BY-LAWS
OF
NL
Industries, Inc.
a
New Jersey corporation
(Amended
and Restated as of May 23, 2008)
TABLE
OF CONTENTS
Page
ARTICLE I.
REGISTERED AGENT AND
OFFICES
|
Section 1.1.
Registered Agent and
Office
|
|
Section 1.2..
Other
Offices
|
ARTICLE II.
SHAREHOLDER
ACTION
|
Section 2.1.
Annual
Meeting
|
|
Section 2.2.
Action Without A
Meeting
|
|
Section 2.3.
Special
Meetings
|
|
Section 2.4.
Notice of
Meetings
|
|
Section 2.5.
Business to be Transacted at
Meetings
|
|
Section 2.6.
Order of
Business
|
|
Section 2.7.
Voting;
Quorum
|
|
Section 2.9.
Confidential
Voting
|
|
Section 2.10.
Record
Date
|
|
Section 2.11.
Listing of
Shareholders
|
|
Section 2.12.
Inspectors of
Election
|
ARTICLE III.
BOARD OF
DIRECTORS
|
Section 3.1.
Number, Election and Terms of
Office
|
|
Section 3.2.
Nomination of Director
Candidates
|
|
Section 3.3.
Newly Created Directorships
and Vacancies
|
|
Section 3.7.
Presumption of
Assent
|
|
Section 3.8.
Compensation
|
|
Section 3.9.
Notice of
Meetings
|
|
Section 3.10.
Action Without A
Meeting
|
ARTICLE IV.
EXECUTIVE COMMITTEE AND OTHER
COMMITTEES
|
Section 4.1.
Executive Committee; Other
Committees
|
|
Section 4.4.
Removal;
Vacancies
|
ARTICLE V.
OFFICERS
|
Section 5.2.
Election and Term of
Office
|
|
Section 5.3.
The Chairman of the
Board
|
|
Section 5.4.
The Vice Chairman of the
Board
|
|
Section 5.5.
The
President
|
|
Section 5.6.
The Chief Executive
Officer
|
|
Section 5.7.
The Chief Financial
Officer
|
|
Section 5.8.
Vice
Presidents
|
|
Section 5.9.
The Secretary and Assistant
Secretary
|
|
Section 5.10.
The Treasurer and Assistant
Treasurer
|
|
Section 5.11.
Removal;
Resignations
|
|
Section 5.13.
Other Officers, Assistant
Officers and Agents
|
|
Section 5.14.
Normal Duties and
Responsibilities of Officers
|
ARTICLE VI.
INDEMNIFICATION
|
Section 6.1.
Indemnification
|
|
Section 6.2.
Advancement of
Expenses
|
|
Section 6.3.
Expenses of Contested
Indemnification Claims
|
|
Section 6.4.
Indemnification Not
Exclusive
|
|
Section 6.5.
Other Corporate
Agents
|
|
Section 6.6.
Contract
Right
|
|
Section 6.8.
Certain References Under
Article VI
|
ARTICLE VII.
SHARE CERTIFICATES; TRANSFER OF
STOCK
|
Section 7.3.
Lost or Destroyed
Certificates
|
|
Section 7.4.
Registered
Shareholders
|
|
Section 7.5.
Restrictions on Transfers of
Shares
|
ARTICLE VIII.
GENERAL
PROVISIONS
|
Section 8.2.
Seal of
Corporation
|
|
Section 8.4.
Benefit
Plans
|
ARTICLE IX.
AMENDMENTS
AMENDED
AND RESTATED
BY-LAWS
OF
NL
INDUSTRIES, INC.,
a
New Jersey corporation
(Amended
and Restated as of May 23, 2008)
ARTICLE I.
REGISTERED
AGENT AND OFFICES
Section
1.1.
Registered Agent
and Office.
The registered office of the corporation is and
shall be at 830 Bear Tavern Road, West Trenton, New Jersey 08628 or at such
other place in that state as may from time to time be designated by the board of
directors or the executive committee. The registered agent of the
corporation at such address is and shall be The Prentice-Hall Corporation
System, New Jersey, Inc. or such other agent as may from time to time be
appointed by the board of directors or the executive committee.
Section
1.2.
Other
Offices.
The corporation may have one or more offices and keep
the books of the corporation outside the state of New Jersey as the board of
directors or the executive committee may from time to time determine or the
business of the corporation may require.
ARTICLE II.
SHAREHOLDER
ACTION
Section
2.1.
Annual
Meeting
.
The annual
meeting of the shareholders shall be held at the registered office of the
corporation or at such other place, within or without the state of New Jersey,
and at such time as may from time to time be designated by the board of
directors or the executive committee and stated in the notice of the
meeting.
Section
2.2.
Action Without A
Meeting
.
(a)
Except
as otherwise provided in the amended and restated certificate of incorporation
of the corporation (the “
Certificate
”) and subject to
the provisions of the New Jersey Business Corporation Act (the “
Act
”), any action required or
permitted to be taken at a meeting of the shareholders of the corporation, other
than the annual election of directors, may be taken without a meeting, without
prior notice and without a vote, upon the written consent of shareholders who
would have been entitled to cast the minimum number of votes that would be
necessary to authorize such action at a meeting at which all of the shareholders
of the corporation entitled to vote thereon were present and voting, and any
action so taken shall have the same force and effect for all purposes as if such
action were taken at a meeting of the shareholders of the
corporation.
(b)
If
any shareholder shall have the right to dissent from the proposed action
pursuant to the Act, the board of directors shall fix a date on which written
consents are to be tabulated; in any other case, it may fix a date for
tabulation. If no date is fixed, consents may be tabulated as they
are received. No consent shall be counted that is received more than
60 days after the date of the board of directors’ action authorizing the
solicitation of consents or, in a case in which consents, or proxies for
consents, are solicited from all shareholders who would have been entitled to
vote at a meeting called to take such action, more than 60 days after the date
of mailing of solicitation of consents, as proxies for consents.
