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Exhibit 3.3
FORM OF
CERTIFICATE OF INCORPORATION
OF
CHILES OFFSHORE INC.
THE UNDERSIGNED, being a natural person for the purpose of
organizing a corporation under the General Corporation Law of the State of
Delaware, hereby certifies that:
FIRST: The name of the corporation is Chiles Offshore Inc. (the
"Corporation").
SECOND: The address of the registered office of the Corporation in
the State of Delaware is 9 East Loockerman Street, City of Dover, County of
Kent, State of Delaware 19901. The name of the registered agent of the
Corporation in the State of Delaware at such address is National Corporate
Research, Ltd.
THIRD: The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware, as from time to time amended.
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 110,000,000 shares, consisting of
(a) 10,000,000 shares of preferred stock, par value $.01 per share (the
"Preferred Stock"), and
(b) 100,000,000 shares of common stock, par value $.01 per share (the
"Common Stock").
Except as otherwise provided by law, the shares of stock of the
Corporation, regardless of class, may be issued by the Corporation from time to
time in such amounts, for such consideration and for such corporate purposes as
the Board of Directors may from time to time determine.
Shares of Preferred Stock may be issued from time to time in one or
more series of any number of shares as may be determined from time to time by
the Board of Directors, provided that the aggregate number of shares issued and
not cancelled of any and all such series shall not exceed the total number of
shares of Preferred Stock authorized by this Certificate of Incorporation. Each
series of Preferred Stock shall be distinctly designated. Except in respect of
the particulars fixed for series by the Board of
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Directors as permitted hereby, all shares shall be alike in every particular,
except that shares of any one series issued at different times may differ as to
the dates from which dividends thereon shall be cumulative. The voting powers,
if any, of each such series and the preferences and relative, participating,
optional and other special rights of each such series and the qualifications,
limitations and restrictions thereof, if any, may differ from those of any and
all other series at any time outstanding; and the Board of Directors is hereby
expressly granted authority to fix, in the resolution or resolutions providing
for the issue of a particular series of Preferred Stock, the voting powers, if
any, of each such series and the designations, preferences and relative,
participating, optional and other special rights of each such series and the
qualifications, limitations and restrictions thereof to the full extent now or
hereafter permitted by this Certificate of Incorporation and the laws of the
State of Delaware.
Subject to the provisions of applicable law or of the By-laws with
respect to the closing of the transfer books or the fixing of a record date for
the determination of stockholders entitled to vote, and except as otherwise
provided by law or by the resolution or resolutions providing for the issue of
any series of Preferred Stock, the holders of outstanding shares of Common Stock
shall exclusively possess the voting power for the election of directors and for
all other purposes, each holder of record of shares of Common Stock being
entitled to one vote for each share of Common Stock standing in his name on the
books of the Corporation.
FIFTH: The name and mailing address of the incorporator are David E.
Zeltner, c/o Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York
10153.
SIXTH: In furtherance and not in limitation of the powers conferred
by law, subject to any limitations contained elsewhere in this Certificate of
Incorporation, the By-laws of the Corporation may be adopted, amended or
repealed by a majority of the Board of Directors of the Corporation, but any
by-laws adopted by the Board of Directors may be amended or repealed by the
stockholders entitled to vote thereon. Election of directors need not be by
written ballot.
SEVENTH: Any action required or permitted to be taken by the holders
of the shares of Common Stock of the Corporation may be taken without a meeting
if, but only if, a consent or consents in writing, setting forth the action so
taken, are signed by the holders of not less than 66-2/3% (or such greater
percentage as may then be required by applicable law) in voting power of the
outstanding shares of Common Stock entitled to vote thereon.
Notwithstanding any other provisions of this Certificate of
Incorporation (and notwithstanding the fact that a lesser percentage may
otherwise be specified by law), the affirmative vote of the holders of not less
than 66-2/3% in voting power of the outstanding shares of Common Stock of the
Corporation entitled to vote thereon shall be required to alter, amend, or
repeal, or adopt any provisions inconsistent with this Article Seventh.
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EIGHTH: In addition to any affirmative vote required by law or this
Certificate of Incorporation (and notwithstanding the fact that a lesser
percentage may be required by law), the affirmative vote of the holders of not
less than 66-2/3% in voting power of the outstanding shares of the Common Stock
of the Corporation entitled to vote thereon, shall be required for the approval
or authorization of (i) any merger, consolidation or similar business
combination transaction involving the Corporation, pursuant to which the
Corporation is not the surviving or resulting corporation and/or the shares of
Common Stock of the Corporation are exchanged for or changed into other
securities, cash or other property, or any combination thereof, (ii) the
adoption of any plan or proposal for the liquidation, dissolution, winding up or
reorganization of the Corporation, and (iii) any sale, lease, exchange,
mortgage, pledge, transfer or other disposition of all or substantially all of
the assets of the Corporation and its subsidiaries (taken as a whole).
NINTH: The Corporation shall indemnify, to the full extent permitted
by Section 145 of the General Corporation Law of the State of Delaware or any
amendment thereto or any successor provision thereto, all persons whom it may
indemnify pursuant thereto and in the manner thereby. No director shall be
personally liable to the Corporation or any stockholder for monetary damages for
breach of fiduciary duty as a director, except for any matter in respect of
which such director shall be liable under Section 174 of the General Corporation
Law of Delaware or any amendment thereto or successor provision thereto or shall
be liable by reason that, in addition to any and all other requirements for such
liability, such director (i) shall have breached his or her duty of loyalty to
the Corporation or its stockholders, (ii) shall not have acted in good faith or,
in failing to act, shall not have acted in good faith, (iii) shall have acted in
a manner involving intentional misconduct or a knowing violation of law or, in
failing to act, shall have acted in a manner involving intentional misconduct or
a knowing violation of law, or (iv) shall have derived an improper personal
benefit. Neither the amendment nor repeal of this Article Ninth nor the adoption
of any provision of the Certificate of Incorporation inconsistent with this
Article Ninth, shall eliminate or reduce the effect of this Article Ninth in
respect of any matter occurring, or any cause of action, suit or claim that, but
for this Article Ninth, would accrue or arise, prior to such amendment, repeal
or adoption of an inconsistent provision.
TENTH: The Corporation elects not to be governed by Section 203 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate of Incorporation on this _____________ day of _______, 2000.
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David E. Zeltner
Sole Incorporator
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