,
or threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he, his testator or intestate, is or
was 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 trust
or other enterprise, or is or was a director, officer, employee or agent of any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees
or agents, or is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, shall be indemnified, to the fullest
extent permitted by law, by the Corporation against expenses (including
attorney's fees and expenses), judgments, fines and amounts paid in any
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be
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in or not opposed to the best interests of the Corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. Expenses incurred by any such person in defending any such
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding (i) if authorized by a
majority of the directors of the Corporation in office who are not interested in
such action, suit or proceeding or (ii) in the case of an officer or director,
upon receipt of the undertaking specified in Section 145(e) of the General
Corporation Law of the State of Delaware.
SECTION 7.2. Nonexclusivity of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by or granted
pursuant to this Article VII shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any By-law, agreement, contract, vote of Shareholders or
disinterested directors or pursuant to the direction (howsoever embodied) of any
court of competent jurisdiction or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office, and
shall continue as to a person who has ceased to be a director, officer, employee
or agent of the type referred to in Section 7.1 and shall inure to the benefit
of the heirs, executors and administrators of such person.
SECTION 7.3. Insurance. The officers of the Corporation, without
authorization by the Board of Directors, may in their discretion purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the type referred to in Section 7.1 against any liability
asserted against him and incurred by him in any such capacity, or arising out of
his status as such, whether or not the Corporation shall have the power to
indemnify him against such liability.
ARTICLE VIII
Amendments
SECTION 8.1. Board of Directors. The Board of Directors shall have the
power, in accordance with the Certificate of Incorporation, at any regular
meeting or at any special meeting if notice thereof be included in the notice of
such special meeting, to alter, modify or repeal any By-laws of the Corporation
and to make new By-laws.
SECTION 8.2. Shareholders. The Shareholders shall not have the power to
alter, modify or repeal any By-laws of the Corporation.