(c)
Except
as may be permitted under the Act, the corporation, upon receipt and tabulation
of the requisite number of written consents, shall promptly notify all
non-consenting shareholders, who would have been entitled to notice of a meeting
to vote upon any such action, of the action consented to, the proposed effective
date of such action, and any conditions precedent to such
action. Such notification shall be given at least 20 days in advance
of the proposed effective date of such action in the case of any action taken
pursuant to Chapter 10 of the Act, and at least 10 days in advance in the case
of any other action, and shall include such additional information as maybe
required by the Act.
Section
2.3.
Special
Meetings
.
Except as
otherwise required by law and subject to the rights of the holders of preferred
stock or any other class of capital stock of the corporation (other than common
stock) or any series of any of the foregoing that is then outstanding, special
meetings of shareholders of the corporation may be called only by
(a)
the board of directors
pursuant to a resolution approved by a majority of the entire board of
directors,
(b)
the
chairman of the board or the president, or
(c)
the holders of at least
10% of the shares of the corporation that would be entitled to vote at such
meeting. Special meetings of the shareholders shall be held at the
registered office of the corporation or at such other place, within or without
the state of New Jersey, and at such time as may from time to time be specified
by the person or persons calling the meeting. If a special meeting is
called by any person or persons other than the board of directors, the request
shall be in writing, specifying the time of such meeting and the general nature
of the business proposed to be transacted, and shall be delivered personally or
sent by registered mail or by facsimile transmission to the chairman of the
board, the president or the secretary of the corporation.
Section
2.4.
Notice of
Meetings
.
Except as
otherwise provided by law, written notice of the time, place and purpose or
purposes of each meeting of the shareholders and each meeting of the holders of
any class of shares shall be given by the secretary by mail or personal service
to each shareholder of record entitled to vote at such meeting not less than ten
nor more than sixty days before the date of the meeting. Notice to a
shareholder shall be deemed to be given when deposited in the mail addressed to
him at his last address as it appears on the records of the
corporation. Notice of a meeting need not be given to any shareholder
who signs a waiver of such notice, in person or by proxy, whether before or
after the meeting. The attendance of any shareholder at a meeting in
person or by proxy, without protesting prior to the conclusion of
the meeting the lack of notice of such meeting, shall constitute a
waiver of notice by such shareholder.
Section
2.5.
Business to be
Transacted at Meetings.
At a meeting of the
shareholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before a special
meeting, business must be specified in the notice of the meeting (or any
supplement thereto). To be properly brought before an annual meeting,
business must be
(a)
specified in the notice of the meeting (or any supplement thereto) given by or
at the direction of the board of directors,
(b)
otherwise properly brought
before the meeting by or at the direction of the board of directors or
(c)
otherwise properly brought
before the meeting by a shareholder. For business to be properly
brought before an annual meeting by a shareholder, the shareholder must, in
addition to any requirements imposed by federal securities law or other
applicable laws, have given timely notice thereof in writing to the secretary of
the corporation. To be timely for an annual meeting, a shareholder’s
notice must be delivered to or mailed and received at the principal executive
offices of the corporation, no later than
(i)
if the corporation mailed
notice of the last annual meeting or publicly disclosed the date of such meeting
and the annual meeting for the current year has not changed more than thirty
days from such date (as if in the current year), forty-five days before the
earlier of the date (as if in the current year) of such mailing or public
disclosure or
(ii)
otherwise ninety days prior to the annual meeting. A shareholder’s
notice to the secretary with regard to an annual meeting shall set forth as to
each order of business that the shareholder proposes to bring before the meeting
(a)
a brief description
of such business desired to be brought before the meeting and the reasons for
conducting such business at the annual meeting,
(b)
the name and address, as
they appear on the corporation’s books, of the shareholder proposing such
business,
(c)
the class
and number of shares of the corporation that are beneficially owned by the
shareholder and
(d)
any
material interest of the shareholder in such business. The chairman
of the meeting may refuse to bring before a meeting any business not properly
brought before the meeting in compliance with this Section.
Section
2.6.
Order of
Business
.
The order of
business at each such shareholders meeting shall be as determined by the
chairman of the meeting. One of the following persons, in the order
in which they are listed (and in the absence of the first, the next, and so on),
shall serve as chairman of the meeting: the chairman of the board,
vice chairman of the board, president, vice presidents (in the order of their
seniority if more than one) and secretary. The chairman of the
meeting shall have the right and authority to prescribe such rules, regulations
and procedures and to do all such acts and things as are necessary or desirable
for the proper conduct of the meeting, including, without limitation, the
establishment of procedures for the maintenance of order and safety, limitations
on the time allotted to questions or comments on the affairs of the corporation,
restrictions on entry to such meeting after the time prescribed for the
commencement thereof, and the opening and closing of the voting
polls.
Section
2.7.
Voting;
Quorum
.
Except as
otherwise provided by law, at all meetings of shareholders and for all purposes,
the holders of shares of common stock shall be entitled to one (1) vote per
share and the holders of shares of a series of preferred stock shall be entitled
to such votes (if any) to which such shares of preferred stock are entitled
under the terms of the resolution or resolutions providing for the issue of such
series of shares adopted by the board of directors, in person or by proxy, for
each outstanding share of common stock or of a series of preferred stock with
voting rights standing in his or her name on the books of the corporation on the
date prescribed for the determination of shareholders entitled to vote at any
such meeting, or any adjournment thereof. Except insofar as the same
shall be inconsistent with the provisions of Article IV of the Certificate
relating to the rights of the holders of preferred stock or any other class of
capital stock of the corporation (other than common stock) or any series of any
of the foregoing that is then outstanding,
(a)
the holders of shares
entitled to cast a majority of the votes at a meeting shall constitute a quorum
at such meeting and
(b)
whenever the holders of any class of shares are entitled to vote separately on a
specified item of business, the holders of shares of such class entitled to cast
a majority of the votes shall constitute a quorum of such class for the
transaction of such specified item of business. The shareholders
present in person or by proxy at a duly organized meeting may continue to do
business until adjournment, notwithstanding the withdrawal of enough
shareholders to leave less than a quorum. Less then a quorum may
adjourn.
