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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20569
FORM 8-A/A
AMENDMENT NO. 2
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HORNBECK OFFSHORE SERVICES, INC.
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(Exact name of registrant as specified in its charter)
Delaware 74-2153030
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(State of Incorporation) (IRS Employer ID No.)
7707 Harborside Drive, Galveston, Texas 77554
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(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
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None None
If this Form relates to the registration of a class of debt securities and
is effective upon filing pursuant to General Instruction A.(c)(1), please check
the following box: / /
If this Form relates to the registration of a class of debt securities and is
to become effective simultaneously with the effectiveness of a concurrent
registration statement under the Securities Act of 1933 pursuant to General
Instruction A.(c)(2), please check the following box: / /
Securities to be registered pursuant to Section 12(g) of the Act:
Common Stock
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(Title of Class)
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ITEM 1. DESCRIPTION OF SECURITIES
A total of 25,000,000 shares of Common Stock, par value $.10 per share
(the "Common Stock"), is authorized by the Company's Restated Certificate of
Incorporation, as amended (the "Restated Certificate of Incorporation"), of
which 13,166,878 shares are issued and outstanding as of June 15, 1995. All
outstanding shares of Common Stock are duly and validly issued, fully paid and
nonassessable. The holders of Common Stock do not have any preemptive right to
subscribe for or to purchase any additional securities issued by the Company.
There are no conversion, redemption or sinking fund provisions associated with
the Common Stock.
Dividends. Dividends may be paid on the Common Stock out of any funds
legally available for such purpose when, as and if declared by the board of
directors, but subject to the payment or provision for payment of all dividends
required on outstanding shares of the preferred stock and of any other stock
ranking prior to Common Stock as to dividends.
Voting Rights. Each holder of Common Stock is entitled to one vote
per share on all matters voted on by the stockholders of the Company, subject
to voting rights of holders of preferred stock.
Liquidation Rights. In the event of any liquidation, dissolution or
winding up of the Company, after payment or provision for payment of the debts
and other liabilities of the Company and the preferential amounts to which the
holders of any stock ranking prior to Common Stock in the distribution of
assets upon liquidation, the holders of shares of Common Stock and the holders
of any other stock ranking on a parity with Common Stock in the distribution of
assets upon liquidation will be entitled to share ratably in the remaining
assets of the Company.
Transfer Agent. The transfer agent and registrar of the Company's
Common Stock is First Interstate Bank of Texas, N.A., Houston, Texas.
PREFERRED STOCK
A total of 5,000,000 shares of preferred stock, par value $1.00 per
share, is authorized by the Company's Restated Certificate of Incorporation. A
total of 500,000 shares of preferred stock has been designated as Series B
Junior Participating Preferred Stock ("Series B Preferred Stock") in connection
with the Company's Stockholder Rights Plan discussed below. As of June 20,
1995, no shares of preferred stock are outstanding.
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FOREIGN OWNERSHIP
Under the Merchant Marine Act of 1920, the transportation of
merchandise or passengers for hire in domestic waters is limited to vessels
owned by U.S. citizens that are built in, and registered under the laws of, the
United States. For purposes of these requirements, no corporation is deemed a
U.S. citizen unless, among other things, no more than 25% of any class of its
voting securities are owned by non-U.S. citizens, none of the corporation's
chief executive officer, president or chairman of the board are non-U.S.
citizens and no more than a minority of its board of directors necessary to
constitute a quorum are non-U.S. citizens. If the Company should fail to meet
any of the foregoing citizenship requirements, its vessels become ineligible to
engage in trade in U.S. domestic waters. Furthermore, the foregoing
citizenship requirements must be met in order for the Company to continue to
qualify for MARAD-guaranteed financing that currently exists with respect to
certain of its vessels. Certain provisions of the Company's Restated
Certificate of Incorporation are intended to aid compliance with the foregoing
requirements regarding non-U.S. citizen ownership.
Under the provisions of the Restated Certificate of Incorporation (i)
any transfer, or attempted or purported transfer, of any shares of capital
stock which would result in the ownership or control by one or more persons who
is not a U.S. citizen for purposes of United States coastwide domestic shipping
(as defined in the Shipping Act of 1916, as amended), of an aggregate
percentage of the shares of capital stock in excess of a fixed percentage (the
"Permitted Percentage") which is equal to 5% less than the percentage that
would prevent the Company from being a U.S. citizen (currently 25%) for
purposes of engaging in United States coastwise domestic shipping, will, until
such excess no longer exists, be void and ineffective as against the Company;
and (ii) if at any time ownership of Common Stock (either of record or
beneficial) by persons other than U.S. citizens exceeds the Permitted
Percentage, the Company may withhold payment of any dividends on such shares
deemed to be in excess of the Permitted Percentage and will suspend the voting
rights of such shares.
Certificates representing the Common Stock bear legends concerning the
restrictions on ownership by persons other than U.S. citizens. In addition,
the Company's board of directors is authorized to adopt bylaw provisions (i)
requiring, as a condition precedent to the transfer of shares on the records of
the Company, representations and other proof as to the identity of existing or
prospective stockholders; and (ii) establishing and maintaining a dual stock
certificate system under which different forms of certificates may be used to
indicate whether or not the owner thereof is a U.S. citizen.
CERTAIN CHARTER AND BYLAW PROVISIONS
Under Delaware law the power to adopt, amend and repeal bylaws is
conferred solely on the stockholders unless the corporation's certificate of
incorporation also confers this power upon its board of directors. The
Company's Restated Certificate of Incorporation grants this power to the board
of directors. The Restated Certificate of Incorporation requires the
affirmative vote or consent of holders of not less than 66-2/3% of each class
of stock of the
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Company issued and outstanding and entitled to vote in elections of directors
of the Company to approve the merger or consolidation of the Company with any
other corporation, or the liquidation of the Company. A provision of the
Company's bylaws provides that a special meeting of stockholders may be called
only by the chairman of the board of directors, the president, three or more
directors or the holders of not less than one-quarter of the shares having
voting power at the meeting. These provisions, in addition to the existence of
authorized but unissued capital stock, may, either alone or in combination with
each other or certain contractual arrangements, discourage or make a given
transaction or change of management deemed undesirable by the board of
directors more difficult, even if such transaction or change is favorable to
the interests of stockholders.
STOCKHOLDER RIGHTS PLAN
The Company's board of directors adopted a Stockholder Rights Plan (the
"Plan") on June 20, 1995 and declared a dividend of one right ("Right") for
each outstanding share of the Company's Common Stock to stockholders of record
on July 5, 1995. The Rights only become exercisable, and transferable apart
from the Company's Common Stock, ten business days following a public
announcement that a person or group has acquired beneficial ownership of, or
has commenced a tender or exchange offer for, 20% or more of the Company's
common stock (each a "Triggering Event").
Each Right initially entitles the holder to purchase one one-hundredth
of one share of the Company's Series B Preferred Stock at a price of $60.00,
subject to adjustment. If a person becomes a 20% or more holder ("Acquiring
Person") of the Company's Common Stock, each holder of a Right (other than the
Acquiring Person) will be entitled, instead, to receive upon exercise of each
Right a number of shares of the Company's Common Stock (or, in certain
circumstances, cash, property or other securities of the Company) having a
current market price equal to twice the exercise price for one one-hundredth of
a share of Series B Preferred Stock. Similarly, if after a Triggering Event
the Company is acquired in a merger or other business combination, or 50% or
more of the Company's assets or earning power are sold or transferred, each
Right will entitle the holder thereof (other than the Acquiring Person) to
receive a number of shares of common stock of the acquiring company having a
current market price equal to twice the exercise price for one one-hundredth of
a share of Series B Preferred Stock.
The Rights may be redeemed by the Company in whole, but not in part,
at a redemption price of $.01 per Right at any time prior to the Rights
becoming exercisable. The Rights will expire on June 20, 2005. Pursuant to
the Plan, all 500,000 shares of the Company's Series B Preferred Stock have
been reserved for issuance upon exercise of Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group who attempts to acquire the Company
without the approval of the Company's board of directors. As a result, the
overall effect of the Rights may be to render more difficult or discourage any
attempt to acquire the Company even if such acquisition may
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be favorable to the interests of the Company's stockholders. Because the
Company's board of directors can redeem the Rights or approve certain offers,
the Rights should not interfere with any merger or other business combination
approved by the Company's board of directors.
The description and terms of the Rights are set forth in a Rights
Agreement between the Company and First Interstate Bank of Texas, N.A., as
Rights Agent.
ITEM 2. EXHIBITS
Each Exhibit set forth below is, unless otherwise noted, incorporated
by reference to the applicable Securities and Exchange Commission filing
referenced in the description thereof.
3.2i* Restated Certificate of Incorporation of Hornbeck Offshore
Services, Inc., as amended.
3.2ii* Restated Bylaws of Hornbeck Offshore Services, Inc. as of June
20, 1995.
4.1 Rights Agreement dated as of June 20, 1995 between Hornbeck
Offshore Services, Inc. and First Interstate Bank of Texas,
N.A., as Rights Agent, which includes as Exhibit A the
Certificate of Designations of the Series B Junior
Participating Preferred Stock, as Exhibit B the form of Right
Certificate, and as Exhibit C the form of Summary of Rights to
Purchase Stock (Form 8-A, June 21, 1995, Hornbeck Offshore
Services, Inc., Exhibit 4.1).
4.2 Specimen Common Stock certificate (Form 8-A, May 26, 1993,
Exhibit 2(a)).
________________________
* filed herewith
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SIGNATURES
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
Dated: June 21, 1995
HORNBECK OFFSHORE SERVICES, INC.
By: /s/ Robert W. Hampton
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Robert W. Hampton
Vice President, Treasurer and
Chief Financial Officer
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Index to Exhibits
3.2i* Restated Certificate of Incorporation of Hornbeck Offshore
Services, Inc., as amended, including the Certificate of
Designations of Series B Junior Participating Preferred Stock.
3.2ii* Restated Bylaws of Hornbeck Offshore Services, Inc. as of June
20, 1995.
4.1 Rights Agreement dated as of June 20, 1995 between Hornbeck
Offshore Services, Inc. and First Interstate Bank of Texas,
N.A., as Rights Agent, which includes as Exhibit A the
Certificate of Designations of the Series B Junior
Participating Preferred Stock, as Exhibit B the form of Right
Certificate, and as Exhibit C the form of Summary of Rights to
Purchase Stock (Form 8-A, June 21, 1995, Hornbeck Offshore
Services, Inc., Exhibit 4.1).
4.2 Specimen Common Stock certificate (Form 8-A, May 26, 1993,
Exhibit 2(a)).
________________________
* filed herewith
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RESTATED CERTIFICATE OF INCORPORATION
(WITH AMENDMENTS)
OF
HORNBECK OFFSHORE SERVICES, INC.
(Incorporated January 30, 1981)
1. Hornbeck Offshore Services, Inc. (the "Corporation") pursuant
to the provisions of Sections 242 and 245 of the General Corporation Law of the
State of Delaware hereby amends its Certificate of Incorporation and adopts
this Restated Certificate of Incorporation (the "Restated Certificate of
Incorporation") which accurately copies the Corporation's Certificate of
Incorporation, as amended.
2. The Certificate of Incorporation is amended to read in its
entirety as follows:
(a) Article 1 of the Certificate of Incorporation is
hereby amended as follows:
"ARTICLE ONE
The name of the Corporation is Hornbeck Offshore Services, Inc."
(b) Article 2 of the Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE TWO
The address of its registered office in the State of Delaware is No.
100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company."
(c) Article 3 of the Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE THREE
The nature of the business or purpose to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware."
(d) Article 4 of the Certificate of Incorporation is
amended to read in its entirety as follows:
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"ARTICLE FOUR
Section 1. General.
The aggregate number of shares of all classes of stock which the
Corporation will have authority to issue is 30,000,000 shares, of which
25,000,000 will be shares of common stock, par value $.10 per share ("Common
Stock"), and 5,000,000 will be shares of preferred stock, par value $1.00 per
share ("Preferred Stock").
The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions, of Common Stock and Preferred
Stock are as follows:
Section 2. Common Stock.
2.1 Dividend rights. Subject to provisions of law and the
preferences of Preferred Stock and of any other stock ranking prior to Common
Stock as to dividends, the holders of Common Stock will be entitled to receive
dividends when, as and if declared by the board of directors.
