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EXHIBIT 3.6
REGULATIONS AND OPERATING AGREEMENT
OF
P & A Remediation, LLC
ARTICLE I. OFFICES
1.1 Principal Office. The principal office of the Company in the State
of Texas shall be located at 0000 X. Xxxx, Xxxxxxxxxx Xxxxx. The Company may
have such other offices, either within or without the state of Texas as the
Members may designate or as the business of the Company may from time to time
require.
1.2 Registered Office. The address of the initial registered office of
the Company is 0000 X. Xxxx, Xxxxxxxxxx Xxxxx, and the initial registered agent
at such address is Xxxxxxx X. Xxxxx. The registered office and the registered
agent may be changed from time to time by action of the Members and by filing
the prescribed form with the Texas Secretary of State.
ARTICLE II. MEETINGS
2.1 Annual Meeting. The annual meeting of the Members shall be held
the first Wednesday in the month of September in each year, beginning with the
year 1999 at the hour of 10:00 o'clock a.m., for the purpose of the transaction
of such other business as may come before the meeting. If the day fixed for the
annual meeting shall be a legal holiday, such meeting shall be held on the next
succeeding business day. If the election shall not be held on the day
designated herein for the annual meeting of the Members, or at any adjournment
thereof, the Members shall cause the election to be held at a special meeting
of the Members as soon thereafter as it may conveniently be held.
2.2 Regular Meetings. The Members may by resolution prescribe the time
and place for the holding of regular meetings and may provide that the adoption
of such resolution shall constitute notice of such regular meetings.
2.3 Special Meetings. Special meetings of the Members, for any purpose
or purposes, unless otherwise prescribed by statute, may be called by the
Presiding Member or by any two Members.
2.4 Notice of Meeting. Written or telephonic notice stating the place,
day and hour of the meeting and, in case of a special meeting, the purposes for
which the meeting is called shall be delivered not less than three days before
the date of the meeting, either personally or by mail, by or at the direction
of the Presiding Member, to each Member of record entitled to vote at such
meeting, If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail, addressed to the Member at his address as it appears
on the books of the Company, with postage thereon prepaid. When all the Members
of the Company are present at any meeting, or if those not present sign in
writing a waiver of notice of such meeting, or subsequently ratify all the
proceedings
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thereof, the transactions of such meeting are as valid as if a meeting were
formally called and notice had been given.
2.5 Quorum. At any meeting of the Members, a majority of the equity
interests, as determined by the capital contribution of each Member as
reflected on the books of the Company, represented in person or by proxy, shall
constitute a quorum at a meeting of the Members. If less than said majority of
the equity interests are represented at a meeting, a majority of the interests
so represented may adjourn the meeting from time to time without further
notice. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting as originally notified. The Members present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding
the withdrawal of enough Members to leave less than a quorum.
2.6 Proxies. At all meetings of Members, a Member may vote by proxy
executed in writing by the Member or by his duly authorized attorney-in-fact.
Such proxy shall be filed with the Presiding Member of the Company before or at
the time of the meeting. No proxy shall be valid after three months from date
of execution, unless otherwise provided in the proxy.
2.7 Voting by Certain Members. Management Certificates held in the
name of a corporation, partnership or company may be voted by such officer,
partner, agent or proxy as the Bylaws of such entity may prescribe or, in the
absence of such provision, as the Board of Directors of such entity may
determine. Certificates held by a trustee, personal representative,
administrator, executor, guardian or conservator may be voted by him, either in
person or by proxy, without a transfer of such certificates into his name.
2.8 Manner of Acting.
2.8.1 Formal action by Members. Ordinarily, the act of a
majority of the Members present at a meeting at which a quorum is
present shall be the act of the Members. Upon demand of any Member,
voting on a particular issue shall be in accordance with percentage of
equity ownership in the company.
2.8.2 Procedure. The Presiding Member of the Company shall
preside at meetings of the Members, may move or second any item of business,
but shall not vote upon any matter when there is an even number of Members
present and the Members are evenly divided as to an issue. A record shall be
maintained of the meetings of the Members. The Members may adopt their own
rules of procedure, which shall not be inconsistent with this Operating
Agreement.