Section
2.8.
Proxies.
Every
shareholder entitled to vote at a meeting of shareholders or to express consent
without a meeting may authorize another person or persons to act for such
shareholder by proxy. Every proxy shall be executed in writing by the
shareholder or his agent by telegram, cable, telephonic transmission or by any
other means of electronic communication so long as the telegram, cable,
telephonic transmission or other means of electronic communication either sets
forth or is submitted with information from which it can be determined that the
proxy was authorized by the shareholder or such shareholder’s
agent. No proxy shall be valid after eleven months from the date of
its execution, unless a longer time is expressly provided
therein. Unless it is irrevocable as provided under the Act, a proxy
shall be revocable at will.
Section
2.9.
Confidential
Voting
.
All proxies,
ballots and vote tabulations that identify the particular vote of a shareholder
shall be kept confidential, except that disclosure may be made
(a)
to allow the
inspectors of election (the “
inspectors
”) to certify the
results of the vote;
(b)
as necessary to meet applicable legal requirements, including the pursuit or
defense of judicial actions; or
(c)
when expressly requested
by such shareholder. Nothing in this Section shall prohibit the
inspectors from making available to the corporation, during the period prior to
any annual or special meeting, information as to which shareholders have not
voted and periodic status reports on the aggregate vote.
Section
2.10.
Record
Date
.
For the purpose
of determining the shareholders entitled to notice of or to vote at any meeting
of the shareholders, or at any meeting of the holders of any class of shares, or
any adjournment thereof, or to give a written consent to any action without a
meeting, or for the purpose of determining the shareholders entitled to receive
payment of any dividend or allotment of any right, or for the purpose of any
other action, the board of directors or the executive committee shall fix, in
advance, a date as the record date for any such determination of
shareholders. The record date may in no case be more than 60 days
prior to the shareholders’ meeting or other corporate action or event to which
it relates. The record date for a shareholders’ meeting may not be
less than ten days before the date of the meeting. The record date to
determine shareholders entitled to give a written consent may not be more than
60 days before the date fixed for tabulation of the consents or, if no date has
been fixed for tabulation, more than 60 days before the last day in which
consents received may be counted.
If no
record date is fixed:
(a)
The
record date for a shareholders’ meeting shall be the close of business on the
date next preceding the day on which notice is given, or, if no notice is given,
the day next preceding the date on which the meeting is held.
(b)
The
record date for determining shareholders for any other purpose shall be at the
close of business on the day on which the resolution of the board of directors
relating thereto is adopted.
(c)
The
record date for determining shareholders entitled to consent to corporate action
in writing without a meeting, when no prior action by the board of directors is
required by the Act, shall be the first day on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
corporation by delivery to its registered office in New Jersey, its principal
place of business, or an officer or agent of the corporation having custody of
the book in which proceedings of meetings of shareholders are
recorded.
When a
determination of shareholders or record for a shareholders’ meeting has been
made, such determination shall apply to any adjournment thereof, unless the
board of directors fixes a new record date for the adjourned
meeting.
Section
2.11.
Listing of
Shareholders
.
The corporation’s
stock transfer agent shall make and certify a complete list of the shareholders
or of any class of shareholders entitled to vote at each meeting of such
shareholders or any adjournment thereof. Such list shall be
(a)
arranged alphabetically
within each class, series or group of shareholders maintained by the corporation
for convenience of reference, with the address of, and the number of shares held
by, each shareholder;
(b)
produced (or available by
means of a visual display) at the time and place of the meeting;
(c)
subject to the inspection
of any shareholder for reasonable periods during the meeting; and
(d)
prima facie evidence as to
who are the shareholders entitled to examine such list or to vote at such
meeting.
Section
2.12.
Inspectors of
Election
.
Election of
directors shall be conducted by one or more inspectors. The board of
directors or the executive committee shall, in advance of any meeting of the
shareholders or any meeting of the holders of any class of shares, appoint such
inspectors to act at such meeting or any adjournment thereof. If such
inspectors are not so appointed or shall fail to qualify, appear or act, the
presiding officer of the meeting shall make such appointment. Each
inspector, before entering upon the discharge of his duties, shall take and sign
an oath faithfully to execute the duties of inspector at such meeting with
strict impartiality and according to the best of his ability. No
person shall be elected a director at a meeting at which he has served as an
inspector.
ARTICLE III.
BOARD
OF DIRECTORS
Section
3.1.
Number, Election
and Terms of Office
.
The business and
the affairs of the corporation shall be managed by or under the direction of the
board of directors, except as in the Act or the Certificate otherwise
provided. Except as otherwise fixed by or pursuant to the provisions
of Article IV of the Certificate relating to the rights of the holders of
preferred stock or any other class of capital stock of the corporation (other
than common stock) or any series of any of the foregoing that is then
outstanding, the number of the directors of the corporation shall be not less
than one nor more than 17 persons. Additional directors may be
elected by the holders of shares of a series of preferred stock in the
circumstances set forth in Article IV of the Certificate or any resolution or
resolutions providing for the issuance of such series of shares adopted by the
board of directors. The exact number of directors within the minimum
and maximum limitations specified in this section shall be fixed from time to
time,
(a)
except as
provided in (b) below, by the board of directors pursuant to a resolution
adopted by a majority of the entire board of directors or
(b)
by the shareholders
pursuant to a resolution adopted by a majority of the shareholders of the
corporation entitled to vote for the election of directors. Each
director shall be elected at the annual meeting of the shareholders, except as
provided in
Section 3.3
,
and each director elected shall hold office until the next annual meeting of
shareholders and until his or her successor is duly elected and qualified or
until his or her earlier death, resignation or removal. No reduction
of the authorized number of directors shall have the effect of removing any
director before that director’s term expires.