2.2 Voting rights. Except as provided by law and pursuant to this
Article Four, the holders of Common Stock will have one vote for each share on
each matter submitted to a vote of the shareholders of the Corporation. Except
as otherwise provided by law, by the certificate of incorporation or by
resolution or resolutions of the board of directors providing for the issue of
any series of Preferred Stock, the holders of Common Stock will have sole
voting power.
2.3 Liquidation rights. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provisions for payment of the debts and other liabilities of
the Corporation and the preferential amounts to which the holders of any stock
ranking prior to Common Stock in the distribution of assets are entitled upon
liquidation, the holders of Common Stock and the holders of any other stock
ranking on a parity with Common Stock in the distribution of assets upon
liquidation will be entitled to share in the remaining assets of the
Corporation according to their respective interests.
Section 3. Preferred Stock.
3.1 Authority of the Board of Directors to issue in series.
Preferred Stock may be issued from time to time in one or more series. All
shares of any one series of Preferred Stock will be identical except as to the
dates of issue and the dates from which dividends on shares of the series
issued on different dates will cumulate, if cumulative. Authority is hereby
expressly granted to the board of directors to authorize the issue of one or
more series of Preferred Stock, and to fix by resolution or resolutions
providing for the issue of each such series the voting powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of such series, to the
full extent now or hereafter permitted by law, including, but not limited to,
the following:
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(a) The number of shares of such series, which may
subsequently be increased, except as otherwise provided by the resolution or
resolutions of the board of directors providing for the issue of such series,
or decreased, to a number not less than the number of shares then outstanding,
by resolution or resolutions of the board of directors, and the distinctive
designation thereof;
(b) The dividend rights of such series, the preferences,
if any, over any other class or series of stock, or of any other class or
series of stock over such series, as to dividends, the extent, if any, to which
shares of such series will be entitled to participate in dividends with shares
of any other series or class of stock, whether dividends on shares of such
series will be fully, partially or conditionally cumulative, or a combination
thereof, and any limitations, restrictions or conditions on the payment of such
dividends;
(c) The rights of such series, and the preferences, if
any, over any other class or series of stock, or of any other class or series
of stock over such series, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and the extent, if
any, to which shares of any such series will be entitled to participate in such
event with any other series or class of stock;
(d) The time or times during which, the price or prices
at which, and the terms and conditions on which, the shares of such series may
be redeemed;
(e) The terms of any purchase, retirement or sinking fund
which may be provided for the shares of such series;
(f) The terms and conditions, if any, upon which the
shares of such series will be convertible into or exchangeable for shares of
any other series, class or classes, or any other securities, to the full extent
now or hereafter permitted by law;
(g) The voting powers, if any, of such series in addition
to the voting powers provided by law.
3.2 Limitation on dividend. No holders of any series of Preferred
Stock will be entitled to receive any dividends thereon other than those
specifically provided for by the certificate of incorporation or the resolution
or resolutions of the board of directors providing for the issue of such series
of Preferred Stock, nor will any accumulated dividends on Preferred Stock bear
any interest.
3.3 Limitation on liquidation distributions. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Preferred Stock of each series will be entitled to
receive only such amount or amounts as will have been fixed by the certificate
of incorporation or by the resolution or resolutions of the board of directors
providing for the issue of such series. A consolidation or merger of the
Corporation with or into one or more other corporations or a sale, lease or
exchange of all or substantially
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all of the assets of the Corporation will not be deemed to be a voluntary or
involuntary liquidation, dissolution or winding up, within the meaning of this
Article Four."
(e) Article 5 of the Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE FIVE
The number of directors constituting the present board of directors is
five and the names and addresses of such persons are as follows:
Name Address
Larry D. Hornbeck 2317 Broadway
Galveston, Texas 77550
Charles A. Pringle 2317 Broadway
Galveston, Texas 77550
Robert E. Schuller 2328 Little Bear
Kingwood, Texas 77339
Douglas M. Middleton 410 17th Street, Suite 1990
Denver, Colorado 80202
Billy Pugh 1415 N. Water
Corpus Christi, Texas 78403
No more than twenty-five percent of the directors of the Corporation may be
non-United States citizens.
(f) Article Six of the Certificate of Incorporation is
amended to read in its entirety as follows:
"ARTICLE SIX
The period of duration of the Corporation is perpetual."
(g) Articles 7, 8, 9 and 10 of the Certificate of
Incorporation are deleted in their entirety.
(h) The following article entitled "ARTICLE SEVEN" is
added to the Certificate of Incorporation:
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"ARTICLE SEVEN
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or
repeal the bylaws of the Corporation."
(i) The following article entitled "ARTICLE EIGHT" is
added to the Certificate of Incorporation:
"ARTICLE EIGHT
The Corporation shall indemnify its officers and directors under the
circumstances and to the full extent permitted by law."
(j) The following article entitled "ARTICLE NINE" is
added to the Certificate of Incorporation:
"ARTICLE NINE
Meetings of shareholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provision of the Delaware General Corporation Law) outside the
State of Delaware at such place or places as may be designated from time to
time by the board of directors or in the bylaws of the Corporation."
(k) The following article entitled "ARTICLE TEN" is added
to the Certificate of Incorporation:
"ARTICLE TEN
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon shareholders
herein are granted subject to this reservation."
(l) The following article entitled "ARTICLE ELEVEN" is
added to the Certificate of Incorporation:
"ARTICLE ELEVEN
The affirmative vote or consent of the holders of not less than
66-2/3% of each class of stock of the Corporation issued and outstanding and
entitled to vote in elections of directors of the Corporation is required to
approve (i) the merger or consolidation of the Corporation with any other
corporation or (ii) the liquidation of the Corporation."
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(m) The following article entitled "ARTICLE TWELVE" is
added to the Certificate of Incorporation:
"ARTICLE TWELVE
Section 1. Purpose and effectiveness.
The purpose of this Article Twelve is to limit ownership and control
of shares of any class of capital stock of the Corporation by Aliens in order
to permit the Corporation and/or its Subsidiaries or Controlled Persons to
conduct their business as U.S. Maritime Companies.
Section 2. Restriction on transfers.
Any transfer, or attempted or purported transfer, of any shares of any
class of capital stock issued by the Corporation or any interest therein or
right thereof, which would result in the ownership or control by one or more
Aliens of an aggregate percentage of the shares of any class of capital stock
of the Corporation or of any interest therein or right thereof in excess of the
Permitted Percentage will, until such excess no longer exists, be void and will
be ineffective as against the Corporation and the Corporation will not
recognize, to the extent of such excess, the purported transferee as a
shareholder of the Corporation for any purpose other than the transfer of such
excess to a person who is not an Alien; provided, however, that such shares, to
the extent of such excess, may nevertheless be deemed to be Alien owned shares
for the purposes of this Article Twelve.
The Board of Directors is hereby authorized to adopt such bylaws and
resolutions, and to effect any and all other measures reasonably necessary or
desirable (consistent with applicable law and the provisions of the Certificate
of Incorporation) to fulfill the purpose and implement the provisions of this
Article Twelve, including without limitation, obtaining, as a condition
precedent to the transfer of shares on the records of the Corporation,
representations and other proof as to the identity of existing or prospective
shareholders and persons on whose behalf shares of any class of capital stock
of the Corporation or any interest therein or right thereof are or are to be
held or establishing and maintaining a dual stock certificate system under
which different forms of stock certificates, representing outstanding shares of
Common Stock or Preferred Stock of the Corporation, are issued to the holders
of record of the shares represented thereby to indicate whether or not such
shares or any interest therein or right thereof is owned or controlled by an
Alien.
Section 3. Suspension of voting, dividend and distribution
rights with respect to alien owned stock.
No shares of the outstanding capital stock of the Corporation or any
class thereof determined to be in excess of the Permitted Percentage in
accordance with this Section 3 of this Article Twelve will, until such excess
no longer exists, be entitled to receive or accrue any rights with respect to
any dividends or other distributions of assets declared payable or paid to
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the holders of such capital stock during such period. Furthermore, no shares
in excess of the Permitted Percentage held by or for the benefit of any Alien
will be entitled to vote with respect to any matter submitted to shareholders
of the Corporation so long as such excess exists. If Alien ownership of the
outstanding capital stock of the Corporation or any class thereof is in excess
of the Permitted Percentage, the shares deemed included in such excess for
purposes of this Section 3 of this Article Twelve will be those Alien owned
shares that the Board of Directors determines became so owned most recently.
Section 4. Definitions.
"Alien" means (1) any person (including an individual, a partnership,
a corporation or an association) who is not a United States citizen, within the
meaning of Section 2 of the Shipping Act, 1916, as amended or as it may
hereafter be amended; (2) any foreign government or representative thereof; (3)
any corporation, the president, chief executive officer or chairman of the
board of directors of which is an Alien, or of which more than a minority of
the number of its directors necessary to constitute a quorum are Aliens; (4)
any corporation organized under the laws of any foreign government; (5) any
corporation of which 25% or greater interest is owned beneficially or of
record, or may be voted by, an Alien or Aliens, or which by any other means
whatsoever is controlled by or in which control is permitted to be exercised by
an Alien or Aliens (the Board of Directors being authorized to determine
reasonably the meaning of "control" for this purpose); (6) any partnership or
association which is controlled by an Alien or Aliens; or (7) any person
(including an individual, partnership, corporation or association) who acts as
representative of or fiduciary for any person described in clauses (1) through
(6) above.
"Controlled Person" means any corporation or partnership of which the
Corporation or any Subsidiary owns or controls an interest in excess of 25%.
"Permitted Percentage" means four percent of the outstanding shares of
the capital stock of the Corporation, or any class thereof.
"Subsidiary" means any corporation more than 50% of the outstanding
capital stock of which is owned by the Corporation or any Subsidiary of the
Corporation.
"U.S. Maritime Company" means any corporation or other entity which,
directly or indirectly (1) owns or operates vessels in the United States
coastwise trade, intercoastal trade or noncontiguous domestic trade; (2) owns
or operates any vessel built with construction differential subsidies from the
United States Government (or any agency thereof); (3) is a party to an
operating differential subsidy agreement with the United States Government (or
any agency thereof) on account of ships owned, chartered or operated by it; (4)
owns any vessel on which there is a preferred mortgage issued in connection
with Title XI of the Merchant Marine Act, 1936, as amended; (5) operates
vessels under agreement with the United States Government (or any agency
thereof); (6) conducts any activity, takes any action or receives any benefit
which would be adversely affected under any provision of the U.S. maritime,
shipping or vessel
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documentation laws by virtue of Alien ownership of its stock; or (7) maintains
a Capital Construction Fund under the provisions of Section 607 of the Merchant
Marine Act of 1936, as amended."
3. Each amendment to the Certificate of Incorporation and the
Restated Certificate of Incorporation were duly adopted pursuant to Sections
242 and 245 of the Delaware General Corporation Law by the shareholders of the
Corporation effective as of October 9, 1981.
4. At the time the amendments to the Certificate of Incorporation
and the Restated Certificate of Incorporation were adopted, the number of
shares of all classes outstanding was 1,352,000 and the number of shares of all
classes entitled to vote was 1,352,000. An aggregate of 900,939 shares were
voted in favor of the adoption of the amendments to the Certificate of
Incorporation and the Restated Certificate of Incorporation and an aggregate of
0 shares were voted against.
5. The Certificate of Incorporation and all amendments thereto
are hereby superseded by the following Restated Certificate of Incorporation
which accurately copies the entire text thereof:
ARTICLE ONE
The name of the Corporation is Hornbeck Offshore Services, Inc.
ARTICLE TWO
The address of its registered office in the State of Delaware is No.
100 West Tenth Street, in the City of Wilmington, County of New Castle. The
name of its registered agent at such address is The Corporation Trust Company.
ARTICLE THREE
The nature of the business or purpose to be conducted or promoted is
to engage in any lawful act or activity for which corporations may be organized
under the General Corporation Law of Delaware.
ARTICLE FOUR
Section 1. General.
The aggregate number of shares of all classes of stock which the
Corporation will have authority to issue is 30,000,000 shares, of which
25,000,000 will be shares of common stock, par value $.10 per share ("Common
Stock"), and 5,000,000 will be shares of preferred stock, par value $1.00 per
share ("Preferred Stock").
