COMPOSITE BY-LAWS
OF
OMNI ENERGY SERVICES CORP.
A LOUISIANA CORPORATION
(AS AMENDED THROUGH AUGUST 4, 2000)
SECTION 1
OFFICES
1.1 PRINCIPAL OFFICE. The principal office of the Corporation
shall be located at 4500 NE Interstate 49, Carencro, Louisiana 70520.
1.2 ADDITIONAL OFFICES. The Corporation may have such offices at
such other places as the Board of Directors may from time to time determine
or the business of the Corporation may require.
SECTION 2
SHAREHOLDER MEETINGS
2.1 PLACE OF MEETINGS. Unless otherwise required by law or these
By-laws, all meetings of the shareholders shall be held at the principal
office of the Corporation or at such other place, within or without the
State of Louisiana, as may be designated by the board of Directors.
2.2 ANNUAL MEETINGS; NOTICE THEREOF. An annual meeting of the
shareholders shall be held each year on the last Thursday of May at the
time as the Board of Directors shall designate, or such other date and time
as the Board of Directors shall designate, for the purpose of electing
directors and of the transaction of such other business as may be properly
brought before the meeting. If no annual shareholders' meeting is held for
a period of eighteen months, any shareholder may call such meeting to be
held at the registered office of the Corporation as shown on the records of
the Secretary of State of the State of Louisiana.
2.3 SPECIAL MEETINGS. Special meetings of the shareholders, for
any purpose or purposes, may be called by or at the direction of the Board
of Directors. Shareholders may call a special meeting of shareholders in
accordance with the applicable provisions of the Articles of Incorporation.
2.4 NOTICE OF MEETINGS. Except as otherwise provided by law or
the Articles of Incorporation, the authorized person or persons calling a
shareholders' meeting shall cause written notice of the time, place and
purpose of the meeting to be given to all shareholders entitled to vote at
such meeting, at least 10 days and not more than 75 days prior to the day
fixed for the meeting. Notice of the annual meeting need not state the
purpose or purposes thereof, unless action is to be taken at the meeting as
to which notice is required by law, the Articles of Incorporation or the
By-laws. Notice of a special meeting shall state the purpose or purposes
thereof, and the business conducted at any special meeting shall be limited
to the purpose or purposes stated in the notice.
2.5 LIST OF SHAREHOLDERS. At every meeting of shareholders, a
list of shareholders entitled to vote, arranged alphabetically and
certified by the Secretary or by the agent of the Corporation having charge
of transfers of shares, showing the number and class of shares held by each
such shareholder on the record date for the meeting and confirming the
number of votes per share as to which each such shareholder is entitled,
shall be produced on the request of any shareholder.
2.6 QUORUM. At all meetings of shareholders, the holders of a
majority of the total voting power shall constitute a quorum; provided,
however, that this subsection shall not have the effect of reducing the
vote required to approve any matter that may be established by law, the
Articles of Incorporation or these By-laws.
2.7 VOTING. When a quorum is present at any shareholders'
meeting, the vote of the holders of a majority of the votes actually cast
shall decide each question brought before such meeting, unless the
resolution of the question requires, by express provision of law, the
Articles of Incorporation or these By-laws, a different vote or one or more
separate votes by the holders of a class or series of capital stock, in
which case such express provision shall apply and control the decision of
such question. Directors shall be elected by plurality vote.
2.8 PROXIES. At any meeting of the shareholders, every
shareholder having the right to vote shall be entitled to vote in person or
by proxy appointed by an instrument in writing executed by such shareholder
and bearing a date not more than eleven months prior to the meeting, unless
the instrument provides for a longer period, but in no case will an
outstanding proxy be valid for longer than three years from the date of its
execution. The person appointed as proxy need not be a shareholder of the
Corporation.
2.9 ADJOURNMENTS. Adjournments of any annual or special meeting
of shareholders may be taken without new notice being given unless a new
record date is fixed for the adjourned meeting, but any meeting at which
directors are to be elected shall be adjourned only from day to day until
such directors shall have been elected.
2.10 WITHDRAWAL. If a quorum is present or represented at a duly
organized shareholders' meeting, such meeting may continue to do business
until adjournment, notwithstanding the withdrawal of enough shareholders to
leave less than a quorum as fixed in Section 2.6 of these By-laws, or the
refusal of any shareholders to vote.
2.11 LACK OF QUORUM. If a meeting cannot be organized because a
quorum has not attended, the shareholders present may, by vote of the
holders of a majority of the votes actually cast, adjourn the meeting to
such time and place as they may determine, subject, however, to the
provisions of Section 2.9 hereof. In the case of any meeting called for
the election of directors, those who attend the second of such adjourned
meetings, although less than a quorum as fixed in Section 2.6 hereof, shall
nevertheless be deemed to constitute a quorum for the purpose of electing
directors.