Section
3.2.
Nomination of
Director Candidates
.
Subject to the
preferential voting rights of the holders of preferred stock or any other class
of capital stock of the corporation or any series of any of the foregoing that
is then outstanding, nominations for the election of directors may be made by
the board of directors or by any shareholder entitled to vote for the election
of directors. Any shareholder entitled to vote for the election of a
director at a meeting may nominate persons for whom such shareholder may vote
only if written notice of such shareholder’s intent to make such nomination is
given, either by personal delivery or by United States mail, postage prepaid, to
the secretary of the corporation not later than
(a)
with respect to an
election to be held at an annual meeting of shareholders,
(i)
if the corporation mailed
notice of the last annual meeting or publicly disclosed the date of such meeting
and the annual meeting for the current year has not changed more than thirty
days from such date (as if in the current year), forty-five days before the
earlier of the date (as if in the current year) of such mailing or public
disclosure or
(ii)
otherwise ninety days prior to the annual meeting and
(b)
with respect to an
election to be held at a special meeting of shareholders for the election of
directors, the close of business on the tenth day following the date on which
notice of such meeting is first given to shareholders. Each such
notice shall set forth:
(a)
the name and address of
the shareholder who intends to make the nomination and of the person or persons
intended to be nominated;
(b)
a representation that the
shareholder 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
nominate the person or persons specified in the notice;
(c)
a description of all
arrangements or understandings between the shareholder and each nominee and any
other person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder;
(d)
such other information
regarding each nominee proposed by such shareholder as would have been required
to be included in a proxy statement filed pursuant to the proxy rules of the
U.S. Securities and Exchange Commission had such requirements been applicable
and each nominee been nominated, or intended to be nominated, by the board of
directors; and
(e)
the
consent of each nominee to serve as a director of the corporation if so
elected. The chairman of the meeting may refuse to acknowledge the
nomination of any person not made in compliance with this Section.
Section
3.3.
Newly Created
Directorships and Vacancies
.
Except as
otherwise fixed by or pursuant to the provisions of Article IV of the
Certificate relating to the rights of the holders of preferred stock or any
other class of capital stock of the corporation (other than common stock) or any
series of any of the foregoing that is then outstanding, newly created
directorships resulting from any increase in the number of directors may be
filled by the board of directors and any vacancies on the board of directors
resulting from death, resignation, disqualification, retirement, removal or
other cause may be filled by the affirmative vote of a majority of the remaining
directors even though less than a quorum of the board of directors, or by a sole
remaining director;
provided,
however
, that any vacancy resulting from an increase in the board of
directors that is the result of a resolution adopted by the shareholders of the
corporation may be filled by the shareholders of the corporation in accordance
with the Act and any other applicable provisions of the Certificate and these
by-laws. Except insofar as the same shall be inconsistent with
Article IV of the Certificate or any terms of the resolution or resolutions of
the board of directors providing for the issuance of a series of preferred
stock, when one or more directors shall resign from the board of directors
effective at a future date, a majority of the directors then in office,
including those who have so resigned, shall have the power to fill such vacancy
or vacancies, the vote thereon to take effect when such resignation or
resignations shall become effective. Any director chosen in
accordance with this section shall hold office until the next succeeding annual
meeting of shareholders and until his successor shall have been elected and
qualified or until his or her earlier death, resignation or removal.
Section
3.4.
Removal
.
Subject to
the rights of the holders of preferred stock or any other class of capital stock
of the corporation (other than common stock) or any series of any of the
foregoing that is then outstanding, any director, or the entire board of
directors, may be removed from office at any time by shareholders, with or
without cause, by the affirmative vote of holders of a majority of the votes
cast by the shareholders of the corporation entitled to vote for the election of
directors. Any director may be removed at any time for cause by the
affirmative vote of a majority of the entire board of directors.
Section
3.5.
Resignation.
Any
director of the corporation may resign at any time by giving written notice to
the board of directors or to the chairman of the board, the president, or the
secretary of the corporation. Any such resignation shall take effect
at the time specified therein, or, if the time be not specified, upon receipt
thereof; and unless otherwise specified therein, acceptance of such resignation
shall not be necessary to make it effective.
Section
3.6.
Meetings
.
Meetings of the
board of directors may be held either within or without the state of New
Jersey. Regular meetings of the board of directors may be held with
or without notice at such time and at such place as shall from time to time be
determined by the board of directors. Other meetings of the board of
directors shall be held at the call of the chairman of the board or the
president, or at the call of the secretary upon request of a majority of the
directors in office, at the time and place fixed by the person calling the
meeting. A majority of the votes of the entire board of directors
shall constitute a quorum and common or interested directors may be counted in
determining the presence of a quorum at a meeting of the board of directors at
which a contract or other transaction between the corporation and one or more of
the directors, or between the corporation and any corporation, firm, or
association of any type or kind in which one or more of the directors are
directors or are otherwise interested, is authorized, approved or
ratified. Where appropriate communication facilities are reasonably
available, any or all directors shall have the right to participate in all or
any part of a meeting of the board of directors by means of conference telephone
or any other means of communication by which all persons participating in the
meeting are able to hear each other.
Section
3.7.
Presumption of
Assent
.
A director of the
corporation who is present at a meeting of the board of directors or any
committee thereof at which action on any corporate matter referred to under
Section 14A:6-12 of the Act is taken shall be deemed to have concurred in the
action taken unless his or her dissent shall be entered in the minutes of the
meeting or unless he or she shall file his or her written dissent to such action
with the person acting as the secretary of the meeting before or promptly after
the adjournment thereof. Such right to dissent shall not apply to a
director who voted in favor of such action. A director who is absent
from any meeting of the board of directors, or any committee thereof, of which
he is a member, at which any such action is taken shall be presumed to have
concurred in the action unless he or she shall file is dissent with the
secretary of the corporation within a reasonable time after learning of such
action.