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The designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions, of Common Stock and Preferred
Stock are as follows:
Section 2. Common Stock.
2.1 Dividend rights. Subject to provisions of law and the
preferences of Preferred Stock and of any other stock ranking prior to Common
Stock as to dividends, the holders of Common Stock will be entitled to receive
dividends when, as and if declared by the board of directors.
2.2 Voting rights. Except as provided by law and pursuant to this
Article Four, the holders of Common Stock will have one vote for each share on
each matter submitted to a vote of the shareholders of the Corporation. Except
as otherwise provided by law, by the certificate of incorporation or by
resolution or resolutions of the board of directors providing for the issue of
any series of Preferred Stock, the holders of Common Stock will have sole
voting power.
2.3 Liquidation rights. In the event of any liquidation,
dissolution or winding up of the Corporation, whether voluntary or involuntary,
after payment or provisions for payment of the debts and other liabilities of
the Corporation and the preferential amounts to which the holders of any stock
ranking prior to Common Stock in the distribution of assets are entitled upon
liquidation, the holders of Common Stock and the holders of any other stock
ranking on a parity with Common Stock in the distribution of assets upon
liquidation will be entitled to share in the remaining assets of the
Corporation according to their respective interests.
Section 3. Preferred Stock.
3.1 Authority of the Board of Directors to issue in series.
Preferred Stock may be issued from time to time in one or more series. All
shares of any one series of Preferred Stock will be identical except as to the
dates of issue and the dates from which dividends on shares of the series
issued on different dates will cumulate, if cumulative. Authority is hereby
expressly granted to the board of directors to authorize the issue of one or
more series of Preferred Stock, and to fix by resolution or resolutions
providing for the issue of each such series the voting powers, designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of such series, to the
full extent now or hereafter permitted by law, including, but not limited to,
the following:
(a) The number of shares of such series, which may
subsequently be increased, except as otherwise provided by the resolution or
resolutions of the board of directors providing for the issue of such series,
or decreased, to a number not less than the number of shares then outstanding,
by resolution or resolutions of the board of directors, and the distinctive
designation thereof;
(b) The dividend rights of such series, the preferences,
if any, over any other class or series of stock, or of any other class or
series of stock over such series, as to dividends,
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<PAGE> 10
the extent, if any, to which shares of such series will be entitled to
participate in dividends with shares of any other series or class of stock,
whether dividends on shares of such series will be fully, partially or
conditionally cumulative, or a combination thereof, and any limitations,
restrictions or conditions on the payment of such dividends;
(c) The rights of such series, and the preferences, if
any, over any other class or series of stock, or of any other class or series
of stock over such series, in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Corporation and the extent, if
any, to which shares of any such series will be entitled to participate in such
event with any other series or class of stock;
(d) The time or times during which, the price or prices
at which, and the terms and conditions on which, the shares of such series may
be redeemed;
(e) The terms of any purchase, retirement or sinking fund
which may be provided for the shares of such series;
(f) The terms and conditions, if any, upon which the
shares of such series will be convertible into or exchangeable for shares of
any other series, class or classes, or any other securities, to the full extent
now or hereafter permitted by law;
(g) The voting powers, if any, of such series in addition
to the voting powers provided by law.
3.2 Limitation on dividend. No holders of any series of Preferred
Stock will be entitled to receive any dividends thereon other than those
specifically provided for by the certificate of incorporation or the resolution
or resolutions of the board of directors providing for the issue of such series
of Preferred Stock, nor will any accumulated dividends on Preferred Stock bear
any interest.
3.3 Limitation on liquidation distributions. In the event of any
liquidation, dissolution or winding up of the Corporation, whether voluntary or
involuntary, the holders of Preferred Stock of each series will be entitled to
receive only such amount or amounts as will have been fixed by the certificate
of incorporation or by the resolution or resolutions of the board of directors
providing for the issue of such series. A consolidation or merger of the
Corporation with or into one or more other corporations or a sale, lease or
exchange of all or substantially all of the assets of the Corporation will not
be deemed to be a voluntary or involuntary liquidation, dissolution or winding
up, within the meaning of this Article Four.
ARTICLE FIVE
The number of directors constituting the present board of directors is
five and the names and addresses of such persons are as follows:
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<PAGE> 11
Name Address
Larry D. Hornbeck 2317 Broadway
Galveston, Texas 77550
Charles A. Pringle 2317 Broadway
Galveston, Texas 77550
Robert E. Schuller 2328 Little Bear
Kingwood, Texas 77339
Douglas M. Middleton 410 17th Street, Suite 1990
Denver, Colorado 80202
Billy Pugh 1415 N. Water
Corpus Christi, Texas 78403
No more than twenty-five percent of the directors of the Corporation may be
non-United States citizens.
ARTICLE SIX
The period of duration of the Corporation is perpetual.
ARTICLE SEVEN
In furtherance and not in limitation of the powers conferred by
statute, the board of directors is expressly authorized to make, alter or
repeal the bylaws of the Corporation.
ARTICLE EIGHT
The Corporation shall indemnify its officers and directors under the
circumstances and to the full extent permitted by law.
ARTICLE NINE
Meetings of shareholders may be held within or without the State of
Delaware, as the bylaws may provide. The books of the Corporation may be kept
(subject to any provisions of the Delaware General Corporation Law) outside the
State of Delaware at such place or places as may be designated from time to
time by the board of directors or in the bylaws of the Corporation.
ARTICLE TEN
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<PAGE> 12
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this certificate of incorporation, in the manner now
or hereafter prescribed by statute, and all rights conferred upon stockholders
herein are granted subject to this reservation.
ARTICLE ELEVEN
The affirmative vote or consent of the holders of not less than
66-2/3% of each class of stock of the Corporation issued and outstanding and
entitled to vote in elections of directors of the Corporation is required to
approve (i) the merger or consolidation of the Corporation with any other
corporation or (ii) the liquidation of the Corporation.
ARTICLE TWELVE
Section 1. Purpose and effectiveness.
The purpose of this Article Twelve is to limit ownership and control
of shares of any class of capital stock of the Corporation by Aliens in order
to permit the Corporation and/or its Subsidiaries or Controlled Persons to
conduct their business as U.S. Maritime Companies.
Section 2. Restriction on transfers.
Any transfer, or attempted or purported transfer, of any shares of any
class of capital stock issued by the Corporation or any interest therein or
right thereof, which would result in the ownership or control by one or more
Aliens of an aggregate percentage of the shares of any class of capital stock
of the Corporation or of any interest therein or right thereof in excess of the
Permitted Percentage will, until such excess no longer exists, be void and will
be ineffective as against the Corporation and the Corporation will not
recognize, to the extent of such excess, the purported transferee as a
shareholder of the Corporation for any purpose other than the transfer of such
excess to a person who is not an Alien; provided, however, that such shares, to
the extent of such excess, may nevertheless be deemed to be Alien owned shares
for the purposes of this Article Twelve.
The Board of Directors is hereby authorized to adopt such bylaws and
resolutions, and to effect any and all other measures reasonably necessary or
desirable (consistent with applicable law and the provisions of the Certificate
of Incorporation) to fulfill the purpose and implement the provisions of this
Article Twelve, including without limitation, obtaining, as a condition
precedent to the transfer of shares on the records of the Corporation,
representations and other proof as to the identity of existing or prospective
shareholders and persons on whose behalf shares of any class of capital stock
of the Corporation or any interest therein or right thereof are or are to be
held or establishing and maintaining a dual stock certificate system under
which different forms of stock certificates, representing outstanding shares of
Common Stock or Preferred Stock of the Corporation, are issued to the holders
of record of the shares represented thereby to indicate whether or not such
shares or any interest therein or right thereof is owned or controlled by an
Alien.
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<PAGE> 13
Section 3. Suspension of voting, dividend and distribution
rights with respect to alien owned stock.
No shares of the outstanding capital stock of the Corporation or any
class thereof determined to be in excess of the Permitted Percentage in
accordance with this Section 3 of this Article Twelve will, until such excess
no longer exists, be entitled to receive or accrue any rights with respect to
any dividends or other distributions of assets declared payable or paid to the
holders of such capital stock during such period. Furthermore, no shares in
excess of the Permitted Percentage held by or for the benefit of any Alien will
be entitled to vote with respect to any matter submitted to shareholders of the
Corporation so long as such excess exists. If Alien ownership of the
outstanding capital stock of the Corporation or any class thereof is in excess
of the Permitted Percentage, the shares deemed included in such excess for
purposes of this Section 3 of this Article Twelve will be those Alien owned
shares that the Board of Directors determines became so owned most recently.
Section 4. Definitions.
"Alien" means (1) any person (including an individual, a partnership,
a corporation or an association) who is not a United States citizen, within the
meaning of Section 2 of the Shipping Act, 1916, as amended or as it may
hereafter be amended; (2) any foreign government or representative thereof; (3)
any corporation, the president, chief executive officer or chairman of the
board of directors of which is an Alien, or of which more than a minority of
the number of its directors necessary to constitute a quorum are Aliens; (4)
any corporation organized under the laws of any foreign government; (5) any
corporation of which 25% or greater interest is owned beneficially or of
record, or may be voted by, an Alien or Aliens, or which by any other means
whatsoever is controlled by or in which control is permitted to be exercised by
an Alien or Aliens (the Board of Directors being authorized to determine
reasonably the meaning of "control" for this purpose); (6) any partnership or
association which is controlled by an Alien or Aliens; or (7) any person
(including an individual, partnership, corporation or association) who acts as
representative of or fiduciary for any person described in clauses (1) through
(6) above.
"Controlled Person" means any corporation or partnership of which the
Corporation or any Subsidiary owns or controls an interest in excess of 25%.
"Permitted Percentage" means four percent of the outstanding shares of
the capital stock of the Corporation, or any class thereof.
"Subsidiary" means any corporation more than 50% of the outstanding
capital stock of which is owned by the Corporation or any Subsidiary of the
Corporation.
"U.S. Maritime Company" means any corporation or other entity which,
directly or indirectly (1) owns or operates vessels in the United States
coastwise trade, intercoastal trade or noncontiguous domestic trade; (2) owns
or operates any vessel built with construction
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<PAGE> 14
differential subsidies from the United States Government (or any agency
thereof); (3) is a party to an operating differential subsidy agreement with
the United States Government (or any agency thereof) on account of ships owned,
chartered or operated by it; (4) owns any vessel on which there is a preferred
mortgage issued in connection with Title XI of the Merchant Marine Act, 1936,
as amended; (5) operates vessels under agreement with the United States
Government (or any agency thereof); (6) conducts any activity, takes any action
or receives any benefit which would be adversely affected under any provision
of the U.S. maritime, shipping or vessel documentation laws by virtue of Alien
ownership of its stock; or (7) maintains a Capital Construction Fund under the
provisions of Section 607 of the Merchant Marine Act of 1936, as amended.
The undersigned declare and certify that the facts stated herein are
true, that this is the act and deed of the Corporation and that they have
executed this instrument on this 12th day of October, 1981.
HORNBECK OFFSHORE SERVICES, INC.
BY:
-----------------------------
Larry D. Hornbeck, President
ATTEST: BY:
-----------------------------
Charles A. Pringle, Secretary
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<PAGE> 15
THE STATE OF TEXAS )
)
COUNTY OF HARRIS )
I, Cindy Metzger, a notary public, do hereby certify that on this 12th
day of October, 1981, personally appeared before me, LARRY D. HORNBECK, who
being by me first duly sworn, declared that he is the person who signed the
foregoing document, in the indicated capacity, and that the statements
contained therein are true.
/S/ CINDY L. METZGER
------------------------------
Notary Public in and for
the State of Texas
My Commission Expires:
3-19-84
- ----------------------
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<PAGE> 16
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
HORNBECK OFFSHORE SERVICES, INC.
Hornbeck Offshore Services, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Company"), HEREBY CERTIFIES:
FIRST, that the Board of Directors of the Company adopted the
following resolutions setting forth the proposed amendments to the Restated
Certificate of Incorporation of the Company, declared their advisability and
directed that they be submitted and recommended to the stockholders of the
corporation at the upcoming Annual Meeting of Stockholders entitled to vote in
respect thereof for the consideration of such amendments:
Amendment Number One
RESOLVED, that Article 5 of the Restated Certificate of
Incorporation be deleted in its entirety and that all subsequent
Articles be renumbered.