2.8.3 Presumption of Assent. A Member of the Company, who is
present at a meeting of the Members, at which action on any mailer is taken,
shall be presumed to have assented to the action taken, unless his dissent
shall be entered in the minutes of the meeting or unless he shall file his
written dissent to such action with the person acting as the secretary of the
meeting before the adjournment thereof or shall forward such dissent by
certified mail to the secretary of the meeting immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Member
who voted in favor of such action.
2.8.4 Informal Action of Members. Unless otherwise provided
by law, any action required to be taken at a meeting of the Members, or any
other action which may be taken at a meeting of the Members, may be taken
without a meeting if a consent in writing, setting forth the
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action so taken, shall be signed by all the Members entitled to vote with
respect to the subject matter thereof.
2.9 Order of Business. The order of business at all meetings of the
Members, shall be as follows:
1. Roll Call.
2. Proof of notice of meeting or waiver of notice.
3. Reading of minutes of preceding meeting.
4. Report of the Executive Officer.
5. Reports of Committees.
6. Unfinished Business.
7. New Business.
2.10 Telephonic Meeting. Members of the Company may participate in any
meeting of the Members by means of conference telephone or similar
communication if all persons participating in such meeting can hear one another
for the entire discussion of the matter(s) to be voted upon. Participating in a
meeting pursuant to this Section shall constitute presence in person at such
meeting.
ARTICLE III
FISCAL MATTERS
3.1 Fiscal Year. The fiscal year of the Limited Liability Company
shall begin on the first day of January and end on the last day of December
each year, unless otherwise determined by resolution of the Members.
3.2 Deposits. All funds of the Limited Liability Company shall be
deposited from time to time to the credit of the Limited Liability Company in
such banks; trust companies or other depositories as the Members may select.
3.3 Checks. Drafts. Etc. All checks, drafts or other orders for the
payment of money, and all notes or other evidences of indebtedness issued in
the name of the Company shall be signed by the Executive Officer or by such
Member or Members as the Members may by Bank Form of Resolution or other action
specify.
3.4 Loans. No loans shall be contracted on behalf of the Limited
Liability Company and no evidences of indebtedness shall be issued in its name
unless authorized by a resolution of the Members. Such authority may be general
or confined to specific instances.
3.5 Contracts. The Members may authorize any Member or agent of the
Company to enter into any contract or execute any instrument in the name of and
on behalf of the Company, and such authority may be general or confined to
specific instances.
3.6 Accountant. An Accountant may be selected from time to time by the
Members to perform such tax and accounting services as may, from time to time,
be required. The Accountant may be removed by the Members without assigning any
cause.
3.7 Legal Counsel. One or more Attorney(s) at Law may be selected from
time to time by the Members to review the legal affairs of the Company and to
perform such other services as
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may be required and to report to the Members with respect thereto. The Legal
Counsel may he removed by the Members without assigning any cause.
ARTICLE IV.
MANAGEMENT CERTIFICATES AND THEIR TRANSFER
4.1 Certificates. Management Certificates representing equity interest
in the Company shall be in such form as shall be determined by the Members.
Such Management Certificates shall be signed by all the Members. Ml Management
Certificates shall be consecutively numbered or otherwise identified. The name
and address of the person to whom the Management Certificates are issued, with
the Capital Contribution and the date of issue shall be entered in the
Certificate Register of the Company. In case of a lost, destroyed or mutilated
Management Certificate, a new one may be issued upon such terms and indemnity
to the Company as the Members may prescribe.
4.2 Certificate Register. Any and all changes in Members or their
amount of capital contribution shall be formalized by filing notice of the same
with the Secretary of State by amendment of the Articles of Organization. The
most recent filing of the Articles or Organization, as amended, shall be deemed
the Register of Certificates.
4.3 Transfers of Shares. Any Member proposing a transfer or assignment
or his Certificate shall first notify the Company in writing of all the details
of and consideration for the proposed transfer or assignment. The company, for
the benefit of the remaining Members, shall have the first right to acquire the
equity by cancellation of the Certificate under the same terms and conditions
as provided in the formal Articles of Organization as filed with the Secretary
of State for Members who are deceased, retired, resigned, expelled, or
dissolved.
If the company declines to elect such option, the remaining Members
desiring to participate may proportionately (or in such proportions as the
remaining Members may agree) purchase such interest under these same terms and
conditions first proposed by the withdrawing Member.