2.12 PRESIDING OFFICER. The Chairman of the Board or a person
designated by the Chairman of the Board, or in their absence a person
designated by the Board of Directors, shall preside at all shareholders'
meetings.
2.13 DEFINITION OF SHAREHOLDER. As used in these By-laws, and
unless the context otherwise requires, the term shareholder shall mean a
person who is (i) the record holder of shares of the Corporation's common
stock or any other capital stock of the Corporation granted voting rights,
or (ii) a registered holder of any bonds, debentures or similar obligations
granted voting rights by the Corporation pursuant to La.R.S. 12:75(H).
SECTION 3
DIRECTORS
3.1 NUMBER. All of the corporate powers shall be vested in, and
the business and affairs of the Corporation shall be managed by, a Board of
Directors. Except as otherwise fixed by or pursuant to Article III(B) of
the Articles of Incorporation (as it may be duly amended from time to time)
relating to the rights of the holders of any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation to elect additional directors by class vote, the Board of
Directors shall consist of up to eight natural persons, the exact number of
which shall be fixed from time to time by resolution adopted by a majority
of the Board of Directors; provided that, if after the last action of the
Board of Directors with respect to nomination of directors prior to the
mailing to shareholders of proxy materials for any meeting of shareholders
at which directors are to be elected, any person or persons named therein
to be nominated at the direction of the Board of Directors becomes unable
or unwilling to serve, the foregoing number of authorized directors shall
be automatically reduced by a number equal to the number of such persons
unless the Board of Directors selects a replacement nominee or nominees.
No director need be a shareholder. The Secretary shall have the power to
certify at any time as to the number of directors authorized.
3.2 POWERS. The Board may exercise all such powers of the
Corporation and do all such lawful acts and things which are not by law,
the Articles of Incorporation or these By-laws directed or required to be
done by the shareholders.
3.3 TERM OF OFFICE. Each member of the Board of Directors, other
than those directors who may be elected by the holders of any class or
series of stock having preference over the Common Stock as to dividends or
upon liquidation (whose term of office may be determined by the Board of
Directors pursuant to Section 3.3), shall be elected by the shareholders at
the annual meeting of shareholders to a term expiring at the next
succeeding annual meeting of shareholders and shall serve until his
successor is duly elected and qualified. If the Board of Directors shall
appoint any person to fill a vacancy on the Board, whether resulting from
an increase in the number of directors or otherwise, such person shall
serve a term expiring at the next succeeding annual meeting of shareholders
and until his successor is duly elected and qualified.
3.4 GENERAL ELECTION. At each annual meeting of shareholders,
directors shall be elected to succeed those directors whose terms then
expire. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
3.5 VACANCIES. Except as otherwise provided in the Articles of
Incorporation or these By-laws, the office of a director shall become
vacant if he dies, resigns or is duly removed from office.
3.6 FILLING VACANCIES. Except as otherwise provided in the
Articles of Incorporation or Section 3.8 of these By-laws, any vacancy on
the board (including any vacancy resulting from an increase in the
authorized number of directors or from failure of the shareholders to elect
the full number of authorized directors) may, notwithstanding any resulting
absence of a quorum of directors, be filled by a majority vote of the Board
of Directors remaining in office, provided that the shareholders shall have
the right, at any special meeting called for such purpose prior to such
action by the Board, to fill the vacancy. A director elected pursuant to
this section shall serve until the next shareholders' meeting held for the
election of directors and until his successor is elected and qualified.
3.7 NOTICE OF SHAREHOLDER NOMINEES. Except as otherwise provided
in or pursuant to Section 3.8 of these By-laws, only persons who are
nominated in accordance with the procedures set forth in Article IV(E) of
the Articles of Incorporation shall be eligible for election as directors.
3.8 DIRECTORS ELECTED BY PREFERRED SHAREHOLDERS. Notwithstanding
anything in these By-laws to the contrary, whenever the holders of any one
or more classes or series of stock having a preference over the Common
Stock as to dividends or upon liquidation shall have the right, voting
separately as a class, to elect one or more directors of the Corporation,
the provisions of the Articles of Incorporation (as they may be duly
amended from time to time) fixing the rights and preferences of such
preferred stock shall govern with respect to the nomination, election,
term, removal, vacancies or other related matters with respect to such
directors.