Amendment Number Two
RESOLVED, that the Restated Certificate of Incorporation of
the Corporation be amended by striking Article Eight in its entirety
and replacing therefore:
ARTICLE EIGHT
The corporation shall indemnify, to the full extent
permitted by Section 145 of the General Corporation Law of
Delaware, as amended from time to time, all persons whom it
may indemnify pursuant thereto. No director shall be
personally liable to the Corporation or any stockholder for
monetary damages for breach of fiduciary duty as a director,
except on any matter in respect of which such director shall
be liable under Section 174 of Title 8 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 or
<PAGE> 17
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
Eight nor the adoption of any provision of the Certificate of
Incorporation inconsistent with this Article Eight, shall
eliminate or reduce the effect of this Article Eight in
respect of any matter occurring, or any cause of action, suit
or claim that, but for this Article Eight, would accrue or
arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
Amendment Number Three
RESOLVED, that the second paragraph of Article Twelve, Section
2 be amended to read as follows:
"The Board of Directors is hereby authorized to adopt
such bylaws and resolutions, and to effect any and all other
measures reasonably necessary or desirable (consistent with
applicable law and the provisions of the Certificate of
Incorporation) to fulfill the purpose and implement the
restrictions of this Article Twelve, including without
limitation, (A) requiring, as a condition precedent to the
transfer of shares on the records of the Corporation,
representations and other proof as to the identity of existing
or prospective shareholders and persons on whose behalf of
shares of any class of capital stock of the Corporation or any
interest therein or right thereof are or are to be held and as
to whether or not such persons are Aliens and (B) establishing
and maintaining a dual stock certificate system under which
different forms of stock certificates, representing
outstanding shares of Common Stock or Preferred Stock of the
Corporation, are issued to the holders of record of the shares
represented thereby to indicate whether or not such shares or
any interest therein or right thereof is owned or controlled
by an Alien."
FURTHER RESOLVED, that the definition of "Permitted
Percentage" in Article Twelve, Section 4 be amended to read as follows:
"Permitted Percentage" means five percent less than
the lawful maximum percentage of outstanding shares of capital
stock of the Corporation, or any class thereof (as evidenced
by a
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<PAGE> 18
resolution of the Board of Directors) which, if such shares in excess
of such percentage were held by Aliens, would prevent the Corporation
(or any Subsidiary or Controlled Person) from being a U.S. Maritime
Company."
SECOND, that Stockholders holding a majority of the outstanding Common
Stock of the Company voted in favor of the foregoing amendments to the Restated
Certificate of Incorporation of the Company at the Annual Meeting called and
held upon notice in accordance with Section 222 of the General Corporation Law
of the State of Delaware.
THIRD, that the foregoing amendments were duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
Pursuant to Section 103 of the General Corporation Law of the State of
Delaware, the Company requests that this Certificate of Amendment become
effective as of the date upon which this certificate is filed.
IN WITNESS WHEREOF, the Company has caused this Certificate of
Amendment to be signed by Larry D. Hornbeck, President of the Company, and
attested by Richard R. Ellison, Secretary of the Company, this 18th day of
October, 1989.
HORNBECK OFFSHORE SERVICES, INC.
By: /S/ LARRY D. HORNBECK
--------------------------
Larry D. Hornbeck,
President
ATTEST: /S/ RICHARD R. ELLISON
---------------------------
Richard R. Ellison,
Secretary
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<PAGE> 19
EXHIBIT A
CERTIFICATE OF DESIGNATIONS
OF
SERIES B JUNIOR PARTICIPATING PREFERRED STOCK
OF
HORNBECK OFFSHORE SERVICES, INC.
Pursuant to Section 151 of the Delaware
General Corporation Law
Hornbeck Offshore Services, Inc., a corporation organized and existing
under the laws of the State of Delaware (the "Company"), certifies that
pursuant to the authority contained in Article 4 of its Certificate of
Incorporation, and in accordance with the provisions of Section 151 of the
General Corporation Law of the State of Delaware, its Board of Directors has
adopted the following resolution creating a series of its Preferred Stock
designated as Series B Junior Participating Preferred Stock:
RESOLVED, that pursuant to the authority conferred upon the Board of
Directors of the Company by its Restated Certificate of Incorporation and by
the provisions of Section 151(g) of the General Corporation Law of the State
of Delaware, the voting powers, preferences and relative participating,
optional or other special rights of the Series B Preferred Stock of the
Company, and the qualifications, limitations or restrictions thereof, be and
the same hereby are, established in their entireties to be as follows:
<PAGE> 20
Section 1. Designation and Amount. The shares of such series shall be
designated as "Series B Junior Participating Preferred Stock" (the "Series B
Preferred Stock") and the number of shares constituting such series shall be
five hundred thousand (500,000).
Section 2. Dividends and Distributions.
(A) Subject to the provisions for adjustment hereinafter set
forth, the holders of shares of Series B Preferred Stock shall be entitled to
receive, when, as and if declared by the Board of Directors out of funds
legally available for the purpose, (i) cash dividends in an amount per share
(rounded to the nearest cent) equal to 100 times the aggregate per share
amount of all cash dividends declared or paid on the Common Stock, $0.10 par
value per share, of the Company (the "Common Stock") and (ii) a preferential
cash dividend (the "Preferential Dividends"), if any, on the first day of
April, July, October and January of each year (each a "Quarterly Dividend
Payment Date"), commencing on the first Quarterly Dividend Payment Date after
the first issuance of a share or fraction of a share of Series B Preferred
Stock, in an amount equal to $1.00 per share of Series B Preferred Stock less
the per share amount of all cash dividends declared on the Series B Preferred
Stock pursuant to clause (i) of this sentence since the immediately preceding
Quarterly Dividend Payment Date or, with respect to the first Quarterly
Dividend Payment Date, since the first issuance of any share or fraction of a
share of Series B Preferred Stock. In the event the Company shall, at any
time after the issuance of any share or fraction of a share of Series B
Preferred Stock, make any distribution on the shares of Common Stock of the
Company, whether by way of a dividend or a reclassification of stock, a
recapitalization, reorganization or partial liquidation of the Company or
otherwise, which is payable in cash or any debt security, debt instrument,
real or personal property or any other
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<PAGE> 21
property (other than cash dividends subject to the immediately preceding
sentence, a distribution of shares of Common Stock or other capital stock of
the Company or a distribution of rights or warrants to acquire any such share,
including any debt security convertible into or exchangeable for any such
share, at a price less than the Fair Market Value of such share), then and in
each such event the Company shall simultaneously pay on each then outstanding
share of Series B Preferred Stock of the Company a distribution, in like kind,
of 100 times such distribution paid on a share of Common Stock (subject to the
provisions for adjustment hereinafter set forth). The dividends and
distributions on the Series B Preferred Stock to which holders thereof are
entitled pursuant to clause (i) of the first sentence of this paragraph and
pursuant to the second sentence of this paragraph are hereinafter referred to
as "Participating Dividends" and the multiple of such cash and non-cash
dividends on the Common Stock applicable to the determination of the
Participating Dividends, which shall be 100 initially but shall be adjusted
from time to time as hereinafter provided, is hereinafter referred to as the
"Dividend Multiple". In the event the Company shall at any time after
June 20, 1995 declare or pay any dividend or make any distribution on Common
Stock payable in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common Stock, then
in each such case the Dividend Multiple thereafter applicable to the
determination of the amount of Participating Dividends which holders of shares
of Series B Preferred Stock shall be entitled to receive shall be the Dividend
Multiple applicable immediately prior to such event multiplied by a fraction
the numerator of which is the number of shares of Common Stock outstanding
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<PAGE> 22
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Company shall declare each Participating Dividend at the
same time it declares any cash or non-cash dividend or distribution on the
Common Stock in respect of which a Participating Dividend is required to be
paid. No cash or non-cash dividend or distribution on the Common Stock in
respect of which a Participating Dividend is required to be paid shall be paid
or set aside for payment on the Common Stock unless a Participating Dividend
in respect of such dividend or distribution on the Common Stock shall be
simultaneously paid, or set aside for payment, on the Series B Preferred
Stock.
(C) Preferential Dividends shall begin to accrue on outstanding
shares of Series B Preferred Stock from the Quarterly Dividend Payment Date
next preceding the date of issuance of any shares of Series B Preferred Stock.
Accrued but unpaid Preferential Dividends shall cumulate but shall not bear
interest. Preferential Dividends paid on the shares of Series B Preferred
Stock in an amount less than the total amount of such dividends at the time
accrued and payable on such shares shall be allocated pro rata on a
share-by-share basis among all such shares at the time outstanding.
Section 3. Voting Rights. The holders of shares of Series B
Preferred Stock shall have the following voting rights:
(A) Subject to the provisions for adjustment hereinafter set forth,
each share of Series B Preferred Stock shall entitle the holder thereof to 100
votes on all matters submitted to a vote of the stockholders of the Company.
The number of votes which a holder of Series B Preferred Stock is entitled to
cast, as the same may be adjusted from time to time as hereinafter
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<PAGE> 23
provided, is hereinafter referred to as the "Vote Multiple". In the event the
Company shall at any time after June 20, 1995 declare or pay any dividend on
Common Stock payable in shares of Common Stock, or effect a subdivision or
split or a combination, consolidation or reverse split of the outstanding
shares of Common Stock into a greater or lesser number of shares of Common
Stock, then in each such case the Vote Multiple thereafter applicable to the
determination of the number of votes per share to which holders of shares of
Series B Preferred Stock shall be entitled after such event shall be the Vote
Multiple immediately prior to such event multiplied by a fraction the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) Except as otherwise provided herein, in the Restated
Certificate of Incorporation or By-laws, the holders of shares of Series B
Preferred Stock and the holders of shares of Common Stock shall vote together
as one class on all matters submitted to a vote of stockholders of the
Company.
(C) In the event that the Preferential Dividends accrued on the
Series B Preferred Stock for four or more quarterly dividend periods, whether
consecutive or not, shall not have been declared and paid or set apart for
payment, the holders of record of Preferred Stock of the Company of all series
(including the Series B Preferred Stock), other than any series in respect of
which such right is expressly withheld by the Amended and Restated Certificate
of Incorporation or the authorizing resolutions included in the certificate of
designations therefor, shall have the right, at the next meeting of
stockholders called for the election of directors, to elect two members to the
Board of Directors, which directors shall be in addition
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<PAGE> 24
to the number required by the By-laws prior to such event, to serve until the
next Annual Meeting and until their successors are elected and qualified or
their earlier resignation, removal or incapacity or until such earlier time as
all accrued and unpaid Preferential Dividends upon the outstanding shares of
Series B Preferred Stock shall have been paid (or set aside for payment) in
full. The holders of shares of Series B Preferred Stock shall continue to
have the right to elect directors as provided by the immediately preceding
sentence until all accrued and unpaid Preferential Dividends upon the
outstanding shares of Series B Preferred Stock shall have been paid (or set
aside for payment) in full. Such directors may be removed and replaced by
such stockholders, and vacancies in such directorships may be filled only by
such stockholders (or by the remaining director elected by such stockholders,
if there be one) in the manner permitted by law; provided, however, that any
such action by stockholders shall be taken at a meeting of stockholders and
shall not be taken by written consent thereto.
(D) Except as otherwise required by the Restated Certificate of
Incorporation or By-laws or set forth herein, holders of Series B Preferred
Stock shall have no special voting rights and their consent shall not be
required (except to the extent they are entitled to vote with holders of
Common Stock as set forth herein) for the taking of any corporate action.
Section 4. Certain Restrictions.