If the transfer or assignment is made as originally proposed and the
other Members fail to approve the transfer or assignment by unanimous written
consent, the transferee or assignee shall have no right to participate in the
management of the business and affairs of the Limited Liability Company or to
become a Member. The transferee or assignee shall only be entitled to receive
the share of the profit or other compensation by way of income and the return
of contributions to which that Member would otherwise be entitled.
ARTICLE V.
BOOKS AND RECORDS
5.1 Books and Records. The books and records of the company shall be
kept at the principal office of the company or at such other places, within or
without the state of as the Members shall from time to time determine.
5.2 Right of Inspection. Any Member of the Company shall have the
right to examine at any reasonable time or times for any purpose, the books and
records of account, minutes and records of Members and to make copies thereof.
Such inspection may be made by any agent or attorney of the Member. Upon the
written request of any Member of the company, it shall mail to such Member
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its most recent financial statements, showing in reasonable detail its assets
and liabilities and the results of its operations.
5.3 Financial Records. All financial records shall be maintained and
reported based on generally acceptable accounting practices.
ARTICLE VI.
DISTRIBUTION OF PROFITS
The Members may from time to time unanimously declare, and the company
may distribute, accumulated profits agreed not necessary for the cash needs of
the company's business. Unless Otherwise provided, retained profits shall be
deemed an increase in capital contribution of the Company.
ARTICLE VII.
OFFICERS
7.0 Management. The business of the company shall be conducted under
the exclusive management of its Members, who shall have exclusive authority to
act for the Company in all matters. The Members may, from time to time,
designate certain Members to act for the Company in certain matters as herein
specified.
7.1 Presiding Member. The Presiding Member shall, when present,
preside at all meetings of the Members, be the official spokesperson for the
Company, and be the person primarily responsible for conducting transactions
with the Company's Attorney(s) and Accountant(s). The Presiding Member may
sign, on behalf of the Company, such deeds, mortgages, bonds, contracts or
other instruments which have been appropriately authorized to be executed by
the Members, except in cases where the signing or execution thereof shall be
expressly delegated by the Members or by this Operating Agreement or by Statute
to some other Officer or agent or the Company; and, in general, he shall
perform such duties as may be prescribed by the Members from time to time.
7.2 Executive Member. The executive officer of the Company shall be
responsible for the general overall supervision of the business and affairs of
the Company. The specific authority and responsibility of the Executive Officer
shall also include the following:
(1) The Executive Officer shall effectuate this Operating Agreement and
the Regulations and decisions of the Members.
(2) The Executive Officer shall direct and supervise the operations of
the Company.
(3) The Executive Officer, within such parameters as may be set by the
Members, shall establish such charges for services and products of
the Limited Liability Company as may be necessary to provide adequate
income for the efficient operation of the Company.
(4) The Executive Officer, within the budget established by the Members,
shall set and adjust wages and rates of pay for all personnel of the
Company and shall appoint, hire and dismiss all personnel and
regulate their hours of work.
(5) The Executive Officer shall keep the Members advised in all matters
pertaining to the operation of the Company, services rendered,
operating income and expense, financial position, and to this end,
shall prepare and submit a report to the Members at each regular
meeting and at other times as may be directed by the Members
(6) The Executive Officer shall have all powers of the Presiding member.
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7.3 Other Officers. The Company may, at the discretion or the Members,
have additional Officers including, without limitation, a Secretary to record
the minutes or the Members and to attest the signature of "the Presiding Member
or the Executive Officer, and a Bookkeeper to account for the financial
transactions of the Company. These other officers need not be selected from
among the Members. One person may hold two or more offices. When the incumbent
of an office is (as determined by the incumbent himself or by the Members)
unable to perform the duties thereof or when there is no incumbent of an office
(both such situations referred to hereafter as the "absence" of the Officer),
the duties of the office shall be performed by the person specified by the
Members.
7.4 Election and Tenure. The Officers of the Company shall be elected
annually by the Members at the annual meeting. Each Officer shall hold office
from the date of his election until the next annual meeting and until his
successor shall have been elected, unless he shall sooner resign or be removed.