3.9 COMPENSATION OF DIRECTORS. Directors shall receive such
compensation for their services, in their capacity as directors, as may be
fixed by resolution of the Board of Directors; provided, however, that
nothing herein contained shall be construed to preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor.
3.10 NATIONALITY OF DIRECTORS. At no time shall more than one-
third of the directors be persons who are not "citizens of the United
States," as such term is defined in Title 49 USC Section 40102 ("Non-
Citizens").
SECTION 4
MEETINGS OF THE BOARD
4.1 PLACE OF MEETINGS. The meetings of the Board of Directors may
be held at such place within or without the State of Louisiana as a
majority of the directors may from time to time appoint.
4.2 INITIAL MEETINGS. Except as otherwise determined by the Board
of Directors, the first meeting of each newly elected Board shall be held
immediately following the shareholders' meeting at which the Board is
elected and at the same place as such meeting, and no notice of such first
meeting shall be necessary for the newly elected directors in order legally
to constitute the meeting.
4.3 REGULAR MEETINGS; NOTICE. Regular meetings of the Board may
be held at such times as the Board may from time to time determine. Notice
of regular meetings of the Board of Directors may be given, but no special
form of notice or time of notice shall be necessary.
4.4 SPECIAL MEETINGS; NOTICE. Special meetings of the Board may
be called by or at the direction of the Chairman of the Board or the
President on reasonable notice given to each director, either personally or
by mail, reputable courier service, telephone, telex, telecopy or any other
comparable form of facsimile communication. Special meetings shall be
called by the Secretary in like manner and on like notice on the written
request of a majority of the directors and if such officer refuses, or
fails or is unable within 24 hours to call a meeting when requested, then
the directors making the request may call the meeting on two days' written
notice given to each director. Except as otherwise required by law, the
Articles of Incorporation or these By-laws, the notice of a special meeting
of directors need not state its purpose or purposes, but if the notice
states a purpose or purposes and does not state a further purpose to
consider such other business as may properly come before the meeting, the
business to be conducted at the special meeting shall be limited to the
purpose or purposes stated in the notice.
4.5 WAIVER OF NOTICE. Directors present at any regular or special
meeting shall be deemed to have received, or to have waived, due notice
thereof, provided that a director who participates in a meeting by
telephone (as permitted by Section 4.9 hereof) shall not be deemed to have
received or waived due notice if, at the beginning of the meeting, he
objects to the transaction of any business because the meeting is not
lawfully called.
4.6 QUORUM. A majority of the Board shall be necessary to
constitute a quorum for the transaction of business, and except as
otherwise provided by law, the Articles of Incorporation or these By-laws,
the acts of a majority of the directors present at a duly called meeting at
which a quorum is present shall be the acts of the Board. If a quorum is
not present at any meeting of the Board of Directors, the directors present
may adjourn the meeting from time to time without notice other than
announcement at the meeting, until a quorum is present.
4.7 WITHDRAWAL. If a quorum was present when the meeting
convened, the directors present may continue to do business, taking action
by vote of a majority of a quorum as fixed in Section 4.6 hereof, until
adjournment, notwithstanding the withdrawal of enough directors to leave
less than a quorum as fixed in Section 4.6 hereof or the refusal of any
director present to vote.
4.8 ACTION BY CONSENT. Any action that may be taken at a meeting
of the Board, or any committee thereof, may be taken by a consent in
writing signed by all of the directors or by all members of the committee,
as the case may be, and filed with the records of proceedings of the Board
or committee.
4.9 MEETINGS BY TELEPHONE OR SIMILAR COMMUNICATION. Members of
the Board may participate at and be present at any meeting of the Board or
any committee thereof by means of conference telephone or similar
communications equipment if all persons participating in such meeting can
hear and communicate with each other.
SECTION 5
COMMITTEES OF THE BOARD
5.1 GENERAL. The Board may designate one or more committees, each
committee to consist of two or more of the directors of the Corporation
(and one or more directors may be named as alternate members to replace any
absent or disqualified regular members), which, to the extent provided by
resolution of the Board or these By-laws, shall have and may exercise the
powers of the Board in the management of the business and affairs of the
Corporation, and may have power to authorize the seal of the Corporation to
be affixed to documents, but no such committee shall have power or
authority to amend the Articles of Incorporation, adopt an agreement of
merger, consolidation or share exchange, recommend to the shareholders the
sale, lease or exchange of all or substantially all of the Corporation's
assets, a dissolution of the Corporation or a revocation of dissolution,
remove directors, or amend these By-laws; and unless the resolution
expressly so provides, no such committee shall have the power or authority
to declare a dividend or authorize the issuance of stock. Such committee
or committees shall have such name or names as may be stated in these By-
laws, or as may be determined, from time to time, by the Board. Any
vacancy occurring in any such committee shall be filled by the Board, but
the President may designate another director to serve on the committee
pending action by the Board. Each such member of a committee shall hold
office during the term designated by the Board.