(A) Whenever Preferential Dividends or Participating Dividends
are in arrears or the Company shall be in default of payment thereof, thereafter
and until all accrued and unpaid Preferential Dividends and Participating
Dividends, whether or not declared, on shares of Series B Preferred Stock
outstanding shall have been paid or set aside for payment in full,
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<PAGE> 25
and in addition to any and all other rights which any holder of shares of
Series B Preferred Stock may have in such circumstances, the Company shall
not:
(i) declare or pay dividends on, make any other
distributions on, or redeem or purchase or otherwise acquire for
consideration, any shares of stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the
Series B Preferred Stock;
(ii) declare or pay dividends on or make any other
distributions on any shares of stock ranking on a parity as to
dividends with the Series B Preferred Stock, unless dividends are
paid ratably on the Series B Preferred Stock and all such parity
stock on which dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such shares are then
entitled if the full dividends accrued thereon were to be paid;
(iii) except as permitted by subparagraph (iv) of this
paragraph 4(A), redeem or purchase orotherwise acquire for
consideration shares of any stock ranking on a parity (either as to
dividends or upon liquidation, dissolution or winding up) with the
Series B Preferred Stock, provided that the Company may at any time
redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Company ranking
junior (both as to dividends and upon liquidation, dissolution or
winding up) to the Series B Preferred Stock; or
(iv) purchase or otherwise acquire for consideration any
shares of Series B Preferred Stock, or any shares of stock ranking
on a parity with the
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<PAGE> 26
Series B Preferred Stock (either as to dividends or upon liquidation,
dissolution or winding up), except in accordance with a purchase offer
made to all holders of such shares upon such terms as the Board of
Directors, after consideration of the respective annual dividend rates
and other relative rights and preferences of the respective series and
classes, shall determine in good faith will result in fair and equitable
treatment among the respective series or classes.
(B) The Company shall not permit any Subsidiary (as hereinafter
defined) of the Company to purchase or otherwise acquire for consideration any
shares of stock of the Company unless the Company could, under paragraph (A)
of this Section 4, purchase or otherwise acquire such shares at such time and
in such manner. A "Subsidiary" of the Company shall mean any corporation or
other entity of which securities or other ownership interests having ordinary
voting power sufficient to elect a majority of the board of Directors or other
persons performing similar functions are beneficially owned, directly or
indirectly, by the Company or by any corporation or other entity that is
otherwise controlled by the Company.
(C) The Company shall not issue any shares of Series B Preferred
Stock except upon exercise of Rights issued pursuant to that certain Rights
Agreement dated as of June 20, 1995 between the Company and First Interstate
Bank of Texas, N.A., as Rights Agent, a copy of which is on file with the
Secretary of the Company at its principal executive office and shall be made
available to stockholders of record without charge upon written request
therefor addressed to said Secretary. Notwithstanding the foregoing sentence,
nothing contained in the provisions hereof shall prohibit or restrict the
Company from issuing for any purpose any series
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<PAGE> 27
of Preferred Stock with rights and privileges similar to, different from, or
greater than, those of the Series B Preferred Stock.
Section 5. Reacquired Shares. Any shares of Series B Preferred Stock
purchased or otherwise acquired by the Company in any manner whatsoever shall
be retired and cancelled promptly after the acquisition thereof. All such
shares upon their retirement and cancellation shall become authorized but
unissued shares of Preferred Stock, without designation as to series, and such
shares may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors.
Section 6. Liquidation, Dissolution or Winding Up. Upon any
voluntary or involuntary liquidation, dissolution or winding up of the
Company, no distribution shall be made (i) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series B Preferred Stock unless the holders of shares of
Series B Preferred Stock shall have received, subject to adjustment as
hereinafter provided, (A) $100.00 per share plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not declared, to
the date of such payment, or (B) if greater than the amount specified in
clause (i)(A) of this sentence, an amount equal to 100 times the aggregate
amount to be distributed per share to holders of Common Stock, as the same may
be adjusted as hereinafter provided, and (ii) to the holders of stock ranking
on a parity upon liquidation, dissolution or winding up with the Series B
Preferred Stock, unless simultaneously therewith distributions are made
ratably on the Series B Preferred Stock and all other shares of such parity
stock in proportion to the total amounts to which the holders of shares of
Series B Preferred Stock are entitled under clause (i)(A) of this sentence and
to which the holders of such parity
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<PAGE> 28
shares are entitled, in each case upon such liquidation, dissolution or
winding up. The amount to which holders of Series B Preferred Stock may be
entitled upon liquidation, dissolution or winding up of the Company pursuant
to clause (i)(B) of the foregoing sentence is hereinafter referred to as the
"Participating Liquidation Amount" and the multiple of the amount to be
distributed to holders of shares of Common Stock upon the liquidation,
dissolution or winding up of the Company applicable pursuant to said clause to
the determination of the Participating Liquidation Amount, as said multiple
may be adjusted from time to time as hereinafter provided, is hereinafter
referred to as the "Liquidation Multiple". In the event the Company shall at
any time after June 20, 1995 declare or pay any dividend on Common Stock
payable in shares of Common Stock, or effect a subdivision or split or a
combination, consolidation or reverse split of the outstanding shares of
Common Stock into a greater or lesser number of shares of Common Stock, then
in each such case the Liquidation Multiple thereafter applicable to the
determination of the Participating Liquidation Amount to which holders of
Series A Preferred Stock shall be entitled after such event shall be the
Liquidation Multiple applicable immediately prior to such event multiplied by
a fraction the numerator of which is the number of shares of Common Stock
outstanding immediately after such event and the denominator of which is the
number of shares of Common Stock that were outstanding immediately prior to
such event.
Section 7. Certain Reclassifications and Other Events.
(A) In the event that holders of shares of Common Stock of the
Company receive after June 20, 1995 in respect of their shares of Common Stock
any share of capital stock of the Company (other than any share of Common
Stock of the Company), whether by way of reclassification, recapitalization,
reorganization, dividend or other distribution or
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otherwise (a "Transaction"), then and in each such event the dividend rights,
voting rights and rights upon the liquidation, dissolution or winding up of
the Company of the shares of Series B Preferred Stock shall be adjusted so
that after such event the holders of Series B Preferred Stock shall be
entitled, in respect of each share of Series B Preferred Stock held, in
addition to such rights in respect thereof to which such holder was entitled
immediately prior to such adjustment, to (i) such additional dividends as
equal the Dividend Multiple in effect immediately prior to such Transaction
multiplied by the additional dividends which the holder of a share of Common
Stock shall be entitled to receive by virtue of the receipt in the Transaction
of such capital stock, (ii) such additional voting rights as equal the Vote
Multiple in effect immediately prior to such Transaction multiplied by the
additional voting rights which the holder of a share of Common Stock shall be
entitled to receive by virtue of the receipt in the Transaction of such
capital stock and (iii) such additional distributions upon liquidation,
dissolution or winding up of the Company as equal the Liquidation Multiple in
effect immediately prior to such Transaction multiplied by the additional
amount which the holder of a share of Common Stock shall be entitled to
receive upon liquidation, dissolution or winding up of the Company by virtue
of the receipt in the Transaction of such capital stock, as the case may be,
all as provided by the terms of such capital stock.
(B) In the event that holders of shares of Common Stock of the
Company receive after June 20, 1995 in respect of their shares of Common Stock
any right or warrant to purchase Common Stock (including as such a right, for
all purposes of this paragraph, any security convertible into or exchangeable
for Common Stock) at a purchase price per share less than the Fair Market
Value (as hereinafter defined) of a share of Common Stock on the date of
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<PAGE> 30
issuance of such right or warrant, then and in each such event the dividend
rights, voting rights and rights upon the liquidation, dissolution or winding
up of the Company of the shares of Series B Preferred Stock shall each be
adjusted so that after such event the Dividend Multiple, the Vote Multiple and
the Liquidation Multiple shall each be the product of the Dividend Multiple,
the Vote Multiple and the Liquidation Multiple, as the case may be, in effect
immediately prior to such event multiplied by a fraction the numerator of
which shall be the number of shares of Common Stock outstanding immediately
before such issuance of rights or warrants plus the maximum number of shares
of Common Stock which could be acquired upon exercise in full of all such
rights or warrants and the denominator of which shall be the number of shares
of Common Stock outstanding immediately before such issuance of rights or
warrants plus the number of shares of Common Stock which could be purchased,
at the Fair Market Value of the Common Stock at the time of such issuance, by
the maximum aggregate consideration payable upon exercise in full of all such
rights or warrants.
(C) In the event that holders of shares of Common Stock of the
Company receive after June 20, 1995 in respect of their shares of Common Stock
any right or warrant to purchase capital stock of the Company (other than
shares of Common Stock), including as such a right, for all purposes of this
paragraph, any security convertible into or exchangeable for capital stock of
the Company (other than Common Stock), at a purchase price per share less than
the Fair Market Value of such shares of capital stock on the date of issuance
of such right or warrant, then and in each such event the dividend rights,
voting rights and rights upon liquidation, dissolution or winding up of the
Company of the shares of Series B Preferred Stock shall each be adjusted so
that after such event each holder of a share of Series B Preferred Stock
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<PAGE> 31
shall be entitled, in respect of each share of Series B Preferred Stock held,
in addition to such rights in respect thereof to which such holder was
entitled immediately prior to such event, to receive (i) such additional
dividends as equal the Dividend Multiple in effect immediately prior to such
event multiplied, first, by the additional dividends to which the holder of a
share of Common Stock shall be entitled upon exercise of such right or warrant
by virtue of the capital stock which could be acquired upon such exercise and
multiplied again by the Discount Fraction (as hereinafter defined) and
(ii) such additional voting rights as equal the Vote Multiple in effect
immediately prior to such event multiplied, first, by the additional voting
rights to which the holder of a share of Common Stock shall be entitled upon
exercise of such right or warrant by virtue of the capital stock which could
be acquired upon such exercise and multiplied again by the Discount Fraction
and (iii) such additional distributions upon liquidation, dissolution or
winding up of the Company as equal the Liquidation Multiple in effect
immediately prior to such event multiplied, first, by the additional amount
which the holder of a share of Common Stock shall be entitled to receive upon
liquidation, dissolution or winding up of the Company upon exercise of such
right or warrant by virtue of the capital stock which could be acquired upon
such exercise and multiplied again by the Discount Fraction. For purposes of
this paragraph, the "Discount Fraction" shall be a fraction the numerator of
which shall be the difference between the Fair Market Value of a share of the
capital stock subject to a right or warrant distributed to holders of shares
of Common Stock of the Company as contemplated by this paragraph immediately
after the distribution thereof and the purchase price per share for such
share of capital stock pursuant to such right or warrant and the denominator
of which shall be
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<PAGE> 32
the Fair Market Value of a share of such capital stock immediately after the
distribution of such right or warrant.
(D) For purposes of this Section 7, the "Fair Market Value" of a
share of capital stock of the Company (including a share of Common Stock) on
any date shall be deemed to be the average of the daily closing price per
share thereof over the 30 consecutive Trading Days (as such term is
hereinafter defined) immediately prior to such date; provided, however, that,
in the event that such Fair Market Value of any such share of capital stock is
determined during a period which includes any date that is within 30 Trading
Days after (i) the ex-dividend date for a dividend or distribution on stock
payable in shares of such stock or securities convertible into shares of such
stock, or (ii) the effective date of any subdivision, split, combination,
consolidation, reverse stock split or reclassification of such stock, then,
and in each such case, the Fair Market Value shall be appropriately adjusted
by the Board of Directors of the Company to take into account ex-dividend or
post-effective date trading. The closing price for any day shall be the last
sale price, regular way, or, in case, no such sale takes place on such day,
the average of the closing bid and asked prices, regular way (in either case,
as reported in the applicable transaction reporting system with respect to
securities listed or admitted to trading on the New York Stock Exchange), or,
if the shares are not listed or admitted to trading on the New York Stock
Exchange, as reported in the applicable transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares are listed or admitted to trading or, if the shares are not
listed or admitted to trading on any national securities exchange, the last
quoted price or, if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market, as reported by the
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<PAGE> 33
National Association of Securities Dealers, Inc. Automated Quotation System
("Nasdaq") or such other system then in use, or if on any such date the shares
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a Professional market maker making a market in
the shares selected by the Board of Directors of the Company. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares are listed or admitted to trading is open for the
transaction of business or, if the shares are not listed or admitted to
trading on any national securities exchange, on which the New York Stock
Exchange or such other national securities exchange as may be selected by the
Board of Directors of the Company is open. If the shares are not publicly
held or not so listed or traded on any day within the period of 30 Trading
Days applicable to the determination of Fair Market Value thereof as
aforesaid, "Fair Market Value" shall mean the fair market value thereof per
share as determined in good faith by the Board of Directors of the Company.
In either case referred to in the foregoing sentence, the determination of
Fair Market Value shall be described in a statement filed with the Secretary
of the Company.