Section
3.8.
Compensation
.
The board of
directors by the affirmative vote of a majority of the directors in office and
irrespective of any personal interest of any of them, shall have authority to
establish reasonable compensation of directors for services to the corporation
as directors, officers, or otherwise.
Section
3.9.
Notice of
Meetings
.
Written notice of
each meeting of the board of directors, and of the executive committee and of
any other committee, for which notice is required shall be given to each member
thereof specifying the time and place of the meeting. Such notice
shall be given by mail, telegram, facsimile, electronic mail or other electronic
means or personal service. Such notice need not be given to any
director who signs a waiver of notice, whether before or after the
meeting. Neither the business to be transacted at, nor the purpose
of, any such meeting need be specified in the notice or waiver of notice of the
meeting. Notice of any such meeting that is an adjourned meeting need
not be given if the time and place are fixed at the meeting adjourning and if
the period of adjournment does not exceed ten days in anyone
adjournment. At least twenty-four hours’ notice of each such meeting
shall be given,
provided,
however
, that notice must be given by telegram, facsimile, electronic
mail or other electronic means or personal service when less than four days’
notice is given. If such notice is given to a director by mail, the
notice shall be deemed to be given when deposited in the mail addressed to him
at his last address as it appears on the records of the
corporation. The attendance of any director at such a meeting or the
participation by any director in such a meeting by means of conference telephone
or any other means of communication by which all persons participating in the
meeting are able to hear each other without protesting prior to the conclusion
of the meeting the lack of notice of the meeting shall constitute a waiver of
notice by him.
Section
3.10.
Action Without A
Meeting
.
Any action
required or permitted to be taken pursuant to authorization voted at a meeting
of the board of directors or any committee thereof may be taken without a
meeting if, prior or subsequent to such action, all members of the board of
directors or of such committee, as the case may be, consent thereto in writing
and such written consents are filed with the minutes of the proceedings of the
board of directors or such committee.
Section
3.11.
Reliance
.
In discharging
their duties as members of the board of directors, the executive committee or
any other committee, directors shall not be liable under the laws of the state
of New Jersey if, acting in good faith, they rely upon the opinion of counsel
for the corporation, upon written reports setting forth financial data
concerning the corporation and prepared by a firm of independent certified
public accountants, upon financial statements, books of account or reports of
the corporation represented to them to be correct by the person presiding at a
meeting of the board of directors, the president or the officer of the
corporation having charge of its books of account, or upon written reports of
committees of the board of directors.
ARTICLE IV.
EXECUTIVE
COMMITTEE AND OTHER COMMITTEES
Section
4.1.
Executive
Committee; Other Committees
.
The board of
directors, by the affirmative vote of a majority of the entire board of
directors, may appoint from the directors an Executive Committee, who shall have
and may exercise all or any of the powers of the board of directors in the
management of the business and affairs of the corporation, including the power
to cause the seal of the corporation to be affixed to all papers that may
require it, subject to the limitations imposed by the Act and such conditions as
maybe prescribed by the board of directors, and except any powers to amend or
repeal any resolution theretofore adopted by the board of directors that by its
terms is amendable or repealable only by the board of directors. The
board of directors, by the affirmative vote of a majority of the entire board of
directors, may appoint from the directors other standing and temporary
committees consisting of one or more persons, and such committees shall have and
may exercise such powers as shall be conferred or authorized by the affirmative
vote of a majority of the entire board of directors, subject to the limitations
imposed by the Act and
provided, however
, that such
committees shall not have the power to amend or repeal any resolution
theretofore adopted by the board of directors or any resolution theretofore
adopted by the executive committee.
Section
4.2.
Meetings
.
Each meeting of
the executive committee or of any other committee shall be held at the call of
the secretary upon request of a majority of the members in office of the
respective committees, or at the call of the chairman of such committee, if any,
and the chairman of the board or the president if such person is a member of
such committee. The time and place of any meeting of the executive
committee or any other committee shall be fixed by the person calling the
meeting. A majority of the votes of the entire Executive Committee or
any other committee shall constitute a quorum of such committee and common or
interested members may be counted in determining the presence of a quorum at any
meeting at which a contract or other transaction between the corporation and one
or more of the members of the executive committee or any other committee, as the
case may be, or between the corporation and any corporation, firm, or
association of any type or kind in which one or more of such members are
directors or are otherwise interested, is authorized, approved or
ratified. Where appropriate communication facilities are reasonably
available, any or all members of the executive committee or any other committee
shall have the right to participate in all or any part of a meeting by means of
conference telephone or any other means of communication by which all persons
participating in the meeting are able to hear each other.
Section
4.3.
Records
.
The executive
committee and any other committee shall keep a record of their proceedings and
report the same to the board of directors at its next meeting following such
meeting of the executive committee or any other committee, as the case may be,
except that, when the meeting of the board of directors is held within two days
after the meeting of the executive committee or any other committee, as the case
may be, such report shall, if not made at the first meeting, be made to the
board of directors at its second meeting following such meeting of the executive
committee or any other committee.
Section
4.4.
Removal;
Vacancies
.
The board of
directors by the affirmative vote of a majority of the entire board of
directors, may remove any director from membership on the executive committee or
any other committee at any time, with or without cause. The board of
directors, by the affirmative vote of a majority of the entire board of
directors, may fill any vacancy occurring in the executive committee or any
other committee through death, resignation, disqualification, retirement,
removal, or other cause.
ARTICLE V.
OFFICERS
Section
5.1.
Number.