5.2 COMPENSATION COMMITTEE. The Board shall establish and
maintain a Compensation Committee consisting of two or more directors, each
of whom (i) shall be qualified to the extent appropriate as a "non-employee
director" under Rule 16b-3 of the Securities Exchange Commission and as an
"outside director" under Section 162(m) of the Internal Revenue Code and
(ii) shall meet any further qualifications designated by the Board. The
Compensation Committee shall review and analyze the compensation of the
Corporation's executive officers; review and provide general guidance as to
compensation of the Corporation's other managers; evaluate the performance
of the Corporation's executive officers; administer the Corporation's
incentive compensation plan or plans, including grants thereunder; and
perform such other services as may be designated by the Board.
5.3 AUDIT COMMITTEE. The Board shall establish an Audit Committee
consisting of at least three directors, all of whom are not officers or
employees of the Corporation or of any of its affiliates. The Audit
Committee shall (i) facilitate communication among the Corporation's
directors, management, independent accountants and internal auditing
personnel regarding matters relating to financial accounting, reporting and
controls, (ii) assist the Board of Directors in fulfilling its fiduciary
responsibilities as to accounting policies and reporting practices of the
Corporation and all subsidiaries and the sufficiency of auditing practices
with respect thereto by, among other things, reviewing the scope of audit
coverage, including consideration of the Corporation's accounting practices
and procedures and system of internal accounting controls and reporting to
the Board with respect thereto, (iii) operate as the Board's principal
agent in ensuring the independence of the Corporation's independent
accountants, the integrity of management and the adequacy of disclosure to
shareholders, and (iv) perform such other services as may be designated by
the Board.
SECTION 6
REMOVAL OF BOARD MEMBERS
Directors may be removed in accordance with the applicable provisions
of the Articles of Incorporation.
SECTION 7
NOTICES
7.1 FORM OF DELIVERY. Whenever under the provisions of law, the
Articles of Incorporation or these By-laws notice is required to be given
to any shareholder or director, it shall not be construed to mean personal
notice unless otherwise specifically provided in the Articles of
Incorporation or these By-laws, but such notice may be given by mail,
addressed to such shareholder or director at his address as it appears on
the records of the Corporation, with postage thereon prepaid, or in such
other manner as may be specified in these By-laws. Notices given by mail
shall be deemed to have been given at the time they are deposited in the
United States mail, and all other notices shall be deemed to have been
given upon delivery or transmission to the appropriate address.
7.2 WAIVER. Whenever any notice is required to be given by law,
the Articles of Incorporation or these By-laws, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent thereto. Notice
shall be deemed to have been given to, or waived by, any shareholder who
attends a meeting of shareholders in person, or is represented at such
meeting by proxy, without protesting at the commencement of the meeting the
transaction of any business because the meeting is not lawfully called or
convened.
SECTION 8
OFFICERS
8.1 DESIGNATIONS. The officers of the Corporation shall be
elected by the directors and shall be the President, Secretary and
Treasurer. The Board of Directors may appoint one or more vice presidents,
a chief executive officer, a chief operating officer, a chief financial or
accounting officer and such other officers as it shall deem necessary.
Officers shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by
the Board. To the extent permitted by law, more than one office may be
held by a single person. At no time shall more than one-third of the
officers of the Corporation be Non-Citizens.
8.2 TERM OF OFFICE. The officers of the Corporation shall hold
office at the pleasure of the Board of Directors. Except as otherwise
provided in the resolution of the Board of Directors electing any officer,
each officer shall hold office until the first meeting of the Board of
Directors after the annual meeting of shareholders next succeeding his or
her election and until his or her successor is elected and qualified or
until his, or her earlier resignation or removal. Any officer may resign
at any time upon written notice to the Board, Chairman of the Board,
President or Secretary of the Corporation. Such resignation shall take
effect at the time specified therein and acceptance of such resignation
shall not be necessary to make it effective. The Board may remove any
officer with or without cause at any time. Any such removal shall be
without prejudice to the contractual rights of such officers, if any, with
the Corporation, but the election of an officer shall not in and of itself
create contractual rights. Any vacancy occurring in any office of the
Corporation by death, resignation, removal or otherwise may be filled for
the unexpired position of the term by the Board at any regular or special
meeting.