Section 8. Consolidation, Merger, etc. In case the Company shall
enter into any consolidation, merger, combination or other transaction in
which the shares of Common Stock are exchanged for or changed into other stock
or securities, cash and/or any other property, then in any such case each
outstanding share of Series B Preferred Stock shall at the same time be
similarly exchanged for or changed into the aggregate amount of stock,
securities, cash and/or other property (payable in like kind), as the case may
be, for which or into which each share of Common Stock is changed or exchanged
multiplied by the highest of the Vote Multiple, the Dividend Multiple or the
Liquidation Multiple in effect immediately prior to such event.
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<PAGE> 34
Section 9. Effective Time of Adjustments.
(A) Adjustments to the Series B Preferred Stock required by the
provisions hereof shall be effective as of the time at which the event
requiring such adjustments occurs.
(B) The Company shall give prompt written notice to each holder of
a share of Series B Preferred Stock of the effect of any adjustment to the
voting rights, dividend rights or rights upon liquidation, dissolution or
winding up of the Company of such shares required by the provisions hereof.
Notwithstanding the foregoing sentence, the failure of the Company to give
such notice shall not affect the validity of or the force or effect of or the
requirement for such adjustment.
Section 10. No Redemption. The shares of Series B Preferred Stock
shall not be redeemable at the option of the Company or any holder thereof.
Notwithstanding the foregoing sentence of this Section, the Company may
acquire shares of Series B Preferred Stock in any other manner permitted by
law, the provisions hereof and the Restated Certificate of Incorporation of
the Company.
Section 11. Ranking. Unless otherwise provided in the Restated
Certificate of Incorporation of the Company or a Certificate of Designations
relating to a subsequent series of preferred stock of the Company, the Series
B Preferred Stock shall rank junior to all other series of the Company's
preferred stock as to the payment of dividends and the distribution of assets
on liquidation, dissolution or winding up and senior to the Common Stock.
Section 12. Amendment. The provisions hereof and the Restated
Certificate of Incorporation of the Company shall not be amended in any manner
which would adversely affect the rights, privileges or powers of the Series B
Preferred Stock without, in addition to any other
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<PAGE> 35
vote of stockholders required by law, the affirmative vote of the holders of
two-thirds or more of the outstanding shares of Series B Preferred Stock,
voting together as a single class.
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<PAGE> 36
IN WITNESS WHEREOF, I have executed and subscribed this Certificate of
Designations and do affirm the foregoing as true under the penalties of
perjury this 20th day of June, 1995.
By: /s/ ROBERT W. HAMPTON
---------------------------------------------
Title: Vice President
-----------------------------------------
ATTEST:
/s/ RICHARD R. ELLISON, Secretary
- ----------------------------------
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<PAGE> 1
HORNBECK OFFSHORE SERVICES, INC.
(THE "CORPORATION")
RESTATED BYLAWS AS OF JUNE 20, 1995
ARTICLE I
Offices
Section 1.1. Offices. The registered office of the
Corporation shall be at No. 100 West Tenth Street, Wilmington, Newcastle
County, Delaware. The Corporation may have such other offices within or
without the State of Delaware as the board of directors may from time to time
establish.
ARTICLE II
Capital Stock
Section 2.1. Certificate Representing Shares. Shares of the
classes of capital stock of the Corporation shall be represented by
certificates in such form or forms as the board of directors may approve;
provided that, such form or forms shall comply with all applicable requirements
of law or of the certificate of incorporation. Such certificates shall be
signed by the president or a vice president, and by the secretary or an
assistant secretary, of the Corporation and may be sealed with the seal of the
Corporation or imprinted or otherwise marked with a facsimile of such seal. In
the case of any certificate countersigned by any transfer agent or registrar,
provided such countersigner is not the Corporation itself or an employee
thereof, the signature of any or all of the foregoing officers of the
Corporation may be represented by a printed facsimile thereof. If any officer
whose signature, or a facsimile thereof, shall have been set upon any
certificate shall cease, prior to the issuance of such certificate, to occupy
the position in right of which his signature, or facsimile thereof, was so set
upon such certificate, the Corporation may nevertheless adopt and issue such
certificate with the same effect as if such officer occupied such position as
of such date of issuance; and, issuance and delivery of such certificate by the
Corporation shall constitute adoption thereof by the Corporation. The
certificates shall be consecutively numbered, and as they are issued, a record
of such issuance shall be entered in the books of the Corporation.
Section 2.2. Stock Certificate Book and Shareholders of
Record. The secretary of the Corporation shall maintain, among other records,
a stock certificate book, the stubs in which shall set forth the names and
addresses of the holders of all issued shares of the Corporation, the number of
shares held by each, the number of certificates representing such shares, the
date of issue of such certificates, and whether or not such shares originate
from original issue or from transfer. The names and addresses of shareholders
as they appear on the stock certificate book shall be the official list of
shareholders of record of the Corporation for all purposes. The Corporation
shall be entitled to treat the holder of record of any shares as the owner
thereof for all purposes, and shall not be bound to recognize any equitable or
other claim to, or interest in, such shares or any rights deriving from such
shares on the part of any other person, including, but without limitation, a
purchaser, assignee, or transferee, unless and until
<PAGE> 2
such other person becomes the holder of record of such shares, whether or not
the Corporation shall have either actual or constructive notice of the interest
of such other person.
Section 2.3. Shareholder's Change of Name or Address. Each
shareholder shall promptly notify the secretary of the Corporation, at its
principal business office, by written notice sent by certified mail, return
receipt requested, of any change in name or address of the shareholder from
that as it appears upon the official list of shareholders of record of the
Corporation. The secretary of the Corporation shall then enter such changes
into all affected Corporation records, including, but not limited to, the
official list of shareholders of record.
Section 2.4. Transfer of Stock. The shares represented by
any certificate of the Corporation are transferable only on the books of the
Corporation by the holder of record thereof or by his duly authorized attorney
or legal representative upon surrender of the certificate for such shares,
properly endorsed or assigned. The board of directors may make such rules and
regulations concerning the issue, transfer, registration and replacement of
certificates as they deem desirable or necessary.
Section 2.5. Transfer Agent and Registrar. The board of
directors may appoint one or more transfer agents or registrars of the shares,
or both, and may require all share certificates to bear the signature of a
transfer agent or registrar, or both.
Section 2.6. Lost, Stolen or Destroyed Certificates. The
Corporation may issue a new certificate for shares of stock in the place of any
certificate theretofore issued and alleged to have been lost, stolen or
destroyed; but, the board of directors may require the owner of such lost,
stolen or destroyed certificate, or his legal representative, to furnish an
affidavit as to such loss, theft, or destruction and to give a bond in such
form and substance, and with such surety or sureties, with fixed or open
penalty, as the board may direct, in order to indemnify the Corporation and its
transfer agents and registrars, if any, against any claim that may be made on
account of the alleged loss, theft or destruction of such certificate.
Section 2.7. Fractional Shares. Only whole shares of the
stock of the Corporation shall be issued. In case of any transaction by reason
of which a fractional share might otherwise be issued, the directors, or the
officers in the exercise of powers delegated by the directors, shall take such
measures consistent with the law, the certificate of incorporation and these
bylaws, including (for example, and not by way of limitation) the payment in
cash of an amount equal to the fair value of any fractional share, as they may
deem proper to avoid the issuance of any fractional share.
ARTICLE III
The Shareholders
Section 3.1. Annual Meeting. Commencing in the calendar year
1982, the annual meeting of the shareholders, for the election of directors and
for the transaction of such other
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<PAGE> 3
business as may properly come before the meeting, shall be held at the
principal office of the Corporation, at 10:00 a.m. local time, on the 10th day
of May of each year unless such day is a legal holiday, in which case such
meeting shall be held at such hour on the first day thereafter which is not a
legal holiday; or, at such other place and time as may be designated by the
board of directors. Failure to hold any annual meeting or meetings shall not
work a forfeiture or dissolution of the Corporation.
Section 3.2. Special Meetings. Except as otherwise provided
by law or by the certificate of incorporation, special meetings of the
shareholders may be called by the chairman of the board of directors, the
president, any one of the directors, or the holders of not less than
one-quarter of all the shares having voting power at such meeting, and shall be
held at the principal office of the Corporation or at such other place, and at
such time, as may be stated in the notice calling such meeting. Business
transacted at any special meeting of shareholders shall be limited to the
purpose stated in the notice of such meeting given in accordance with the terms
of section 3.3.
Section 3.3. Notice of Meetings - Waiver. Written notice of
each meeting of shareholders, stating the place, day and hour of any meeting
and, in case of a special shareholders' meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than ten nor more than
sixty days before the date of such meeting, either personally or by mail, by or
at the direction of the president, the secretary, or the persons calling the
meeting, to each shareholder 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 shareholder at his address as it appears on
the stock transfer books of the Corporation, with postage thereon prepaid.
Such further or earlier notice shall be given as may be required by law. The
signing by a shareholder of a written waiver of notice of any shareholders'
meeting, whether before or after the time stated in such waiver, shall be
equivalent to the receiving by him of all notice required to be given with
respect to such meeting. Attendance by a person at a shareholders' meeting
shall constitute a waiver of notice of such meeting except when a person
attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully
called or convened. No notice of any adjournment of any meeting shall be
required.
Section 3.4. Closing of Transfer Books and Fixing Re-Date.
In order that the Corporation may determine the shareholders entitled to notice
of or to vote at any meeting of shareholders or adjournment thereof, or to
express consent to corporate action in writing without a meeting, or entitled
to receive payment of any dividend or other distribution or allotment of any
rights, or entitled to exercise any rights in respect of any change, conversion
or exchange of stock or for the purpose of any other lawful action, the board
of directors may fix, in advance, a record date, which shall not be more than
sixty nor less than ten days before the date of such meeting, nor more than
sixty days prior to any other action. If no record date is fixed, the record
date shall be as follows: the record date for determining shareholders
entitled to notice of or to vote at a meeting of shareholders shall be at the
close of business on the day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on
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<PAGE> 4
the day next preceding the day on which the meeting is held; the record date
for determining shareholders entitled to express consent to corporate action in
writing without a meeting, when no prior action by the board of directors is
necessary, shall be the day on which the first written consent is expressed;
and, the record date for determining shareholders for any other purpose shall
be at the close of business on the day on which the board of directors adopts
the resolution relating thereto.
Section 3.5. Voting List. The officer or agent having charge
of the stock transfer books for shares of the Corporation shall make, at least
ten days before each meeting of shareholders, a complete list of the
shareholders entitled to vote at such meeting or any adjournment thereof,
arranged in alphabetical order, with the address of and the number of shares
held by each, which list, for a period of ten days prior to such meeting, shall
be kept on file at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall be
subject to lawful inspection by any shareholder at any time during the usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholders
during the whole time of the meeting.
Section 3.6. Quorum and Officers. Except as otherwise
provided by law, by the certificate of incorporation or by these bylaws, the
holders of a majority of the shares entitled to vote and represented in person
or by proxy shall constitute a quorum at a meeting of shareholders, but the
shareholders present at any meeting, although representing less than a quorum,
may from time to time adjourn the meeting to some other day and hour, without
notice other than announcement at the meeting. The shareholders present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough shareholders to leave less than a
quorum. The vote of the holders of a majority of the shares entitled to vote
and thus represented at a meeting at which a quorum is present shall be the act
of the shareholders' meeting, unless the vote of a greater number is required
by law. The chairman of the board shall preside at, and the secretary shall
keep the records of, each meeting of shareholders, and in the absence of either
such officer, his duties shall be performed by any other officer authorized by
these bylaws or any person appointed by resolution duly adopted at the meeting.
Section 3.7. Voting at Meetings. Each outstanding share
shall be entitled to one vote on each matter submitted to a vote at a meeting
of shareholders except to the extent that the certificate of incorporation or
the laws of the State of Delaware provide otherwise.
Section 3.8. Proxies. A shareholder may vote either in
person or by proxy executed in writing by the shareholder; but, no such proxy
shall be voted or acted upon after three years from its date, unless the proxy
provides for a longer period. A duly executed proxy shall be irrevocable if it
states that it is irrevocable and if, and only as long as, it is coupled with
an interest sufficient in law to support an irrevocable power. A proxy may be
made irrevocable
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<PAGE> 5
regardless of whether the interest with which it is coupled is an interest in
the stock itself or an interest in the Corporation generally.