The
officers of the corporation shall be a chairman of the board, a vice chairman of
the board, a president, one or more vice presidents, a secretary, a treasurer
and such other officers and assistant officers as the board of directors may, by
resolution, appoint. Any two or more offices may be held by the same
person. In its discretion, the board of directors may choose not to
fill any office for any period as it may deem advisable, except the offices of
president, secretary and treasurer.
Section
5.2.
Election and Term
of Office.
The officers of the Corporation shall be elected
annually by the board of directors at its meeting following the annual meeting
of shareholders. If the election of officers shall not be held at
such meeting, such election shall be held as soon thereafter as may be
convenient. Each officer shall hold office until the meeting of the
board of directors following the next annual meeting of shareholders and until
his or her successor is duly elected and qualified or until his or her earlier
death, resignation or removal as hereinafter provided.
Section
5.3.
The Chairman of
the Board.
The chairman of the board shall preside at all
meetings of the shareholders and directors. He or she shall have
general and active management of the business of the corporation, shall see that
all orders and resolutions of the board of directors are carried into effect
and, in connection therewith, shall be authorized to delegate to the vice
chairman of the board, president and other officers such of his or her powers
and duties as chairman of the board at such time and in such manner as he or she
may deem to be advisable. The chairman of the board shall be an ex
officio member of all standing committees and he or she shall have such other
powers and duties as may from time to time be assigned by the board of
directors.
Section
5.4.
The Vice Chairman
of the Board.
The vice chairman of the board shall assist the
chairman of the board in the management of the business of the corporation, and,
in the absence or disability of the chairman of the board, shall preside at all
meetings of the shareholders and the board of directors and exercise the other
powers and perform the other duties of the chairman of the board or designate
the executive officers of the corporation by whom such other powers shall be
exercised and other duties performed. The vice chairman of the board
shall be an ex officio member of all standing committees and he or she shall
have such other powers and duties as may from time to time be assigned by the
board of directors or by the chairman of the board. In addition to
the foregoing, the vice chairman of the board shall have such other powers,
duties and authority as may be set forth elsewhere in these
by-laws.
Section
5.5.
The
President.
The president shall be the corporation’s chief
operating officer unless otherwise determined by the board of
directors. The president shall assist the chairman of the board in
the management of the business of the corporation, and, in the absence or
disability of the chairman of the board and the vice chairman of the board,
shall preside at all meetings of the shareholders and the board of directors and
exercise the other powers and perform the other duties of the chairman of the
board or designate the executive officers of the corporation by whom such other
powers shall be exercised and other duties performed. The president
shall be an ex officio member of all standing committees and he or she shall
have such other powers and duties as may from time to time be assigned by the
board of directors or by the chairman of the board. In addition to
the foregoing, the president shall have such other powers, duties, and authority
as may be set forth elsewhere in these by-laws. If the board of
directors does not elect a chairman or vice chairman of the board, the president
shall also have the duties and responsibilities, and exercise all functions, of
the chairman and the vice chairman of the board as provided in these
by-laws.
Section
5.6.
The Chief
Executive Officer.
The board of directors may designate an
individual, whether or not such individual is an officer of the corporation, to
serve as the chief executive officer of the corporation. The chief
executive officer shall have the duties and responsibilities, and exercise all
functions, as the board of directors may determine.
Section
5.7.
The Chief
Financial Officer.
The board of directors may designate an
individual, whether or not such individual is an officer of the corporation, to
serve as the chief financial officer of the corporation. The chief
financial officer shall have the duties and responsibilities, and exercise all
functions, as the board of directors may determine.
Section
5.8.
Vice Presidents.
Each vice president shall have such powers and discharge such duties as
may be assigned from time to time by the chairman of the board, the vice
chairman of the board or the president. During the absence or
disability of the president, first the chief executive officer and in the
absence or disability of the chief executive officer, one such vice president,
when designated by the board of directors, shall exercise all the functions of
the president.
Section
5.9.
The Secretary and
Assistant Secretary.
The secretary or the chairman of the
board shall issue notices for all meetings. The secretary shall keep
minutes of all meetings of the board of directors, the committees thereof and
the shareholders, shall have charge of the seal and the corporate books and
shall make such reports and perform such other duties as are incident to the
office, and perform such other duties designated or properly required by the
chairman of the board, the vice chairman of the board, the president or the
chief executive officer. The assistant secretary shall be vested with
the same powers and duties as the secretary, and any act may be done or duty
performed by the assistant secretary with like effect as though done or
performed by the secretary. The assistant secretary shall have such
other powers and perform such other duties as may be assigned by the chairman of
the board, the vice chairman of the board, the president or the chief executive
officer.
Section
5.10.
The Treasurer and
Assistant Treasurer.
The treasurer shall have the custody of
all moneys and securities of the corporation and shall keep regular books of
account. He or she shall disburse the funds of the corporation in
payment of just demands against the corporation, or as may be ordered by the
chairman of the board, the vice chairman of the board, the president, the chief
executive officer or by the board of directors, taking proper vouchers for such
disbursements, and shall render to the board of directors from time to time as
may be required of him or her, an account of all transactions as treasurer and
of the financial condition of the corporation. The treasurer shall
perform all duties incident to the office, and perform such other duties
designated or properly required by the chairman of the board, the vice chairman
of the board, the president or the chief executive officer. The assistant
treasurer shall be vested with the same powers and duties as the treasurer, and
any act may be done, or duty performed by the assistant treasurer with like
effect as though done or performed by the treasurer. The assistant
treasurer shall have such other powers and perform such other duties as may be
assigned by the chairman of the board, the vice chairman of the board, the
president or the chief executive officer.
Section
5.11.
Removal;
Resignations
.