8.3 THE CHAIRMAN OF THE BOARD. The Board may appoint a Chairman
of the Board who shall preside at meetings of the Board of Directors and
the shareholders and perform such other duties as may be designated by the
Board of Directors or these By-laws. The Chairman of the Board shall not,
solely by virtue of such position, be an officer of the Corporation but may
be designated an officer by the Board of Directors.
8.4 THE PRESIDENT. The President shall, unless otherwise provided
by the Board, have general and active responsibility for the management of
the business of the Corporation, shall be the chief executive and chief
operating officer of the Corporation, shall supervise the daily operations
of the business of the Corporation and shall ensure that all orders,
policies and resolutions of the Board are carried out. At no time shall
the President be a Non-Citizen.
8.5 THE VICE PRESIDENTS. The Vice Presidents (if any) shall have
such designations and perform such duties as the President or the Board of
Directors shall prescribe.
8.6 THE SECRETARY. The Secretary shall attend all meetings of the
Board of Directors and all meetings of the shareholders and record all
votes and the minutes of all proceedings in a book to be kept for that
purpose. He shall give, or cause to be given, notice of all meetings of
the shareholders and regular and special meetings of the Board, and shall
perform such other duties as may be prescribed by the Board or President.
He shall keep in safe custody the seal of the Corporation, if any, and
affix such seal to any instrument requiring it.
8.7 THE TREASURER. The Treasurer shall have the custody of the
corporate funds and shall keep or cause to be kept full and accurate
accounts of receipts and disbursements in books belonging to the
Corporation and shall deposit all monies 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. He shall keep a proper accounting of
all receipts and disbursements and shall disburse the funds of the
Corporation only for proper corporate purposes or as may be ordered by the
Board and shall render to the President and the Board at the regular
meetings of the Board, or whenever they may require it, an account of all
his transactions as Treasurer and of the financial condition and results of
operations of the Corporation.
SECTION 9
STOCK
9.1 CERTIFICATES. Every holder of stock in the Corporation shall
be entitled to have a certificate signed by the President or a Vice
President and the Secretary or an Assistant Secretary evidencing the number
and class (and series, if any) of shares owned by him, containing such
information as required by law and bearing the seal of the Corporation. If
any stock certificate is manually signed by a transfer agent or registrar
other than the Corporation itself or an employee of the Corporation, the
signature of any such officer may be a facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has
been placed upon a certificate shall have ceased to be an officer, transfer
agent or registrar of the Corporation before such certificate is issued, it
may be issued by the Corporation with the same effect as if such person or
entity were an officer, transfer agent or registrar of the Corporation on
the date of issue.
9.2 MISSING CERTIFICATES. The President or any Vice President may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged
to have been lost, stolen or destroyed, upon the Corporation's receipt of
an affidavit of that fact from the person claiming the certificate of stock
to be lost, stolen or destroyed. As a condition precedent to the issuance
of a new certificate or certificates, the officers of the Corporation
shall, unless otherwise determined by the President, require the owner of
such lost, stolen or destroyed certificate or certificates, or his legal
representative, to (i) give the Corporation a bond or (ii) enter into a
written indemnity agreement, in each case in an amount appropriate to
indemnify the Corporation against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
9.3 TRANSFERS. The shares of stock of the Corporation shall be
transferable only on the books of the Corporation by the holders thereof in
person or by their duly authorized attorneys or legal representatives upon
surrender and cancellation of certificates for a like number of shares.
Except as otherwise required by law, upon surrender to the Corporation or
the transfer agent of the Corporation of a certificate for shares duly
endorsed or accompanied by proper evidence of succession, assignment or
authority to transfer, it shall be the duty of the Corporation to issue a
new certificate to the person entitled thereto, cancel the old certificate
and record the transaction upon its books.
SECTION 10
DETERMINATION OF SHAREHOLDERS
For the purpose of determining shareholders entitled to notice of and
to vote at a meeting, or to receive a dividend, or to receive or exercise
subscription or other rights, or to participate in a reclassification of
stock, or in order to make a determination of shareholders for any other
proper purpose, the Board of Directors may fix in advance a record date for
determination of shareholders for such purpose, such date to be not more
than 60 days and, if fixed for the purpose of determining shareholders
entitled to notice of and to vote at a meeting, not less than 10 days,
prior to the date on which the action requiring the determination of
shareholders is to be taken.
SECTION 11
INDEMNIFICATION
11.1 DEFINITIONS. As used in this section the following terms
shall have the meanings set forth below:
(a) "Board" - the Board of Directors of the Corporation.
(b) "Claim" - any threatened, pending or completed claim,
action, suit, or proceeding, whether civil, criminal, administrative or
investigative and whether made judicially or extra-judicially, or any
separate issue or matter therein, as the context requires.