Section 3.9. Balloting. All elections of directors shall be
by written ballot. Upon the demand of any shareholder, the vote upon any other
question before the meeting shall be by ballot. At each meeting, inspectors of
election may be appointed by the presiding officer of the meeting; and, at any
meeting for the election of directors, inspectors shall be so appointed on the
demand of any shareholder present or represented by proxy and entitled to vote
in such election of directors. No director or candidate for the office of
director shall be appointed as such inspector. The number of votes cast by
shares in the election of directors shall be recorded in the minutes.
Section 3.10. Voting Rights Prohibition of Cumulative Voting
for Directors. Each outstanding share of common stock shall be entitled to one
(1) vote upon each matter submitted to a vote at a meeting of shareholders. No
shareholder shall have the right to cumulate his votes for the election of
directors but each share shall be entitled to one vote in the election of each
director. In the case of any contested election for any directorship, the
candidate for such position receiving a plurality of the votes cast in such
election shall be elected to such position.
Section 3.11. Record of Shareholders. The Corporation shall
keep at its principal business office, or the office of its transfer agents or
registrars, a record of its shareholders, giving the names and addresses of all
shareholders and the number and class of the shares held by each.
Section 3.12. Action Without Meeting. Any action required by
statute to be taken at a meeting of the shareholders of the Corporation, or any
action which may be taken at a meeting of the shareholders, may be taken
without a meeting, without prior notice and without a vote, if a consent in
writing, setting forth the action so taken, shall be signed by the holders of
outstanding stock having not less than the minimum number of votes that would
be necessary to authorize or take such action at a meeting at which all shares
entitled to vote thereon were present and voted.
ARTICLE IV
The Board of Directors
Section 4.1. Number, Qualifications and Term. The business
and affairs of the Corporation shall be managed or be under the direction of
the board of directors; and, subject to any restrictions imposed by law, by the
certificate of incorporation, or by these bylaws, the board of directors may
exercise all the powers of the Corporation. The board of directors shall
consist of five (5) members, or such larger number as may be fixed from time to
time by action of the shareholders or the board of directors. Such number may
be decreased by amendment of these bylaws, provided that no decrease shall
effect a shortening of the term of any incumbent
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<PAGE> 6
director. Directors need not be residents of Delaware or shareholders of the
Corporation absent provision to the contrary in the certificate of
incorporation or laws of the State of Delaware. Except as otherwise provided
in section 4.3 of these bylaws, each position on the board of directors shall
be filled by election at the annual meeting of shareholders. Any such election
shall be conducted in accordance with section 3.10 of these bylaws. Each
person elected a director shall hold office until his successor is duly elected
and qualified or until his earlier resignation or removal in accordance with
section 4.2 of these bylaws.
Section 4.2. Removal. Any director or the entire board of
directors may be removed from office, with or without cause, at any special
meeting of shareholders by the affirmative vote of a majority of the shares of
the shareholders present in person or by proxy and entitled to vote at such
meeting, if notice of the intention to act upon such matter shall have been
given in the notice calling such meeting. If the notice calling such meeting
shall have so provided, the vacancy caused by such removal may be filled at
such meeting by the affirmative vote of a majority in number of the shares of
the shareholders present in person or by proxy and entitled to vote.
Section 4.3. Vacancies. Vacancies and newly created
directorships resulting from any increase in the authorized number of directors
may be filled by a majority of the directors then in office, although less than
a quorum, or by a sole remaining director. When one or more directors shall
resign from the board, effective at a future date, a majority of the directors
then in office, including those who have so resigned, shall have power to fill
such vacancy or vacancies, the vote thereon to take effect when such
resignation or resignations shall become effective, and each director so chosen
shall hold office as provided in this section in the filling of other
vacancies. A director elected to fill a vacancy shall be elected for the
unexpired term of his predecessor in office.
Section 4.4. Regular Meetings. Regular meetings of the board
of directors shall be held immediately following each annual meeting of
shareholders, at the place of such meeting, and at such other times and places
as the board of directors shall determine. No notice of any kind of such
regular meetings needs to be given to either old or new members of the board of
directors.
Section 4.5. Special Meetings. Special meetings of the board
of directors shall be held at any time by call of the chairman of the board,
the president, the secretary or any one director. The secretary shall give
notice of each special meeting to each director at his usual business or
residence address by mail at least three days before the meeting or by
telegraph or telephone at least one day before such meeting. Except as
otherwise provided by law, by the certificate of incorporation, or by these
bylaws, such notice need not specify the business to be transacted at, or the
purpose of, such meeting. No notice shall be necessary for any adjournment of
any meeting. The signing of a written waiver of notice of any special meeting
by the person or persons entitled to such notice, whether before or after the
time stated therein, shall be equivalent to the receiving of such notice.
Attendance of a director at a meeting shall also constitute a waiver of notice
of such meeting, except where a director attends a meeting for
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the express and announced purpose of objecting, at the beginning of the
meeting, to the transaction of any business on the ground that the meeting is
not lawfully called or convened.
Section 4.6. Quorum. A majority of the number of directors
fixed by these bylaws shall constitute a quorum for the transaction of business
and the act of not less than a majority of such quorum of the directors shall
be required in order to constitute the act of the board of directors, unless
the act of a greater number shall be required by law, by the certificate of
incorporation or by these bylaws.
Section 4.7. Procedure at Meetings. The board of directors,
at each regular meeting held immediately following the annual meeting of
shareholders, shall appoint one of their number as chairman of the board of
directors. The chairman of the board shall preside at meetings of the board.
In his absence at any meeting, any officer authorized by these bylaws or any
member of the board selected by the members present shall preside. The
secretary of the Corporation shall act as secretary at all meetings of the
board. In his absence, the presiding officer of the meeting may designate any
person to act as secretary. At meetings of the board of directors, the
business shall be transacted in such order as the board may from time to time
determine.
Section 4.8. Presumption of Assent. Any director of the
Corporation who is present at a meeting of the board of directors at which
action on any corporate matter 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 registered mail to the secretary of the
Corporation immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a director who voted in favor of such action.
Section 4.9. Action Without a Meeting. Any action required
by statute or permitted to be taken at a meeting of the directors of the
Corporation, or of any committee thereof, may be taken without a meeting if a
consent in writing, setting forth the action so taken, shall be signed by all
directors or all committee members as the case may be, and if the consent in
writing shall be filed with the minutes of the proceedings of the board or
committee.
Section 4.10. Compensation. As determined from time to time
by resolution of the board of directors, directors may receive stated annual
directors fees for their service payable in one or more installments, and a
fixed sum and reimbursement for reasonable expenses of attendance, if any, that
may be allowed for attendance at each regular or special meeting of the board
of directors or at any meeting of the executive committee of directors, if any,
to which such director may be elected in accordance with the following section
4.11; but, nothing herein shall preclude any director from serving the
Corporation in any other capacity or receiving compensation therefor.
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Section 4.11. Executive Committee. The board of directors,
by resolution adopted by a majority of the number of directors fixed by these
bylaws, may designate an executive committee, which committee shall consist of
two or more of the directors of the Corporation. Such executive committee may
exercise such authority of the board of directors in the business and affairs
of the Corporation as the board of directors may by resolution duly delegate to
it except as prohibited by law. The designation of such committee and the
delegation thereto of authority shall not operate to relieve the board of
directors, or any member thereof, of any responsibility imposed upon it or him
by law. Any member of the executive committee may be removed by the board of
directors by the affirmative vote of a majority of the number of directors
fixed by the bylaws whenever in the judgment of the board the best interests of
the Corporation will be served thereby.
The executive committee shall keep regular minutes of its
proceedings and report the same to the board of directors when required. The
minutes of the proceedings of the executive committee shall be placed in the
minute book of the Corporation. Each member of the executive committee shall
receive such compensation for executive committee membership and participation
in executive committee meetings, including reimbursement for reasonable
expenses actually incurred by him by reason of such membership, as may be
approved from time to time by the board of directors.
Section 4.12. Advisory Committees. The board of directors
may for its convenience, and at its discretion, appoint one or more advisory
committees of two or more directors each; but, no such advisory committees
shall have any power or authority except to advise the board of directors, any
such committee shall exist solely at the pleasure of the board of directors,
regular minutes of the proceedings of any such committee may, at the discretion
of the committee, be kept and, to the extent kept, shall be reported to the
board of directors when required. Any minutes of the proceedings of such
committees shall be placed in the minute books of the Corporation. Each member
of any such committee shall receive such compensation for such committee
membership and participation in committee meetings, including reimbursement for
reasonable expenses actually incurred by him by reason of such membership, as
may be approved from time to time by the board of directors.
ARTICLE V
Officers
Section 5.1. Number. The officers of the Corporation shall
consist of a president, one or more vice presidents, a secretary and a
treasurer; and, in addition, such other officers and assistant officers and
agents as may be deemed necessary or desirable. Officers shall be elected or
appointed by the board of directors. Any two or more offices may be held by
the same person except that the president and secretary shall not be the same
person. In its discretion, the board of directors may leave unfilled any
office except those of president, treasurer and secretary.
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Section 5.2. Election; Term; Qualification. Officers shall
be chosen by the board of directors annually at the meeting of the board of
directors following the annual shareholders' meeting. Each officer shall hold
office until his successor has been chosen and qualified, or until his death,
resignation, or removal.
Section 5.3. Removal. Any officer or agent elected or
appointed by the board of directors may be removed by the board of directors
whenever in its judgment the best interests of the Corporation will be served
thereby; but, such removal shall be without prejudice to the contract rights,
if any, of the person so removed. Election or appointment of an officer or
agent shall not of itself create any contract rights.
Section 5.4. Vacancies. Any vacancy in any office for any
cause may be filled by the board of directors at any meeting.
Section 5.5. Duties. The officers of the Corporation shall
have such powers and duties, except as modified by the board of directors, as
generally pertain to their offices, respectively, as well as such powers and
duties as from time to time shall be conferred by the board of directors and by
these bylaws.
Section 5.6. The President. The president shall have general
direction of the affairs of the Corporation and general supervision over its
several officers, subject however, to the control of the board of directors.
He shall at each annual meeting, and from time to time, report to the
shareholders and to the board of directors all matters within his knowledge
which, in his opinion, the interest of the Corporation may require to be
brought to the notice of such persons. He may sign, with the secretary or an
assistant secretary, any or all certificates of stock of the Corporation. He
shall preside at all meetings of the shareholders, shall sign and execute in
the name of the Corporation (i) all contracts or other instruments authorized
by the board of directors, and (ii) all contracts or instruments in the usual
and regular course of business, pursuant to Section 6.2 hereof, except in cases
when the signing and execution thereof shall be expressly delegated or
permitted by the board or by these bylaws to some other officer or agent of the
Corporation; and, in general, shall perform all duties incident to the office
of president, and such other duties as from time to time may be assigned to him
by the board of directors or as are prescribed by these bylaws.
Section 5.7. The Vice Presidents. At the request of the
president, or in his absence or disability, the vice presidents, in the order
of their election, shall perform the duties of the president, and, when so
acting, shall have all the powers of, and be subject to all restrictions upon,
the president. Any action taken by a vice president in the performance of the
duties of the president shall be conclusive evidence of the absence or
inability to act of the president at the time such action was taken. The vice
presidents shall perform such other duties as may, from time to time, be
assigned to them by the board of directors or the president. A vice president
may sign, with the secretary or an assistant secretary, certificates of stock
of the Corporation.
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Section 5.8. Secretary. The secretary shall keep the minutes
of all meetings of the shareholders, of the board of directors, and of the
executive committee, if any, of the board of directors, in one or more books
provided for such purpose and shall see that all notices are duly given in
accordance with the provisions of these bylaws or as required by law. He shall
be custodian of the corporate records and of the seal (if any) of the
Corporation and see, if the Corporation has a seal, that the seal of the
Corporation is affixed to all documents the execution of which on behalf of the
Corporation under its seal is duly authorized; shall have general charge of the
stock certificate books, transfer books and stock ledgers, and such other books
and papers of the Corporation as the board of directors may direct, all of
which shall, at all reasonable times, be open to the examination of any
director, upon application at the office of the Corporation during business
hours; and in general shall perform all duties and exercise all powers incident
to the office of the secretary and such other duties and powers as the board of
directors or the president from time to time may assign to or confer on him.