Any officer of
the corporation may be removed at any time with or without cause by the board of
directors. Any officer of the corporation may resign at any time by
giving written notice to the board of directors or to the chairman of the board,
the president or the secretary of the corporation. Any such
resignation shall take effect at the time specified therein or, if a time is not
specified, upon receipt thereof; and unless otherwise specified therein,
acceptance of such resignation shall not be necessary to make it
effective.
Section
5.12.
Vacancies
.
In case of any
vacancy in any office of the corporation through the death, resignation,
disqualification, retirement, removal, or other cause, the board of directors
may elect a successor to hold office until the next succeeding annual meeting of
the board of directors and until his or her successor is elected and qualified
or until his or her earlier death, resignation or removal as herein
provided.
Section
5.13.
Other Officers,
Assistant Officers and Agents
.
Officers,
assistant officers, and agents, if any, other than those whose duties are
provided for in these by-laws, shall hold their offices for such terms and shall
exercise such powers and perform such duties as the board of directors may
determine.
Section
5.14.
Normal Duties and
Responsibilities of Officers
.
Unless otherwise
provided in these by-laws or the board of directors decides otherwise, if an
officer title is one commonly used for officers of a business corporation formed
under the Act or any successor or similar statute, the assignment of such title
shall constitute the delegation to such officer of the authority and duties that
are normally associated with that office, subject to any specific delegation of
authority and duties made to such officer by the board of
directors.
ARTICLE VI.
INDEMNIFICATION
Section
6.1.
Indemnification.
To
the fullest extent permitted by New Jersey law, the corporation shall indemnify
any and all officers and directors of the corporation from and against all
expenses, liabilities or other matters arising out of their status as such or
their acts, omissions or services rendered by such persons in such capacities or
otherwise while serving at the request of the corporation in any other
capacity. Unless specifically addressed in a repeal or amendment of
New Jersey law with regard to a corporation’s ability to indemnify any such
person, no such repeal or amendment shall adversely affect any indemnification
rights of any such person existing at the time of such repeal or
amendment.
Section
6.2.
Advancement of
Expenses
. Expenses incurred by a director or officer in
connection with a proceeding shall be paid by the corporation in advance of the
final disposition of such proceeding upon receipt of an undertaking by or on
behalf of the director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the corporation
as authorized in this Article.
Section
6.3.
Expenses of
Contested Indemnification Claims
. If a claimant makes a claim
on the corporation under
Section 6.1
or
6.2
and the corporation does
not pay such claim in full within thirty days after it has received such written
claim, the claimant may at any time thereafter bring suit against the
corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall also be entitled to be paid also the
expenses of prosecuting such claim. It shall be a defense to any such
action that such indemnification of advancement of costs of defense are not
permitted under the Act or other applicable law, but the burden of proving such
defense shall be on the corporation. Neither the failure of the
corporation (including its board of directors or any committee thereof, special
legal counsel or shareholders) to have made its determination prior to the
commencement of such action that indemnification of, or advancement of costs of
defense to, the claimant is permissible in the circumstances nor an actual
determination by the corporation (including its board of directors or any
committee thereof, special legal counsel, or shareholders) that such
indemnification or advancement is not permissible, shall be a defense to the
action or create a presumption that such indemnification or advancement is not
permissible.
Section
6.4.
Indemnification
Not Exclusive.
The indemnification and advancement of expenses
provided by or granted pursuant to this Article shall not exclude any other
rights, including the right to be indemnified against liabilities and expenses
incurred in proceedings by or in the right of the corporation, to which any
corporate agent may be entitled under the Certificate or any other by-law,
agreement, vote of shareholders or otherwise, subject to the provisions of the
Act.
Section
6.5.
Other Corporate
Agents
. To the fullest extent of New Jersey law, the
corporation may grant rights of indemnification and advancement of expenses to
any corporate agent who is not at the time a current director or officer of the
corporation.
Section
6.6.
Contract
Right
. Each of the rights of indemnification and advancement
of expenses provided by, or granted pursuant to, this Article shall be a
contract right that will survive the termination of any person’s service as a
director or officer and any repeal or amendment of the provisions of this
Article shall not adversely affect any such right of any person existing at the
time of such repeal or amendment with respect to any act or omission occurring
prior to the time of such repeal or amendment, and further, shall not apply to
any proceeding, irrespective of when the proceeding is initiated, arising from
the service of such person prior to such repeal or amendment.
Section
6.7.
Insurance.
To
the fullest extent of New Jersey law, the corporation shall have power to
purchase and maintain insurance on behalf of any corporate agent against any
expenses incurred in any proceeding and any liabilities asserted against him or
her and incurred by him or her by reason of his or her being or having been a
corporate agent, whether or not the corporation would have the power to
indemnify him or her against such expenses and liabilities under the provisions
of this Article or New Jersey law.
Section
6.8.
Certain
References Under Article VI.
For purposes of this Article,
references to “corporate agent,” “expenses,” “liabilities” and “proceedings”
shall have the meanings given such terms in Section 14A:3-5 of the Act or any
successor or similar statute.
ARTICLE VII.
SHARE
CERTIFICATES; TRANSFER OF STOCK
Section
7.1.
Form
.
The shares of
stock of the corporation shall be represented by certificates, or shall be
uncertificated shares. Every holder of uncertificated shares of the
corporation shall be entitled upon request to have a stock certificate issued to
such holder signed by the chairman of the board, the president or any vice
president, and may be countersigned by the treasurer or an assistant treasurer,
or the secretary or an assistant secretary, certifying to the number of shares
owned by such shareholder. Any and all signatures upon a certificate
may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon such
certificate, shall have 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 or she were such officer, transfer agent or registrar at
the date of issue. All certificates for shares shall be consecutively
numbered or otherwise identified. The name of the person to whom
either certificated or uncertificated shares are issued, with the number of
shares and date of issue, shall be entered on the books of the
corporation. Notwithstanding any other provision in these by-laws,
the corporation may adopt a system of issuance, recordation and transfer of its
shares by electronic or other means not involving any issuance of certificates,
including provisions for notice to purchasers in substitution for any required
statements or certificates, and as may be required by applicable law, which
system has been approved by the U.S. Securities and Exchange
Commission. Any system so adopted shall not become effective as to
issued and outstanding certificated securities until the certificates therefor
have been surrendered to the corporation.