7.5 Resignations and Removal. Any Officer may resign at any time by
giving written notice to all of the Members, and, unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective. Any Officer may be removed at any time by the Members with or
without cause. Such removal shall be without prejudice to the contract rights,
if any, of the person so removed.
7.6 Vacancy. A vacancy in any office may be filled for the unexpired
portion of the term by the Members.
7.7 Salaries. The salaries of the officers shall be fixed from time to
time by the Members and no officer shall be prevented from receiving such
salary by reason of the fact that he is also a Member of the Company.
ARTICLE VIII.
MISCELLANEOUS
8.1 Notice. Any notice required or permitted to be given, pursuant to
the provisions of the Statute, the Articles of Association of the Limited
Liability Company or this Operating Agreement, shall be effective as of the
date personally delivered, or if sent by mail, on the date deposited with
United States Postal Service, prepaid and addressed to the intended receiver at
his last known address as shown in the records of the Limited Liability
Company.
8.2 Waiver of Notice. Whenever any notice is required to be given
pursuant to the provisions of the Statute, the Articles of Association of the
Limited Liability Company or this Operating Agreement, a waiver thereof, in
writing, signed by the persons entitled to such notice, whether before or after
the time stated therein, shall be deemed equivalent to the giving of such
notice.
8.3 Indemnification by Company. The Limited Liability Company may
indemnify any person who was or is a party defendant or is threatened to be
made a party defendant to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Limited Liability Company) by reason
of the fact that he is or was a Member of the Company, Officer, employee or
agent of the Company, or is or was serving at the request of the Company,
against expenses (including attorney's fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in
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connection with such action, suit or proceeding if the Members determine that
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interest of the Limited Liability Company, and with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit, or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent, shall not in itself create a presumption that the person did or
did not act in good faith and in a manner which he reasonably believed to be in
the best interest of the Limited Liability Company, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
8.4 Indemnification Funding. The Company shall fund the
indemnification obligations provided by Section 83 in such manner and to such
extent as the Members may from time to time deem proper.
8.5 Duality of Interest Transactions. Members of this Company have a
duty of undivided loyalty to this Company in all matters affecting this
Company's interests.
8.6 Anticipated Transactions. Notwithstanding the provision of Section
8.5, it is anticipated that the Members and Officers will have other legal and
financial relationships. Representatives of this Company, along with
representatives of other entities, may, from time to time, participate in the
joint development of contracts and transactions designed to be fair and
reasonable to each participant and to afford an aggregate benefit to all
participants. Therefore, it is anticipated that this Company will desire to
participate in such contracts and transactions and, after ordinary review for
reasonableness, that the participation of the Company in such contracts and
transactions may be authorized by the Members.
ARTICLE IX.
MEDIATION AND ARBITRATION
9.0 In the event there is a disagreement without resolution among the
members, the members agree to present such disagreement for mediation, and
failing that, arbitration, according to the provision of the American
Arbitration Association.
ARTICLE X.
DISSOLUTION
10.0 The company shall be dissolved on the first of the following to
occur:
(1) When the period fixed for the duration of the limited
liability company expires.
(2) On the occurrence of events specified in the articles of
organization or regulations to cause dissolution.
(3) Written consent of all members to dissolution.
(4) Except as otherwise provided in the regulations, upon the
death, retirement, resignation, expulsion, bankruptcy, or
dissolution of a member or the occurrence of any other event
which terminates the continued membership of a member in the
limited liability company, unless there is at least one
remaining member and the business of the limited liability
company is continued
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by the consent of the number of members or class thereof
stated in the articles of organization or regulations of the
limited liability company or if not so stated, by all
remaining members.
(5) Entry of a decree of judicial dissolution under Section 6.02
of this Act.
ARTICLE XI.
AMENDMENTS
11.0 Amendments. These Regulations may be altered, amended, restated,
or repealed and new Regulations may be adopted by three-fourths action of all
of the Members, after notice and opportunity for discussion of the proposed
alteration, amendment, restatement, or repeal.
CERTIFICATION
THE UNDERSIGNED, being all of the Members of a Texas Limited Liability Company,
hereby evidence their adoption and ratification of the foregoing Regulations of
the Company.
EXECUTED by each Member effective as of October 27, 1998.
/s/ XXXXXXX X. XXXXX
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/s/ XXXXX X. XXXXXX
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