Section 5.9. Treasurer. The treasurer shall keep complete
and accurate records of account, showing at all times the financial condition
of the Corporation. He shall be the legal custodian of all money, notes,
securities and other valuables which may from time to time come into the
possession of the Corporation. He shall furnish at meetings of the board of
directors, or whenever requested, a statement of the financial condition of the
Corporation, and shall perform such other duties as these bylaws may require or
the board of directors may prescribe.
Section 5.10. Assistant Officers. Any assistant secretary or
assistant treasurer appointed by the board of directors shall have power to
perform, and shall perform, all duties incumbent upon the secretary or
treasurer of the Corporation, respectively, subject to the general direction of
such respective officers, and shall perform such other duties as these bylaws
may require or the board of directors may prescribe.
Section 5.11. Salaries. The salaries or other compensation
of the officers shall be fixed from time to time by the board of directors. No
officer shall be prevented from receiving such salary or other compensation by
reason of the fact that he is also a director of the Corporation.
Section 5.12. Bonds of Officers. The board of directors may
secure the fidelity of any officer of the Corporation by bond or otherwise, on
such terms and with such surety or sureties, conditions, penalties or
securities as shall be deemed proper by the board of directors.
Section 5.13. Delegation. The board of directors may
delegate temporarily the powers and duties of any officer of the Corporation,
in case of his absence or for any other reason, to any other officer, and may
authorize the delegation by any officer of the Corporation of any of his powers
and duties to any agent or employee, subject to the general supervision of such
officer.
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ARTICLE VI
Miscellaneous
Section 6.1. Dividends. Dividends on the outstanding shares
of the Corporation, subject to the provisions of the certificate of
incorporation, if any, may be declared by the board of directors at any regular
or special meeting, pursuant to law. Dividends may be paid by the Corporation
in cash, in property, or in the Corporation's own shares, but only out of the
surplus of the Corporation, except as otherwise allowed by law.
Subject to limitations upon the authority of the board of
directors imposed by law or by the certificate of incorporation, the
declaration of and provision for payment of dividends shall be at the
discretion of the board of directors.
Section 6.2. Contracts. The president shall have the power
and authority to execute, on behalf of the Corporation, contracts or
instruments in the usual and regular course of business, and in addition the
board of directors may authorize any officer or officers, agent or agents, of
the Corporation to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances. Unless so authorized by the
board of directors or by these bylaws, no officer, agent or employee shall have
any power or authority to bind the Corporation by any contract or engagement,
or to pledge its credit or to render it pecuniarily liable for any purpose or
in any amount.
Section 6.3. Checks, Drafts, etc. All checks, drafts, or
other orders for the payment of money, notes, or other evidences of
indebtedness issued in the name of the Corporation shall be signed by such
officers or employees of the Corporation as shall from time to time be
authorized pursuant to these bylaws or by resolution of the board of directors.
Section 6.4. Depositories. All funds of the Corporation
shall be deposited from time to time to the credit of the Corporation in such
banks or other depositories as the board of directors may from time to time
designate, and upon such terms and conditions as shall be fixed by the board of
directors. The board of directors may from time to time authorize the opening
and maintaining within any such depository as it may designate, of general and
special accounts, and may make such special rules and regulations with respect
thereto as it may deem expedient.
Section 6.5. Endorsement of Stock Certificates. Subject to
the specific directions of the board of directors, any share or shares of stock
issued by any corporation and owned by the Corporation, including reacquired
shares of the Corporation's own stock, may, for sale or transfer, be endorsed
in the name of the Corporation by the president or any vice president; and such
endorsement may be attested or witnessed by the secretary or any assistant
secretary either with or without the affixing thereto of the corporate seal.
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Section 6.6. Corporate Seal. The corporate seal, if any,
shall be in such form as the board of directors shall approve, and such seal,
or a facsimile thereof, may be impressed on, affixed to, or in any manner
reproduced upon, instruments of any nature required to be executed by officers
of the Corporation.
Section 6.7. Fiscal Year. The fiscal year of the Corporation
shall begin and end on such dates as the board of directors at any time shall
determine.
Section 6.8. Books and Records. The Corporation shall keep
correct and complete books and records of account and shall keep minutes of the
proceedings of its shareholders and board of directors, and shall keep at its
registered office or principal place of business, or at the office of its
transfer agent or registrar, a record of its shareholders, giving the names and
addresses of all shareholders and the number and class of the shares held by
each.
Section 6.9. Resignations. Any director or officer may
resign at any time. Such resignations shall be made in writing and shall take
effect at the time specified therein, or, if no time is specified, at the time
of its receipt by the president or secretary. The acceptance of a resignation
shall not be necessary to make it effective, unless expressly so provided in
the resignation.
Section 6.10. Indemnification of Officers, Directors,
Employees and Agents.
(a) Mandatory Indemnification. Each person who at any
time is or was a director or officer of the Corporation, and is threatened to
be or is made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative, arbitrative or
investigative (a "Proceeding"), by reason of the fact that such person is or
was a director or officer of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, member, employee, trustee, agent or similar functionary of another
domestic or foreign corporation, partnership, joint venture, sole
proprietorship, trust, employee benefit plan or other for-profit or non-profit
enterprise (all such persons entitled to indemnification hereunder being
referred to as "Indemnitees"), whether the basis of a Proceeding is alleged
action in such person's official capacity or in another capacity while holding
such office, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized by the Delaware General Corporation Law (the "DGCL")
or any other applicable law as may from time to time be in effect (but, in the
case of any amendment of an existing statute or enactment of a new statute,
only to the extent that such amendment or new statute permits the Corporation
to provide broader indemnification rights than law existing prior to such
amendment or enactment permitted the Corporation to provide), against all
expense, liability and loss (including, without limitation, court costs and
attorneys' fees, judgments, fines, excise taxes or penalties, and amounts paid
or to be paid in settlement) actually and reasonably incurred or suffered by
such person in connection with a Proceeding, so long as a majority of a quorum
of disinterested directors, the stockholders or legal counsel through a written
opinion determines that such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation,
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and in the case of a criminal Proceeding, such person had no reasonable cause
to believe his conduct was unlawful. Such indemnification shall continue as to
a person who has ceased to be a director or officer of the Corporation or a
director, officer, partner, venturer, proprietor, member, employee, trustee,
agent or similar functionary of another domestic or foreign corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan
or other for-profit or non-profit enterprise, and shall inure to the benefit of
such person's heirs, executors and administrators. The Corporation's
obligations under this Section 6.10(a) include, but are not limited to, the
convening of any meeting and the consideration thereat of any matter which is
required by statute to determine the eligibility of any person for
indemnification.
(b) Prepayment of Expenses. Expenses incurred by a
director or officer of the Corporation in defending a Proceeding shall be paid
by the Corporation in advance of the final disposition of such Proceeding to
the fullest extent permitted by, and only in compliance with, the DGCL or any
other applicable laws as may from time to time be in effect, including, without
limitation, any provision of the DGCL which requires, as a condition precedent
to such expense advancement, the delivery to the Corporation of an undertaking,
by or on behalf of such director or officer, to repay all amounts so advanced
if it shall ultimately be determined that such director is not entitled to be
indemnified under Section 6.10(a) or otherwise. Repayments of all amounts so
advanced shall be upon such terms and conditions, if any, as the Corporation's
board of directors deems appropriate.
(c) Vesting. The Corporation's obligation to indemnify
and to prepay expenses under Sections 6.10(a) and 6.10(b) shall arise, and all
rights granted to the Corporation's directors and officers hereunder shall
vest, at the time of the occurrence of the transaction or event to which a
Proceeding relates, or at the time that the action or conduct to which such
Proceeding relates was first taken or engaged in (or omitted to be taken or
engaged in), regardless of when such Proceeding is first threatened, commenced
or completed (and whether arising out of a transaction or event occurring
before or after adoption of this Section 6.10). Notwithstanding any other
provision of the certificate of incorporation or bylaws of the Corporation, no
action taken by the Corporation subsequent to the adoption of this Section
6.10, either by amendment of the certificate of incorporation or these bylaws
of the Corporation or otherwise, shall diminish or adversely affect any rights
to indemnification or prepayment of expenses granted under Sections 6.10(a) and
6.10(b) which shall have become vested as aforesaid prior to the date that such
amendment or other corporate action is effective or taken, whichever is later.
(d) Enforcement. If a claim under Section 6.10(a) and/or
Section 6.10(b) is not paid in full by the Corporation within 30 days after a
written claim has been received by the Corporation, the claimant may at any
time thereafter bring suit in a court of competent jurisdiction 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 the expense of
prosecuting such claim. It shall be a defense to any such suit (other than a
suit brought to enforce a claim for expenses incurred in defending any
Proceeding in advance of its final disposition when the required undertaking,
if any is required, has been tendered to the Corporation) that the claimant
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has not met the standards of conduct which make it permissible under the DGCL
or other applicable law to indemnify the claimant for the amount claimed, but
the burden of proving such defense shall be on the Corporation. The failure of
the Corporation (including its board of directors, independent legal counsel,
or stockholders) to have made a determination prior to the commencement of such
suit as to whether indemnification is proper in the circumstances based upon
the applicable standard of conduct set forth in the DGCL or other applicable
law shall neither be a defense to the action nor create a presumption that the
claimant has not met the applicable standard of conduct. The termination of
any Proceeding by judgment, order, settlement, conviction, or upon a plea of
nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which such person
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal Proceeding, had reasonable cause
to believe that his conduct was unlawful.
(e) Nonexclusive. The indemnification provided by this
Section 6.10 shall not be deemed exclusive of any other rights to which a
person seeking indemnification may be entitled under any statute, the
Corporation's certificate of incorporation, other provisions of these bylaws,
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in such person's official capacity and as to action in another
capacity while holding such office.
(f) Permissive Indemnification. The rights to
indemnification and prepayment of expenses which are conferred on the
Corporation's directors and officers by Sections 6.10(a) and 6.10(b) may be
conferred upon any employee or agent of the Corporation or other person serving
at the request of the Corporation if, and to the extent, authorized by the
board of directors.
(g) Insurance. The Corporation shall have power to
purchase and maintain insurance, at its expense, on behalf of any Indemnitee
against any expense, liability or loss asserted against such person and
incurred by such person in any such capacity, or arising out of such person's
status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the
Corporation's certificate of incorporation, the provisions of this Section
6.10, the DGCL or other applicable law.
Section 6.11. Meetings by Telephone. Subject to the
provisions required or permitted by these bylaws or the laws of the State of
Delaware for notice of meetings, members of the board of directors, or members
of any committee designated by the board of directors, may participate in and
hold any meeting required or permitted under these bylaws by telephone or
similar communications equipment by means of which all persons participating in
the meeting can hear each other. Participation in a meeting pursuant to this
section shall constitute presence in person at such a meeting, except where a
person participates in the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of any business on the ground that
the meeting is not lawfully called or convened.
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ARTICLE VII
Amendments
Section 7.1. Amendments. If permitted by the certificate of
incorporation, these bylaws may be altered, amended or repealed, or new bylaws
may be adopted, by the directors at any duly held meeting or by the holders of
a majority of the shares represented at any duly held meeting of shareholders;
provided that notice of such proposed action shall have been contained in the
notice of any such meeting.
Certificate by Secretary
The undersigned, being the secretary of HORNBECK OFFSHORE
SERVICES, INC., hereby certifies that the foregoing amended and restated bylaws
were duly adopted by the directors of said corporation effective on June 20,
1995, and that the foregoing bylaws are the complete and accurate bylaws of the
Corporation in effect as of such date.
IN WITNESS WHEREOF, I have signed this certification on this the 20th day of
June, 1995.
----------------------------------
Richard R. Ellison, Secretary
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HORNBECK OFFSHORE SERVICES, INC.
(THE "CORPORATION")
RESTATED BYLAWS AS OF JUNE 20, 1995
Adopted: September 8, 1981
Amended: March 11, 1986
Amended: September 27, 1989
Amended and Restated: December 11, 1990
Adopted: August ___, 1992
Adopted: December 15, 1994
Adopted: March 15, 1995
Amended and Restated: June 20, 1995
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