(c) "Determining Body" - (i) those members of the Board who are
not named as parties to the Claim for which indemnification is being sought
("Impartial Directors"), if there are at least three Impartial Directors,
(ii) a committee of at least three Impartial Directors appointed by the
Board (regardless whether the members of the Board of Directors voting on
such appointment are Impartial Directors) or (iii) if there are fewer than
three Impartial Directors or if the Board of Directors or the committee
appointed pursuant to clause (ii) of this paragraph so directs (regardless
whether the members thereof are Impartial Directors), independent legal
counsel, which may be the regular outside counsel of the Corporation.
(d) "Disbursing Officer" - the President of the Corporation or,
if the President is a party to the Claim for which indemnification is being
sought, any officer not a party to such Claim who is designated by the
President to be the Disbursing Officer with respect to indemnification
requests related to the Claim, which designation shall be made promptly
after receipt of the initial request for indemnification with respect to
such Claim.
(e) "Expenses" - any expenses or costs, including, without
limitation, attorney's fees, judgments, punitive or exemplary damages,
fines and amounts paid in settlement.
(f) "Indemnitee" - each person who is or was a director or
officer of the Corporation.
11.2 INDEMNITY.
(a) To the extent such Expenses exceed the amounts reimbursed or
paid pursuant to policies of liability insurance maintained by the
Corporation, the Corporation shall indemnify each Indemnitee against any
Expenses actually and reasonably incurred by him (as they are incurred) in
connection with any Claim either against him or as to which he is involved
solely as a witness or person required to give evidence, by reason of his
position (i) as a director or officer of the Corporation, (ii) as a
director or officer of any subsidiary of the Corporation, (iii) as a
fiduciary with respect to any employee benefit plan of the Corporation, or
(iv) as a director, officer, partner, employee or agent of another
corporation, partnership, joint venture, trust or other for-profit or not-
for-profit entity or enterprise, if such position is or was held at the
request of the Corporation, whether relating to service in such position
before or after the effective date of this Section, if he (i) is successful
in his defense of the claim on the merits or otherwise or (ii) has been
found by the Determining Body (acting in good faith) to have met the
Standard of Conduct (defined below); provided that (A) the amount otherwise
payable by the Corporation may be reduced by the Determining Body to such
amount as it deems proper if it determines that the Claim involved the
receipt of a personal benefit by Indemnitee, and (B) no indemnification
shall be made in respect of any Claim as to which Indemnitee shall have
been adjudged by a court of competent jurisdiction, after exhaustion of all
appeals therefrom, to be liable for willful or intentional misconduct in
the performance of his duty to the Corporation or to have obtained an
improper personal benefit, unless, and only to the extent that, a court
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, Indemnitee is
fairly and reasonably entitled to indemnity for such Expenses as the court
deems proper.
(b) For purposes of this Section 11, the Standard of Conduct is
met when the conduct by an Indemnitee with respect to which a Claim is
asserted was conduct that was in good faith and that he reasonably believed
to be in, or not opposed to, the best interest of the Corporation, and, in
the case of a criminal action or proceeding, that he had no reasonable
cause to believe was unlawful. The termination of any Claim by judgment,
order, settlement, conviction, or upon a plea of NOLO CONTENDERE or its
equivalent, shall not, of itself, create a presumption that Indemnitee did
not meet the Standard of Conduct.
(c) Promptly upon becoming aware of the existence of any Claim
as to which he may be indemnified hereunder, Indemnitee shall notify the
President of the Corporation of the Claim and whether he intends to seek
indemnification hereunder. If such notice indicates that Indemnitee does
so intend, the President shall promptly advise the Board thereof and notify
the Board that the establishment of the Determining Body with respect to
the Claim will be a matter presented at the next regularly scheduled
meeting of the Board, or if a meeting of the Board of Directors is not
regularly scheduled within 90 calendar days of such request, the President
shall cause a meeting of the Board of Directors to be called within such
period in accordance with these By-laws. After the Determining Body has
been established the President shall inform the Indemnitee thereof and
Indemnitee shall immediately provide the Determining Body with all facts
relevant to the Claim known to him. No later than the 45th day (the
"Determination Date") after its receipt of such information, together with
such additional information as the Determining Body may request of
Indemnitee, the Determining Body shall determine, and shall advise
Indemnitee of its determination, whether Indemnitee has met the Standard of
Conduct.