Section
7.2.
Transfers
.
Transfers
of stock shall be made only upon the transfer books of the corporation or
respective transfer agents designated to transfer the several classes of stock
and, in the case of shares represented by a certificate or certificates, upon
the surrender of a properly endorsed certificate or certificates for a like
number of shares.
Section
7.3.
Lost or Destroyed
Certificates
.
The Corporation
may issue a new stock certificate in place of any certificate theretofore issued
by it, alleged to have been lost, stolen or destroyed, and the corporation
shall, except as otherwise determined by the board of directors, the chairman of
the board, the president, the chief executive officer, any vice president or
other authorized officer, require the owner of the lost, stolen or destroyed
certificate, or his or her legal representative, to give the corporation a bond
sufficient to indemnify it against any claim that may be made against it on
account of the alleged loss, theft or destruction of any such certificate or the
issuance of such new certificate.
Section
7.4.
Registered
Shareholders.
The Corporation shall be entitled to recognize
the exclusive right of a person registered on its books as the owner of shares
to receive dividends, and to vote as such owner, and to hold liable for calls
and assessments a person registered on its books as the owner of shares, and
shall not be bound to recognize any equitable or other claim to or interest in
such shares on the part of another person, whether or not the corporation shall
have express or other notice thereof,
except
as otherwise provided
by the laws of the state of New Jersey.
Section
7.5.
Restrictions on
Transfers of Shares
.
Notice of any
restriction on the transfer of shares of the corporation’s stock shall be placed
on each certificate of stock issued, or in the case of uncertificated shares,
contained in the notice sent to the registered holder of such shares, in
addition to such other requirements of the laws of the state of New Jersey for
such certificate or notice.
ARTICLE VIII.
GENERAL
PROVISIONS
Section
8.1.
Fiscal
Year.
The fiscal year of the corporation shall begin on the
first day of January and terminate on the last day of December in each
year.
Section
8.2.
Seal of
Corporation.
The seal of the corporation shall be in the
custody of the secretary and such other persons as shall be authorized by the
by-laws and the board of directors from time to time and shall have engraved
upon it the words “NL INDUSTRIES INC.” arranged in a circle, with the words
“INCORPORATED 1891” across the center of the space thus enclosed. The
seal shall be used by such officers as shall be provided for in the by-laws or
by such other persons as shall be authorized by the board of directors from time
to time.
Section
8.3.
Dividends.
Subject
to any restrictions contained in the Certificate and to the provisions of the
Act, the corporation may form time to time, by resolution of the board of
directors, pay dividends on its shares in cash, in its own shares, in its bonds
or in other property, including the shares or bonds of other
corporations. Before payment of any dividend, there may be set
aside out of any funds of the corporation available for dividends such sum or
sums as the directors from time to time, in their absolute discretion, think
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the corporation, or
for such other purpose as the directors shall think in the best interest of the
corporation, and the directors may modify or abolish any such reserve in the
manner in which it was created.
Section
8.4.
Benefit
Plans.
The Corporation, by act of the board of directors, the
executive committee, any other committee, or officers of the corporation
delegated by the board of directors, may adopt or amend any of the following
plans for the benefit of some or all of the employees, officers, directors and
agents of the corporation or any subsidiary thereof, or other persons who are or
have been actively engaged in the conduct of the business of the corporation or
any subsidiary thereof, including any who have retired, become disabled, or died
prior to the establishment of any plan adopted, and their families, dependents,
or beneficiaries:
(a)
plans providing for the
sale or distribution of any class or series of shares of stock of the
corporation, held by it or issued or purchased by it for the purpose, including
stock option, stock purchase, stock bonus, profit-sharing, savings, pension,
retirement, deferred compensation and other plans of similar nature, whether or
not such plans also provide for the distribution of cash or property other than
shares of stock of the corporation;
(b)
plans providing for
payments solely in cash or property other than shares of stock of the
corporation, including profit-sharing, bonus, savings, pension, retirement,
deferred compensation and other plans of similar nature; and
(c)
plans for the furnishing
of medical services; life, sickness, accident, disability, or unemployment
insurance or benefits; education; housing; social and recreational services; and
other similar aids and services.
Section
8.5.
Accounts.
The
chairman of the board, vice chairman of the board, president, the chief
executive officer or any vice president is authorized for and on behalf of the
corporation: to establish, maintain and to close depositary accounts,
in the corporation’s name, for the deposit and withdrawal of corporation funds;
to designate those individuals authorized to withdraw funds or sign checks in
said depositary accounts; and to execute customer agreements with respect to
such depositary accounts, including forms of corporate resolutions, certified
with respect to the approval of the board of directors as of the date such forms
of corporate resolutions are executed. The secretary or assistant secretary is,
authorized for and on behalf of the corporation without further action of the
board of directors to certify as to the approval of the board of directors of
forms of resolutions regarding any of such depositary or trading accounts as of
the date the officer of the corporation executes the customer agreement with
respect to each such account
ARTICLE IX.
AMENDMENTS
Section
9.1.
Amendments.
Subject
always to the by-laws made by the shareholders, the board of directors may make
by-laws from time to time, and may alter or repeal any by-laws, but any by-laws
made by the board of directors may be altered or repealed, and new by-laws made,
by the shareholders at any annual meeting or at any special meeting, provided
notice thereof be included in the notice of the meeting.
ADOPTED
BY THE BOARD OF DIRECTORS
ON
MAY 21, 2008 EFFECTIVE MAY 23, 2008
/s/ A. Andrew R.
Louis
A.
Andrew R. Louis, Secretary