(d) During such 45-day period, Indemnitee shall promptly inform
the Determining Body upon his becoming aware of any relevant facts not
theretofore provided by him to the Determining Body, unless the Determining
Body has obtained such facts by other means. The providing of such facts
to the Determining Body shall not begin a new 45-day period.
(e) The Determining Body shall have no authority to revoke a
determination that Indemnitee met the Standard of Conduct unless Indemnitee
(i) submits fraudulent information to the Determining Body at any time
during the 45 days prior to the Determination Date or (ii) fails to comply
with the provisions of subsections (c) or (d) hereof, including without
limitation Indemnitee's obligation to submit information or documents
relevant to the Claim reasonably requested by the Determining Body prior to
the Determination Date.
(f) In the case of any Claim not involving a proposed,
threatened or pending criminal proceeding,
(i) if Indemnitee has, in the good faith judgment of the
Determining Body, met the Standard of Conduct, the Corporation may, in its
sole discretion after notice to Indemnitee, assume all responsibility for
the defense of the Claim, and, in any event, the Corporation and the
Indemnitee each shall keep the other informed as to the progress of the
defense, including prompt disclosure of any proposals for settlement;
provided that if the Corporation is a party to the Claim and Indemnitee
reasonably determines that there is a conflict between the positions of the
Corporation and Indemnitee with respect to the Claim, then Indemnitee shall
be entitled to conduct his defense, with counsel of his choice; and
provided further that Indemnitee shall in any event be entitled at his
expense to employ counsel chosen by him to participate in the defense of
the Claim; and
(ii) the Corporation shall fairly consider any proposals by
Indemnitee for settlement of the Claim. If the Corporation (A) proposes a
settlement acceptable to the person asserting the Claim, or (B) believes a
settlement proposed by the person asserting the Claim should be accepted,
it shall inform Indemnitee of the terms thereof and shall fix a reasonable
date by which Indemnitee shall respond. If Indemnitee agrees to such
terms, he shall execute such documents as shall be necessary to effect the
settlement. If he does not agree he may proceed with the defense of the
Claim in any manner he chooses, but if he is not successful on the merits
or otherwise, the Corporation's obligation to indemnify him for any
Expenses incurred following his disagreement shall be limited to the lesser
of (A) the total Expenses incurred by him following his decision not to
agree to such proposed settlement or (B) the amount the Corporation would
have paid pursuant to the terms of the proposed settlement. If, however,
the proposed settlement would impose upon Indemnitee any requirement to act
or refrain from acting that would materially interfere with the conduct of
his affairs, Indemnitee may refuse such settlement and proceed with the
defense of the Claim, if he so desires, at the Corporation's expense
without regard to the limitations imposed by the preceding sentence. In no
event, however, shall the Corporation be obligated to indemnify Indemnitee
for any amount paid in a settlement that the Corporation has not approved.
(g) In the case of a Claim involving a proposed, threatened or
pending criminal proceeding, Indemnitee shall be entitled to conduct the
defense of the claim, and to make all decisions with respect thereto, with
counsel of his choice; provided, however, that the Corporation shall not be
obligated to indemnify Indemnitee for an amount paid in settlement that the
Corporation has not approved.
(h) After notifying the Corporation of the existence of a Claim,
Indemnitee may from time to time request the Corporation to pay the
Expenses (other than judgments, fines, penalties or amounts paid in
settlement) that he incurs in pursuing a defense of the Claim prior to the
time that the Determining Body determines whether the Standard of Conduct
has been met. If the Disbursing Officer believes the amount requested to
be reasonable, he shall pay to Indemnitee the amount requested (regardless
of Indemnitee's apparent ability to repay such amount) upon receipt of an
undertaking by or on behalf of Indemnitee to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by the
Corporation under the circumstances. If the disbursing Officer does not
believe such amount to be reasonable, the Corporation shall pay the amount
deemed by him to be reasonable and Indemnitee may apply directly to the
Determining Body for the remainder of the amount requested.
(i) After the Determining Body has determined that the Standard
of Conduct was met, for so long as and to the extent that the Corporation
is required to indemnify Indemnitee under this Agreement, the provisions of
paragraph (h) shall continue to apply with respect to Expenses incurred
after such time except that (i) no undertaking shall be required of
Indemnitee and (ii) the Disbursing Officer shall pay to Indemnitee such
amount of any fines, penalties or judgments against him which have become
final as the Corporation is obligated to indemnify him.
(j) Any determination by the Corporation with respect to
settlements of a Claim shall be made by the Determining Body.
(k) The Corporation and Indemnitee shall keep confidential, to
the extent permitted by law and their fiduciary obligations, all facts and
determinations provided or made pursuant to or arising out of the operation
of this Section, and the Corporation and Indemnitee shall instruct its or
his agents and employees to do likewise.
11.3 ENFORCEMENT.
(a) The rights provided by this Section shall be enforceable by
Indemnitee in any court of competent jurisdiction.
(b) If Indemnitee seeks a judicial adjudication of his rights
under this Section, Indemnitee shall be entitled to recover from the
Corporation, and shall be indemnified by the Corporation against, any and
all Expenses actually and reasonably incurred by him in connection with
such proceeding but only if he prevails therein. If it shall be determined
that Indemnitee is entitled to receive part but not all of the relief
sought, then the Indemnitee shall be entitled to be reimbursed for all
Expenses incurred by him in connection with such judicial adjudication if
the amount to which he is determined to be entitled exceeds 50% of the
amount of his claim. Otherwise, the Expenses incurred by Indemnitee in
connection with such judicial adjudication shall be appropriately prorated.
(c) In any judicial proceeding described in this subsection, the
Corporation shall bear the burden of proving that Indemnitee is not
entitled to any Expenses sought with respect to any Claim.
11.4 SAVING CLAUSE. If any provision of this Section is determined by
a court having jurisdiction over the matter to require the Corporation to
do or refrain from doing any act that is in violation of applicable law,
the court shall be empowered to modify or reform such provision so that, as
modified or reformed, such provision provides the maximum indemnification
permitted by law, and such provision, as so modified or reformed, and the
balance of this Section, shall be applied in accordance with their terms.
Without limiting the generality of the foregoing, if any portion of this
Section shall be invalidated on any ground, the Corporation shall
nevertheless indemnify an Indemnitee to the full extent permitted by any
applicable portion of this Section that shall not have been invalidated and
to the full extent permitted by law with respect to that portion that has
been invalidated.
11.5 NON-EXCLUSIVITY.
(a) The indemnification and advancement of Expenses provided by
or granted pursuant to this Section shall not be deemed exclusive of any
other rights to which Indemnitee is or may become entitled under any
statute, article of incorporation, by-law, authorization of shareholders or
directors, agreement, or otherwise.
(b) It is the intent of the Corporation by this Section to
indemnify and hold harmless Indemnitee to the fullest extent permitted by
law, so that if applicable law would permit the Corporation to provide
broader indemnification rights than are currently permitted, the
Corporation shall indemnify and hold harmless Indemnitee to the fullest
extent permitted by applicable law notwithstanding that the other terms of
this Section would provide for lesser indemnification.
11.6 SUCCESSORS AND ASSIGNS. This Section shall be binding upon the
Corporation, its successors and assigns, and shall inure to the benefit of
the Indemnitee's heirs, personal representatives, and assigns and to the
benefit of the Corporation, its successors and assigns.
11.7 INDEMNIFICATION OF OTHER PERSONS. The Corporation may indemnify
any person not covered by Sections 11.1 through 11.6 to the extent provided
in a resolution of the Board or a separate section of these By-laws.
SECTION 12
ADOPTION AND AMENDMENT OF BY-LAWS
By-laws of the Corporation may be adopted and amended as provided in
the Articles of Incorporation.
SECTION 13
MISCELLANEOUS
13.1 DIVIDENDS. Except as otherwise provided by law, the Articles of
Incorporation or these By-laws, dividends upon the stock of the Corporation
may be declared by the Board of Directors at any regular or special
meeting. Dividends may be paid in cash, property, or shares of stock,
subject to the limitations specified by law and in the Articles of
Incorporation.
13.2 VOTING OF SHARES OWNED BY CORPORATION. Unless otherwise directed
by the Board, any shares of capital stock issued by a wholly-owned
subsidiary of the Corporation may be voted by the President of the
Corporation, or by any person authorized to do so by the President, at any
shareholders' meeting of the subsidiary (or in connection with any written
consent in lieu thereof).
13.3 FISCAL YEAR. Until otherwise determined by the Board of
Directors, the Corporation shall have a fiscal year ending December 31.
13.4 SEAL. The Board of Directors may adopt a corporate seal, which
shall have inscribed thereon the name of the Corporation. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. Failure to affix the seal shall not, however,
affect the validity of any instrument.
13.5 GENDER. All pronouns and variations thereof used in these By-
laws shall be deemed to refer to the masculine, feminine or neuter gender,
singular or plural, as the identity of the person, persons, entity or
entities referred to may require.
13.6 CONTROL SHARE ACQUISITIONS. The provisions of Sections 135
through 140.2 of the Louisiana Business Corporation Law (La.R.S. 12:135
through 140.2) do not apply to control share acquisitions of shares of the
Corporation.
